PLEADING AND PRACTICE-Continued.

The power of a court either trial or appellate to amend a judgment by striking out the name of a party, 340.. Misnomer in writ may be amended, 405.

Affidavit may be amended by attaching notary's seal, 484. Conduct of Trial; see also Jury.

That the judge who presided at the trial of a case was an honorary member of the Bar Association, the prosecutors, did not disqualify him, he not being liable for assessments for expenses of the association. man, 250.

Re Bow

Right of counsel to reasonable time in which to make argument. White v. People, 273.

Reading medical works to jury, 326. Continuance.

Affidavit for, may be attacked in same manner as deposition by impe iching he veracity of the witness, 78. Costs.

Costs of proceedings to establish the validity of a will as against one previously executed, are awarded against the estate, and not against the proponent, when the latter has been designated by the court to represent the parties interested. Conely v. McDonald, 22.

Declaration-Petition.

Allegation that president of bank authorized to make assignment of property, admitted unless denied under oath, 78.

Performance or excuse for non-performance of condition precedent must be pleaded, 216.

Account annexed to petition can be made more definite and certain on motion, 284.

Petition which fails to state facts sufficient to constitute cause of action, fatally defective; advantage may be taken of defect after judgment by default, or in Supreme Court, 485.

Defense-Answer.

Petition alleged the making of certain assignments; answer, besides general denial, averred that they were without consideration and good faith: Hel, that the fact of the assignment was admitted, 78.

Right to set-off damages by plea to action in contract, 326. Effect of plea of nul tiel corporation. 326.

Depositions.

The value and weight of depositions as evidence, 386. Depositions taken between same parties or privies admissible in evidence in other actions w thout being filed or notice given of such intention, 484.

Equity.

Chancery procedure; decree based on commissioner's report; exceptions; appeal, 218.

When equity not authorized to retain fund paid into court, to allow validity of assignment thereof to be lit igated, 387.

Joinder of Actions.

Cause of action against one for the wrongful taking of personal property can not be joined with an action against the party who has received, and who at the time of bringing the action has possession of the pr p erty, 346.

Several school districts can not join in action to recover money paid by all, 404

A cause of action for slander may be joined with an action for divorce, 404.

Jury; see also Conduct of Trial.

Failure of any grand juror to possess necessary qualifications renders indictments found by grand jury, voidable, 118.

Grand juror competent witness to prove his qualification, on motion to set aside indictment 118.

One unable to read English not eligible for juror, 180. Verdict arrived at by lot; affidavit of jurors, 233. Error for juror to examine map not put in evidence, 237. When the examination of a juror on the voir dire does not show that he was under the influence of impressions that would close his mind to evidence, the fact that he had formed an opinion does not render him incompetent. Re Bowman, 250.

A verdict will not set aside because an affidavit is filled as to the expressions of prejudice against the defendant on the part of the juror, uttered before the trial, when the juror, under oath, denies the allegations. Ibid. The trial judge may properly refuse to consider a paper signed by a portion of the jurors, requesting the court to pass a light sentence. Ibid.

No suitor entitled to colored jurors as of right, 346. Privilege of juror to refuse to answer questions criminating himself, 402.

PLEADING AND PRACTICE-Continued.
Miscellaneous Rulings.

Character of pleading determined by averments it con tains, and not by name given it, 17.

Case tried by court without jury; court not bound to find specially or state conclusions of law and fact separately unless requested, 78.

Tender and payment into court; right to custody of moneys in court. 79.

Variance between allegations and proof; if party misled this fact can only be established by affidavit, 284. Five days' rule adopted in Cook county, Ill., is inconsistent with general practice act, and void, 345.

How far "rules of court" are binding upon litigants, 424. Service of original notice, and not its delivery to offcer for service, is the commencement of the action, 446. Suggestion of bankruptcy filed on day of entry of judg. ment, 462.

Variance between copy of instrument in suit, and attempt ed description thereof in complaint, copy controls,

486.

