HOMESTEAD- MORTGAGE. 1. The statute which provides that no mortgage or other alienation by a married man of his homestead shall be valid without the signature of his wife to the same (R. S. 1858, ch. 134, sec. 24), does not vest any estate in the wife, living the husband, in the homestead, but operates only as a disability to the husband, living the wife, to alienate his homestead without her consent, evidenced by her signature to his alienation. 2 Where, therefore, a mortgage duly executed by the husband, of the homestead owned by him, is duly signed by the wife, but without attestation or acknowledgment of its being executed by her, it is a valid mortgage of his estate therein, though ineffectual to release her right of dower. 3. It seems that even if attestation and acknowledgment of the wife's execution were required by the statute, to render valid the husband's mortgage of his homestead, yet, under the circumstances of this case, this court would hold both husband and wife estopped to deny the validity of the mortgage in suit. Opinion by RYAN, C. J.-Godfrey v. Thornton. NEGLIGENCE-TESTIMONY OF WITNESSES AS TO SOUNDING OF WHISTLE AT RAILROAD CROSSING CONDUCT OF TRIAL. - 1. The refusal of special instructions correct in principle and applicable to the case, held, no error where the same instructions were substantially given in the general charge. 2. While in actions for injuries from trains at a railroad crossing, testimony that the witnesses did not hear a signal given by blowing the whistle, is not, as a rule, so conclusive as testimony of the same number of witnesses that they did hear it, yet this rule may be greatly modified in a given ease by the character and interest of the witnesses, their means of knowledge and manner of testifying, and other circumstances; and in this csse there is no such preponderance of evidence against the special finding of the jury on that question, as will warrant a reversal of the judgment. 3. Where the objectionable portion of a witness's evidence was not responsive to any interrogatory, and there was no motion to exclude it from the jury, it is not ground for reversal. 4. To the question, "Could the plaintiff have heard the whistle? If he had stopped his team etc., could he have heard it?" the jury answered, “He might or might not." Held, that such an answer to such questions is not evasive. 5. It is not error to al· low the jury, after coming in with a verdict, to retire for the purpose of further considering and perfecting it. Opinion by ORTON, J.-Urbank v. Chicago, etc. R. Co. EXECUTION-DUTY OF OFficer-ACTION AGAINST HIM FOR FAILURE TO EXECUTE PROCESS. 1. On receipt of an execution, in the absence of specific instructions, the officer must proceed as soon as the nature of the case will admit, to seize the property of the debtor, if he knows, or by reasonable effort can ascertain, that such debtor has property in his bailiwick liable to such seizure on execution. 2. If the officer fail to execute the process within an apparently reasonable time, the burden is upon him (in an action against him for damages for such failure) to allege and prove circumstances showing that the delay was not in fact unreasonable. 3. The duties of serving process and attending upon the circuit court while in session may both be performed by the sheriff by deputy; and his delay of four days to levy an execution (under the circumstances above stated) is prima facie an unreasonable delay, even during a term of court. 4. The sheriff's answer to such an action further avers that he put the execution on his files for service in the regular order of reception, but, by reason of his official duties, before he reached it in its order, and before he was able or had an opportunity to serve it (viz., on the fourth day after its reception), the execution debtor sold and assigned all his property, etc. There is no averment showing how many other writs were in his hands, the necessity for their speedy service, or the time required to serve them. Held, on demurrer, that the answer is insufficient. 5. A further averment in the answer, that the sheriff's failure to execute the process was without fault on his part, held to be merely of a conclusion of law. 6. The judgment on which such execution issued, being a public record in defendant's own county, and in a court in which he was an officer, he will not be heard to aver a lack of knowledge or information sufficient to form a belief as to whether such judgment was valid. Opinion by LYON, J.-Elmore v. Hill. FIRE INSURANCE-REPRESENTATIONS-WARRANTIES.-1. False and fraudulent representations of material facts in presenti, upon which a policy of insurance against fire is obtained, though not in writing, nor construed as warranties, nor having reference to future conditions of the property, will avoid the policy. 