inoperative subsequently to the date of the will. Unfortunately, none of these authorities were cited before Bacon, V. C., but both the arguments of counsel and the decision of the judge were directed to the collateral question of how far it was requisite to have regard to the attestation of the will before it could be determined that the codicil affected it, rather than to the question of what was the extent of the operation of the codicil, assuming it to work a revival of the will. The decision, therefore, should at least be regarded as restricted to the narrow limits within which the case was considered, and should not be treated as casting any shadow of doubt upon the principles laid down in any of the above-mentioned authorities.

The other recent decision to which we referred above as determining a point of interest in connection with the same section of the Wills Act is the case of Cozens v. Crout (21 W. R. 781). In that case a will, by which the testator gave all his estate to his widow for her life, and after her death to all his children equally, was attested by three witnesses, of whom the two first were disinterested persons, but the third was one of the testator's sons, Henry C. Crout. And the question was, whether or not the gift of a share to this supernumerary witness was void by reason of his having attested the will. The son deposed that he had signed the will at his father's request, for the purpose of showing his approval of it; but the will had been admitted to probate with the names of all three witnesses thereon, and the Lord Chancellor held that the gift to Henry C. Crout failed. The point was not a novel one. It had before been decided in the same way by Wood, V. C., in Wigan v. Rowland (1 W. R. 383; 11 Ha. 157), and by Kindersley, V. C., in Randfield v. Randfield (11 W. R. 847; see, too, in The Goods of Mitchell, 2 Curt. 916): but a different decision had been come to by Lord Penzance in The Goods of Sharman (17 W. R. 687).

And although, in that case, there were peculiar circumstances, and it appeared that the legatee who signed the will was not intended to be an attesting witness, and the case was decided ex parte, and without reference to the authorities, yet it was important after that decision to have the point resettled. This has been satisfactorily done by the Lord Chancellor's recent decision. No doubt the result of that decision was particularly hard upon Henry C. Crout. But it would clearly be impossible to disregard any superfluous witness to a will because he might happen to be a legatee, without re-opening a door to the very mischief which the provisions of the 15th section of the Wills Act were intended to prevent. - Solicitors' Journal.

COURT OF APPEALS ABSTRACT. ATTORNEYS.

Lien for services: attachment against. — In an action for the foreclosure of a mortgage, K. was appointed receiver of the plaintiff after a decree of foreclosure had been obtained. He continued C. & McG. as attorneys; they caused the mortgaged premises to be sold, and received the proceeds; such proceeds they retained, and refused to pay over to the receiver, besides their costs and fees, the sum of $1,118.08, claiming a right to retain that amount in payment of a balance due them from plaintiff of $519.81, for professional services, and the balance in payment of a claim due McG., one of said firm, for professional services rendered by him as attorney for plaintiff prior to the formation of

said firm. The Special Term ordered C. & McG. to pay over the whole amount within ten days, or that a nonbailable attachment issue. The General Term modified the order by reducing the amount to $519.81.

Held, that the attorneys had a lien upon the bond and mortgage for the cost and charges in the suit, and for any sum due them from plaintiff for professional business, and the lien attached to moneys collected or received upon the judgment.

Also held, that one member of the firm has no lien upon the papers received by the firm for an individual indebtedness.

Also held, that, when an attorney retains money that justly belongs to his client, and refuses to pay it over, an attachment is a proper remedy against him. Good faith in withholding the money is no ground for exemption from such remedy. Bowling Green Savings Bank v. Todd et al. Opinion by Peckham, J.

CONSTITUTIONAL LAW.

