damages in cases to which it was applicable ever since;" and further on in the opinion it is said, and it affords a clear interpretation of the rule in respect to the point now mooted: "In such a case nothing is more reasonable than that the price fixed by the patentee for the use of his invention, in his dealings with others, and submitted to by them before using it,should govern." This, it is true, is the rule at law, but the complainants, waiving their right in equity to claim an account of profits, have invoked the same rule here and must abide by it as it is. See also Black v. Munson, 14 Blatchf. 268; Greenleaf v. Yale Lock Manuf. Co., 17 id. 253; 3 Suth. Dam. 601-607; 1 Greeul. Ev., § 174; Whart. Ev. 1199; Abb. Tr. Ev. 188, 189; Matthews V. Spangenberg, 14 Fed. Rep. 350. The rule, as already stated, requires "a sale of licenses ""sufficient to establish a price for such licenfes." "A royalty, in order to be binding on a stranger to the licenses which established it, must be a uniform royalty." Walk. Pat. 390. These and the like expressions and definitions found in the cases and text-books, imply that proof of a single licence is not sufficient; and if under some circumstances such proof might be deemed adequate, that in this instance is not of such clear and unequivocal character as to give it such weight. Proctor v. Brill, 4 Fed. Rep. 415; Judson v. Bradford, 3 Ban. & A. 539; Black v. Munson, 2 id. 623. It is true in a sense doubtless that the owner of an invention has a right to fix his price upon it; but to constitute evidence against an infringer he must have done it "in his dealings with others," and not merely in a form of license which he was willing to grant. It is, as it appears to me, entirely inadmissible, at law or in equity, that a patentee may, by inserting in his licenses a stipulation for a certain royalty, with a proviso that half that sum shall be received in full, in case of prompt payment, acquire a right to demand the entire sum of an infringer. If he can arbitrarily make such a discrimination, he may as well make the ratio three to one, or in any other proportion. The question is, what is a reasonable royalty? In respect to two or more claims in a patent, each of value and distinct from the other, one cannot equal both or all in value, any more than in mathematics a part can equal the whole. A licensee may, if he choose bind himself to pay the same price, whether he use the entire invention or a part only; but at the same time he acquires the right to use all, and so his agreement may not be unreasonable; but if, as against an infringer, such a license can have any force, reasonably, it must be in the way only of establishing a royalty for the entire invention. In Birdsall v. Coolidge, 93 U. S. 64, it appeared that the alleged infringement was of one only of three claims in the letters patent, and the court says: "Still it is obvious that there cannot be any one rule of damages prescribed which will apply in all cases, even when it is conceded that the finding must be of limited extent, and for a short time * * *the jury should find less than the amount of the license fee." See also Proctor v. Bull, supra; Wooster v. Simonson, 16 Fed. Rep. 680; Ruggles v. Eddy, 2 Bau. & A. 627. Cir. Ct., D. Ind. April, 1884. Wolcott v. Rude. Opinion by Woods, J.

IOWA SUPREME COURT ABSTRACT.

EMINENT DOMAIN-FEE REMAINS IN OWNER-DAMAGES OPINION OF WITNESS.-(1) Under the statute condemning lands for right-of-way purposes, the railroad company acquires but a limited right or interest therein; the fee remains in the owner, and this interest may be valuable in some cases. Ordinarily however in the absence of any showing that there was any

thing on or beneath the surface which the owner could remove or use with advantage, the only right he has is that of reversion in case of non-user, and it is impossible to determine that this right is of any present value. An instruction therefore that the measure of damages is the market value of the land at the time it was taken is not erroneous. (2) The owner of the land, between the time of the appropriation and the trial in the Circuit Court, having sold the buildings thereon to third parties, it cannot now be permitted to say that they remained the property of such owner, and their value cannot be urged in reduction of damages. (3) A question calling for the opinion of the witness as to the value of a lot near the one condemned is incompetent, there being no evidence of any similarity between the two lots. Hollingsworth v. Des Moines, etc., R. Co. Opinion by Reed, J. (As to taking fee see 26 Eng. Rep. 404.)

