conveyance was ever received by defendant, and that no consideration ever passed between plaintiff and defendant for the execution of the agreement sued on. This pleading does not state facts enough to show a want of consideration, for which it was evidently and confessedly pleaded. Laundry Co. Lockwood (Ind. Sup.), 40 N. E. Rep. 677, and authorities there cited. A motion is made to dismiss this appeal on the ground, made to appear in affidavits, that since the appeal was taken the appellant has located in the town of Worthington, in Green county, to practice his profession, which reaches into portions of Owen county, the appellee's former field of practice, in which parts appellant still continues to practice. These facts do not deprive the appellant of the right to continue to prosecute his appeal. No authority is cited to support the motion, and we know of none. The Circuit Court erred in overruling the demurrer to said answer. The judgment is reversed, with instructions to sustain the demurrer to the second paragraph of the answer.

Jordan, J., took no part in this decision.

NOTE.-Agreements in Restraint of Trade—Ancient Rule-Modern Rule.-"The law concerning restraint of trade has changed from time to time with the changing conditions of trade, but with trifling excep tions these changes have been a continuous development of a general rule." "The earlier cases show a disposition to avoid all contracts to prohibit or restrain any, 'to use a lawful trade at any time or at any place,' as being against the benefit of the commonwealth.' Colegate v. Bacheler, Cro. Eliz. 872 (1596). But soon it became clear that the commonwealth would not suffer if a man who sold the good will of a business were able to bind himself not to enter into immediate competition with the buyer, and so it was laid down in Rogers v. Parry, Bulstrode, 136 (163), that ‘a man cannot bind one that he shall not use his trade generally,' 'but for a time certain, and in a place certain, a man may be well bound and restrained from using of his trade.' Thus we get an established rule; a contract in general restraint of trade is contrary to pub lic policy; a contract in partial restraint will be upheld." Anson on Contracts, 8th Ed. (1895) 249-50. Where the restraint is partial, reasonable, and founded upon a good consideration, it is valid and will be enforced. 3 Am. & Eng. Ency, of Law, 882. Citing the following cases: Mitchell v. Reynolds, 1 P. Wms. 181; 1 Sm. L. C. (8th Am. Ed.), 756; Whitney v. Slayton, 40 Me. 224; Perkins v. Clay, 54 N. H. 518; Clark v. Crosby, 37 Vt. 188; Hedge v. Lowe, 47 Ia. 137; Arnold v. Kreutzer, 67 Ia. 214; Laubenheimer v. Mann, 17 Wis. 542; Fairbank v. Leary, 40 Id., 637; Keeler v. Taylor, 53 Pa. St. 467; McClurg's App., 58 Id. 51; Koehler v. Fearbacher, 2 Mo. App. 11; Wiggins' Ferry Co. v. C. & A. R. R. Co., 73 Mo. 389; Turner v. Jalmson, 7 Dana (Ky.), 435; Stearns v. Barrett, 1 Pick. (Mass.) 443; Linn v. Sigsbee, 67 Ill. 75; Talcott v. Brackett, 5 Ill. App. 60; P. G. & C. Co. v. C. G. & C. Co., 20 Id. 473; Bowser v. Bliss, 7 Blackf. (Ind.) 311; Lawrence v. Kidder, 10 Barb. (N. Y.) 641; Chappell v. Brockway, 21 Wend. (N. Y.) 157; Curtis v. Gokey, 68 N. Y. 300; Hoagland v. Segur, 38 N. J. L. 230; Jenkins y. Temples, 39 Ga. 655; Gireaud v. Daudelet, 32 Mo. 561; Lange v. Werk, 2 Ohio St. 519; Thomas v. Mills, 3 Id. 274; Hubbard v. Miller, 27 Mich. 15; Lightner v. Menzel, 35 Cal. 468; Boutelle v. Smith, 116 Mass. 111.