Expressing subject of act in title. — This was an application to vacate an assessment for paving 64th street from 3d to 5th avenues. The chief point raised was, that the assessment was not confirmed by the common council, but by the Board of Revision and Correction of Assessments, created by chap. 308, Laws of 1861, and that said act was unconstitutional, because it violates that provision of the Constitution (art. 3, § 16) which declares that no private or local bill passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title. The title of the act of 1861 is as follows: "An act relative to contracts by the Mayor, Aldermen and Commonalty of the city of New York." After providing that all contracts by or on behalf of the city of New York shall be awarded to the highest bidder, it devolves "the power and author

ity now vested in the common council of the city,

relative to assessment lists, and the confirmation, exclusively in the comptroller, counsel to the corporation, and recorder of the city, who, together, shall constitute a Board of Revision and Correction of all such assessment lists."

Held, that the insertion in the act (chap. 308, Laws of 1861) of the clause devolving the power and authority theretofore vested in the common council, relative to assessment lists, and the confirmation thereof, in the comptroller, counsel and recorder of the city, and constituting them a Board of Revision and Correction for that purpose, is not repugnant to the provisions of the Constitution (art. 3, § 16). Directions as to the manner of raising money by assessment, to pay for the execution of contracts, are parts of the one subject expressed in the title. In re petition Volkening to vacate an assessment. Opinion by Peckham, J.

DEVISE.

1. To State or nation void: power of executor to sell land. -This is an appeal from the judgment of the General Term affirming the decree of the surrogate of the county of New York, refusing to admit the will of Charles Fox to probate as a will of real estate. The material portions of the will are as follows:

"First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to wit: To the government of the United States, at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States, the property located on Third avenue," etc.

Held, that under the provisions of the statute of wills (3 R. S. 57, § 3), authorizing devises to be made to any person capable by law of holding real estate, the word "person" does not include a State or a nation-that the testamentary capacity given by that statute extends only to devises to natural persons, and to such corporations as are authorized to take by devise by the laws of this State. United States v. Fox et al. Opinion by Andrews, J.

2. A devise of lands to the government of the United States is void. Ib.

3. The devise being "after payment of debts," was a charge of the debts upon the lands devised. A power in executors to sell lands will not be implied from the fact of the lands being charged with the payment of debts. Ib.

HIGHWAY.

Laying out across railroad track.- Action to restrain defendants from opening Herrick street, in the village of Greenbush, across the lands of plaintiff. Defendants, claiming to act under the provisions of the act regulating the construction of roads and streets across railroad tracks (§ 1, ch. 62, Laws of 1853), which authorizes the construction of streets and highways across the track of railroads without compensation, attempted to lay out Herrick street across lands of the plaintiff, upon which were seven tracks, all of which were crossed by the proposed street. The court found as a fact that these were in constant use for passing trains, switching off cars and making up trains. Held, that the term "track" as used in the statute included only tracks used for public traffic, and for turnouts and switches. That it did not embrace tracks laid for storing cars, or exclusively for making up trains, but that as by the finding it appeared that the tracks were used for public traffic as well as for switching off cars and making up trains, the act covered them, and plaintiff could not maintain its action. The B. & A. R. R. Co. v. Prest., etc., of Greenbush. Opinion by Church, Ch. J.

HORSE RAILROAD.

1. Taxes against: rolling stock, personal property.-Action to recover possession of two horse railroad cars, and for damages for the detention thereof. The cars formerly belonged to the Metropolitan R. R. Co. They were levied upon and sold to pay a tax assessed against the company. On the sale they were purchased by plaintiff's testator. Defendants claimed title by virtue of the foreclosure of and sale under a mortgage given by the company upon its road.

Held, that defendants can claim no equity upon the ground that they acquired title by purchase upon the foreclosure of a mortgage given to secure the bonds of the company, as the warrant of the collector of taxes overrides all equities of third persons in the property. Randall, Ex'r, etc., v. Elwell et al. Opinion by Grover, J.

2. Also held, the rolling stock owned and used upon its tracks by a railroad company is personal property, and as such liable to be seized for the collection of a tax against the company. Ib.

INSURANCE.

Actions on two policies of insurance issued to the heirs and representatives of K., deceased; each contained this clause: "If the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, without the consent of the company indorsed thereon, the policy shall be void."