2. Where all the facts are found or undisputed, the question of materiality in such representations is for the court. 3. Where there are both general and special verdicts, if they are inconsistent, the special findings must control. R. S. 1858, ch. 132, § 32; Lemke v. Railway Co., 39 Wis. 449. 4. In an action upon a fire insurance policy, the jury found specially that at the time of the insurance the property was incumbered by mortgages to the amount of $4,551; that the insurance company, or its agent, did not know that the incumbrances amounted to more than $3,000, which was the amount represented by the applicant; and that the premises were not "steadily profitable at the time of procuring the insurance," though the assured represented them to be so. The jury also found generally for the plaintiff. Held, that the false representations were material, and the general verdict should be disregarded, and judgment rendered for the defendant. 5. The complaint alleged a written application made and signed by the assured, in which certain material false representations were made, and that these thereby became warranties. The jury found that the questions were asked and answered as stated in the written application, but that the assured did not sign it; and the evidence of that fact was admitted,and submitted to the jury without objection, and the finding was not excepted to. Held, that the variance was immaterial, and the answer may be treated as amended according to the evidence and finding. 6. A demand by the insurer of additional proofs of loss, complied with by the assured by furnishing plans and specifications of the building destroyed, will not operate as a waiver of false representations in procuring the policy, if their falsity was unknown to the insurer at the time of such demand. Opinion by ORTON, J.-Ryan v. Sheffield Ins. Co. SUPREME COURT OF MICHIGAN. April Term, 1879. ABATEMENT OF NUISANCE BY DESTRUCtion of PROPERTY.-Defendant was found guilty of causing a public nuisance in a city by reason of a mill-dam across a river, and the court imposed a fine and ordeced the removal of the dam at defendant's expeuse. Held, 1. That a court is not obliged to order the destruction of property which it has decreed to be a nuisance, Cripper v. People, 3 Mich. 117. 2. Property can not be destroyed for the abatement of a nuisance until its destruction is lawfully ascertained to be necessary therefor, and then only so far as is determined to be necessary. Welch v. Stowell. 2 Doug. (Mich.) 332; Bloombuff v. State, 8 Blackf. 205; State v. Kaster, 35 Iowa, 221: Finley v. Hershey, 41 Id. 119: Brightman v. Bristol, 65 Me. 426; Miller v. Burch, 32 Tex. 208. 3. An information charging that a dam creates a nuisance must be precise in its allegations and clear in its statement of consequences to justify destroying the dam to remove the nuisance. Opinion by GRAVES, J.--Shepherd v. People. WHAT CONSTITUTES A PUBLIC OFFICE-DISTINCTION BETWEEN OFFICER AND EMPLOYEE.-Information in the nature of a quo warranto to try the title to office of chief clerk in the office of the city assessor of Detroit. 1. An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon the particular individual who for the time being will be the officer; or the officer is distinguished from the employee in the greater importance, dignity and independence of his position, in being required to take an official oath, and, perhaps, to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and, usually, though not necessarily, in the term of his office. 2. The position of chief clerk in the office of city assessor of Detroit is not an office. No such office has ever been created, and no statute or ordinance has given the title. Neither in the facts stipulated, nor in any statute or ordinance, is any requirement of an official oath shown, and if the usual oath of office has been administered, its taking was an idle ceremony. The duties do not denote an office rather than an employment. Nothing but custom has defined them, and that has not been very specific. They can be changed at the supervisor's will, and no rule of law or well-defined custom forbids it. 3. It is at least doubtful whether the proceeding by information is applicable to the case of any office not created by the State. See People v. De Mill, 15 Mich. 164, 182. Opinion by COOLEY, J.-People v. Langdon. TRUST ACCEPTED BY PROCEEDING THEREUNDER NOT DISTURBED BY ADMINISTRATOR'S APPOINTMENT ASSIGNMENT OF NOTES BY OPERATION OF TRUST.