the kind of evidence that may be offered that is the question to be decided, but what is sufficient to prove a fact that is the basis of a criminal prosecution. With this idea clearly in mind, it becomes more easy to determine what is requisite proof. The great weight of authority may be said to support the doctrine that any evidence whatever, that is admissible on general principles, and sufficient to satisfy the trior of the fact to the requisite degree of certainty, under principles pertaining to all criminal proceedings, is sufficient to prove a marriage in fact, valid and formal under the law. There is no reason why there should be a different rule as to the proof of one fact, on a prosecution for a criminal offense, than there should be in regard to any other fact essential to the maintenance of the charge. Herein there is no distinction between civil and criminal cases, for as to the kinds of proof they are alike, differing only in the measure required.

Supreme Court of California, July 18, 1900. Where the complaint in an action for malicious pros. ecution showed that in the former action plaintiff (now defendant) had recovered judgment, which had been reversed in the supreme court, and the cause remanded for new trial, it was bad on demurrer, as it failed to show that the litigation was without prob. able cause or that it had terminated.

VAN DYKE, J.: The demurrer to the complaint was sustained, and the appeal is taken from the judgment entered thereon. The sufficiency of the complaint is the only question presented on appeal. It is contended on the part of the apellant that the action is for the recovery of damages for a conspiracy between defendants to injure plaintiffs. The case cited and relied upon to support this theory is Dreux v. Docem, 18 Cal. 83. That was an action, however, for malicious prosecution. Several defendants were embraced in the action, the complaint averring "that the defendants, contriving and maliciously intending to injure the plaintiff, etc., procured him to be indicted." A demurrer was interposed, among other grounds, because no averment was made of any joint agency on the part of the plaintiffs in instituting the prosecution, which demurrer was overruled. It is said in the opinion on the appeal: "It is well settled that this action for malicious prosecution will lie against several defendants. It is argued, however, that a conspiracy must be averred. It is true that an action

lies for a conspiracy unjustly to prosecute a defendant, but we apprehend that this action is somewhat different, in form at least, from an action on the case for a malicious prosecution. The gist of this action is the malicious prosecution. That of the other is the conspiracy,-the combining of two or more to do an unlawful and injurious act. In the first case, we apprehend, the cause of action is complete before an acquittal. In the other, the acquittal or termination of the prosecution is necessary to enable the plaintiff to maintain the suit. But, however this may be, we think that it would be holding the rule to unnecessary strictness to hold that the defendants are not sufficiently and clearly charged with a joint act when but one general offense is charged, and this averred to be committed by all with the same unlawful motive, and that they all contrived to effect it." The language of the opinion is not very clear. There seems to be an ambiguity as to which action reference is made,-whether to malicious prosecution or conspiracy. It is stated that the cause of action is complete before acquittal. If in reference to an action for malicious prosecution, it is against all the authorities; and a mere conspiracy, without carrying out the purposes of the conspiracy or perpetrating some wrong, is not the ground for a civil action. In Savile v. Roberts, 1 Ld. Raym. 378, Chief Justice Holt said: "An action will not lie for the greatest conspiracy imaginable, if nothing be put in execution, but if the party be damaged the action will lie, from whence it follows that the damage is the ground of action." And in Herron v. Hughes, 25 Cal. 560, this court says: "A simple conspiracy, however atrocious, unless it results in actual damage to the party, never was the subject of a civil action; and though such conspiracy be charged, the averment is immaterial and need not be proved. When two or more are sued for a wrong done, it may be necessary to prove a previous combination in order to secure a joint recovery, but it is never necessary to allege it, and, if alleged, it is not to be considered as of the gist of the action. That lies in the wrongful and damaging act done." In Taylor v. Bidwell, 65 Cal. 489, 4 Pac. Rep. 491, it is said: "The gravamen of the action is the alleged malicious prosecution. The averments of the complaint with respect to the conspiracy of the defendants are not of the gist of the action. That lies in the wrongful and damaging act done." In that case the complaint averred, in substance, that the defendants confederated together for the purpose of falsely charging the plaintiff and maliciously prosecuting him for the crime of arson. In the present case the complaint charges the defendants with conspiring and combining together to prosecute a civil action for the purpose of obtaining a judgment of foreclosure and selling property of the plaintiff thereunder, wrongfully procuring the appointment of a receiver therein, and for dissuading parties from bidding at said foreclosure sale, thereby injuring their business and

sacrificing their property, to their damage, etc. Parker v. Huntington, 2 Gray, 124, was an action to recover damages against the defendants for conspiring together to maliciously prosecute the plaintiff upon a charge of perjury. The question arose as to whether the case was an action for conspiracy or for malicious prosecution. The court used the following language: "By the ancient forms of pleading, all actions for malicious prosecution, where two or more were made defendants, were laid with a charge of conspiracy. This practice is supposed to have had its origin in the phraseology of St. 21, Edw. I., which gave the form of writs in such cases by using the words: Do placito conspirationis et transgressionis.' But the charge of conspiracy was never deemed essential to an action, and in modern times this form of allegation has fallen into disuse. By the rules of common law, an action of conspiracy, or, to use an equivalent expression, a writ of conspiracy, was never allowed but in two cases-one, for conspiracy to procure a man to be indicted for treason; the other, for conspiracy to prosecute a man for felony by which life was put in danger. This form of action, however, has become obsolete in those cases where it was allowed at common law, having been superseded by an action on the case in the nature of a conspiracy which furnishes an adequate and more liberal remedy for malicious prosecutions of every nature and description.