The original plaintiff, M. K., the executrix of K., sold the property to A without the consent of the insurance companies, and without notice to them, and did not assign the policies. The premises sold for $8,000, and plaintiff received a mortgage of $7,000 on the property as part of the purchase price. M. K. resigned her office, and S. was appointed trustee and administrator, with the will annexed, and substituted as plaintiff.

Held, that, although a mortgage was taken back for the purchase-money simultaneously with the conveyance, the policies were avoided. Also held, that a policy of insurance upon property, the title to which is vested in a testamentary trustee in trust for the heirs of the decedent, which policy insures the heirs and representatives of the deceased, is a valid policy in favor of the trustee, who, although not named therein, is entitled to the benefits of it for the beneficiaries under the will. Savage, Trustee, etc., v. Howard Ins. Co.; Same v. L. I. Ins. Co. Opinion by Allen, J.

LANDLORD AND TENANT.

Covenants to repair. —Action for the breach of a covenant of quiet enjoyment in a lease from defendant to plaintiff, which contained the following clauses: 1st. In case the premises should be partially damaged by fire, but not rendered untenantable, the same was to be repaired, with all convenient speed, at the expense of the lessor. 2d. In case they were rendered untenantable, the rent should be paid up to the time of the fire, and then cease until the premises were put in repair. 3d. In case of total destruction the lease was to cease, upon payment of the rent up to that time, otherwise to remain in force, at the option of the lessor.

The contingency provided for by the second clause occurred. Defendant decided not to repair, but to rebuild, and to terminate the lease. Held (Folger, J., dissenting), that it was optional with defendant to continue the tenancy by repairing the premises, or to terminate the lease, and that plaintiff had no cause of action.

Also held, a landlord's obligation to repair demised premises rests solely upon an express contract. A covenant to repair will not be implied, nor will an express covenant be enlarged by construction. In the absence of mistake or fraud, the parties will be held to have included the whole contract in the terms of the agreement. Witty v. Matthews. Per curiam opinion.

NEW YORK.

Void resolution of common council: publication of notice. Under the provisions of the charter of the city of New York of 1870 (chap. 137, Laws of 1870), a resolution passed by the common council, authorizing a specific improvement, which was passed without a three days prior publication, as required by § 20 of said charter, is illegal, and an assessment founded thereon is void. The fact that the mayor and comptroller failed to designate papers in which the city advertising should be done, as they were required to do by the act to make further provision for the government of the city of New York (§ 1, chap. 383, Laws of 1870), and consequently there being no paper in which the advertising could legally be done, does not excuse a noncompliance with the charter, or make such resolution and assessment valid. Church, Ch. J., dissenting. In re Smith, to vacate ass'mt. Opinion by Peckham, J.

PRACTICE-BANKRUPTCY - FRAUD.

1. This action was commenced by the service of a summous according to the provisions of § 129, sub. 1 of the

Code. No copy complaint was served with the summons. Upon an affidavit of the non-appearance of the defendant, plaintiff procured an assessment of damages by the clerk, and perfected judgment thereon January 21, 1865. The complaint alleged fraud in the contracting of the debt in suit. Defendant subsequently obtained a discharge under the bankruptcy act. In August, 1871, plaintiff made a motion for leave to issue execution. Defendant denied the facts stated in plaintiff's affidavits, and set up his discharge.

Held, that defendant was not concluded by the allegations of fraud in the complaint, but plaintiff's right of action for or remedy under the statutes of this State, by reason of the fraud, was merged in the judgment.

Plaintiff's proper remedy was to apply to the Court under § 71 of the Code, upon affidavits disclosing the questions to be litigated, for leave to bring an action upon his judgment. Shuman v. Strauss. Opinion by

Allen, J.

2. Where the facts upon which a motion for leave to issue execution are disputed, an order denying the motion is within the discretion of the Court, and is not appealable. Ib.

