Robinson v. Weeks, 56 Me. 102, 106. See, also, But it has been argued that if the plaintiff can recover, there should be a deduction made for any expenses which the defendant has been put to. In Moses v. Stevens, 2 Pick. 332, the plaintiff, a boy of eighteen years, agreed to work for the defendant for three years, and the defendant was to clothe him, etc., and at the end of the time was to pay him $120. He worked three months, and left without cause of complaint; the defendant subsequently paid the plaintiff $2, which he took in satisfaction. The plaintiff sued for his work on a quantum meruit. The judge charged that he was entitled to what his services were worth to the defendant, and that the defendant was not entitled to deduct any damages for breach of the contract before the plaintiff's coming of age, but that if the defendant was injured by the sudden termination of it without notice, the jury might deduct the amount of the injury. On arguing the exceptions it was contended that the contract, being for the infant's benefit, was binding, and that the doctrine of entirety of contract applied to infants as well as adults. The court held the charge correct, that the jury should give what, under all the circumstances, the services were worth, making allowance for any injury, and that that was the reasonable and lawful course. It is claimed that the case of Moses v. Stevens was overruled in Massachusetts by the case of Vent v. Osgood, 19 Pick. 572. In the last case, the plaintiff, a minor, shipped as a seaman for a voyage, and deserted before the end of the voyage, without fault on the part of the master, and sued for his wages. The plaintiff claimed on quantum meruit for his services. The defendant contended that the effect of the minor's avoidance of the contract was prospective only, and that as he had not performed it he could not recover for past services, and Weeks v. Leighton, 5 N. H. 343, was cited as authority for applying the doctrine of entirety of contract to a minor as well as to an adult. These were the facts and the points made, and no claim was made for a deduction for damages as was made in Moses v. Stevens. The points presented to the court were essentially different. So far from its being overruled in Massachusetts, the doctrine of Moses v. Stevens is recognized in Gaffney v. Hayden, 110 Mass. 137, and in Breed v. Judd, 1 Gray 455, Thomas, J., in delivering the opinion of the court, says that the only question in the case was the question of the entirety of the contract; and that if a case like Vent v. Osgood should again arise, "the grounds on which its decision is based might need reconsideration." See, also, as to this case of Vent v. Osgood, remarks in Medbury v. Watrous, 7 Hill, N.Y. 110, 115. In the case of Judkins v. Walker, 17 Me. 18, the court lay down the rule to be in cases of suits for services, to allow for the benefit conferred beyond any injury occasioned, just as if there had been no special contract. This secures to each what may be proved to be equitable and fair under all the circumstances." In the case of Thomas v. Dike, 11 Vt. 273, the court, by Williams, C. J., say that they are inclined to adopt the rule of Moses v. Stevens, and that in a community where so much work and labor is done by persons under age, it would be unsafe if it was not adopted, and in Hoxie V. Lincoln, 25 Vt. 206, the court, by Redfield, C. J., in their opinion quote and approve the rule recognized in Thomas v. Dike, that the minor is to recover for services "what they are reasonably worth, taking into consideration the injury to the other party." Of the New Hampshire cases cited, Weeks v. Leighton, 5 N. H. 343, seems to have been decided on the ground, formerly so generally applied, of entirety of contract and precedent condition. It was there held the minor could not recover if he left the defendant's services before the expiration of the time. In Britton v. Turner, 6 N. H. 481, the court decided against applying this doctrine even in case of an adult, thus impliedly overruling the case of Weeks v. Leighton, and allowed the plaintiff to recover on a quantum meruit. And in Lufkin v. Mayall, 25 N. H. 82, the court expressly overrule Weeks v. Leighton, and hold that as under Britton v. Turner, an adult is allowed to recover on a quantum meruit, after allowing a fair indemnity, it is still more just to apply the rule to the case of a minor plaintiff. The rule thus laid down amounts to no more than this, that he is to recover the reasonable worth of his services to the defendant, which would necessarily include a consideration of any injury done, and as so stated it is reasonable and well supported by the authorities. On the other side, against allowing any deduction, are Whitmarsh v. Hall, 3 Denio 375, and Derocher