[Decided April 25, 1884.]

ATTACHMENT-CUSTODIA LEGIS-PROPERTY TAKEN FROM PRISONER NOT SUBJECT TO.-On January 31, 1883, the plaintiff commenced an action against the defendant and others upon a promissory note. It was alleged in the petition that defendants had disposed of their property, in part, with intent to defraud their creditors, and a writ of attachment was prayed for and issued, which was placed in the hands of the sheriff for service. The plaintiff is a partnership, and H. P. Kirk and I. R. Kirk are the individual members thereof. On August 28, 1883, said I. R. Kirk made and filed an information before a justice of the peace, charging the defendant with the crime of uttering a forged promissory note. A warrant was issued, and the plaintiff was arrested by a constable and taken to the county jail. Upon his commitment to the jail, the sheriff, who was the keeper thereof, proceeded to search the defendant's person, and took therefrom one gold watch, one silver watch, and $480 in money, and having the attachment and money and property all in his hands, he made return that he had levied the attachment on the watches and money. Section 4212 of the Code provides that "he who makes an arrest may take from the person all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken, to be disposed of according to law." We do not think that an officer making an arrest is precluded by this statute from taking from the person of the prisoner any other property than offensive weapons." An officer making an arrest, or a jailer upon committing a person to jail, may search him and take from him all property which might be used by the prisoner in effecting an escape. In Reifsnyder v. Lee, 44 Iowa, 101, the defendant stole five head of cattle and sold them to the plaintiff for $162.30. The owner of the cattle claimed and recovered them from plaintiff, and the plaintiff procured officers to pursue and capture the thief. The officers making the arrest searched his person and took therefrom certain money and a watch which was of little value. It was held that the money and watch were liable to garnishment in the hands of an officer at the suit of plaintiff. In that case the search of the person was fully approved. It is said however in the opinion that "a party to a suit can gain nothing by fraud or violence under the pretense of process, nor will the fraudulent or unlawful use of process be sanctioned by the courts. In such cases parties will be restored to the rights and position they possessed and occupied before they were deprived thereof by the fraud, violence, or the abuse of legal process." To the same effect see Pomroy v. Parmlee, 9 Iowa, 140, and Patterson v. Pratt, 19 id. 358. We think the sheriff was justified in making the search and in taking from the

person all money or property which was in any way connected with the crime charged, or which might serve to identify the prisoner. If however the sheriff knew that the watches and money were in no manner connected with the crime, and that they could not be used in any way as evidence in the prosecution, we think it was his duty to return them to the defendant. If a constable or other officer takes possession of property found on a prisoner, the court will order the same to be restored, if not required as a means of proof at the trial, or which does not finally appear to be the fruits of the crime with which he stands charged. 1 Archib. Crim. Pl. & Pr. 34, 35. In the case of Reifsnyder v. Lee, supra, it is said there was "ample ground to hold that the money taken from Lee was the money which he had procured from plaintiff for the stolen cattle." In the case at bar it is not claimed that the sheriff had any right to retain the money and watches for any purpose connected with the arrest or with the crime charged. It is claimed however that the defendant consented that the sheriff might take possession of the same and keep them for him. This is denied by the defendant, and there was a conflict of evidence upon this point; and it cannot be said that the court was not warranted in finding that the property and money were taken without the consent of defendant. Where a party submits to a search of his person by an officer it cannot be said that the search was with his consent because he makes no physical resistance, and when the search is completed, and the fruits thereof are retained by the officer, it would require a strong showing to hold that this was with the consent of the prisoner. We think that it cannot be said that the search was unlawful, but when it was ascertained that the money and property were in no way connected with the offense charged, and was not held as evidence of the crime charged, the personal possession of the sheriff should be regarded as the personal possession of the prisoner, and the money and property should be no more liable to attachment than if they were in the prisoner's pockets. To hold otherwise would lead to unlawful and forcible searches of the person under cover of criminal process as an aid to civil actions for the collection of debts. It does not appear that such was the purpose of the prosecution in this case, but the court was justified in finding that the money and property here taken from the defendant was by force and without his consent, and as it is not claimed that the money or property was in any way connected with the crime charged, no advantage should be taken of the defendant because the same was taken from his person by force and against his wil. Com. Exch. Bk. v. MeLeod. Opinion by Rothrock, C. J.