Whether under § 33 of the bankrupt act of 1867, which declares that no debt created by the fraud of the bankrupt shall be discharged under the act, a judg- | ment creditor can go behind a judgment and show that the debt for which it was recovered was created by the fraud of the debtor, and thus have execution upon the judgment, notwithstanding the debtor's discharge in bankruptcy, quere. Ib.

STATUTE OF FRAUDS.

1. Frauds in contracts void under.― Action to recover damages alleged to have been caused by defendant falsely representing that he was authorized to lease, as agent for the College of Physicians and Surgeons, certain premises in New York city, and as such agent he entered into a parol contract with plaintiff to lease said premises to plaintiff for the term of two years; on the faith of which plaintiff incurred expense in procuring fixtures to fit up the premises. Held, that as the contract would have conferred no rights upon plaintiff if defendant had possessed the authority claimed, that plaintiff was not injured by the representations, and could not maintain an action either upon the contract or in tort. Dung v. Parker. Opinion by Andrews, J.

2. A contract void by the statute of frauds cannot be enforced, directly or indirectly. It confers no rights and creates no obligations as between the parties to it, and no claim can be founded upon it as against third persons. Whatever may be the form of an action at law, if the proof of such a contract is essential to maintain it there can be no recovery. Ib.

SURROGATE-HUSBAND AND WIFE.

1. Appeal from an order of the General Term of the Supreme Court, affirming a decree of the surrogate of the county of Queens, allowing certain claims against the estate of R., deceased. One of the claims in question was allowed with others by a former decree, which was appealed from and the decree reversed by the Supreme Court as to a single claim, not the one in question, and affirmed as to the residue, and the proceedings remitted for a further hearing. This order was not appealed from. Upon the remittitur the surrogate made a decree directing a sale of the real property for the payment of debts. Upon a sale of the real property, and the bringing in of the proceeds for distribution,

the present appellants, children of the intestate, asked that the claim be disallowed and the previous decree re-opened for error in law. The application was denied. Held, no error; that the judgment of the Supreme Court was binding, and the surrogate had no discretion in the premises. Reed et al. v. Reed, Adm'x, etc. Opinion by Allen, J.

2. Also held, that a surrogate can only award taxable costs to litigants. It is error to allow a sum in gross to the counsel of the prevailing party. Ib.

3. In 1846, at the request of the intestate, a note of $1,000 was made payable to the order of intestate's wife, by one of his debtors, who delivered the same to her. She kept it until 1855, and it was at all times recognized as her property by the intestate. In 1855 the intestate gave this note, and another for $360 belonging to the wife, with the assent of the latter, in payment of property purchased by him, and gave his note to his wife for the amount thereof, with interest. Held, that the circumstances attending the execution and delivery of the first note constituted a valid gift in equity from the husband to the wife, and vested in her an equitable title as against the husband's next of kin. A loan was evidenced from the subsequent transaction from the wife, which was to be repaid by the husbaud or from his estate, and therefore the claim of the wife was properly allowed. Ib.

WILL.

Proof of due execution: burden of proof. This is an appeal from a judgment of the General Term affirming a decree of the surrogate of Queens county, confirming the probate of the will of K. The will was drawn by an experienced lawyer, according to instructions given by the testator, and he and his clerk signed the same as witnesses. The attestation clause complied with all the requirements of the statute. Neither of the witnesses could remember any thing in regard to the execution of the will. Eleven years had elapsed from the date of the execution of the will before the witnesses were called upon to testify.

Held, that the proponents of a will hold the affirmative, and must establish its due execution under and in accordance with the statute of wills (2 R. S. €3, § 40). If the attestation clause is full, and the signatures genuine, and the circumstances corroborative of due execution, and no evidence is given disproving a compliance with the statute in any particular, the presumption may be lawfully indulged, that all the provisious of the statute were complied with, although the witnesses are unable to recollect the execution, or what took place at that time. In re Will of Kellum. Opinion by Church, Ch. J.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.

AMENDMENT OF MARCH 3.