v. Continental Mills, 58 Me. 217. In the latter case, the plaintiff had agreed to work in a mill for at least six months and not to leave without giving two weeks' notice. She worked a part of the time and left without notice. The court say the question is whether she is liable to have the damage occasioned by not giving the notice deducted. "To compel the minor to make good the loss occasioned by non-performance of his contract is virtually to enforce the contract." No suit could be maintained against the infant for a breach of it, they say, and to allow a deduction for damages seems to be equivalent to that. And they held that the true rule was that of Robinson v. Weeks, 56 Me. 102. On this we remark that no case has held that damages must be deducted for not giving any notice specially contracted for or not working out the whole time of the contract. But it is a very different thing to hold that there being no binding contract, the plaintiff may recover a reasonable compensation, deducting for any injury done. And the rule of Robinson v. Weeks was laid down in a case of money paid out, and not of services performed. While we think, therefore, that in cases of work and labor done, the weight of authority is in favor of the rule as stated by Redfield, J., in Hoxie v. Lincoln, 25 Vt. 206, there is no such reason for deduction in the case before us. The present suit is to recover money paid. If the minor had received any consideration or benefit whatever it would come within another class of cases. But he has received neither. And we think the principles on which Robinson v. Weeks, 58 Me. 102, and Medbury v. Watrous, 7 Hill N. Y. 110, were decided apply to it. The motion for a new trial must therefore be denied. DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. October Term, 1878. COLLECTION OF PAST DUE TAXES - BOND.-1. Where taxes long past due to the United States are paid to the collector of internal revenue, he and his sureties are liable on his bond for the amount so paid, though it had not then been returned to the assessor's office or passed upon by him, nor the return handed to the collector by the tax-payer sworn to. 2. The case of the Dollar Savings Bank v. United States, 19 Wall. 227, decides explicitly that the obligation to pay the tax on dividends or interest does not depend on an assessment by any officer, and a suit for such tax can be sustained without it. That case governs the present. The tax so paid is public money covered by the terms of the bond. King v. United States. In error to the Circuit Court of the United States for the Northern District of Ohio. Opinion by Mr. Justice MILLER. Judgment reversed in part and affirmed in part. Α MUNICIPAL BONDS- CONDITIONAL SUBSCRIPTION - WRONGFUL ISSUE OF, BY TOWN OFFICERS. town voted to subscribe for stock in a railroad company and to issue bonds therefor. The notices of the election expressly stated that no bond should be issued or delivered to the company or draw interest until the road was completed, and the subscription was in terms made subject to the condition so set forth in the notice. Notwithstanding the said condition bonds were issued by the town officers before the road was completed, and thereupon the company abandoned the road. In an action on interest coupons of said bonds, by one claiming to have purchased before maturity, for value and without notice, the plea was interposed that by reason of the above-mentioned condition the town officer had no authority to issue the bonds; that they were obtained upon the false and fraudulent representations of the company that they intended to complete the road, and that they were not obligatory on the town. Held, that said facts did not constitute a defense. The court said: "It is not averred in that plea that the insurance company had, at the time it purchased the coupons in suit, any knowledge or actual notice of the special conditions embodied in the election notice and repeated in the formal subscription of May 23, 1870. Nor is it therein alleged that the bonds, to which these coupons were originally attached, contained recitals indicating that the subscription had been voted and made upon any conditions whatever. The defendant in error was undoubtedly bound to take notice of the provisions of the statute under which the bonds were issued. But it was under no legal obligation to inquire as to the precise form or terms of the subscription, whether it was absolute or only conditional. The plea shows that the town and the citizens' (to adopt the language of the plea) were assured by the agents and representatives of the railroad company, that the latter intended, in good faith, to perform the special conditions annexed to the subscription, and that all rumors to the con trary were without just