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convey on payment by grantor of a sum due on account, is a mortgage. Wolf v. Theresa Village Mut. Fire Ins. Co., Wis., 91 N. W. Rep. 1014.

143. MOTIONS-Entry of Order.- Directing the entry of continuance nunc pro tunc, without finding in terms that the court had made the order directed to be entered, held proper.-Creedon v. Patrick, Neb., 91 N. W. Rep. 872.

144. MUNICIPAL CORPORATIONS-City Charter.- Under a city charter authorizing the common council to estab lish night watches, an ordinance providing for the appointment of night policemen by the mayor, subject to the approval of the common council, held invalid.-State v. Grabarkiewicz, Minn., 92 N. W. Rep. 446.

A de145. MUNICIPAL CORPORATIONS- City Officers. — tective sergeant is a city officer, within Const. 1894, art. 10, § 2, providing that electors of a city or the officers thereof shall appoint to city offices. - People v. Partridge, 78 N. Y. Supp. 249.

A town - Estoppel. 146. MUNICIPAL CORPORATIONS may estop itself from opening an alley which has been occupied for many years by a private person under claim of right.- Blennerhassett v. Town of Forest City, Iowa, 91 N. W. Rep. 1044.

147. MUNICIPAL CORPORATIONS-Indebtedness.-A con. tract by a city of the first class, with an indebtedness reaching the constitutional limit, to pay for waterworks by the raising of a special fund, as provided in Code, §§ Swanson v. City of 742, 745, 894, held constitutional. Ottumwa, Iowa, 91 N. W. Rep. 1049.

148. MUNICIPAL CORPORATIONS-Liability for Injuries. -A town held not liable for injuries sustained by one falling into an unguarded ditch in a highway, dug for the purpose of taking up the disused water mains in territory - Stockwell v. annexed to the town by Acts 1894, No. 190. Town of Rutland, Vt., 53 Atl. Rep. 132.

149. MUNICIPAL CORPORATIONS-Obstruction.

Where

a derrick has stood in a street for a year, the city is · City of Denver v. charged with notice of such fact. Murray, Colo., 70 Pac. Rep. 440.

150. MUNICIPAL CORPORATIONS-Salary of Employee.Street sweeper held entitled to recover deficiency in year's salary resulting from insufficiency of appropriation.-Downs v. City of New York, 78 N. Y. Supp. 222.

151. MUNICIPAL CORPORATIONS-Ultra Vires.-A person dealing with a municipal corporation is held to know the extent of the power of such corporation, and if he obtains a grant for which there is no legal authority he obtains no right.-Cedar Rapids Water Co. v. City of Cedar Rapids, Iowa, 91 N. W. Rep. 1081.

152. NEGLIGENCE-Conflicting Evidence.-Where there is a conflict in the evidence as to contributory negligence in an action for personal injuries, the court cannot direct a verdict for defendant.- House v. Seaboard Air Line R. Co., N. Car., 42 S. E. Rep. 553.

153. NEGLIGENCE-Evidence.-It is error for the court to group together certain facts in evidence, and instruct the jury that they constitute negligence; the question Chicago, B. & Q. R. Co. v. being one for the jury. Krayenbuhl, Neb., 91 N. W. Rep. 880.

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New trial, after re154. NEW TRIAL After Appeal. versal of judgment by the appellate division without allowance of new trial, should not be granted by the court at special term, without new facts being shown.Seaman v. Clarke, 78 N. Y. Supp. 171.

155. NUISANCE-Intoxicating Liquors.-The legislature may properly authorize an equity suit in behalf of the state or the people, in case of a common nuisance, to be maintained by 20 legal voters in the town where the nuisance is alleged to exist.-Davis v. Auld, Me,53 Atl. Rep. 115.

The fact that defendant's car was run through a fog at the rate of 18 miles an hour, when injuring plaintiff on the track, is sufficient determination by the jury the ques. to present for Denton v. Brooklyn tion of defendant's negligence. Heights R. Co., 78 N. Y. Supp. 157. A railroad en168. RAILROADS -Proximate Cause. gineer has a right to presume, until the contrary is indicated, that one walking on the track will take due precautions for his own safety.-Humphreys' Admx. v. Valley R. Co., Va., 42 S. E. Rep. 882. OF INSTRUMENTS 169. REFORMATION Correction.-In a suit to reform a deed because of error in the description of the land intended to be conveyed, and to recover the land erroneously included, held, that no previous demand for correction of the mistake was necessary.-Earl v. Van Natta, Ind., 64 N. E. Rep. 90.