1. The amendment to the bankrupt act of March 3, 1873, held constitutional in this case. In re Smith, U. S. Dist. Ct. N. D. Ga., 8 N. B. R. 401.

2. A bankrupt who files his petition after the passage of act of March 3, 1873, is entitled to have the assignee set apart to him the exemptions "as existing in the place of his domicile on the 1st day of January, 1871," even though there are judgments in force rendered prior to the passage of the State act giving the increased exemption. Ib.

3. The amendment of March 3, 1873, does not destroy the uniformity of the bankrupt act. Ib.

4. Congress has power to destroy existing contracts and to release liens held for their enforcement. Ib.

BOOKS OF ACCOUNT-CROPS-RENEWED NOTES.

1. Where a bankrupt, after March, 1867, fails to keep proper books of account-such books as will enable an ordinary book-keeper to determine his true financial condition - his discharge will be refused. In re Schumpert, U. S. Dist. Ct. N. D. Miss., 8 N. B. R. 415. 2. Growing crops unmatured should be entered by the bankrupt on his schedule of personal property. Ib. 3. For a debt contracted in 1863, a note was given at twelve months, and each year thereafter until 1870the old note was taken up and a new note given, the last note given in 1870.

Held, this was not a debt contracted prior to January 1, 1869, but comes under the fifty per cent clause. Ib.

CONTINUING CONTRACT.

On a continuing contract, where the liability is incurred from day to day, or month to month, a discharge in bankruptcy cannot be pleaded as a bar to any part of the liability incurred after the date of the commencement of proceedings in bankruptcy. Robinson et al. v. Pesant et al., Ct. of App. N. Y., 8 N. B. R. 426.

CORPORATION.

When the interests of all parties seem to demand it, the court is authorized to direct the assignee to sell the real estate of a bankrupt corporation free from all liens, except the existing and recorded mortgages. In re National Iron Company, U. S. Dist. Ct. W. D. Penn., 8 N. B. R. 422.

CORPORATIONS.

1. Under acts authorizing corporations to organize upon payment of a certain proportion, say ten per cent, of the capital subscribed, in cash, and the balance in notes duly secured, the amount so due by a stockholder on these notes is in the nature of a trust fund, pledged to the creditors of the company, and a court of bankruptcy will not allow him to set off against such trust indebtedness an ordinary claim (as a loss on a policy in an insurance company), due him by the company. Scammon v. Kimball, U. S. C. Ct. N. D. Ill., 8 N. B. R. 337.

2. A treasurer of a company is a trustee of the money of the company received by him as treasurer, and cannot set off against the amount due by him for such funds a claim against the company of ordinary debt, as a loss on a policy in an insurance company. Ib.

COSTS-EXAMINATION.

1. Where, on the return of an order to show cause why a bankrupt should not be discharged, a creditor appeared and asked leave to examine the bankrupt:

Held, the creditor must pay the register the cost per folio of taking the deposition, but not his per diem, or fees for administering oath or granting certificate. In re Jackson, U. S. Dist. Ct. E. D. N. C., 8 N. B. R. 424. 2. The creditor mnst pay for such services performed by the register at his request as are in addition to those that the register would have been compelled to perform had the creditor not appeared. Ib.

3. The bankrupt, or his estate, must pay for such part of the services as would have to be necessarily performed had the creditor not appeared. Ib.

4. The party examining has a right to have the exam

ination reduced to writing, and sworn to and subscribed by the witness. Ib.

FORECLOSURE OF MORTGAGE.

Where a mortgagee proceeded in the State court, after petition in bankruptcy was filed by the mortgagor, with knowledge thereof, to foreclose his mortgage, without first obtaining the permission of the bankrupt court: Held, he was in contempt, and the sale itself a nullity; by the filing of the petition all the property of the bankrupt is eo instanti placed in the custody of the bankrupt court. Phelps v. Sellick, U. S. C. Ct. E. D. Mich., 8 N. B. R. 390.