[Decided April 25, 1884.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

WILL-TRUST-SEPARATE USE.-The will of James E. Brown, of Kittanning, after certain bequests, provides: "Seventh. All the rest and residue of my estate, real, personal and mixed, I devise and bequeath to my daughter, Mrs. Jane B. Finley, and my grandchild, P. R. E. Elvina Finley, share and share alike, for their sole use, and which shall not be controlled, incumbered or charged by or liable, or subject in any way to debts or contracts of the present or future husband of my said daughter, or the future husband of my granddaughter." Did this create a valid trust in his granddaughter? And what estate did the language used

son.

create? Held, that the law is well settled by numerous authorities that a separate use for a married woman cannot be created,unless she is covert or unless in immediate contemplation of marriage. Hus. on Mar. Wom. and Trusts, 314; McBride v. Smyth, 4 P. F. Smith, 245; Wells v. McCall, 14 id. 207; Snyder's Appeal, 11 Nor. 504; Philadelphia Trust, Safe Deposit and Insurance Co.'s Appeal, 12 id. 209. In Hamersley v. Smith, 4 Whart. 126, it is said the immediate contemplation of marriage must be with a particular perThis indicates the strictness with which the rule is held in Pennsylvania. (2.) The act of June 4, 1879, declares, "that every will shall be construed with reference to the real and personal property comprised in it, to speak and take effect as if it had been executed im mediately before the death of the testator, unless a contrary intention appear in the will." Held, at the time this will was executed there was no power in the testator to create the trust in question. Said act does not give vitality to a previous attempt to tie up an estate in a manner wholly beyond the power of the testator to do. Neale's Appeal. Opinion by Mercur,

C. J.

[Decided Jan. 7, 1884.]

WILL-CONTEMPORANEOUS WRITINGS-CONSTRUED TOGETHER-PRECATORY TRUST.-A. by his will devised all his estate, real, personal, and mixed, to his wife for her own use and benefit, with a discretionary power to sell the whole or any part thereof. The will was duly executed with all requisite formalities. In another writing of the same date, upon the same sheet, the testator expressed the fullest confidence in his wife that she would carry out his intentions as to his children and grandchildren so far as they might in her opinion prove worthy of her attention, of which and of their necessities she was to be the sole judge. In a third writing, styled "memorandum," of the same date and upon the same sheet, he named specific property for his son, grandson, and children of a daughter. Neither of the subsequent writings was under seal and witnessed, but they were admitted to probate. Testator's widow subsequently conveyed part of the property devised under the above will for a valuable consideration to B. in fee. In a contest between the children and grandchildren of A. and the devisees of B., held, that the first paper was a full and complete will, under which testator's widow took a fee, which was neither enlarged nor restricted by the power of sale, and that neither of the two subsequent papers were parts of the will, nor codicils thereto. Held further, that assuming all the papers constituted but one will, the mere precatory words used by the testator could not defeat the estate in fee vested in his widow, nor convert the devise to her into a trust. Pennock's Estate, 8 Har. 268; Jauretche v. Proctor, 12 Wright, 466; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. S. 219. Standing by themselves alone, expressions of a desire or wish of the testator as to a direct disposition of his property may constitute a valid devise or bequest thereof; yet the rule is different when such expressions are used after an absolute disposition has been made. Having made au unqualified devise of his property, no precatory words to his devisee cau defeat the estate previously devised. Burt v. Herron, 16 P. F. Smith, 400. Bowlby v, Thunder. Opinion by Mercur, C. J. (When words create precatory trusts and when do not; see 25 Eng. Rep. 462, 802. -ED.)

[Decided Feb. 18, 1884.]