174. SALES Warranties. -A statement that a steam engine is "as good as new in every particular" is a representation of physical fact, and not mere words of general commendation.-Milwaukee Rice Machinery Co. v. Hamacek, Wis.. 91 N. W. Rep. 1010.

175. SALES Warranty.-A stipulation in a contract for the manufacture and delivery of a steamship, that she should have a designated speed, held to constitute a col· lateral warranty, surviving acceptance. - Bull v. Bath Iron Works, 78 N. Y. Supp. 181.

176. SCHOOLS AND SCHOOL DISTRICTS-Religious Exercises.-Under Const. art. 1, § 4, and article 8, § 11, religious exercises in a public school in school hours and in the presence of the pupils held to be forbidden. - State v. Scheve, Neb., 91 N. W. Rep. 846.

177. SCHOOL TEACHER- Sickness. Deduction from salary of school teacher, absent through sickness, held proper. Murphy v. Board of Education of City of New York, 78 N. Y. Supp. 248.

178. SET-OFF AND COUNTERCLAIM-Breach of Warranty. -Where plaintiff sued on a sealed instrument for the price of land sold, damages for breach of warranty of title cannot be set up as a common-law counterclaim in the nature of recoupment.-Kinzie v. Riely's Exr., Va., 42 S. E. Rep. 872.

179. SPECIFIC PERFORMANCE-Sufficiency of Pleading. -Where a contract based on the organization of a corporation failed to disclose the kind of a corporation contemplated, complaint for specific performance, failing to allege such matters, was insufficient. Burk v. Mead, Ind., 64 N. E. Rep. 880.

180. SPECIFIC PERFORMANCE - Venue.-A suit for specific performance may be brought by the vendor in a. court having jurisdiction of the property, or in one having jurisdiction of the person of the defendant only.— Epperly v. Ferguson, Iowa, 91 N. W. Rep. 816.

181. SUBROGATION-Defaulting Bank Cashier.- Sureties of a defaulting bank cashier are subrogated to the rights of the bank against the broker through whom the money was lost.-Mendel v. Boyd, Neb., 91 N. W. Rep. 860. 182. TAXATION — Avoiding Tax Title. - Under Rev. St. 1898. §§ 1185, 1189, the three-year limitation for action to avoid a tax deed obtains, though the county board sold the tax certificates for less than face value, without notice, contrary to section 664. Kennan v. Smith, Wis., 91 N. W. Rep. 986.

189. TRUSTS Parol Proof. Where a debtor conveys land to a creditor under parol agreement to divide the proceeds among creditors of the grantor, it cannot be regarded as a mortgage for the benefit of creditors, thus creating an express trust by parol. — Byers v. McEniry,, Iowa, 91 N. W. Rep. 797.

190. TRUSTS-Purchase of Land with Husband's Money. -Where the jury found that title to land purchased with a husband's money was taken in the wife's name, without the husband's knowledge or consent, a resulting trust arose in the husband's favor.-Flanner v. Butler, N. Car., 42 S. E. Rep. 547.

192. USURY-Assumption of Contract.-There is no usury in assumption of contract providing for the legal rate of interest when the contract was made.-Adams v. Shirk, U. S. C. C. of App., Seventh Cireuit, 117 Fed. Rep. 801.

193. VENDOR AND PURCHASER- Ejection.-Vendee in possession, under contract of sale authorizing such possession for a permanent purpose, cannot be ejected at suit of vendor for failure to pay purchase price.-Titcomb v. Fonda, J. & G. R. Co., 78 N. Y. Supp. 226.

194. VENDOR AND PURCHASER-False Representations. False representations that land in a distant state is level valley land, well timbered, and all capable of cultivation, held not expressions of opinion, but ground for avoiding sale.-Sykes v. Reiher, Iowa, 91 N. W. Rep. 920.

195. VERDICT-Unmentioned Defendants. — A verdict mentioning only one defendant, in an action where three have been sued on the same obligation, held to afford no grounds for a venire de novo as to such defendant.-Maxwell v. Wright, Ind., 64 N. E. Rep. 893.

196. WATERS AND WATER COURSES-Diverting Water.One diverting water from a stream, and turning it back into the old channel at a point below, held liable for damages.-Briscoe v. Young, N. Car., 42 S. E. Rep. 893.

197. WATERS AND WATER COURSES-Polluting River.— On a prosecution for fouling the waters of a river with discharges from a sewer, held not necessary for the state to actually trace the passage of impurities.-State v. Glucose Sugar Refining Co., Iowa, 91 N. W. Rep 794.