The gist of the action is not the conspiracy, but the damage done to the plaintiff by the acts of the defendants; and that is equally great, whether it be the result of a conspiraey or the act of a single individual. The insertion in the declaration of the averment that the acts were done in pursuance of a conspiracy does not change the nature of the action." In this case, likewise, the gravamen of the action is the alleged malicious prosecution, and to support such action it must appear that the prosecution complained of was not only malicious, but without probable cause, and that such prosecution has terminated. In this case the complaint shows that the prosecution complained of resulted in a judgment in the superior court in favor of the plaintiff therein; that an appeal was taken, and such judgment was reversed. By reference to the case in this court, Carpy v. Dowdell, 115 Cal. 676, 47 Pac. Rep. 695, it appears that a new trial was ordered. And it is not alleged, nor does it appear from the complaint, that the litigation complained of had terminated before this action was brought, and the fact that the first judgment was reversed does not raise a presumption of want of probable cause. The recovery of a judgment in a court of competent jurisdiction would rather show probable cause for bringing the action, although such judgment may subsequently be reversed on appeal. It does not appear from the complaint in this cause that there was a want of probable cause, or that the litigation or proceedings complained of were terminated; and the complaint,

therefore, is fatally defective. Hibbing v. Hyde, 50 Cal. 206; Anderson v. Coleman, 53 Cal. 188; Holliday v. Holliday, 123 Cal. 26, 55 Pac. Rep. 703; Dennehey v. Woodsum, 100 Mass. 195; Closson v. Staples, 42 Vt. 209; Carpenter v. Nutter (Cal.), 59 Pac. Rep. 301. The demurrer was properly sustained, and the judgment is affirmed.

NOTE.-Recent Decisions on Termination of Pros. ecution in Actions for Malicious Prosecution.-One cannot maintain an action for the malicious prosecution of a civil action against him, until after its termination in his favor. Davis v. Stuart, 47 La. Ann. 378, 16 South. Rep. 871. Dismissal of a warrant by a justice with the consent of the party prosecuting is a sufficient determination of the proceeding to authorize an action for malicious prosecution. Welch v. Cheek, 115 N. Car. 310, 20 S. E. Rep. 460. A nolle prosequi entered in a criminal prosecution is a suffi. cient termination of the prosecution to authorize the defendant to sue for malicious prosecution, unless the record shows that the nolle prosequi was entered at his instance. Marcus v. Bernstein (N. Car.), 23 S. E. Rep. 38, 117 N. Car. 31. The dismissal of a crim. inal prosecution by a justice is a sufficient termination to justify suit for malicious prosecution. Porter v. Martyn (Tex. Civ. App.), 32 S. W. Rep. 731. That the prosecution seems to have been instituted without justifiable cause will not authorize an action before a final termination of the prosecution. Hinds v. Parker, 42 N. Y. S. 955, 11 App. Div. 327. No recovery can be had for malicious prosecution unless the prosecution has terminated in plaintiff's favor. Von Koehring v. Witte (Tex. Civ. App.), 40 S. W. Rep. 63. The failure of the grand jury to indict plaintiff for an offense for which he was maliciously arrested by defendant corporation fixed defendant's liability for punitive damages. Proctor Coal Co. v. Moses (Ky.), 40 S. W. Rep. 681. A discharge on habeas corpus of one committed to await the action of the grand jury is not a termination of the criminal proceedings, sufficient to authorize an action for malicious prosecution. Hinds v. Parker, 42 N. Y. S. 955, 11 App. Div. 327. That, up to time of the trial of the action, which was begun two days after plaintiff had been discharged on habeas corpus from commitment to await the action of the grand jury, no further steps had been taken in the criminal proceedings, does not show that such pro ceedings had been finally disposed of. Hinds v. Parker, 42 N. Y. S. 955, 11 App. Div. 327. It must be shown that the prosecution was legally terminated before the commencement of the action; but plaintiff need not have been acquitted of the charge after a trial on the merits. The entry of a nolle prosequi, followed by his discharge, is sufficient. Douglas v. Allen (Ohio Sup.), 46 N. E. Rep. 707. An action for malicious prosecution will lie at any time after entry of final judgment in the court of last resort in the action claimed to have been malicious, though the right to petition for a new trial on statutory grounds continues for a year thereafter, Foster v. Denison (R. I.), 36 Atl. Rep. 93. The failure of a federal grand jury to find an indictment against plaintiff on defendant's complaint is not a termination of the prosecution in plaintiff's favor, if it finds an indictment on the same showing at a subsequent term. Von Koebring v. Witte (Tex. Civ. App.), 40 S. W. Rep. 63. On April 5, 1894, plaintiff, her attorney, defendant, and the officer all appeared before the justice, and the case, was postponed to April 19th. At