MISSOURI SUPREME COURT ABSTRACT.*

SALE CONDITIONS-WARRANTY-AGENCY-WAIVER. -Plaintiffs sold defendants machinery, warranting its work, and stipulating that if it failed to operate well defendants should notify plaintiffs and their local agent in writing, so as to give opportunity to correct the defect. Held, that this stipulation constituted a condition precedent that compliance with it was necessary in order to hold plaintiffs on their warranty; that an agreement by a sub-agent of plaintiffs to give the requisite notice did not relieve defendants from its binding force, and that notice given by the sub-agent to the agent (but not to the principal) did not amount to a compliance. Mechanics' Bank v. Schaumburg, 38 Mo. 228: Taylor v. Williams, 45 id. 82, 83; State v. Bank of Missouri, id. 538. Nichols v. Larkin. Opinion by Phillips, Comr.

NEGOTIABLE INSTRUMENT-SECURED BY MORTGAGE.-RECITALS SUBROGATION-MORTGAGE RES JUDICATA. -(1) The purchaser of a note secured by mortgage takes it subject to all the equities fastened upon it by stipulation or recitals contained in any recorded deed which forms a link in his chain of title. Major v. Bukley, 51 Mo. 227; Rimmon v. Martin, 14 Tex. 318; Tiernan v. Thurman, 14 B. Mon. 277; Daugherty v. Paine, 6 Minn. 452; Johnston v. Gwathmey, 4 Litt. 321; Linville v. Savage, 58 Mo. 248; Butler v. Holcomb, 33 La. Ann. 170; S. C., 39 Am. Rep. 265. (2) If a party purchasing land subject to a mortgage contracts with the mortgagor to pay the mortgage debt, and afterward the mortgagor is compelled to pay it himself, he will be subrogated to the rights of the mortga gee as against such purchaser, and any one claiming under him with notice. Halsey v. Reed, 9 Paige, 446; Stillman v. Stillman, 21 N. J. Eq. 127; Kamena v. Heulbig, 23 id. 78; Moore's Appeal, 88 Penn. St. 450; Johnson v. Link, 51 N. Y. 333; Sheldon on Subrogation, $ 24, 26; Brandt Sur. & Guar., § 24; 1 Story Eq. Jur., § 499. (3) The maker of a note secured by mortgage was sued upon the note, suffered judgment and paid the judgment. He then brought this suit against the plaintiff in the judgment, who held another mortgage upon the same land, for the purpose of having himself subrogated to the rights of the original holder of the paid note, and having the mortgage which had secured it enforced as a first lien on the land. Held, that the judgment in the first action was no bar to this. Brake v. King, 54 Ind. 297; Halsey v. Reed, 9 Paige, 446. Orrick v. Durham. Opinion by Philips, Comr.

WITNESS DISQUALIFIED BY CONVICTION-LEGISLA

TURE CANNOT RESTORE COMPETENCY-RETROSPECTIVE LEGISLATION.-Prior to the Revised Statutes of 1879 a person convicted of petit larceny was, under section 66 of chapter 201 of General Statutes of 1865, incompetent to be sworn as a witness in any cause, and the omission of the disqualifying clause in the revision of 1879 was not designed to remove, and did not remove such incompetency occurring anterior to the time the latter statutes took effect. It is a settled rule in the construction of statutes in this State that they are to operate prospectively, and not otherwise, unless the intent that they are to operate retrospectively is manifested on the face of the statute in a manner altogether free from ambiguity. Besides incompetency to testify is one of the incidents of a conviction of crime, and part of the punishment, if not of the judgment, and the Legislature cannot, without trenching on the pardoning power vested exclusively in the executive, attempt to do away with it. Citing 1 Greenl. Ev., §377; 1 Gilb. *To appear in 79 Missouri Reports.