HOMESTEAD.

A merchant, while in insolvent circumstances, selling for cash the homestead which he had previously occupied, and not accounting for the proceeds of the sale, and moving into a portion of his store, is not entitled to hold the latter as a homestead exempt from his debts. In re Wright, U. S. Dist. Ct. E. D. Wis., 8 N. B. R. 430.

JUDGMENT CREDITOR.

1. At common law a writ of error and supersedeas of execution leaves the judgment intact, and it is a provable debt in bankruptcy. In re Sheehan, U. S. Dist. Ct. E. D. Mich., 8 N. B. R. 345.

2. The levy by a creditor of an execution on sufficient property to satisfy his debt does not estop him from moving to have his debtor adjudged bankrupt, but the filing of the petition in bankruptcy will be held a waiver of the levy, and an election by the creditor to proceed in the bankrupt court. Ib.

3. Where a judgment on which a supersedeas and stay of execution has been granted by the State court, pending the decision of a writ of error, is proved in bankruptcy, the bankrupt court will stay the payment of any dividends on the claim during the pendency of the writ of error. Avery v. Johann, 3 N. B. R. 36, dissented from.

MARRIED WOMEN.

1. A married woman can only be adjudged bankrupt when the law of her domicile gives her the power to contract. In re Goodman, U. S. Dist. Ct. Ind., 8 N. B. R. 381.

2. In Indiana a married woman, unless possessed of separate estate, is incapable of making a contract. Ib.

NEW ACCOUNT-COSTS AGENT.

1. Where a creditor of a bankrupt, knowing him to be in failing circumstances, agrees to open a new account, irrespective of the old indebtedness, and to account for the proceeds of goods sent him for sale, by turning over the cash or notes received therefor, the creditor cannot, after the petition is filed, set off the amount due by him on the new account against the amount due him on the old account. In re Troy Woolen Company, U. S. Dist. Ct. N. D. N. Y., 8 N. B. R. 412.

2. Where the assignee in bankruptcy, at the instance and request of one creditor, contests the validity of the claim of a second creditor, and the cause is decided adversely to the assignee, the creditor at whose instance the proceedings were instituted will be required to pay all the cost of the proceeding, and the creditor whose claim is thus wrongfully contested may have execution therefor. Ib.

3. A party dealing with an agent may resort to the principal to compel performance of the agreement of the agent, unless the contract was made exclusively on the credit of the agent. Ib.

PARTNERSHIP EXEMPTION.

The individual members of a commercial firm are entitled to have the exemptions allowed them by the bankrupt act set apart to them out of the firm assets, where the individual assets of each copartner is not sufficient. In re McKercher & Pettigrew, Sup. Ct. Dakota T., 8 N. B. R. 409.

PETITION ON ONE DEBT.

1. Where there are no other debts besides that of the petitioning creditor, on which the debtor may be adjudged bankrupt, he is entitled to have the proceedings against him dismissed on the payment of the petitioning creditor's debt and the costs. In re Sheehan, U. S. Dist. Ct. E. D. Mich., 8 N. B. R. 353.

2. In a case where the adjudication has been resisted, the petitioning creditor may recover the costs that are allowed by law to a party recovering in a suit in equity, as defined by act of February 26, 1853. 10 Stat. at Large, 161. Ib.

3. In such case a special allowance for counsel fees cannot be made. It is doubtful if it can be legally done in any case. Ib.

PREFERENCE.

1. To establish an intent to prefer a creditor, it is sufficient for the assignee to show that the bankrupt, while insolvent, paid or secured this creditor in full without making adequate provisions for the other creditors, and this will place upon the defendant the onus of satisfying the court, that at the time of making the transfer or payment the bankrupt did not know he was insolvent. Stobaugh v. Mills and Fitch, U. S. Dist. Ct. Tex., 8 N. B. R. 361.