-An administrator sued to recover the avails of certain promissory notes and a sum of money, which were the intestate's property in his life time, and had been delivered to defendant for him as the purchase price of lands sold to a third party, who gave the notes payable to intestate's order. While defendant held the money and no'es, intestate executed and delivered to him a paper, the operation of which is now in question. 1. A trust is sufficiently accepted by proceeding to execute it. 2. A declaration of trust operates to assign to the trustee the notes from which the trust fund is to be raised, even if not indorsed to him. 3. A trust, and not a mere agency, is created by an assignment executed and delivered to another, and intrusting a certain specified fund in cash and notes to his 66 good faith and sound judgment-to use and expend the same as far as may be necessary for the comfortable support" of the party executing the trust, and of his sister during the remainder of their natural lives, the surplus, if any, to be divided among his heirs according to directions. 4. Such trust remains in force as long as one of the beneficiaries is entitled to support, and can not be disturbed by the appointment of an administrator of the maker of the trust. Opinion by COOLEY, J.-Lyle v. Burke. BOOK NOTICES. [NEW BOOKS RECEIVED-Moore's Criminal Law; Callaghan & Co., Chicago. Estee's Pleading and Practice, 2d Edition, 3 vols. A. L. Bancroft & Co., San Francisco: Texas Appeal Reports, vol. 5; F. H. Thomas & Co., St. Louis.] DIGEST OF DECISIONS IN THE COURTS of Last Resort of the several States, contained in the American Reports from vol. 1 to 24 inclusive, with index of notes. By ISAAC GRANT THOMPSON. Albany: John D. Parsons, Jr. 1879. A GENERAL INDEX TO THE ENGLISH COMMON LAW REPORTS. Vol. 84 to 118 inclusive. By SAMUEL W. PENNYPACKER, E. GREENOUGH PLATT and SAMUEL S. HOLLINGSWORTH, of the Philadelphia Bar. Vol. III. Supplement; Philadelphia: T. & J. W. Johnson & Co. 1879. The "American Reports" are too well known to require any description here; as a compilation of current leading cases this series is without a rival, and furnishes to the lawyer who is not able to purchase all the reports a selection every case of which is of some particular value. The present volume is a digest of the reports from 1870, where Mr. Proffatt's American Decisions will end, to the present year. A glance at the index to the notes will show how large a proportion of the cases included in the American reports have been annotated. The supplementary index to the English Common law reports is a key to the sixty-four volumes of the English decisions which have appeared since the last index published by the Philadelphia publishers of the American reprint of the English reports. It is a necessity to every library. REPORTS OF CASES ARGUED AND DETERMINED in The improvement in the reports of this State which has taken place since Mr. Skinker was appointed reporter, and a new firm of publishers undertook their issue, must be gratifying to every member of the bar. And since then the improvement has been continuous; there has been a constant effort on the part of both reporter and publisher to make some advance on every volume. When the sixty-sixth volume was issued, it was considerably better than the sixty-fifth, and the sixty-seventh is ahead of both. To compare the mechanical execution of this volume with what we were accustomed to only two years ago, is to force one to the conclusion that twenty years must have elapsed between their publication. The reporter's work is, as in former volumes, careful, systematic and correct. The book contains over 800 pages, and brings the opinions down to the April term of last year. Most of the important decisions have already, in one form or another, appeared in these columns. Perhaps it is because there is but little litigation in the chancery courts of New Jersey that Mr. Stewart is able to find time to make his reports the reports par excellence of this country. No other State reporter excels him in the care with which the ordinary work of a reporter-the statement of facts, the writing of the syllabi, the making of the index, and, sometimes, perhaps, the correcting of the judicial English-is in each volume of his series performed. But, besides this, he has got into the way of annotating many of the cases, and thus bringing together in a note all the authorities bearing on the question discussed in the opinion. The purchaser of one of his volumes thus obtains, in addition to the judgments of the court, a dozen or more monographs on important and mooted questions. The cases reported here were decided at the October and November terms of 1878, and the February and March terms of 1879. The following points appear to be new: Specific performance was refused of a contract to build and equip a railroad, although the contract price was to be paid in the stock