198. WATERS AND WATER COURSES-Validity of Ordinance.--Invalid city ordinance granting a franchise to a corporation held not color of right, preventing the city fram collaterally asserting the nonexistence of rights claimed under the ordinance.-Cedar Rapids Water Co. v. City of Cedar Rapids, Iowa, 91 W. Rep. 1081.

199. WEAPONS-Police Officer.-Pen Code, art. 338, held' not to exempt from criminal prosecution a policeman of Ft. Worth carrying a pistol in San Antonio.-Ray v. State, Tex., 70 S. W. Rep. 23.

200. WILLS-Life Estate.-Where a testamentary trust creating a life estate in behalf of testator's children fails, the life tenants take a fee in the property. - Dodsworth v. Dam, 78 N. Y. Supp. 264.

201. WITNESSES-Signature.-Defendant having testified that a signature to a note was not his handwriting, his ability to indentify his own handwriting was a proper subject of cross-examination. - Brown v. Woodward, Conn., 53 Atl. Rep. 112.

202. WORK AND LABOR-Health Officer.-Where a health officer sued on quantum meruit for medical services, when his compensation was a fixed salary, a demurrer was properly sustained,-Yandell v. Madison County, Miss., 32 So. Rep. 918.

Central Law Journal.

ST. LOUIS, MO. FEBRUARY 13, 1903.

THE FIRST SET-BACK TO THE STATE IN THE ST. LOUIS BRIBERY LITIGATION.

If the way of the transgressor is hard, the path of the state's attorney in his effort to prove to him the error of his ways is not always a bed of roses. As an illustration of this statement, which hardly needs authorities to sustain it, attention might be called to the recent case of State v. Mysenburg (Mo.), 71 S. W. Rep. 229, the first case on appeal arising out of the celebrated St. Louis bribery investigation to which we have already called attention in an earlier volume. (54 Cent. L.

It is only fair to mention, however, that the Meysenburg case was the weakest, possibly, of all the cases arising out of this memorable crusade against bribery. The bill in the municipal assembly out of which all these cases arose was for the passage of a street railroad franchise. The company seeking the privilege, put up $135,000 to pay certain members of the city assembly, who called themselves "the combine," for passing the or linance desired. Mr. Meysenburg, however, was not a member of this "combine” and was considered one of the most respectable members of the city council. His influence, nevertheless, was considered to be worth something and he was approached by the "legislative agent" of the railroad company and asked why he opposed the granting of the privileges sought by the company, which he had done consistently up to that time. He intimated that certain parties interested in the company had not treated him right" in the organization of a certain cor

poration enterprise whose stock was now practically valueless. The "legislative agent" suggested paying for the stock at its par value, which was immediately accepted by Mr. Meysenburg on the condition that it should not be taken as a consideration to influence his attitude on the bill then pending. His attitude," however, immediately changed and the bill was passed without serious opposition.

It will be understood from these circumstances that the circuit attorney had a difficult undertaking, not only in drawing up an indictment, but in offering proof sufficient to sustain a charge of bribery. The appellate court said he failed in both respects, and since the case itself is quite a celebrated brated one and the general questions involved of general interest, it will probably not be inopportune to call attention to the points wherein the circuit attorney missed the mark in this case.

In drawing up the indictment the circuit attorney had evident difficulty in alleging an agreement by Mr. Meysenburg to take the bribe as a consideration for changing his attitude on the bill pending in the assembly. After making the necessary preliminary statements and noting the receipt of the money by the defendant, the indictment alleges that the transaction was entered into on the "express understanding that, unless the money was paid, he (the defendant) would oppose and resist the passage of the proposed ordinance." The entire appellate court agreed that this did not charge the crime of accepting a bribe. Justice Sherwood styled it rather a charge of "blackmail" on the part of the defendant, than anything else. On this point, the court said: "While the learned counsel for the state construes the indictment to charge that the bribe was received on a promise or agreement to desist from opposition to the bill, or would cease to do so when the $9,000 was paid to him, or would desist from his prior opposition, we think it perfectly obvious that the indictment contains neither of these averments, save by inference. It cannot be that an agreement to withstand, oppose, and resist the passage of a bill until a certain sum is paid is the same as an agreement for a bribe to cease opposition in the future, or for favorable action in the future. It nowhere charges that he had

prior to that time been opposing the measure, and agreed, in consideration of the bribe, to desist from further opposition, or would even cease when he received the $9,000, nor any promise whatever as to his conduct in the future as to said legislation, but simply and only that he agreed that, "unless and until the $9,000 was paid, he would oppose, resist, and defeat the measure;" and yet the statute requires that he should not directly or indirectly accept the gift under an agreement that he would omit his duty or act partially in the future."