Ev. 260; 1 Chitty Crim. Law, 602, 776; 7 Bac. Abr. 417; 3 id. 487; Rex v. Ford, 2 Salk. 690; Rex v. Griepe, 1 Ld. Ray. 256; 2 Hargrave's Jurid. Arg. 221; Com. v. Halloway, 42 Penn. St. 446; Perkins v. Stevens, 24 Pick. 277; People v. Bowen, 43 Cal. 439; S. C., 13 Am. Rep. 148; Blanc v. Rodgers, 49 Cal. 15; State v. Foley, 15 Nev. 64; S. C., 37 Am. Rep. 458; Haley v. Clark, 26 Ala. 439; State v. Sloss, 25 Mo. 291; Cummings v. State, 4 Wall. 277, 333; Rich v. Flanders, 39 N. H. 323; Hart v. State, 40 Ala. 32; State v. Band, 4 Jones (Law), 9. State v. Grant. Opinion by Sherwood, J. ACKNOWLEDGMENT-VOID CERTIFICATE—MARRIED WOMAN'S DEED.-Where the certificate of acknowledgment of a married woman's deed is fatally defective, and the deed is for that reason of no validity either as a conveyance or a contract, it confers upon the grantee no equity upon which to base a decree giving him a legal title. Citing Shroyer v. Nickell, 55 Mo. 264; Henry v. McKerlie, 78 id. 416; Bagby v. Emberson. Opinion by Martin, Comr.

RHODE ISLAND SUPREME COURT

ABSTRACT.*

MASTER AND SERVANT-INJURED BY HAND CARASSUMED RISK.-A railroad workman, after finishing his work, was told by his foreman that there were twenty minutes before the next train, which was understood to mean the next regular train. Whereupon the workman with others mounted a hand car to go to the next station, was overtaken by a special train and was killed. No carelessness was attributable to the special train after the hand car was discovered on the track; no flags were sent out by the hand car men, and a rule of the railroad company,known to the hand car men, stated that "they may expect a train in either direction without signals being shown for it." In an action brought to recover damages for the death, held, that the action could not be maintained as the workman assumed the risk of riding on the hand car by voluntarily and without objection mounting it when no flags had been sent out, and also the risk of any omission on the company's part to signal the special train, by mounting the car with full knowledge of the above rule. McGrath v. New York & New England R. Co. Opinion per Curiam.

TRUST EXECUTOR WHEN TRUSTEE-REFUSAL TO QUALIFY AS EXECUTOR.-A testator nominated an executor and conferred on him powers and duties which do not belong to an executor, but which are appropriate to a trustee. Held, in the circumstances that it was not the testator's intent to annex the powers and duties to the office of executor. A refusal of the nominated executor to qualify as executor was not a refusal to accept the trusts which were consequently to be executed by him. In Sheet's Estate, 52 Penn. St. 257, 258, it is said one may be made a trustee without calling him such. We are to look, not at the title given, but at the powers conferred and duties imposed. In Anck's Estate, 11 Phila. 118, it was held that property may be devised to an executor so that he will be held to be also a trustee, although he may not be named trustee in the will. And see also Parker' Appeal, 61 Penn. St. 478, 484; Belcher v. Branch, 11 R. I. 226, 228. Besides the ordinary powers and duties incident to the office of executor, the will before us confers on the person named as executor certain powers, express or implied, and imposes certain duties which do not belong to an executor as such, but are appropriate to the office of a trustee. The powers and du

*To appear in 14 Rhode Island Reports.

ties are to invest and reinvest the personal estate, not required for the payment of the testator's debts and funeral expenses and the expenses of administration and not specially bequeathed, to manage and control the real estate devised to him for that purpose, to collect, receive and disburse the interest and income arising from such real and personal estate, among the objects of the testator's bounty, and finally to pay over and convey to them the estate itself, at the times or upon the happening of the contingencies, designated in the will. We do not think that it was the testator's intention to annex these powers and duties to the office of executor. They were rather in the nature of a personal trust or confidence reposed in the particular person whom he had selected as executor. It will be observed that wherever the testator refers to the executor in connection with these powers and duties, he with a single exception makes use not merely of the word "executor," but styles him "my executor hereinafter named or my said executor." These powers and duties relating to the trust being distinct from those to be performed by the executor as such, the disclaimer of the latter by the complainant, Pomroy, did not operate as a disclaimer of the former, which consequently remain to be executed by him as though such disclaimer had not been made. Garner v. Dowling, 11 Heisk. 48, 50; Tainter v. Clark, 13 Met. 220, 227; Clark v. Tainter, 7 Cush. 567, 570; Judson v. Gibbons, 5 Wend. 224, 228; Perkins v. Lewis, 41 Ala. 649, 653; Bolton v. Jacks, 6 Robert. (N. Y.) 166, 167, 228; Dunning v. Ocean Nat. Bank, 61 N. Y. 497, 502; Parsons v. Lyman, 5 Blatchf. C. C. 170, 173; Williams v. Conrad, 30 Barb. S. C. 524, 532; Moody's Lessee v. Fulmer, 3 Grant (Penn.), 18, 30. Pomroy v. Lewis. Opinion by Matteson, J.