and the bonds of the company, and the estimates, etc., were to be made by the company: Danforth v. Philadelphia, etc., R. Co. The opinion of experts in hand-writing is evidence of a low degree: Mutual Benefit Ins. Co. v. Brown. One of two executors loaned moneys of the estate on bond and mortgage, reserving usury thereon, and appropriating it to his own use. On foreclosure by the executors on behalf of the estate: Held, that such usury could be set up as a defense. O'Neil v. Cleveland. city can not refuse to supply water to the receiver of an insolvent railway company, necessary to run its engines, on the ground that water rents due when the company was declared insolvent remain unpaid. Coe v. New Jersey, etc., R. Co. QUERIES AND ANSWERS. A [The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given when. ever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.] The following queries received during the past week are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able. QUERIES. 34. EXECUTIONS-GARNISHMENT EXEMPTION.A is a married man living with his family. B had an execution against A for labor, which was returned no property found. Cowes A $25. B garnishes C. By the statute of Illinois A is entitled to an exemption of $400 of personal property, excepting for the wages for labor or services, but the garnishee act allows a man living with his family $25 as exe.npt. Query. Can B recover from C the $25 due A. S. J. W. Lincoln, Ill. 35. JUDGMENT-EXECUTION.- B obtained a general judgment against A for $60, $50 being for balance of purchase money of a horse, and $10 for cash loaned. General execution is placed in hands of constable, who levied upon the horse sold by B to A, under provisions of act approved March 31, 1874, Mo. Sess. Acts of 1874, p. 118. Now, can A, who otherwise is insolvent, claim said horse exempt under the judgment and execution aforesaid, or is it subject to execution for the balance of the purchase money? ANSWERS. No. 33. [8 Cent. L. J. 488.] B. "S" will find his query fully answered in Taylor's Landlord and Tenant, § 598, et seq., and decisions there cited. C. Topeka, Kas. No. 29. [8 Cent, L. J. 447.] To make it more intelligible, we will call A the grantor and mortgagee, B is his grantee and mortgagor. Put C out of consideration entirely, for it is between mortgagor and mortgagee alone we have to deal. It is well settled that a mortgagor can not, by acquiring a tax title upon land, defeat the lien of the mortgagee. Jones on Mortgages, vol. 1, sec. 680, and cases there cited. But I infer, from the way "F. A. R." states his proposition, he inclines to think that the fact that the tax lien existed at the date of his mortgage makes it better for the mortgagor who bought up the tax title. I think it is true that the mortgagor has an off-set against the mortgagee and his grantor, to the extent he had to pay for the tax title he purchased, and he undoubtedly has his remedy on the covenants of his deed, but he could not "hold against" the mortgagee "by virtue of the quit claim." A court of equity would no doubt give the mortgagee his foreclosure, compelling him to pay the mortgagor what he had paid out bona fide for the tax title. To do otherwise would be to encourage cases of fraud. Jones on Mortgages, vol. 1, sec. 680, and cases cited; 40 Iowa, 209. W. R. N. Selma, Ala. NOTES. JUDGE DILLON was presented with an address by the bar of Kansas, on the 11th inst., at Leavenworth, It expressed, in flattering terms, the esteem in which he is held by the bar, and their regret at his resignation. The learned judge's reply was apt and eloquent. "When called to the bench, nearly twenty-one years ago," he said in conclusion, "the picture of the judicial office, as drawn by Sydney Smith before the law. yers of the northern circuit, made a deep impression on my mind. Even now I think I can recall it from memory: He who takes the office of an English judge, as it exists at this time, takes into his hands a gem, great and glorious, perfect and pure. Shall he marit? Shall he darken it? Shall it emit no light? Shall be find it a diamond? Shall he leave it a stone? The ideal of an American judge should, I have always conceived, be equally high. I have had many and great controversies to decide. You know me well, and it is an estimable satisfaction to be assured, in this impressive and public manner, that in your judgment I do not surrender the jewel of the great trust which I have had in my keeping marred or dimmed or darkened." -An American edition of Fisher and Harrison's Digest is announced to shortly appear.-In Wormserv. Dahlman, 7 Rep. 740, decided in the United States Circuit Court for the Southern District of New York on the 14th ult., it was held that notice need not be given to plaintiffs' attorney of proceedings for removal in a State court. Mr. Justice Mellor has retired from the English bench.