Misnomer.

In complaint, no ground for reversal, 215. New Trial.

Requisites of petitition for, under Iowa code, 98. Parties,

Surety in recognizance may be sued without joining principal, 233.

In proceedings to quiet title, 324.

K filed a bill against D claiming 184 shares of stock in company, and charging that while in possession of the books and control of the office of the company, he caused a transfer to be made on the books of the com. pany to him of the shares of its stock owned by plaintiff, and the relief asked was the restoration of the stock on the books of the company to the name of the plaintiff, and the future recognition by the company of his rights in the stock. The bill prayed that D should be compelled to do this. Held, that in the absence of the company as party to the proceedings, no such relief could be decreed, 384.

In action for divorce, third party may be joined, 404. Process.

Foreign insurance companies not having chief offices here can not be served with process upon local agents, 304, Service of process on corporation; falsity of sheriff's return must be met promptly by plea in abatement, 305. Foreign corporation can not be served by serving agent who is temporarily in county, 345.

A statute prescribed the form of an affidavit to be indors. ed on all writs of attachment. This statute being in force, an officer first made the required affidavit as the plaintiff's agent, and then, as officer, served the writ by garnishment: Held, that his act, although improper, was not illegal, and that the attachment was valid, 463. Recognizance.

Not essential to validity of recognizance that it should contain every condition provided by statute, 176. Referee.

In trial before referee, latter acts as court, and exceptions to his action or rulings should be taken in same manner as if trial were before court, 17. Report of, must be in writing, 426. Set-off and Counterclaim.

Action on judgment; set-off of breach of bond given by assignee of judgment, 19.

Where facts alleged in answer constitute a counterclaim they should be treated as such, whether they are so named by the pleader nor not, 78.

Simple allegation of payment as a defense in answer can not be regarded as a counterclaim, although affirmative relief is asked for, 78.

To entitle a lefendant to affirmative relief, answer must contain all requisites of petition upon similar cause of action, 78.

The general rule in equity, as at law, is that joint debts can not be set-off against separate debts, unless there is some special equity justifying it, 136.

If there are such equities, the bankruptcy of the party against whom they exist, is sufficient ground for the allowance of the set off against notes not due at the time of assignment. Ibid.

Defendant in tort can not plead a counterclaim er contractu, not arising upon same transaction declared on in complaint, 178.

Statement in Mack v. Woodruff, 8 Cent. L. J. 130: "It has been held that in a suit brought by an administrator against a debtor to the estate, the latter can not set of a claim for money the debtor has paid as surety for the deceased after his death," corrected, 179.

PLEADING AND PRACTICE-Continued.

Execution of a cognovit is a waiver of the right to a setoff for causes then known to be existing, 196. Defendant may proceed to trial of counterclaim notwithstanding action has been dismissed, 233.

United States Courts.

No discretion in circuit court to stay proceedings in suit on judgment from another State to await writ of error which does not operate as a supersedeas, 41.

The Federal courts, in awarding writs of mandamus as auxiliary to their general jurisdiction previously acquired, will conform to the State practice in similar cases. Wisdom v. City of Memphis. 109.

Granting or refusing new trial in Federal court not reviewable, 175.

Process of a Federal court may be served upon a foreign corporation doing business in the State. By doing business in the State it is "found" there, within the meaning of that word in the Federal statutes. Wilson Packing Co. v. Hunter, 333.

The right under section 831 of the Revised Statutes, to require a panel of jurors called to serve for a term to take an oath therein prescribed, or be discharged from the panel, is one which can only be exercised by the district attorney; it does not belong to either of the suitors, 445.

The lien of judgments of Federal courts, 469.

RECEIVERS.