foundation. These assurances were credited, and, in reliance upon them, the supervisor and clerk executed and delivered the bonds, knowing at the time that the conditions imposed by popular vote, as well as by the terms of the subscription, had not been complied with. Thus was faith in the promises of a railroad company substituted for a contract which, had the town stood upon it, would either have secured the construction of the road as contemplated, or guarded its people against a burden which has been imposed upon them through the fraudulent conduct of railroad officials, and the violation by its own officers of the trust committed to them. By the acts of the town's constituted authorities, who, by the statute, had the right, under certain circumstances, to execute and deliver the bonds and coupons. the railroad company was enabled to put them upon the money market in advance of the construction of the road. It is now too late for the town to claim exemption, as against bona fide purchasers, upon the ground that the railroad company disregarded its promise to construct the road, or upon the ground that its own officers delivered the bonds in violation of special conditions, of which the purchasers had no knowledge or notice either from the statute or otherwise. The remedy of the city is against the railroad company, and its own unfaithful officers, who, it is alleged, were in fraudulent combination with the company." Town of Brooklyn v. Etna Life Ins. Co. In error to the Circuit Court for the Northern District of Illinois. Opinion by Mr. Justice HARLAN. 19 Alb. L. J. 361. EVIDENCE-OFFICIAL RECORDS - WHEN ADMISSIBLE. The records of a person employed by the United States Signal Service are admissible in evidence, in the absence of a statute authorizing their admission. "It may be admitted there is no statute expressly authorizing the admisssion of such a record, as proof of the fact stated in it, but many records are properly admitted without the aid of any statute. The inquiry to be made is what is the character of the instrument? The record admitted in this case was not a private entry or memorandum. It had been kept by a person whose publie duty it was to record truly the facts stated in it. Sections 221 and 222 of the Revised Statutes require meteorological observations to be taken at the military stations in the interior of the continent and at other points in the States and Territories, for giving notice of the approach and force of storms. The Secretary of War is also required to provide, in the system of observations and reports in charge of the chief signal officer of the army, for such stations, reports, and signals as may be found necessary for the benefit of agriculture and commercial interests. Under these acts a system has been established, and records are kept at the stations desiguated, of which Chicago is one. Extreme accuracy in all such observations and in recording them is demanded by the rules of the signal service, and it is indispensable, in order that they may answer the purposes for which they are required. They are, as we have seen, of a public charac ter, kept for public purposes, and so immediately before the eyes of the community that inaccuracies if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence official registers or records kept by persons in public office in which they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties, or under their personal observation. Taylor on Evidence, § 1429; 1 Greenleaf's Ev., § 483. To entitle them to admission it is not necessary that a statute requires them to be kept. It is sufficient that they are kept in the discharge of a public duty. 1 Greenl. § 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person author ized by him. Gault v. Galway, 4 Pet. 342. It is hardly necessary to refer to judicial decisions illustrating the rule. They are numerous. A few may be mentioned: Drannond v. Nesmith, 32 Mich. 231; Gurney v. House, 9 Gray, 404; Catherine Maria, 1 Adm. & Eccl. 53; Clicquot Champagne, 3 Wall. 114. We think, therefore, there was no error in admitting the records kept by the person employed for the purpose by the United States Signal Service." Village of Evanston v. Gunn. In error to the Circuit Court of the United States for the Northern District of Illinois. Opinion by Mr. Justice STRONG. Judgment affirmed. SOME RECENT FOREIGN DECISIONS. RAILROAD-SEASON-TICKET-DEPOSIT-PENALTY -REASONABLE CONDITION.