The next error into which the state fell was the making of an allegation in the indictment which they could not prove, i. e., that there was an "express agreement between Meysenburg and Stock," the legislative agent of the company. Here is one of the commonest pitfalls that lie in the path of the pleader in drawing an indictment of bribery. In the first place, it is wholly unnecessary to allege an express agreement, but if alleged, it must be proved, on the ground that in such case it is descriptive of the offense.

unnecessary descriptive matter. In charging any crime, the main point to keep in view is the gist of the offense charged. In an indictment for accepting a bribe, for instance, the gist of the charge is not that defendant would be more favorable in his official capacity to the bribe giver and his proposition if the latter would give him a certain quid pro quo, but that defendant did in fact receive a certain valuable consideration from one who was seeking official favoritism from his hands with the understanding, expressed or implied from the surrounding circumstances, that his attitude toward his seducer and the interests involved in the transaction will be more favorable than before. Every fact which is necessary to establish the gist of the offense must be alleged with just sufficient clearness to identify the particular offense charged, and apprise the defendant of what will be attempted to be proved against him.

NOTES OF IMPORTANT DECISIONS.

Bishop lays down the rule as follows: "If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the description, as well as the main part, since the one is essential to the identity of the other." 1 Bish. New Cr. Pros. § 485; State v. Johnston, 51 N. Car. 485; Com. v. Luscomb, 130 Mass. 42; State v. Meyers, 99 Mo. 107.

In an indictment for accepting a bribe, no express agreement need be proved. When the money or anything else of value is received by a public officer with the understanding, expressed or implied from the circumstances or actions of the parties, that the payment of such money shall influence the official action of the bribe taker,

and his attitude from that time is, in fact, more favorable and partial to the bribe giver than before, the offense is made out. A safe rule for a circuit attorney, in this class of cases, at least, is to allege the fewest possible circumstances of those which are merely descriptive of the offense, whatever may be the extent of his proof. Of course, he must allege every fact necessary to constitute the defense, but this rule does not require every such fact to be minutely identified, and the best pleaders refrain fro:n superlative and

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APPLICATION OF THE RULE OF EXPRESS AIDER TO CASES OF CONTRACT IN WHICH ESSENTIAL PROVISIONS HAVE BEEN OMITTED. How far may the doctrine of express aider be applied to correct the defects of a petition which fails to state an essential averment? This question arose in the recent case of Currell v. Railroad Co. (Mo. App.), 71 S. W. Rep. 112. This was an action by a shipper against a railroad company, apparently for a breach of contract to furnish cars. The petition failed to set out the contract, but pleaded a failure of defendant to have cars ready to receive the shipper's cattle at 1 o'clock a. m., or until 4 o'clock a. m., which was too late for the cattle to reach a certain Chicago market, and asked for damages as though defendant had thereby broken a contract. Of course, the petition as thus drawn was fatally defective, as pleading, at most, a breach of an unpleaded contract. But the answer, after a general denial, alleged a contract whereby it was to furnish cars on a certain day, in time for plaintiff's cattle to reach the Chicago market on a certain other day, and alleged that the cars were in readiness for plaintiff's use in due time, but that plaintiff refused to take them. The replication admitted the contract as pleaded in the answer. Whether the petition was cured by the allegation in the answer was the question before the court which held, however, that the subsequent pleadings did not supply the defects of the petition so as to justify a trial on the theory of an unpleaded contract whereby defendant agreed to have the ears ready at 1 a. m., and not for failure to furnish ears in time for the Chicago market.

One of the justices, Smith, P. J., dissents, and

expresses his objection to the decision reached by the majority of the court as follows: "I think that this opinion of the majority results from a misconception and misapplication of the rule of express aider,—a rule of pleading, both under the Code and common law, which is to the effect that an omission to state a material fact may be supplied by the pleading of the other party (Bliss, Code Pl. § 437; McQuillan. Pl. § 470); as, for example, where the allegation of an answer aids a defective petition, it accomplishes all that could be done by an amended petition (Stivers v. Horne, 62 Mo. 473; Mohney v. Reed, 40 Mo. App. 99; Allen v. Chouteau, 102 Mo. 309, 14 S. W. Rep. 869). The petition in the present case alleged the existence of a contract, and a breach thereof, but omitted to allege its provisions. The answer admitted the existence of the contract, and set forth its provisions, and thereby supplied the omissions of the petition. The replication admitted the allegations of the answer as to the provisions of the contract. The legal effect of this, under the operation of the rule of express aider, was not different than if the plaintiff had amended his petition, incorporating therein the omitted allegations."