The CD & V Railroad executed two mortgages to F and another, as trustees, to secure an issue of bonds. The mortgages covered all the franchises, issues and profits of the company, and all the property it then owned or possessed, or might thereafter acquire, either in law or equity. Afterwards, the company entered into an agreement with one S to purchase from him certain cars to be used on the road, said cars to be delivered in installments, and to be paid for in notes of the company, the cars to remain the property of S until paid for, and a large number were delivered to the company under this contract. The mortgages being subsequently foreclosed and receivers appointed, the cars were claimed by the mortgagees and intervening bondholdThe cars being necessary for the use of the road were used by it during the possession of the receivers. The court below held that S had not parted with the title to the cars, and was entitled to their possession, and also ordered that a certain sum should be paid him by the receivers and prior thereto. Held, 1. That the title of the mortgagees was subject to the rights of S under his contract. 2. That the order for the payment out of the funds in court of the rental of the cars during the said term was improper. Fosdick v. Schall, 299 and see 303.

ers.

Order of circuit court denying mortgagee's motion for appointment of receiver pending foreclosure, interlocutory, and not appealable, although mortgage contains clause giving mortgagee, in case of default, right to take possession and operate the works, 323.

A court of chancery may, in a suit to foreclose a mortgage, appoint a receiver to collect the rents and profits arising from the property mortgaged, even when the mortgage does not, by express terms, give a lien upon the income derived from such property, and although there may have been a decree and sale of property under the mortgage. Haas v. Chicago Building So ciety, 456.

But this can only be done where it is made to appear that the mortgaged premises are insufficient security for the debt, and the person liable personally therefor is insolvent, and where there are circumstances of fraud or bad faith on the part of the mortgagor, which would render a denial of the relief sought inequitable. Ibid. Whether these first two conditions would be sufficient, without circumstances of fraud or bad faith-quære? A city can not refuse to supply water to receiver of insolvent railway company, necessary to run its engines, on the ground that water rents due when company was declared insolvent remain unpaid, 508,

A receiver appointed in a foreign jurisdiction, clothed with authority to take the designated property wherever situate, may sustain a suit for such property in the courts of this State. This is the rule whenever the creditors of the person represented by the receiver do not intervene. Hurd v. City of Elizabeth, 493.

RECOGNIZANCE.

[See PLEADING AND PRACTICE].

RECORDS.

[See EVIDENCE; JUDGMENTS AND DECREES.] REFEREE.

[See PLEADING AND PRACTICE.]

REFERENCE.

[See ARBITRATION AND REWARD; PLEADING AND PRAC TICE.]

REFORMATION.

Of mortgage; bona fide purchaser from judgment creditor can not be affected by, 39.

Of a deed of a married woman, 42.
Jurisdiction of equity to reform written instruments, 155,
Of will; mistake, 178.

A sheriff's deed can not be reformed, 424.
REGISTRATION.

Where a mortgage for $5,000 was correctly entered in the "entry book" of the recorder's office, but was by the mistake of the recorder, and without any fault of the mortgagee, recorded in the mortgage record, as being for only $500: Held, that the mortgage did not take priority over a subsequent bona fide mortgage for a valuable consideration, and without other notice than was disclosed by such record, except as to the amount for which it was actually recorded. Nor was the actual knowledge that the mortgage was indexed as one for $5,000 sufficient to put the subsequent mortgagee on inquiry and charge him with notice of the mistake in the record. Gilchrist v. Gough, 166.

A novel system of recording deeds, 428.

Liability of recorder of deeds for omitting mortgage in certificate, 464.

RE-HEARING.

[See APPEALS AND APPELLATE PROCEDURE.]

RELEVANCY.

[See EVIDENCE.]

REMOVAL OF CAUSES.

One C was the trustee of certain property in Alabama left by will to testator's daughter. On the death of the latter, the trustee filed a bill in the State court against parties claiming the property, viz. the brothers and sisters of the deceased, her administrator in Alabama, and her husband, for the settlement of his trust and for instructions as to the disposition of the property. All the parties, except the husband who resided in New York, were residents of Alabama, The husband filed a petition for the transfer of the cause to the Federal court, Held, that he was not entitled to have the cause removed under any of the acts as to the removal of causes. Ex parte Grimball, 151,

On the presentation of a petition for removal, it is the duty of the State court to examine it, and if necessary look into the case to which it relates, in order to ascertain whether it and the petitioner's relation to it are such as to entitle him to remove it. Ibid.