-Cooper v. London, etc. R. Co. English High Court, Ex. Div. 27 W. R. 474. The plaintiff, on the purchase of a season-ticket to travel on the defendants' line, paid over and above the charge for the ticket, a deposit of 10s. One of the conditions signed by the plaintiff was that if the ticket was not re-delivered the day after expiry the deposit should be forfeited. The plaintiff did not re-deliver the ticket the day after expiry, but did re-deliver it "within a reasonable time." Held, that the condition was binding on the plaintiff, and he was not entitled to the return of the deposit. A BYCICLE A "CARRIAGE." -Taylor v. Goodman. English High Court, Q. B. Div. 27 W. R. 489. By the Highway Act, 1835 (5 & 6 Will. 4 c. 50), sec. 78, "If any person, driving any sort of carriage, shall drive the same furiously so as to endanger the life or limb of any passenger, every person so offending," is liable to conviction. The appellant rode a bicycle furiously and injured a passenger, and was convicted before justices. Held, that he was "driving a carriage," within the meaning of the section, and was properly convicted. LEASE COVENANT NOT TO CARRY ON "BUSINESS NOR PERMIT ANY ANNOYANCE- HOSPITAL. -Bramwell v. Lacey. English High Court, Chy. Div 27 W. K. 463. The lease of a house in a residential neighborhood contained a covenant not to carry on any "trade, business, or dealing whatsoever," or anything. in the nature thereof on the demised premises, or to suffer any act or thing which might be or might grow to the annoyance, damage, injury, prejudice or inconvenience of the neighboring premises. Held, that each branch of the covenant was broken by the use of the premises as a hospital for out-patients suffering from diseases of the throat and chest, not carried on for any purposes of gain, and supported partly by payments made by the patients, but chiefly by voluntary contributions. CORPORATIONS RIGHT TO USE THE NAME OF THE COMPANY AS PLAINTIFFS AGAINST THE VOTE OF A LARGE MAJORITY OF SHAREHOLDERS.-Silber Light Co. v. Silber. English High Court, Chy. Div. 27 W. R. 427. The name of a company should not be used as plaintiffs in an action by a shareholder when a very large majority of the shareholders have passed a resolution against its being so used. In such a case, the court will order the name of the company to be struck out as plaintiffs, and treat the shareholder who wishes to institute the action as having brought himself within the doctrine of Atwool v. Merriweather, L. R.5 Eq. 464n., so as to entitle him to proceed in his own name. An action having been commenced by a shareholder in his own name and in that of the company as plaintiffs, the company afterwards went into voluntary liquidation, and the shareholders resolved, by a large majority, that the action should not be continued in the com pany's name. The court ordered the company's name to be struck out as plaintiffs, but gave leave to the plaintiff shareholder to add the company as defendants. - VENDOR, PURCHASER, AND SUB-PURCHASER-DELIVERY OF GOODS TO ORDER OF SUB-PURCHASER WHO AGREES TO PAY VENDOR DIRECT RESUMPTION OF POSSESSION BY VENDOR MEASURE OF DAMAGES.-Johnson v. Lancashire, etc. R. Co. English High Court, C. P. Div. 27 W. R. 459. Plaintiffs having agreed to supply W with 100 wagons, according to sample, at £21 10s. each, employed L & Co. to supply them with the wagons according to sample at £18 each. L & Co. thereupon contracted with the defendants, the Wigan Wagon Co., for the supply of 100 wagons, according to sample, at £17 each, and with the concurrence of L & Co. it was agreed that plaintiffs should be charged by the defendants, the Wigan Wagon Co., direct. Thirty-eight wagons were delivered by the defendants, the Wigan Wagon Co., to the defendants, the L. & Y. Railway Co., to the order of plaintiff. W rejected the wagons as not being according to sample. Plaintiffs thereupon wrote to L & Co. that the wagons were not according to sample, and that they would dispose of them at the best price obtainable and hold L & Co. responsible. L & Co. then wrote to the defendants, the Wigan Wagon Co., and rejected the wagons. Plaintiffs gave notice to the defendants, the L. & Y. Railway Co., not to deliver the wagons except to plaintiffs' order. The defendants, the L. & Y. Railway Co., refused to deliver the wagons to plaintiffs, but delivered to defendants, the Wigan Wagon Co., who also refused to deliver to plaintiffs. In an action by the plaintiffs against the defendants for conversion of the wagons: Held (1.) That both defendants were liable, the property and right to possession being in the plaintiffs. (2.) That the defendants were strangers to the plaintiffs, and the measure of damages was the full value of the wagons at the time of the conversion. ABSTRACTS OF RECENT DECISIONS. SUPREME JUDICIAL COURT OF MASSA CHUSETTS. January-March, 1879. EQUITY-PETITION FOR THE SALE OF REAL ESTATE. Where real estate made chargeable by the will of a testator with the payment of debts and legacies, is, through the negligence of the original executor, allowed to be sold for the non-payment of taxes, an administrator with the will annexed, who is appointed upon the death of such executor, can not maintain a bill in equity to sell the estate free from the tax title, and to have the proceeds distributed in various directions (including the payment of all sums due the purchaser), under the authority of this court. The purchaser has a right to hold such estate until it is redeemed in one of the methods pointed out by the statute. Opinion by ENDICOTT, J.