Consideration.-The adequacy of the consideration will not be inquired into in such cases. It is enough if some legal consideration appears. Pierce v. Fuller, 8 Mass. 223; Linn v. Sigsbee, 67 Ill. 75; Perkins v. Clay, 54 N. H. 518.

Test to be Applied in such Cases.-The test to be applied in determining whether a restraint upon the exercise of a business, trade or profession, is reasonable or not is to consider whether the restraint is only such as is necessary to afford a fair pro tection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public. Ellerman v. Chicago Junction Railway & Union Stock Yards Co., 23 Atl. Rep. 287. Where a covenant in restraint of trade is general, that is, without qualifications, it is bad, as being unreasonable and contrary to public policy. Where it is partial, that is, subject to some qualification either as to time or space, then the question is whether it is reasonable; and, if reasonable, it is good in law. Badische Arial Fabrik v. Schott (1892), 3 Chancery Division, 447; Am. Digest, 1895 p. 878.

Physicians.-A contract by a physician for the sale of his "practice and good will" in a specified town is not void as against public policy. In such contract of sale there is an implied covenant that the vendor will not interfere with the enjoyment of what he has sold. If he does, such interference may be restrained by injunction. Dwight v. Hamilton (1873), 113 Mass. 175. In the foregoing case "A" executed a bond to "B" conditioned to convey to him, for a certain sum, his land and buildings, and his practice and good will as a physician. To carry out the agreement, the money was paid by "B's" wife and the real estate conveyed to her. In a suit brought by "B" to re strain "A" from practicing as a physician in violation of his agreement. Held, that as the money was paid by, and the real estate conveyed to the wife by consent of the parties, "A" could not object that "B" had failed to perform his part of the agreement. One who agrees not to practice as a physician in a certain city "and vicinity" is properly enjoined from practicing within ten miles of the city limits. Tinimerman v. Dever, 52 Mich. 34, 50 Am. Rep. 240; 23 Am. L. Reg. 50. Where a physician upon selling out his business agreed "to practice medicine no more" after a certain date in the town where he had been following his profession, and the contract further provided that a stipulated penalty should be paid if the agreement was broken, the penalty is recoverable in an action based upon the breach of the agreement. Martin v. Cluerpley (1891), 129 Ind. 464; but see Mandeville v. Harman (N. J.), 7 Atl. Rep. 37. A complaint by one physician against another to enforce by injunction an agreement of the latter to keep out of practice, which does not show the amount of practice done by each, nor that the business of the plaintiff had been made less renumerative by reason of the breach of the agreement, is not good. Thayer v. Younge, 86 Ind. 259; citing 2 High on Injunctions, 776; Kerr on Injunctions, 513.

Dentists. A contract was held to be valid in a New York case where the contractor agreed not to re-enter the business of a dentist for a period of four years from May 1, 1893, within the territory bounded by the Harlem river on the north, Seventieth street on the south, East river on the east, and North river on the west in New York City. Niles v. Fenn (1895), 33 N. Y. S. 857. And see Mallan v. May, 11 M. & W. 653. In a Connecticut case, the plaintiff, for a sufficient consideration bought of the defendant his business as a dentist, and the latter executed a contract not to