SPECIFIC PERFORMANCE-AGREEMENT TO RELEASE CLAIM ON NOTE-ACTION ON NEW NOTE-INJUNCTION. -A., as maker and indorser, was liable to B. upon two notes. A., being unable to continue his business, arranged to carry it on by means of an incorporated company, and agreed with B. to pay one of the notes, to obtain for B. the privilege of subscribing for stock in the incorporated company and to receive from B. a release of B.'s claim on the other note. Subsequently just before the statute of limitations ran against A.'s liability on the notes A. gave to B. a new note for the amount of the two former ones but without prejudice to the agreement above given. B. put the new note in suit and A. filled a bill in equity to enjoin the suit and to obtain specific performance of the agreement. Held on demurrer, that the bill should be sustained. In Reed v. Bank of Newburgh, 1 Paige, 215, the court held that though a defendant in a suit at law, who has a separate demand which he cannot set off there, cannot ordinarily have relief in equity unless the plaintiff is insolvent, yet the case is otherwise if the demand arises out of the matter in controversy, or consists of an agreement so connected with the claim in suit that if duly observed, the claim in suit would have ceased to exist. The case is very closely if not exactly in point. Contracts for the compromise of doubtful claims have often been specifically enforced. Atwood 1 Russ. 353; Waterman on Speci. Perf., § 43, and cases cited. It has been held that an agreement between a creditor and a third person for valuable consideration whereby the creditor agreed to compromise his claim against the debtor, would be specifically enforced. Phillips v. Berger, 2 Barb. S. C. 608; also in 8 id. 527. And see Adderley v Dixon, 1 Sim. & Stu. 607. The tendency in this country is to extend the jurisdiction to all cases in which either of the parties is fairly entitled to a more perfect relief than be can get at law. Waterman on Speci. Perf., § 16, notes. Baker v. Hawkins. Opinior by Durfee, C. J.

จ

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

TAXATION-DRUGGIST-LICENSE TAX.-Where a city of the third class levies license taxes upon various kinds of business and occupations, and in doing so levies an annual license tax of $80,payable quarterly, in installments of $20 each,upon druggists having permits from the probate judge to sell intoxicating liquors, and levies an annual license tax of $5 upon druggists not having such permits, held, that the license tax levied upon druggists having such permits is not illegal or void. We have just decided the case of City of Newton v. Atchison, 31 Kan. 151, which involves many of the questions involved in this case, and under that decision we think it necessarily follows that the ordinance which we are now considering must be held to be valid. Also see the following cases: City of St. Louis v. Bircher, 7 Mo. App. 169; Ould v. City of Richmond, 23 Gratt. (Va.) 464; City of Sacramento v Crocker, 16 Cal. 119; Mayes v. Irwin, 8 Humph. (Tenn.) 290; City of Burlington v. Putnam Ins. Co., 31 Iowa, 102; American Ex. Co. v. City of St. Joseph, 66 Mo. 675; Van Baalen v. People, 40 Mich. 258; Fretwell v. City of Troy, 18 Kan. 271. Tulloss v. City of Sedan, Opinion by Horton, C. J.