-Dewey v. Donovan. GUARDIAN-CONTRACT-SUIT AGAINST WARD.-A guardian of minor children has no authority to make any contract for labor and materials for the repair of a dwelling-house owned by them which shall bind his wards, although such repairs may be necessary; and the wards do not become parties to such contracts after the death or discharge of the guardian. Thacher v. Dinsmore, 6 Mass. 301; Hicks v. Chapman, 10 Allen, 564; Simons v. Almy, 100 Mass. 240. Opinion by COLT, J.-Wallis v. Bardwell. CONTRACT-INTEREST-CONFLICT OF LAWS.-The defendant, being a creditor of the N. E. Mining Co., a corporation established under the laws of this Commonwealth, and owning and operating a mine in the State of Colorado, in pursuance of an understanding with the plaintiff, who was also a creditor of said company, sued and obtained an execution against said company and levied upon its property in Colorado, and bought the same at the sheriff's sale for the amount of his execution. The plaintiff and defendant subsequently, at Taunton, in this Commonwealth, entered into two contracts which recited that the amount due the defendant by said company was "twenty-nine hundred dollars and interest from August 20, 1867," and it was therein agreed that the defendant should manage the property of said company, and should convey the same to the plaintiff whenever he realized the amount of his said demand, either from sales of ore or other materials previously belonging to said company, or from money paid him by the plaintiff, or from both of these sources. Upon a bill in equity to enforce said contracts, it was held, that the defendant was entitled to interest to the date of the decree upon said sum of twenty-nine hundred dollars, and upon payments and advances made by him in carrying on the mine in accordance with said contracts. Ayer v. Tilden, 15 Gray, 138; Gibbs v. Bryant, 1 Pick. 118; but that the rate of interest was to be governed by the law of this Commonwealth, as the implied promise of the plaintiff to pay was made and was to be performed here. Opinion by MORTON, J.-French v. Borden. SUPREME COURT OF OHIO. December Term, 1878. [Filed April 29, 1879.] DEED FROM HUSBAND TO WIFE WHEN DEED TAKES EFFECT.-1. A deed for the conveyance of land executed by a husband to his wife, without the intervention of a trustee, and intended as a suitable provision for her, though void at law, may be enforced in equity. 2. But such deed will not be enforced in equity to the prejudice of the rights of creditors or of children for whom no provision has been made. 3. Where a child complains against such provision for the wife, the burden of showing that no provision had been made in its favor rests upon the complainant. 4. When the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the grantee, the title passes to the grantee upon such last delivery, and, by relation, the deed takes effect as of the date of the first delivery. Opinion by MCILVAINE, J. BOYNTON, J., dissenting. Judgment affirmed.-Crooks v. Crooks. CRIMINAL PRACTICE-TRIAL RIGHT TO LIMIT TIME FOR ARGUMENT.-1. The constitutional right of a person accused of felony "to appear and defend in person and with counsel," can not be denied or its exercise unreasonably abridged; but the court may limit the argument of the accused or his counsel, provided that the accused is not thereby deprived of a fair trial. 2. On the trial of one charged with a felony, eleven witnesses were examined, and the evidence, which occupied half a day in its delivery, was circumstantial and conflicting. The accused was defended by two counsel, who were limited, by the court, to thirty minutes in the argument to the jury: Held, that this was an abuse of power which prevented a fair trial. Judgment reversed and the cause remanded for a new trial. Opinion by GILMORE, C. J. WHITE and MCILVAINE, J.J., dissented, being of the opinion that the limitation of the argument did not, considering the case presented in the record, prevent a fair trial.— Dille v. State. SUPREME COURT OF INDIANA. November Term, 1878. CONTRACTS OF MARRIED WOMEN-SEPARATE ESTATE. The question in this case is whether the rents and profits of a married woman's separate estate can be subjected to the payment of her note, where, by the note itself, she agreed to pay it from her own separate property. The note was given for a period, and is as follows: "$200. Fowler, Ind., December 10, 1874. One year after date, I promise to pay to the order of E. D. Richards, out of my own separate property, two hundred dollars, etc. (Signed), Mary O'Brien." Held, that the contract could not be enforced against Mary O'Brien, nor be made a charge upon her sepa rate estate. 