practice dentistry, within ten miles of Litchfield in said State. Held, that its violation should be enjoined, and that the contract was not void in not fix. ing a period within which the defendant was not to practice dentistry within those limits. Cook v. Johnson, 47 Conn. 175. And in a Vermont case the contract being, that if the plaintiff, a dentist, would keep himself supplied with mineral teeth by purchases of the defendant, the latter would not sell such teeth to any other person in the place where the plaintiff resided, it was held that the contract being only in partial restraint of trade was not illegal. Clark Adm'r v. Crosby, 37 Vt. 188. But in an English case it was held that an agreement that defendant, a moderately skillful dentist, would abstain from prac. ticing over a district 200 miles in diameter, in consideration of receiving instructions and a salary from the plaintiff determinable at three months' notice, was unreasonable and void. Honer v. Graves, 7 Bing. 735. In New York it has been held that a contract based upon the consideration of $200 and the sale of certain stock and material not to sell mattresses for five years "in all the territory of the State of New York west of the city of Albany" was void, as embracing too large a territory. Lawrence v. Kidder, 10 Barb. (N. Y.) 641. But see Diamond Match Co. v. Raeber, 35 Hun (N. Y.), 421. Likewise one not to exercise the trade of making printers rollers and composition in New York City, or within 250 miles therefrom, so long as plaintiffs, their survivors or successors, shall continue such business or manufacture. Bingham v. Naigne, 52 N. Y. Sup. Ct. Rep. 90. And in Louisiana where several firms agreed not to sell a certain brand of goods for a certain length of time without the consent of a majority of said firms, on the ground that it was a combination to enhance the price of the article "which is in restraint of trade and contrary to public order." India Bagging Assn. v. Kock, 14 La. Ann. 164. And in New York one between a number of stockholders of a corporation not to sell their stock nor to give powers to vote the same. Fisher v. Bush, 35 Hun (N. Y.), 641. And in Indiana one where a dry goods dealer sold out his business and agreed not to engage in the same business for five years with no limitation as to place. Wiley v. Baumgardner, 97 Ind. 66, 49 Am. Rep. 427.

Drug Business-In a North Carolina case the facts were as follows: "One Baker, father of the plaintiff, for the benefit of the plaintiff and for the purpose of starting him in business on his own account, bought of defendant, who for a number of years had been enengaged in the business of selling drugs and medicines and preparing prescriptions of physicians in the town of Tarboro, his stock of drugs, etc., and the good will of his business for $1,500 then paid, and the defendant agreed in consideration thereof, not to carry on said business in the town while the plaintiff was engaged in it. The defendant was enjoined from violating his contract, and held guilty of contempt subsequently in disobeying the order of the court in resuming the business as manager for others. Baker v. Cordon (1882), 86 N. C. 116. A contract not to engage in business as a retail butcher for a period of three years within a radius of five miles from a given city, made upon the sale of such a business therein is valid. Brown v. Kling (1894), 101 Cal. 295. Likewise one not to engaged in such business within eleven miles of a small town. Eisel v. Hayes (1895), 40 N. E. Rep. 119. Likewise one not to make, sell or trade in fanning mills south of the Wabash river, within thirty miles of Marion in Grant County, Indiana. Bowser v. Bliss, 7 Blackf.

344. Likewise one not to engage in business within a given territory for five years. Paragon Oil Co. v. Hall, 7 Ohio Cir. Ct. Rep. 240. Likewise one not to engage in the stock yard business for a certain number of years, nor in a given place, nor within 200 miles thereof. Ellerman v. Chicago Junction Railways & Union Stock Yards Co. (N. J. Ch.), 23 Atl. Rep. 287. Likewise one not to engage in the installment clothing business in a certain city for one year after a certain employment terminates, the consideration of such employment being the agreement in question. Sternberg v. O'Brien, 48 N. J. Eq. 370, 33 Cent. L. J., p. 224, see 32 Id. 241. Likewise one under penalty of $5,000 not to engage in the manufacture and sale of a certain cheese, the secret ofjits manufacture and the factory in which it was made having been sold to another. Tode v. Gross, 127 N. Y. 480. The assignor of a lease and the good-will of the business of a baker agreed that he would not during the term assigned solicit the custom of, or knowingly supply bread or flour to any of the customers then dealing at the premises, without the consent of the assignee. Held, not void, as an unreasonable restraint of trade. Rannie v. Irvine (1844), 7 M. & G. 969. An agreement of the vendor, in consideration of a sale of a lot, not to build a flat in the immediate neighborhood, is not against public policy as being in restraint of trade. Lewis v. Goallner (N. Y.), 29 N. E. Rep. 81. Nor is one wherein a person selling his type-writing supply business to another agrees that for fifteen years he will not "either in his own name, or otherwise, directly or indirectly, engage in, or aid or instigate others to enter upon or be interested in any business of like nature to that herein by him sold." Underwood v. Smith, 19 N. Y. S. 380.