Court will overrule motion for removal where proper proceedings have not been taken, 137.

If petitioning party do not file copy of record, other party may do so, 201.

After judgment in a case in the State court has been reversed on appeal and a new trial ordered, the right to a new trial must be perfected absolutely before a party is entitled to remove it into the Federal court, under the statute of March 3, 1875, 323.

A motion, under the Missouri statute as to corporations, for execution against a stockholder, can not be removed to the Federal court. It is not a "suit at law or in equity," within the meaning of these words, as used in the statutes giving the right of removal of causes from State to Federal courts. Webber v. Humphreys. 417. Amount in controversy how determined, 445.

If parties substituted on the record by involuntary process are entitled to remove the case, they may do so, though the original parties in the suit were not so entitled, 445.

Notice need not be given to plaintiff's attorney, of proceedings for removal in a State court, 508.

When is a cause removed from a State court actually within the jurisdiction of the Federal Court? Query, 408; answer, 447.

REPLEVIN,

Against officer having possession of intoxicating liquors wrongly seized, 38.

Form of judgment for defendant where goods seized have been disposed of before judgment, 177.

Limiting liability of replevin bail, 265.

Purchaser at foreclosure sale can not before sale is confirmed maintain replevin for crops growing on the land at the time of sale, 325.

May be maintained without notice where [goods are sold on condition, 385.

RES ADJUDICATA.

[See JUDGMENTS and DECREES.]

RESCISSION.

[See SALES.]

REVENUE LAWS.

Meaning of "reasonable cause," in U. S. revenue laws, 174.

REVOCATION.

Of contract for "good cause"; construction of term, 324. REWARD.

[See FINDER.]

RIPARIAN RIGHTS.

1See WATERS AND WATERCOURSES.]

ROADS.

[Bee HIGHWAYS.]

SALES.

[See also AGENCY; FALSE AND FRAUDULENT REPRESENTATIONS; WARRANTY.]

Effect of sale "with all faults." Ward v. Hobbs, 5.

When right of purchaser to rescind must be exercised, 39. Vendor may protect himself by rescission against fraud of insolvent vendee, 218.

Personal property belonging to wife sold by husband; title, 326.

Evidence of fraud necessary to enable vendor to annul sale, 429.

[See JUDGMENTS and DECREES.] SPECIFIC PERFORMANCE.

[See also HUSBAND AND WIFE.]

When there is a change of circumstances which can not be compensated for in damages, resulting from the failure or refusal of one party to perform his part of the contract, that party is not entitled to a specific execution, but the injured party is entitled to a rescision, 155. Specific performance refused of contract to build and equip railroad, although the contract price was to be paid in stock and bonds of company, and estimates, etc., were to be made by company, 508.

STATE.

Does not possess common law prerogative of crown to have debts paid in preference to other creditors, 62. STATUTE OF FRAUDS.

Defendant agreed to pay a minister for his services two dollars a year, and had for several years paid the sum half-yearly. Subsequently he refused to pay any longer. Held, not within the statute, 23.

A, living in Milwaukee, Wis., went to Connover, Ia., and there took an order for goods from B, but no memorandum in writing was signed, and no part of the purchase price was paid at the time the contract was made. The goods were shipped by rail from Milwaukee to B at Connover. Held, that the contract must be governed by the law of Iowa, and being void by the statute of frauds of that State, the delivery of the goods to the railroad company by A did not constitute an acceptance of them by B so as to take the case out of the statute. Kiewert v. Meyer, 65.