-The new Constitution of California abolishes the grand jury. The Lord Chancellor of England, in a recent speech alluding to the resolution of the House of Commons in favor of abolishing actions for breach of promise of marriage, expressed himself as horrified that such a resolution should have been brought forward by a lawyer, and carried by an assembly of men, as he always regarded the right to bring such an action as almost as sacred as Magna Charta. Where license of company to transact business has been revoked, money paid agent as premium, in ignorance of such revocation, can be recovered back. 18. Will lie against one who induces a sheriff to refuse sufficient bail of a person arrested at his instance, 41. Cannot be maiutained for infecting plaintiff with venereal disease where she consented to the connection. Hegarty v. Shine, 111. Civil remedy of person injured by felonious assault and battery not suspended till offender has been prosecuted criminally, 287. Doctrine that where debt arises out of felonious act by debtor, the civil remedy is suspended until debtor has been prosecuted, considered." Rourke v. Mealy, 319 and see ex parte Ball, 478. This doctrine not applicable in its full force, in America, 371. An administratrix appointed in New York, sued in that State a New Jersey corporation to recover, for the benefit of the next of kin of the intestate, damages for the death of the intestate, caused by the negligence of the corporation, the right of action being claimed under a statute of New Jersey. Held, that the action could not be maintained, 367. ACTION TO QUIET TITLE. Under Ohio code, person in possession may maintain an action to quiet his title against person who claims an estate or interest in the property adverse to the title of the party in possession. It is not necessary that the adverse claim should relate to or affect the right of present possession, 156. ACT OF GOD. [See COMMON CARRIERS.] ADJOINING PROPRIETOR. [See NUISANCE.] ADMINISTRATION. [See EXECUTORS and ADMINISTRATORS; PARTNERSHIP.] ADMIRALTY AND MARITIME LAW. Court will not allow the whole net proceeds in the regis try as compensation to the salvor, even when his actual expenditures exceed the amount of the fund, except in cases where the owner abandons the property and neglects to reclaim it by appearance in the suit. The Carl Schurz, 147. Vol. 8-No. 29. ADMIRALTY AND MARITIME LAW-Continued. Where the proof showed that a sunken vessel after being raised was worth $1,700 but being sold pendente lite she brought only $792, and that libelant actually expended $568.95, under circumstances which would ordinarily have justified an allowance of one-half the property, the court only allowed one-half the net proceeds in the registry. bid. A salvor must bear his loss by depreciation in value. He is sub modo a joint owner, and in the absence of an express contract he cannot recover on any theory of a debt due by either the owner or the property, with a lien to be satisfied, at all hazards, to the full extent of the proceeds in the registry. Ibid Under a statute declaring that certain vessels "shall be subject to a lien" for repairs, materials, etc., such lien dates from the time the repairs are furnished, and not from the time the vessel is seized. The Theodore Perry, 191. Though a lien for repairs is presumed to be waived by taking a mortgage upon real estate, parol evidence is admissible to show that the mortgage was received as collateral security. and with no intention of waiving the lien. Ibid. Where a mortgage is received simply as collateral security and not as conditional payment, it does not operate to extend the time for payment of the original debt, notwithstanding the mortgage itself is made payable at a distant day. Ibid. A lien for repairs furnished in the home port is entitled to be paid in preference to a subsequent mortgage. Ibid. A lien for repairs may be enforced, notwithstanding the bond and mortgage given to secure it are not tendered back to the mortgagor, or surrendered in court at the trial. Ibid. The lien of a material man must be promptly enforced as against a subsequent mortgagee, though the claim had not become stale at the time the mortgage was given. Ibid. Liability of owner chartering vessel for freight, 195. The rule of salvage compensation, adopted in cases arising on the high seas, can not safely be followed in cases arising on the western rivers, because the peril of life is generally much less. Mattingly v. 357 Bales of Cotton, 227. Where a steam tug on the Mississippi river rendered a salvage service by towing a vessel laden with cotton away from