Contract in Restraint of Trade-Indefinite Duration of.-Where a contract in restraint of trade is indefinite as to the time the restraint is to continue, such omission does not render the same invalid. Bowser v. Bliss (Ind.), 7 Blackford, 344. A contract not to engage in a certain business in a town named while another carries on a business therein is not invalid, as indefinite as to its duration. Eisel v. Hayes (1895), 40 N. E. Rep. 119; Carll v. Snyder (N. J. Ch.), 26 Atl. Rep.

Limitation as to Time.-Whatever difficulty there may be in limiting as to space a contract in restraint of trade, where there is no restriction, it may be limited as to time, so as to be enforced to the extent to which it is limited by a given statute, for the protection of the purchaser while engaged in the business within the limited territory. Brown v. Kling (1894), 101 Cal. 295.

Injunctions-Restraining Seller from Engaging in Rival Business-Good-Will. -Upon the sale of a business and its good-will merely, without any restrict ive engagement on the part of the seller, an injunction will not issue against his establishing a rival business and soliciting the customers of the purchaser. Close v. Flesher (1894), 28 N. Y. S. 737.

Same-Damages.-Where a contract in restraint of trade is valid, and the complaint states a breach of it, the plaintiff is entitled to an injunction even if only nominal damages can be proven. Brown v. Kling (1894), 101 Cal. 295. But where the parties to a contract have agreed upon the damages which may be recovered for a breach thereof, the remedy is for the recovery of the sum thus fixed, and injunction will not lie. The sum fixed by the parties themselves, in their contract will, in the absence of fraud, be deemed to be adequate, and the proper measure of damages by the court. Martin v. Murphy (1891), 129 Ind. 464.

Citing Ploughe v. Boyer, 38 Ind. 113; Sims v. City of Frankfort, 79 Id. 446; Hendricks v. Gilchrist, 76 Id. 369; Ricketts v. Spraker, 77 Id. 371; Caskey v. City of Greensburgh, 78 Id. 233; Dakin v. Williams, 17 Wend. 447; Johnson v. Gwinn, 100 Ind. 466; Duffy v. Shockey, 11 Id. 70; Tode v. Gross, 127 N. Y. 480.

SOLON D. WILSON.

CORRESPONDENCE.

CRITICISM OF MISSOURI DECISION.

To the Editor of the Central Law Journal:

In your No. 5, Vol. 41, you published my criticism of the opinion of the Kansas City Court of Appeals, rendered in State ex rel. Mulvihill v. Kumpf et al., respondents. I now take occasion to submit another criticism of another opinion of the same court rendered on another phase of the same case, under the title, State ex rel., etc. relators v. John P. O'Neill, respondent. This was an original proceeding to compel respondent, as sheriff, to execute a writ of fieri facias according to its mandate.

On presentation of the information therefor, the court, on consideration, awarded the alternative writ; respondent demurred thereto, for the reason that it did not state facts sufficient to warrant the relief therein sought. The following, except the words and phrases found in parentheses, is the opinion of the court. "Relator instituted an action in the Circuit Court of Jackson county against defendants (George Kumpf, et al.), based on (an administrators bond) in the penal sum of $10,000. One Moates filed an interplea wherein he claimed to be entitled to the proceeds of whatever judgment should be rendered on the bond. On trial, judgment was rendered against the interpleader, and also against the defendants (Kumpf, et al). The interpleader in due time appealed from the judgment against him. The defendants (Kumpf, et al), did not appeal. Plaintiff, notwithstanding the appeal, sued out execution on the judgment, which was, on motion of interpleader, recalled and quashed by the Circuit Court. The plaintiff, thereupon, took an appeal to this court and gave an appeal bond in the nature of a supersedeas. He then demanded of the respondent, sheriff, that he proceed to levy the execution. The respondent refused so to do, on the ground that it had been recalled and quashed. Relator then applied to this court for a writ of mandamus compelling him to do so, claiming that his appeal bond supersedes the order'quashing the execution, and therefore it should be executed.