60 Ind. 566, is directly in point. 59 Ind. 143. Affirmed. Opinion by PERKINS, J.-—Richards v. O'Brien. SHERIFF'S DEED-REFORMATION OF.- Complaint for the possession of land, setting out the title by a sheriff's deed on the foreclosure of a mortgage. Held, deeds of conveyance, as to the description of the premises conveyed, must be construed liberally, and in cases of this kind will be upheld whenever the description is sufficient to direct the sheriff in the execution of the writ for possession, without the exercise of any other than executive power, otherwise the deed must be held void for uncertainty. 29 Ind. 1; 34 Ind. 163; 40 Ind. 385; 41 Ind. 344. A sheriff's deed can not be reformed in the description of the premises, nor can the defect in the description be aided by extrinsic averments in the complaint. To do so would be to change the effect of the proceedings and decree upon which it is founded. A final judgment of a court can not be affected in this way. 37 Ind. 138; 42 Ind. 267; 47 Ind. 220. Affirmed. Opinion by BIDDLE, J.Lewis v. Owen. RULES OF COURT-HOW FAR BINDING.-This was a suit commenced before a justice of the peace and appealed to the circuit court where the appeal was dismissed, because the appeal bond was signed by the attorney for the defendant, and a rule of that court prohibited attorneys from signing such bonds. Held, that it was within the power of the court to make the rule in question, but as it was simply a rule of the circuit court and not the statute of the State, it would not necessarily be taken notice of as law by persons not members of the bar practising in that court. Hence, it would be unjust to such persons to punish them by a dismissal of their causes on account of the improper conduct of such attorneys, though the attorneys might have exposed themselves to punishment for contempt by the court, whose authority and rule they had knowingly disregarded. In cases where it is not by statute, but only by rule of court, that attorneys are prohibited from becoming surety, if attorneys violate such rule and become sureties, the bonds or obligations into which they enter are not void, but are binding on the obligors. 1 Chitty R. 713. The court erred in dismissing the appeal. Judgment reversed. Opinion by PERKINS, J.-Ohio, etc. R. Co. v. Handy. DECEDENTS ESTATES-PAYMENT OF DEBTS COLLATERALLY SECURED. - Martha A. Alexander filed her claim against the estate of Thos. M. Alexander, consisting of three promissory notes executed by said Thomas and Martha, each for $1,707.33, dated March 4, 1871, and due in one, two and three years. An answer was filed alleging that, at the time the notes were executed, the deceased transferred and assigned to plaintiff a judgment secured by mortgage on realty, as collateral security for the notes; that the personal estate of the deceased, after paying the widow and the debts, would not be sufficient to pay plaintiff's claim, and that if allowed real estate would have to be sold to pay it: that there is more than enough due on the judgment to pay the plaintiff's claim, and that the same can be collected. Held, that in equity the plaintiff ought to be required to proceed on the collateral and collect on her claim before asking an allowance of it against the estate, whereby real estate would have to be sold to pay it. If the administratrix were to sell realty to pay the claim and so pay it, the judgment would revert to her, or, perhaps, to the heir, whose land had been sold, and she would have in her hands personalty which should have been applied to the payment of the debt instead of the realty sold for that purpose. The plaintiff has the primary fund in her hands out of which her claim ought to be paid, and she ought to exhaust that fund before proceeding against the estate, whereby the secondary fund, the realty, would have to be sold. Judgment reversed. Opinion by WORDEN, J.-Alexander v Alexander. the owner of the fee, and the matter became absolute, conclusive and irrevocable; that therefore the school district was entitled to recover. Opinion by GORDON, J.-School District v. Milligan. 7 W. N. 42. NEGLIGENCE- APPLICATION OF THE RULE AS TO EMPLOYEES TO THE CASE OF A CONSIGNEE OF GOODS-STATUTE.