Memorandum under, may be signed in lead pencil, 203. The memorandum in writing necessary to make a contract, within the meaning of the statute of frauds, though signed by the defendant and describing with sufficient distinctness the property sold, and the consideration to be paid, is not sufficient to sustain an action, unless the other party to the agreement is either named in the memorandum or so designated in some paper signed by the defendant that he could be identi fied without parol proof. Grafton v. Cummins, 381.

Enactment by Congress of the Revised Statutes did not make anything law which was not law on December 1, 1873, 142.

At what time criminal statutes take effect, 134.

Penal statutes are to be construed strictly. If there is a fair doubt whether the act charged in the indictment is embraced in the criminal prohibition, that doubt is to be resolved in favor of the accused. United States v. Reese, 453.

A question as to the effect of repugnant statutes. Query, 388; answer, 488.

Sureties on bond of bank messenger liable for theft of principal while acting outside the scope of his employment, 96.

Guaranty to have bricks made "in the best manner and at the lowest cost possible;" construction, 97. Knowledge of principal of agents bad character not com. municated to surety is a fraud on him, and discharges him from liability, 156.

Statement in Brandt on Suretyship and Guaranty that "a suit against the sureties on a guardian's bond is sus. tainable without a previous liquidation of the amount due by the guardian" criticised, 138, 180.

Debtor and creditor; securities given to surety; right of creditor. Re Baldwin, 186.

When fact of suretyship does not appear on face of note, to maintain defense of suretyship defendant must prove notice to plaintiff, 200.

The arrest and detention in another country of a prisoner who is under bond for appearance does not release his sureties, 407.

An attorney who tenders himself as a surety on a bond, and is accepted by the proper officer, can not afterwards plead his disability to relieve himself from his obtigation, even though it is provided by statute that "no attorney shall be received as security in any proceeding in court," 407.

Sureties of a city treasurer signed a printed form of a bond with blanks for inserting in the body the names of the sureties, amount of the penalty, the office to which the principals have been elected, etc. These blanks were afterwards filled up by the city officers, without the knowledge or consent of the suretics. Held, that the sureties were not bound, 427.

A statute requiring a city treasurer to take the oath of office and file his bond within fifteen days after his election, is mandatory, and a failure to file such bond within the required time is a vacation of such office, and relieves the sureties from liability on the bond,.

427.

Laches of officers or agents of government to assert claim, do not discharge sureties on official bonds, 155. That duties and responsibilities of principal have been enlarged during his term does not render void the bond as a security for what it was originally given to secure, 155. Sureties on official bond of coroner liable for his negliligence while acting as sheriff, 198.

Bond in alternative; construction of "or," 185.

A bond stipulating for the good conduct of an officer for a fixed term and until another is appointed, will not remain in force after the reappointment of the original officer, 221.

Bond will not be construed so as to render surety liable for acts committed prior to its execution, unless such intent is clear from its terms, 345.

A bond can not be avoided at the instance of a surety upon the ground that he signed it under a conditional agreement with the principal made at the time of signing it which the latter had failed to carry out, unless the obligee had notice of the agreement at or before his acceptance of the obligation, or had knowledge of such facts and circumstances as to the rights of the surety as would place a prudent man on inquiry. Hall v. Smith, 398.

The defendant signed his name as surety on a bond, in the body of which the names of J H and W L H were inserted as sureties, on the condition that they should become jointly bound with him as sureties. The bond was then delivered by him to his principal for the purpose of obtaining their signatures, but the principal instead of doing so induced G W and W W H to sign the bond, and in that condition it was delivered to and accepted by the obligee. Held, that the defendant was not liable. Ibid.

Sureties on collectors bond liable for past due taxes paid to principal, 422.

TAXATION.

Power of legislature or municipality to require payment of license tax as a condition precedent to the exercise by an attorney of the right to practice granted by the court, 2.

Ordinance of the city of St. Louis, under its scheme and charter, imposing a license tax on all lawyers, prac

icing within the limits thereof, a valid exercise of the taxing power delegated to said city, and not in conflict with the Constitution of this State. Steinberg v. City of St. Louis, 8.