The relator's application shows that when the Circuit Court quashed the execution which had been is sued in his favor, he, in due time, took an appeal from the order quashing the execution. Such appeal is now pending in this court. The object of said appeal must be to determine the correctness of the action of the Circuit Court in quashing the execution. If im. properly quashed, the order to that effect will be reversed and set aside and thus the sheriff will be free to act in the execution of any proper writ, which plaintiff may take out under the judgment. This proceeding, instituted in the first instance in this court, can have no other object or effect than to give to plaintiff the advantage of an execution of the writ in advance of a determination of whether it was properly issued, or should properly be executed. Whatever rights the relator may have by reason of the griev. ances which he relates can be obtained through the appeal which he has taken. So we apply to him the

rule which obtains in such cases, and deny a mandamus where an appeal will lie, since such an appeal affords him an adequate remedy at law. State ex rel. v. Megown, 89 Mo. 156, State ex rel. v. Lubke 85 Mo. 338. Peremptory writ denied. All concur."

It will be observed that the court did not refuse to award the peremptory writ, for the reason assigned in the demurrer, but on totally different grounds, untrue in point of fact, and insufficient in law, to-wit, "whatever rights the relator may have by reason of the grievances which he relates can be obtained through the appeal which he has taken. So we apply to him the rule which obtains in such cases, and deny a mandamus where an appeal will lie, since such appeal affords him an adequate remedy at law." The learned judge writing the opinion cites in support of his conclusion State ex rel. v. Megown, 89 Mo. 156; State ex rel. Evans v. Lubke, 85 Mo. 338. The first of these cases holds (1), that, "mandamus will not lie to control the judgment or discretion of an inferior court;" (2) that "mandamus will not lie in this instance because relator has another and specific remedy by appeal." The second of said cases decides simply this, no more no less, that "mandamus will not lie to relieve against the acts of an inferior court where the party complaining has a remedy by appeal or writ of error." Was it seriously intended by the learned judge in the use of the above quoted language of his opinion to assert that this proceeding sought to control the action of the court, or that the relator had the right of appeal from the refusal of the sheriff to act, and that therefore, mandamus would not lie? If the demurrer was well taken, it was the duty of the court to sustain it, otherwise to overrule it; that it did not sustain the demurrer, is logically conclusive of the proposition that the alternative writ was good and sufficient. That the court did not decide the question of law presented, shows its painful want of appreciation of the high purpose of its creation. It is the duty of all courts in Missouri to exercise all the jurisdiction conferred upon them, whensoever thereto properly invoked. When the people, in their sovereign capacity, enacted Section 10, Art. II, Constitution of Missouri, 1875: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character; and that right and justice shall be administered without sale, denial or delay," they knew they had instituted a model judicial system, at least on paper. Alas, what has been the fruit thereof. The court in the opinion quoted misconceived, misstated the case, and the questions involved, in the several particulars following (1), this is not an attempt to reach, control or influence the action of a judicial tribunal; if it were, as there is by law a right of appeal from or writ of error upon the judgments of inferior courts, the relators could, and probably would, have pursued such remedy which is not at all novel, and in that case the writ of mandamus would have found no place in the history of this case. On the other hand an appeal was taken from the order of the Circuit Court as stated in the opinion, but the two proceedings mentioned in the opinion were as separate and independent as any other two cases then pending in that court, their only coincident is similarity of title. But that is not this case. (2) If the sheriff had been a judicial officer, and his non-action complained of, judicial in character, from which an appeal, etc., might have been prosecuted to a revisory judicial tribunal, the opinion of the court would have been proper, and the authorities cited would have tended to support its conclusion which as an abstract propo

sition of law, predicated of the supposititious statement of facts made by the court, is probably correct. It is here conceded. But that is not this case.