-A Pennsylvania statute provides when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depots, and premises of a railroad company, or in and about any train or car therein or thereon, of which company such person is not an ememployee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee. Provided, that this section shall not apply to passengers. Held, that a consignee of goods in charge or a rauroad company, by going upon the tracks and about the cars of the company, under the direction of its servants, for the purpose of receiving and taking away the goods consigned to him, subjects himself to the operation of the act, and has no greater right of action against the company for injuries while thus employed than if he were a regular employee of the company. Opinion by GORDON, J. MERCUR, WOODWARD and TRUNKEY, JJ., dissent.-Rickard v. Penn. R. Co. 7 W. N. 37. SUPREME COURT OF PENNSYLVANIA. January-March 1879. PREMIUM ON PERPETUAL POLICY- DEBTOR and CREDITOR-COLLATERAL SECURITY-MORTGAGEE.A mortgagee to whom a perpetual policy of insurance has been assigned as collateral is entitled to the return premium upon a foreclosure of the mortgage and sale of the mortgaged premises for an amount insufficient to satisfy the debt. Opinion Per CURIAM.-Rafsnyder's Appeal. 2. WHAT IS A "VACANCY.,'-1. When a new county is erected, a vacancy "in its offices "happens," within the meaning of art. 4, sec. 8, of the constitution. Where a new county was proclaimed on August 21, 1878, and the next general election occurred on November 5, 1878: Held, that no election for officers of the new county could be held until the second general election succeeding its erection, and that the governor's appointees were entitled to hold over until the term of those who should be chosen at such election. Opinion by WOODWARD, J. MERCUR and GORDON, JJ., dissenting.- Walsh v. Com. 7.W. N. 21. STATUTE OF FRAUDS-INTEREST IN LAND-PAROL CONTRACT FOR SALE AND ABANDONMENT OF BUILDING ERECTED BY PERMISSION FOR SPECIAL PURPOSES UPON LAND OF ANOTHER.-A school district had the privilege of occupying for school purposes certain ground belonging to M, who verbally agreed to pay, and the school board agreed to receive, a specified sum for the school house which for twenty-five years had stood upon his land, upon condition that the school board would not condemn his ground for the erection of a new school house, but would abandon his land and build elsewhere. In an action by the school district to recover from M the amount he agreed to pay; Held, that the contruct was not within the statute of frauds; that the sale of the house to M was a deliberate indication of an intent to abandon the property for school purposes; that it was not the deed of the school district that was necessary to execute the contract but its act of abandonment, and upon abandonment the property immediately reverted to SUPREME COURT OF MISSOURI. October Term, 1878. [Filed March 25, 1879 ] CRIMINAL PROCEDURE - CONTINUANCE IMPROPERLY REFUSED REQUISITES OF AFFIDAVIT FOR FIRST APPLICATION-CREDIBILITY OF DEFENDANT AS WITNESS FOR HIMSELF A MATTER FOR THE JURY.-At the December Term, 1878, of the Cole circuit court, defendant was indicted for the murder of one Charles Brown. On the 3d of December he filed an application for continuance, which was overruled, and the case was set for trial on the 2d day of January, 1879, at same term, on which day defendant again applied for a continuance, which the court refused, and defendant was put on his trial, which resulted in a conviction of murder in the first degree. From that judgment he appealed. In the last application for a continuance defendant set forth the names of the absent witnesses, what he expected to prove by them, and the means used to secure their attendance. Held, that the application for continuance was improperly overruled. It was his "first application" within the meaning of the statute, his former applcation being refused, and the cause continued not to another term, but to another day in the same term. An application which is refused is not to be counted as an application under secs. 6 and 8 of Wag. Stat. pp. 1039 and 1040. Neither should defendant have been required to disclose the names of his absent witnesses, or what he expected to prove by them. The meaning of the two sections, supra, obviously is, that if a party has once on his application had a continuance from one term to another term, and again applies for a continuance, he shall give name of witnesses and what he expected to prove by them. There is nothing in the act requiring defendant to swear in his affidavit to the truth of what his absent witnesses would swear to. 2. On the trial the court gave an instruction that while defendant by law is a competent witness in his own behalf, the fact that he is testifying in his own behalf might be considered by the jury in determining the credibility of his testimony. Held, that the instruction simply declares the law, gives to the jury no information, is in conformity to the statute, and there was no impropriety in giving |