CARRIERS-PARTIAL EXEMPTION FROM LIABILITY FOR NEGLIGENCE.—It is well settled that a common carrier will not be permitted to stipulate against liability for loss or injury of property intrusted to it for transportation occasioned by its own negligence or that of its agents and servants. But can a common carrier contract for a partial exemption from liability for negligence. In the recent case of Normile v. Navigation Co., 69 Pac. Rep. 928, the Supreme Court of Oregon held that a contract of shipment of live stock, providing that the stipulated tariff is less than that for transportation at carrier's risk, and is given in part consideration of shipper's agreement to limitation of carrier's liability, and that it is agreed the value of the stock does not exceed $100 per head, does not make a partial exemption from liability for negligence, but a valid valuation; is not being shown that it was not entered into freely by the shipper, or whether he could have obtained other terms on a higher valuation.

The general rule is that a carrier cannot be permitted to stipulate or contract for a partial or limited exemption from liability occasioned by its negligence with any more reason than it may for a total exemption. Thus, in Caldwell v. Railway Co., 88 Tenn. 320, 14 S. W. Rep. 311, the court said: "To our minds it is perfectly clear that the two kinds of stipulations-that providing for total, and that providing for partial, . exemption from liability for the consequences of the carrier's negligence-stand upon the same ground, and must be tested by the same principles. If one can be enforced, the other can; if either be invalid, both must be held to be so; the same considerations of public policy operating in each case. With great deference for those

who may differ with us, we think it entirely illogical and unreasonable to say that the carrier may not absolve itself from liability for the whole value of the property lost or destroyed through its negligence, but that it may absolve itself from responsibility for one-half, threefourths, seven-eighths, nine-tenths, or ninetynine hundredths of the loss so occasioned. With great unanimity the authorities say it cannot do the former. If allowed to do the latter, it may thereby substantially evade and nullify the law, which says it shall not do the former, and in that way do indirectly what it is forbidden to do directly. We hold that it can do neither." Like reasoning is employed by Mr. Justice Dickenson in Moulton v. Railway Co., 31 Minn. 85, 88, 16 N. W. Rep. 497, 47 Am. Rep. 781, and the authorities are ample by which, to our minds, the doctrine is satisfactorily settled and established. Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Railroad Co. v. Simpson, 30 Kan. 645, 2 Pac. Rep. 821, 46 Am. Rep. 104; Black v. Transportation Co., 55 Wis. 319, 13 N. W. Rep. 244, 42 Am. Rep. 713; Abrams v. Railroad Co., 87 Wis. 485, 58 N. W. Rep. 780, 41 Am. St. Rep. 55; Alair v. Railroad Co., 53 Minn. 160, 54 N. W. Rep. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588.

The court in the Oregon case distinguishes the contract there involved from one of partial exemption from negligence, by construing it as a limitation on the value of the article, not on the amount for which the defendant is liable. On this point, the court says: "If the purpose of the contract was merely to place a limit on the amount for which the defendant shall be liable,that is to say, exempt it in any measure from full liability, as respects the value of the property concerned, then clearly, as to any losses resulting from negligence, it cannot be upheld; and this upon the ground that it would not be just and reasonable. Quasi public functionaries are especially held to fair dealing, and when acting as public carriers, with the advantages between them, and the shipper standing very much to their side, they cannot be allowed to enter into any contract relative to the business in which they are engaged unless it is just and reasonable; and a contract exempting from liability based upon negligence cannot be so characterized. If, however, upon the other hand, the stipulation as to the value is fairly and honestly made as a basis of the carrier's charges and responsibility, it will be sanctioned as a proper and lawful contract."

CRIMINAL LAW-TESTIMONY OF COLLATERAL TRANSACTIONS TO SHOW INTENT.-It has always been one of the difficult questions of the law as to the extent to which evidence of collateral transactions in a criminal case would be received in evidence in order to prove intent. A valuable contribution to the law on this question is to be found in the recent case of Goldsberry v. State, 92 N. W. Rep. 906. In that case the Supreme Court of Nebraska held that where defendants