The fact that it demands of every lawyer the same amount of tax without reference to income, emoluments or profit of his practice as such, does not render such tax unequal; nor does the fact that the general assembly has so far failed to pass any law imposing a license tax on lawyers throughout the State, make it obnoxious to that section of the Constitution requiring taxes to be uniform on the same class of subjects within the territorial limits of the authority imposing them. Ibid. Power of taxation of city of St. Louis is derived from the Constitution. Ibid.

Municipal assembly of St. Louis has power to enforce provisions of said ordinance by fine and imprisonment. Ibid.

Where board of supervisors of one year fail to make levy, it may be made in succeeding year, and will bind interim purchasers, 97.

A bond creditor of a municipal corporation can acquire by its failure to answer his petition, no greater or more extensive right than his right already existing to have his debt included in the budget for the next regular annual levy of taxes. Moore v. City of Memphis, 109. Under the Missouri act of 1875 providing for the assess ment of railroad property, and the collection of taxes thereon (Laws 1875, p. 120), county courts were not authorized to levy on railroad property owned August 1, 1876, the rates of taxation imposed on all other property owned August 1, 1875, for the year 1876. They could only extend the same rates levied on all other property owned August 1. 1876, for the year 1877. State v. Union Trust Co., 127.

Void tax voluntarily paid can not be recovered back, 237. Payment pending amicable suit compulsory, and may be recovered back, 305.

Municipal corporation can not tax land beyond corporate limits for local purposes, 426.

An assessment of an entire tract of land owned by differ ent persons is yoid, 427.

TAX SALES.

No estoppel against purchasing tax titles except as against one whose duty it is to pay the tax or remove the burden, 219.

A petition to enforce a lien of the State for back taxes, which does not allege that the land had been returned delinquent or forfeited to the State for non-payment of taxes, is defective. Such defective petition, however, is cured by verdict, and a judgment rendered thereon can not, for that reason, be attacked collaterally. Wellshear v. Kelly, 434.

The circuit court has jurisdiction to hear and determine suits for back taxes. Ibid.

While it is left undecided, whether the statutes of limitation can be pleaded against the State for back taxes, it is held that such defense can not be available against the title acquired under a judgment in favor of the State enforcing a lien therefor. Ibid.

Sales of lands for back taxes, under a judgment of the circuit court, are governed by the same rules, and subject to the same intendments as other judicial sales, and a purchaser thereunder need only look to the judgment, execution, levy and sheriff's deed. If they are right, all other questions are between the parties to the judgment and the sheriff. Ibid.

The act of 1877 is constitutional. The legislature has undoubted right to provide new and different remedies for the collection of back taxes, from that which the State had when the right to enforce the collections accrued. Ibid.

The neglect of the sheriff to sell the land in the smallest subdivisions, does not invalidate the sale. While such neglect might be good ground for setting a sale aside, it is too late to right it after a deed has been executed to the purchaser. Ibid.

TELEGRAPHIC MESSAGES.

Telegraphic messages are not exempt from the process of courts. B, the local manager of a telegraph office, was by a subpoena duces tecum, issued by the criminal court at the instance of the grand jury, ordered to search for and produce certain telegrams therein named, but he refused to examine the files of the office, or to produce the telegrams. The inquiry was for the purpose of finding indictments against persons other than B: Held, that the criminal court did not exceed its jurisdiction in committing B for contempt in refusing to obey the subpœna. Ex parte Brown, 378. The statutes providing a punishment for the disclosure by an officer or a servant of a telegraph company of the contents of a dispatch and giving damages for the disclosure, do not apply to a case where the dispatches are called for by legal process, in which case any disclosure made is the act of the law, and not of the company. Ibid.

A call in a subpœna issued by a grand jury, for any and all messages passed between certain named parties during the last six months, is sufficiently certain without reference to the subject-matter. The obligation of secrecy imposed on the grand jury is a sufficient ground for not further indicating the subject-matter. Ibid. Liability of company for delay of message left at way station, 445.