The officer whose action is sought to be directed and controlled by this proceeding, is not a judicial officer; he possesses but few, if any, judicial powers or functions, certainly none as pertains to the matter here involved. No appeal lies from or writ of error upon his judgment (in this case refusal to act ministerially), to any other judicial tribunal. If such were true, we would readily concede the correctness of the opinion, and the force of the authorities cited in its support. But this is not this case.

In this case, the officer whose conduct is sought to be controlled by this proceeding is the sheriff of Jackson county, who is not a judicial officer. His functions and duties are not judicial generally; in this case they are purely ministerial or executive, that of levying an execution, an ordinary fiere facias, issued by authority of the statute law of the State, who invokes this high remedial writ of right. From the judgment of this officer (in the present case refusal to act) no appeal is provided. No writ of error or other appellate proceeding will lie. It follows, as a logical necessity, that the opinion of the court is wholly erroneous. The authorities cited in the opinion of the court do not even tend to support the conclusion arrived at by the court in its opinion as applicable to the facts of this case. It is well to remark here that the writ of mandamus is peculiarly adapted to the enforcement of merely ministerial duties, as in this case-this at least is axiomatic. "If there be a right and no other specific remedy this writ should not be denied."

Second. It is probably well to state here with emphasis, in order to avoid falling into error, that there is no statement of fact contained in the alternative writ, from the first to the last word thereof, from or upon which the court could rightfully assume to review the action of the Circuit Court. This court is called upon by the writ and demurrer thereto to pass upon two simple questions of law, not of fact, no more, no less.

First. What is the effect of the appeal and supersedeas bond, approved by the court below, on its order quashing the execution?

Second. What was the duty of the sheriff on the facts disclosed by the alternative writ?

It was the duty of the court to pass upon both of these questions; it refused to pass upon either, and no one knows to-day what would have been the result of a fair judicial examination thereof. It seems the court did not examine them, if so it did not give us the benefit of its researches. While it is not so stated, yet the court seems to have exercised its judicial dis cretion, and refused to adjudicate a plain question of law properly presented to it. Had the court examined the question, it would have been compelled by precedent to hold that the order quashing the execution, appealed from was superseded by such appeal; that it was the duty of respondent to execute the writ, and the peremptory mandamus would have been awarded. Parker v. Hannibal & St. J. R. R., 44 Mo. 415; State ex rel. Duggan v. Dillon, 98 Mo. 90. I want to say here, I have never known judicial discretion to be invoked as a screen to cover judicial virtue from public gaze. Who can say as much for judicial vice?

A learned author speaking of the judiciary said: "It must possess wisdom, learning, integrity, independence and firmness." Firmness without wisdom or learning is pitiable. Learning without integrity is

1. ADVERSE POSSESSION.-D, having entered on land which he supposed to be vacant, intending to pre. empt it, improved it, and remained in possession until his death, 18 years afterwards, when the improvements, without the land, were sold; D's heirs subsequently releasing to the purchaser of the improvements their claim to the land, for a nominal consideration: Held, that D's possession was not adverse to the real owner.-HARTMAN V. HUNTINGTON, Tex., 32 S. W. Rep.

562.

2. ADVERSE POSSESSION.-The mere cutting of tim. ber during a particular year on woodland is not an assertion of the right which will mature title to such land, where it is not continuous, or, if it is, there is nothing to show that, though the land was not susceptible of other use while covered with timber, it could not have been cleared and cultivated, regardless of its capacity for profitable production.-SHAFFER V. GAYNOR, N. Car., 23 S. E. Rep. 154.

3. ANIMALS-Running at Large-Liability of Owners. -Whether the owner of an unaltered mule has exercised such care to prevent the animal's running at large as a prudent man would exercise under similar circumstances is for the jury.-BRISCOE V. ALFREY, Ark., 32 S. W. Rep. 505.

4. APPEAL Bond - Waiver.-Where, in an action against a corporation and its directors, one of the directors dies before judgment, and the action abates as to him, an appeal bond given by the other directors, against whom judgment was rendered in favor of plaintiff, payable to plaintiff and the corporation, and also to the deceased director, his heirs, and representatives, is not so fatally defective as to deprive the appellate court of jurisdiction.-FUTCH V. PALMER, Tex., 32 S. W. Rep. 566.