ог

ATTACHMENT--SEIZURE OF SAFE-LIABILITY OFFICER.- An officer who has seized and taken possession of personal property under an order of attachment directed to him cannot, after the discharge of the attachment proceedings, defend his seizure and possession upon the ground that the sale and transfer to the plaintiff were fraudulent. An officer, under the order of attachment directed to him, seized and took possession of a stock of merchandise in a storeroom, and excluded from the room the owner. In the room there was a safe, which the officer did not levy upon. Afterward the attachment proceedings were discharged. A day or two subsequent to the seizure by the officer, and while he had full possession of the store-room and all its contents, another person entered therein, with his consent, and levied on the safe under some process against a person not the owner

thereof, and carried it away. Held, as the officer had wrongfully deprived the real owner of the possession of his storeroom and safe, and also deprived him from having any care or control thereof, he cannot be released from liability on the ground that the safe was taken out of his possession by some other person. Simpson v. Vors. Opinion by Horton, C. J.

STATUTE REPEAL BY IMPLICATION. Where a later statute covers the entire subject-matter of a prior act, and embraces new and different provisions, plainly indicating that it was intended as a substitute therefor, it will, without any express declaration to that effect, operate as a repeal of such former act; and, held, that under this rule, chapter 68 of the Laws of 1872, as amended by chapter 39, Laws of 1874, repealed chapter 33, Laws of 1870, as amended by chapter 48, Laws of 1871. The rule is thus stated by Mr. Justice Field, in the case of the United States v. Tynen, 11 Wall. 92: "Even where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." See also the following cases: Davies v. Fairbairn, 3 How. 636; Bartlett v. King, 12 Mass. 537; Commonwealth v. Cooley, 10 Pick. 36; Pierpont v. Crouch, 10 Cal. 315; Sacramento v. Bird, 15 id. 294; Swann v. Buck, 40 Miss. 269; Norris v. Crocker, 13 How. 429; Sedgwick on Stat. and Const. Law, 124. State v. Studt. Opinion

*Appearing in 31 Kansas Reports.

by Brewer, J. [See 29 Alb. L. J. 372; 81 N. Y. 211.ED.

CARRIER-DUTY TO SHIPPER-NEGLIGENCE.-Where a shipper of stock has a contract with the railway company for himself to load his stock upon the cars of the company at its stock yards, and a car is furnished him near the shute of the yards for his use, and one of his employees uncouples it from another and pushes it down to the shute for the purpose of loading the stock, the railway company, in the management of its other cars, owes the duty of exercising ordinary care and diligence to the shipper and his employees while they are engaged in loading the car and doing such other work preparatory to loading as is usual and necessary to do. Held, also, that if the company is guilty of ordinary negligence in leaving a car unattended upon the same track with the car to be loaded by the shipper, without having secured the same by brakes or otherwise to prevent it from moving, and the car is moved by a hard or strong wind against the car about to be loaded and upon an employee of the shipper, and the employee is without fault and free from any negligence or wrongful act on his part directly contributing to the injury, the railway company is liable to him for the result of its negligence. Stinson v. Railroad Co., 2 N. Y. 333; Haley v. Railroad Co., 7 Hun, 84; Brown V. Railroad Co., 8 La. 45; Newson v. Railroad Co., 29 N. Y. 83. See also Nicholson v. Railroad Co., 41 id. 526. Union Pac. R. Co. v. Harwood. Opinion by Horton, C. J.

CRIMINAL LAW.