2. It is sufficient proof that the creditor had reasonable cause to believe that the debtor intended to prefer him to show that at the time of receiving the preference he had reasonable cause to believe the debtor insolvent, and that the debtor knew of his insolvency. Ib.

3. A deed of assignment by A to B and C, within four months prior to commencement of proceedings in bankruptcy, of all of A's property in trust, to pay first the debts of B, C and D in full, and to apply the balance pro rata upon the debts of the other creditors, and the amount turned over being insufficient to pay all in full, is void on its face, and a palpable and manifest attempt to prefer B, C and D, and to evade the provisions of the bankrupt act. Ib.

GENERAL TERM ABSTRACT.

SUPREME COURT-FOURTH DEPARTMENT, OCTO

RER, 1873.

MASTER AND SERVANT.

1. Contractors: liability of railroad company for acts of its agents, etc.-Where a contractor doing work on defendants' road trespassed upon plaintiff's land, and took therefrom dirt, gravel, etc., and appropriated it to the making and construction of defendants' roadbed, with the knowledge and assent of the engineers and several of their directors, and the referee so finds and directs a judgment for the plaintiff. On appeal by defendants: Held, that while the acts complained of were the trespasses of the contractors alone, the rule exempting an employer from direct or consequential damages done by his agent, does not apply to the case of

the taking by the agent of the property of another and appropriating it to the use and benefit of the employer. In this case several of the directors and the engineer in charge knew of the taking of the earth, gravel, etc., at the time of its taking, and knew that they had no right to take the same, and assented to said taking, if they did not direct it, and must be deemed to have assented to the taking and conversion. Defendants cannot retain the benefit of the trespass of their contractors committed for their benefit and be exempt. Judgment affirmed. McClenathan v. N. Y. and Oswego Midland R. R. Co. Opinion by E. D. Smith, J. 2. Acts of agents, liability for, by company to co-servant. - Plaintiff brought action to recover damages, resulting from the death of her husband, by a collision, while an engineer on a train on defendant's road, which collision was occasioned by the negligence of a telegraph operator and train dispatcher on said road. Said operator was appointed and retained by one F., the division superintendent, who had the general charge of the division where the accident occurred, and of the telegraph operator, etc. One C., his assistant, in the absence of F., performed his duties. Evidence was given tending to show that said operator was addicted to habits of intoxication, and that this fact was known to said F. and his assistant. The circuit judge charged the jury that F., and, in his absence, his assistant, was to be treated as the master and executive officer of the road. On a verdict for the plaintiff at the circuit, a motion was made for a new trial, which was granted, on the ground that the plaintiff's husband and the telegraph operator were fellow-servants of a common master, engaged in the same general business, and that the risk was one that each took in the service of such common master. On appeal from the order granting a new trial to this court: Held, that it was the duty of the company to use reasonable care to provide and employ none but competent and skillful servants, and to discharge from its employ, on notice thereof, any who fail to continue such, and that the defendant was negligent toward the plaintiff in retaining the operator after his habits of drinking to intoxication were known to its general agent or superintendent. F., and, in his absence, his assistant, were the proper representatives of the company, and their knowledge of the habits of the operator was the knowledge of the defendant, and bound it, and made it liable. The charge of the judge at the circuit was correct, and asserts the only practical rule that can be applied in such cases. Order granting a new trial reversed, and new trial denied, with costs. Chapman, Adm'x, v. Erie Railroad Co. Opinion by Smith, J.

PRACTICE.

1. Forcible entry and detainer.- Where, in an action to review proceedings for a forcible entry and detainer, before the county judge, the counsel for the defendant objects to the complaint, on the ground "that it was insufficiently verified to constitute an affidavit within the meaning of the statute, it being sworn to upon information and belief," and the objection was overruled by the judge, and the defendant duly excepted, and immediately thereafter the jury was impaneled and the investigation proceeded, and the inquisition was found and signed, and immediately thereafter the relator traversed it and brought the certiorari soon after, and before other proceedings were had. Held, that the statute in respect to "forcible entries and