5. APPLICATION OF PAYMENTS.-In an action on a note secured by chattel mortgage, an instruction that the proceeds of mortgaged property cannot be applied to another debt without the consent of both parties was properly refused, the court having already charged that all payments should be applied to the secured debt in the absence of an agreement to the contrary,

regardless of the source of the funds paid.-LARKIN V. WATT, Tex., 32 S. W. Rep. 552.

6. CARRIERS-Detention of Cars.-A railroad company may make a reasonable charge for the unreasonable detention of its cars.-KENTUCKY WAGON MANUF'G CO. V. OHIO & M. RY. Co., Ky., 32 S. W. Rep. 595.

7. CARRIERS OF STOCK-Notice of Injury.-Where the validity of a carrier's contract depends upon the reasonableness of a provision that in case of injury to stock the shipper must give notice of his claim therefor, in writing, to the agent, before it is delivered to any connecting line, or taken from the station, the carrier must, in order to avail itself of this provision as defense in an action by the shipper for damage so suffered, allege in its answer a state of facts showing that the shipper had failed to give the notice before defendant delivered to its connecting line, and that he had the opportunity to do so.-HOUSTON & T. C. RY. Co. V. DAVIS, Tex., 82 S. W. Rep. 510.

8. CONSTITUTIONAL LAW-Imprisonment for Debt.Acts 1895, ch. 67, authorizing the imprisonment of one who fraudulently obtains accommodation from an hotel, inn, or boarding house keeper, or who fraudulently removes his baggage without the consent of such keeper, does not violate Const. art. 1, § 18, forbidding the legislature from passing any law authorizing imprisonment for debt.-STATE V. YARDLEY, Tenn., 32 S. W. Rep. 481.

9. CONTRACT IN RESTRAINT OF TRADE.-An agreement to permanently cease selling buggies in a certain county is not void, as in restraint of trade.--DAVIS V. BROWN, Ky., 32 S. W. Rep. 614.

10. CONTRACT TO DEVISE.-A testator's contract with his daughter to refund certain money to her if she did not "heir" a particular portion of his land at his death was not fulfilled by a devise of a life estate to her, with remainder to his other children in the event of her death without issue.-PARROTT V. GRAVES' Ex'x, Ky., 32 S. W. Rep. 605.

11. CORPORATIONS By-laws-Officers.-A corpora. tion, whose charter vests the management of its affairs in a board of directors, cannot, by a by-law, substitute an executive committee for such board.-TEMPLE V. DODGE, Tex., 32 S. W. Rep. 514.

12. CORPORATION-Insolvent-Preferring Creditors.A corporation organized under the laws of this State, which is in an insolvent condition, cannot prefer, as a creditor, one of its officers.-MALLORY V. KIRKPATRICK, N. J., 33 Atl. Rep. 205.

13. CREDITORS' BILL-Rights of Creditors.-Where a bill to set aside a general assignment for fraud has been filled by a creditor on behalf of himself and other creditors, and a decree rendered annulling the assignment, and directing the assets to be distributed among complainants, other creditors, who were not parties to the proceeding, will not be permitted to intervene and share in the distribution.-SENTER V. WILLIAMS, Ark., 32 S. W. Rep. 490.

14. CRIMINAL LAW-Accomplice. One who agreed with defendant to steal, and who actually assisted in the taking, and who was not shown to have abandoned his original purpose until a short time before the tak ing, when he communicated the agreement to others, was an accomplice.-MCKENZIE V. STATE, Tex., 32 8. W. Rep. 543.

15. CRIMINAL LAW-Assault with Intent to Rape-Sufficiency of Evidence.-Evidence that defendant, while in a sitting position on a path leading from prosecu. trix's house to a well, solicited her as she passed him on her way to the well to have sexual intercourse with him; that, on her reply that she was not that kind of a woman, he followed her with his privates exposed, to a fence near the well, but did not go beyond it; and that he was never nearer her than 12 feet,-is insufficient to show an assault with intent to rape.-STATE V. JEFFREYS, N. Car., 23 S. E. Rep. 175.