another vessel, which was being consumed by fire, it requiring from five to ten minutes time to remove the former vessel from the imminent danger, and thirty minutes to tow her to a place of safety, the property thus saved being 223 bales of cotton: Held, that one-third of the value of the cotton would be an excessive and exorbitant allowance to the owners of the tug as salvors; and $750 was allowed in this case. Ibid. Abandonment and its Effect. Leading article, 391. ADOPTION. On the death of an adopted child, his estate will go to his relations by blood, and not to those by adoption; and this even if the estate which so descends has been derived from the adopted parent. The statute as to adoption has not changed the general rules of descent established in the general statutes on that subject. Reinders v. Koppelmann, 245. ADULTERY. Visits to house of illfame not conclusive evidence of, 20. ADVERTISEMENT. [Se NEWSPAPER.] AFFIDAVIT. [See PLEADING AND PRACTICE.] AGENCY. Commisssion to be paid "on any money received," 37. Insurance broker; sub agent; monthly debits; payment to intermediate agent, 37. Rule that principal may ratify unauthorized act of agent does not apply to case of a forged note, 58. Demand before suit against agent by principal unnecessary, where agent received money for principal under a contract, whereby he agreed to remit, on or before the last day of each month, the balance due, by draft or otherwise, as directed, 59. An undisclosed arrangement to act for each side in negotiating the sale or exchange of property is contrary to public policy, and affords no ground of action to recover pay for the service, even though there is no actual fraud or duplicity. Scribner v. Collar, 205. By a written agreement, a party placed property for sale or exchange, at his option, in plaintiffs' hands, agreeing to pay a commission, and to render all assistance in his power in making such sale or exchange: Held, that this did not render plaintiffs mere middlemen to bring the parties together, but authorized them to negotiate, and AGENCY-Continued. contemplated that they should use their judgment and influence in their employer's behalf; and that an undisclosed retainer by the party with whom an exchange was finally consummated, prevented recovery of commission. Ibid. Sale by sample by agent does not authorize payment by purchaser to agent in absence of authority to agent to receive payment, 232. Principal must repudiate void contract of agent within reasonable time, 285. That a person who has sold an article which infringes a patent sold it as the agent of another, and has no interest in it, is no ground for refusing an injunction against him, 367. The liability of a book canvasser to his subscribers, 389. Authority to agent to insert in a deed the name of grantee may be given by parol, 407. A soliciting agent of an insurance company is the agent of the company, and not of the insured, even though the policy states otherwise, 407. AMENDMENTS. [See PLEADING AND PRACTICE.] ANSWER. [See PLEADING AND PRACTICE.] APPEALS AND APPELLATE PROCEDURE. Rehearing will not be allowed merely for the purpose of assigning errors not assigned upon original hearing, 17. Appeals in chancery in attachment cases, 21. Where a case has been decided in an inferior court of a State on a single point which would give the Federal Supreme Court jurisdiction, it will not be presumed in latter court that the Supreme Court of the State decided it on some other ground not found in the record or suggested in that court. Keith v. Clark, 31. Extension of time for filing bill of exceptions may be granted by court, but not ex parte, 79. When appellate court will reverse on ground of prepond arance of evidence, 99. Party prosecuting action on merits after reversal by district court, waives right to prosecute error to Supreme Court to reverse judgment, 98. Requisites of a "case made" (Kas.), 117. Who has authority to settle a "case made," 118. Irregularities in procedure may justify reversal of decree, but not dismissal of bill, 155. When appeal is prosecuted in good faith, damages will not be awarded, 236. Whether appearance on appeal must be personal or by attorney, 282. Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial. Baker v. Pendergrast, 335. Appeal from Illinois appellate court to Supreme Court; necessity of certificate of appellate court, 463. No appeal from St. Louis court of appeals to Supreme Court in disbarment proceedings, 468. Power of Supreme Court (Ohio) to amend judgment and decrees of Supreme Court Commission, 504. ARBITRATION AND AWARD. Power of court to appoint arbitrators, 175. Omission to swear arbitrators waived by going to trial, 175. Effect of signing of award by less than all the arbitrators, 175. ARBITRATORS. [See ARBITRATION AND AWARD.] ARSON. On indictment for, that defendant set fire to same build. ing, several nights previous, relevant, 19. ASSAULT. In an action for assaulting and beating the plaintiff, and infecting her with venereal disease, it appeared that the plaintiff had for a lengthened period consented to illicit sexual intercourse with the defendant, in ignorance of the fact, willfully and deceitfully concealed by him, that he was affected with the disease, had she known of which she would not have consented to connection. Held, that the action was not sustainable as for a constructive assault. Hegarty v. Shine, 111. Where two persons fight by consent, the one beaten may recover damages for the assault, 471. ASSAULT-Continued. Sufficiency of indictment for assault with intent to kill; whether instrument used a deadly weapon, a question for the jury, 504. ASSESSMENTS. [See CORPORATIONS; TAXATION.] ASSIGNMENT. A court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he can not bring an action at law in his own name, nor unless it appears that the assignor prohibits and prevents such an action to be brought in his name, or that an action so brought would not afford the assignee an adequate remedy. Walker v. Brooks, 149. The assignment of a debt carries with it a vendor's lien by which it is secured, 156. When several obligations are secured by a common lien, assignment of a portion of them operates to transfer the lien pro tanto, 156. W made a verbal agreement to give his bankers a charge upon the current half-year's rent of certain land in consideration of £200 advanced to him by them. He then wrote to his tenants, "When your Michaelmas rent becomes due to me I hereby authorize and request you to pay" £200 to the bankers. Held, that the letter was not an equitable assignment, there being no consideration except by the verbal agreement which, as it related to an interest in land, was by the statute of frauds not receivable in evidence. Re Whitting, 272. ASSIGNMENT FOR BENEFIT OF CREDITORS. An assignment with understanding that part of property should be conveyed to trustees for use of debtor's fam ily void as to non-consenting creditors; humerous opinion of Breckenridge, J., 24. Will not defeat order of delivery of property made by court, and right to trial and judgment, 78. ASSUMPTION OF MORTGAGE. [See MORTGAGE.] ASSUMPTION OF PAYMENT. [See CONTRACTS; PAYMENT.] ATTACHMENT. Appeals in chancery in attachment cases, 21. Attaching creditor may defend against involuntary petitition in bankruptcy which would defeat his attachment, 41. Lands fraudulently conveyed with intent to defeat creditors may be attached, 179. Attachment suit, as against the property seized, is a proceeding in rem, 179. Cannot operate upon mere legal title as against the equit. able owner, when, 233. Money paid into court and deposited in bank to credit of cause, not liable to, 387. ATTORNEY AND CLIENT. The proceeding to disbar an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court. The right to remove attorneys for professional misconduct is inherent in the courts; legislation on the subject has not restricted or increased their power over their officers. Re Bowman, 250. The proceeding need not be in the name of the State; it is the right and duty of members of the bar to file the necessary information against any attorney who is guilty of improper practices in his profession; neither is a formal or technical description of the act complained of requisite to the validity of such a proceeding. Ibid. The words "misdemeanor in his professional capacity," in the Missouri statute as to attorneys at law is not used in the technical sense of offenses punishable by fine and imprisonment in jail, but as the equivalent of profes sional misbehavior. Ibid. Where the act with which the attorney is charged is one malum in se, as taking money on both sides of a case, it is enough to prove the act; it is not necessary to prove that he committed a wrong. Ibid. Where an attorney in a proceeding to disbar him demands a jury, and is found guilty after a fair trial, of several distinct charges, each involving a violation of his sworn duty to his clients in grave matters, it is for the judge who heard the evidence to pass sentence; and where no material error was committed in ariving at the verdict, the appellate court can not interfere with the judgment, if it was in accordance with the nature of the facts found. Ibid. The section of the general insurance law of this State (Wag. St. 734, § 7), which forbids the employment in any capacity by the superintendent of insurance of any agent or employee of an insurance company, applies to an attorney who is a salaried officer of such company. Ibid. |