Measure of damage for failure to forward, 445.

TENDER.

Good, although exact amount not produced, 283.

TIME.

In computing time from act done, day on which it is done must be excluded, 329.

TORTS.

Second conveyance of the same land is a tort when made with intent to defeat the title under a prior valid conveyance executed by the same person, 178. Finding that defendant, when he made the second conveyance, had forgotten the prior one, and did not intend to sell the land twice, will not sustain a judgment against him. Ibid.

TRADE MARKS.

The exclusive use of a tin pail, ornamented, and used to contain paper collars for sale, can not be claimed as a trade-mark, 367.

TRESPASS

Refusal to leave a dwelling-house when requested is a, 202.

Cutting and carrying away timber; measure of damages, 237.

TRIAL.

[See PLEADING AND PRACTICE.] TROVER.

One who finds a swarm of bees in a tree on another's land, marks the tree and notifies the land-owner, can not maintain trover against the latter for taking the honey, 347.

TRUSTS AND TRUSTEES.

Rights of fraudulent purchaser of trust property, 179, Liability of trustee for investing trust funds; in what securities must he invest, 235.

"for

A conveyance of realty and other property in trust" the purpose of founding an institution for the educa tion of youth in St. Louis County, Mo," sustained. Russell v. Allen, 314.

Trustees who take stock in corporation are personally liable like other stockholders, 388.

Rights of purchaser of real estate without notice of an implied trust, 406.

Trust accepted by proceedings thereunder not disturbed by appointment of administrator, 507.

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, 507.

TRUST DEEDS.

[See MORTGAGES.]

ULTRA VIRES.

[See NATIONAL BANKS.] UNITED STATES COURTS.

[See JURISDICTION; PLEADING AND PRACTICE.] USAGE.

A person who deals in a particular market, must be taken to deal according to the known, general and uniform custom of that market. Bailey v. Bensley, 50.

The usage and custom of the indiscriminate use of warehouse receipts not preserving their identity, not void as against public policy. Ibid.

Usage becomes a part of a contract only when the presumption arises that it was so intended. If the parties expressly or by implication exclude the usage, evidence of its existence is not admissible, 59.

A usage that is unreasonable does not become a part of the contract, 59.

When usage of trade binding on parties in absence of special agreement, 79.

USURY.

[See INTEREST.]

VENDOR AND PURCHASER.

Wrong description of location of property in deed; when vendee liable for injury sustained, 74.

Vendor, purchaser and sub-purchaser; delivery of goods to order of sub-purchaser who agrees to pay vendor direct; resumption of possession by vendor. 423. VENUE.

[See PLEADING AND PRACTICE.] VERDICT.

[See PLEADING AND PRACTICE.] WAGERS.

[See also CONTRACTS.]

A promise to pay for property on happening of an uncertain event, not a wager, 178.

A court of chancery has jurisdiction to restrain the enforcement of a gaming contract, and enjoin the stockholder from paying over the money deposited in his hands. But the bill asking for such relief must show affirmatively that the money has not yet been paid over by the stockholder. Pettilon v. Hipple, 206. Distinction between a preminum and a wager; former not illegal, 238.

Promissory note given by stockholder for amount of stakes in his hands, invalid, 465.

WAIVER.

[See INSURANCE.] WAREHOUSEMEN.

Grain, on being received at a warehouse, is mixed with other grain of like quality, losing its identity, and a warehouse receipt can not be regarded as the property or as representing the property of the consignor on account of the receipt of whose grain it issued, so that parting with such particular receipt by consignee can be considered a disposal of consignor's property. Bailey v. Bensley, 50.

The usage and custom of the indiscriminate use of warehouse receipts not preserving their identity, not void as against public policy. Ibid.

WAREHOUSE RECEIPTS.

[See WAREHOUSEMEN.]