16. CRIMINAL LAW-Disposing of Mortgaged Chattels. -On trial for unlawfully disposing of mortgaged goods

with intent to defeat the rights of the mortgagee, evidence that, five months after the offense was committed, defendant attempted to dispose of other property covered by the mortgage, is inadmissible on the question of intent.-STATE V. JEFFREYS, N. Car., 23 S. E. Rep. 163.

17. CRIMINAL LAW-Forgery-Check.-On a trial for forging a check purporting to be drawn by a corporation through its manager, a charge that it would be forgery if the instrument was made by a person other than the corporation or its manager, was not defective in that it omitted to add, "or the corporation by its manager."-WILLIAMS V. STATE, Tex., 32 S. W. Rep.

533.

18. CRIMINAL LAW-Games of Chance.-The putting. up by each of several persons of a plece of money, and the deciding, by throwing dice, which of such persons should have a certain turkey, constitutes a game of chance.-STATE V. DE BOY, N. Car., 23 S. E. Rep. 167.

19. CRIMINAL LAW-Minor-Punishment of Crime.-A boy under 14 years old is not punishable for gambling with dice (a misdemeanor) where he did not know that it was unlawful, though he was capable of discerning between right and wrong.-STATE V. YEARGAN, N. Car.. 23 S. E. Rep. 153.

20. CRIMINAL LAW- Perjury. - Perjury cannot be predicated on an oath administered by a de facto offcer.-WALKER V. STATE, Ala., 18 South. Rep. 393.

21. CRIMINAL LAW-Robbery.-Under Pen. Code, art. 722, which provides that, "if any person by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the possession or person of another any property," he shall be guilty of robbery, the mere snatching of money from another's hand is not such force as will constitute robbery.-JOHNSON V. STATE, Tex., 32 S. W. Rep. 537.

22. DEATH BY WRONGFUL ACT-Mill & V. Code, §§ 3130, 3131, gave a right of action for death by wrongful act to the personal representative, for the benefit of the widow or next of kin, the damages recoverable being those to which deceased would have been entitled had he lived. Section 3132 provides that the widow may prosecute the action in her own name, and if there be no widow, then the children may sue in their names. Section 3134 provides for the recovery, in such action, of damages resulting through the death to the parties for whose benefit the right of action survives, in addition to those which deceased could have recovered, but does not change the mode of suing: Held, that the action can only be brought by the personal representative, save in the excepted cases of the widow and children, and hence an action in the names of parents, as such, for the death of a minor child will not lie, though they be beneficially entitled to the recovery as next of kin.-HOLSTON V. DAYTON COAL & IRON Co., Tenn., 32 S. W. Rep. 486.

23. DEED-Married Woman Acknowledgment. Where a married woman's acknowledgement was void for want of privy examination, her subsequent acknowledgment to the same deed, made after her husband's death, and after a second husband abandoned her, is equivalent to a re-execution of the deed.CHESTER V. BREITLING, Tex., 32 S. W. Rep. 527. 24. EQUITY Reformation of Mortgage. - In the absence of statute, equity will reform a mortgage after record so as to include land omitted by mistake, thereby rendering the lien of a purchaser with notice of the facts, at execution sale of the part omitted, made after the mortgage was recorded and before the ref ormation, subsequent to the lien of the mortgage.-FT. SMITH MILLING CO. V. MIKLES, Ark., 32 S. W. Rep. 493. 25. EVIDENCE-Character.-A person's reputation for truth and veracity may be shown by witnesses who had a long acquaintance with him, though they have not seen him for several years, and are ignorant of the place of his present residence.-BROWN V. PEREZ, Tex., 32 S. W. Rep. 546.

26. EVIDENCE-Declarations to Physician.-In an action for personal injuries, it appeared that a year after