RECEIVING STOLEN GOODS-GUILTY KNOWLEDGEEVIDENCE. The prisoner was indicted for receiving stolen goods, knowing them to have been stolen. To prove his guilty knowledge evidence was given that, being asked by the police as to the prices he had given, he said he did not then know, but his wife would make out a list of them, and next day she, in his presence, produced a list, which was received in evidence against him. Held, that it was admissible. If the case had been one in which the wife had made a statement to the police in the absence of the prisoner,even although he had referred them to her, I should have desired very considerable time to reflect before I should have allowed such evidence to be given. But that is not this case, and it is not necessary in this case to determine whether that would have been good evidence or not, and whether if a prisoner refers a witness to any one, that makes every thing the other says evidence against him. That is not the case. And it appears to me that in this case the conviction ought to be upheld upon the ground that the prisoner, being asked as to certain matters, said, "1 have not the means of answering, but my wife has, and she shall make out a list which will be an answer to the question;" and next day a policeman went to the house and the wife handed the list over to him-in the presence of the husband-as the statement of the husband. The husband was present, and he allowed the paper to be handed to the police as containing the information he had been asked for. The question is whether it is receivable as evidence against him quantum valeat; and it appears to me that it is so, as a statement authorized by the prisoner to be made and handed over in his presence to the police. According to all rules of evidence the statement was receivable in evidence against the prisoner, and therefore I am of opinion that the conviction ought to be upheld. Cr. Cas. Res. May 10, 1884. Regina v. Mallory. Opinions by Coleridge, C. J., Grove, J. [50 L. T. Rep. (N. S.) 429.]

ELECTION-PUTTING PROSECUTOR TO-DISTINCT OF FENSES CHARGED-DISCRETION OF COURT.-Where, for the purpose of proving the charge made in a single count in a criminal information, evidence is introduced tending to prove several separate and distinct offenses, it is the duty of the court, upon motion of the defendant, to require the prosecutor to elect upon which transaction he will rely for conviction; but the court may exercise some discretion with regard to the definiteness of the election. Therefore on a prosecution for selling intoxicating liquors in violation of law, where evidence was introduced tending to prove several separate and distinct offenses, and where the court, on motion of the defendant, required the State to elect upon which transaction it would rely for conviction, and the State elected to rely upon a sale of whisky made by the defendant to one D.; and the evidence of D. tended to show that several sales of both whisky and beer were made by the defendant to the witness, at the defendant's place of business, in November or December, 1882; and the defendant's place of business was definitely shown by the evidence, but the time of the sales was not any more definitely shown than as above stated; und the defendant moved the court to require the State to make the election more definite and certain; and the court overruled the motion, held, not error. We suppose that upon a criminal trial, where the State has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court, upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction. State v. Schweiter, 27 Kan. 500, 512. Any other rule would often work injustice and hardship to the defendant. But while the prosecutor is required to elect in such cases, he is required to elect only in furtherance of justice; and the rule is never carried to the extent of working injustice. That a court may exercise some discretion in requiring elections to be made in such cases as the present, see the following authorities: State v. Smith, 22 Vt. 75; State v. Croteau, 23 id. 14; State v. Bell, 27 Md. 675; Commonwealth v. O'Connor, 107 Mass. 219. See also other cases cited in the brief of counsel for the State, as follows: Murphy v. State, 9 Lea, 373; State v. Sims, 3 Strobh. 137; State v. Hood, 51 Me. 363; Commonwealth v. Sullivan, 104 Mass. 552; George v. State, 39 Miss. 570; State v. Green, 66 Mo. 632; State v. Tuller, 34 Conn. 280. Sup. Ct. Kan. January, 1884. State v. Crimmins. Opinion by Valentine, J. (31 Kan. 376.) [See 52 Ind. 157; 56 id. 182; 12 N. W. Rep. 313; 19 Alb. L. J. 442.-ED.]

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FORGERY-BILL OF EXCHANGE—“ CURRENT FUNDS -UNSTAMPED, NO DEFENSE.-An instrument, described as a bill of exchange in an indictment for forgery, was in the following form: "Staunton, Va., September 4, 1882. Augusta National Bank, pay to J. Edwin Laird or bearer the sum of seventy-five dollars ($75), current funds." Held, that the words "current funds" as used in the paper meant nothing more nor less than current money," and so construed, the instrument was negotiable. That in the absence of proof showing the law of the State of Virginia, where the instrument was drawn, to be different from that of Maryland, the character of the instrument was settled by the case of Hawthorn v. State, 56 Md. 530, which holds that a check drawn on a bank is a bill of exchange. That the fact that the check or instrument described in the indictment was unstamped constituted no ground of defense. One cannot, it is true, be convicted of the forgery of a paper absolutely invalid upon its face, and which could not operate to the prejudice of another.