that time only plaintiff and her attorney appeared, and in response to inquiry the justice said there was nothing on the docket. The warrant was never returned, and nothing was ever done thereafter. Held, in an action for malicious prosecution, brought January 7, 1895, that the termination of the proceed. ings was sufficiently proven. Strehlow v. Pettit (Wis.), 71 N. W. Rep. 102. In an action for malicious prosecution, it appears that, in one of the prosecu tions on which the action was based, the plaintiff was discharged on a writ of habeas corpus, on the ground of the insufficiency of the commitment, and a possible defect in the warrant; and, in the other, upon the statement that she could not give a bond and assur ances that she would not harm defendants, who were seeking to compel her to give an undertaking to keep the peace, she was discharged on motion of the district attorney, and her own recognizance. Held, that an instruction that plaintiff's release upon the habeas corpus proceedings and the dismissal on the motion of the district attorney were each a sufficient termination of the prosecution, for the purposes of this ac tion, going to show a want of probable cause, is error. Holliday v. Holliday (Cal.), 53 Pac. Rep. 42. Though one arrested upon a criminal warrant be discharged by the magistrate, yet if the prosecutor, with due diligence, follows up the prosecution, and carries it on in a court having jurisdiction to try the case upon its merits, this is, in effect, a continuation of the orig. inal prosecution. Hartshorne v. Smith (Ga.), 30 S. E. Rep. 666. When a committing magistrate, upon ex amination, discharges from custody one arrested upon a warrant issued upon a complaint of a breach of the criminal law, the prosecution is terminated, so as to authorize an action for malicious prosecution. Ryder v. Kite (N. J. Sup.), 38 Atl. Rep. 751. An action for malicious prosecution cannot be maintained until the prosecution complained of has been legally terminated in favor of defendant therein. Stark v. Bindley (Ind.), 52 N. E. Rep. 804. A dismissal of a prosecution to keep the peace at the suggestion of the district attorney, on being assured by the defendant that she would not molest complainant, and by her attorney that he anticipated no purpose on defendant's part to harm complainants, is not such a dismis sal by defendant's procurement as not to be a final termination in her favor. Holliday v. Holliday (Cal.), 55 Pac. Rep. 703.

BOOKS RECEIVED.

The American State Reports, Containing the Cases of General Value and Authority Subsequent to those Contained in the "American Decisions" and "American Reports," Decided in the Courts of Last Resort of the Several States. Selected, Reported and Annotated, by A. C. Freeman, and the Associate Editors of the "American Decisions." Vol. 74. San Francisco: Bancroft Whitney Company, Law Publishers and Law Booksellers, 1900.

WEEKLY DIGEST

Of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of the Supreme, Cirouit and District Courts of the United States, except those that are Published in Full or Commented upon in our Notes of Im. portant Decisions and except those Opinions in

1. ADMINISTRATOR

27. 41, 59, 89 ..7, 8, 51, 54

Accounting.-One who, before his appointment as administrator, deeds "all his rights, title, and interest of and in" land of which in testate died seised, is not liable to the personal representatives or heirs of intestate for the purchase money; no interest of intestate or the heirs being conveyed or attempted to be conveyed.-WILDERMUTH V. LONG, Penn., 46 Atl. Rep. 927.

2. ADMINISTRATION-Claims Against Estate-Waiver of Notice.-A mere conversation between plaintiff and defendant after the death of the latter's husband, and before she had been appointed administratrix of his estate, in which she promised to pay plaintiff "every dollar her husband owed him," did not constitute a presentation of a claim for allowance and a waiver of notice, since, until defendant was qualified, she had no authority to bind the estate.-BAMBRICK V. BAMBRICK, Mo., 58 S. W. Rep. 8.

3. ADVERSE POSSESSION-Evidence.-Title to land by adverse possession may be shown by payment of taxes thereon, and notorious and continued assertion of claim thereto, by the claimant, in connection with the best and most practicable use of the soil for which it is adapted, uninterruptedly, for the limitation period provided by statute.-WHEELER V. GORMAN, Minn., 83 N. W. Rep. 442.

4. ARCHITECT-Liabilities Defective Plans-Guar antor. The architect who prepared the plans and specifications of a building, and afterwards became the contractor and agreed with the owner to put up the building according to plans and specifications, is responsible for any defect or insufficiency in the specifi. cations. He cannot escape responsibility for defectiveness of the work by taking the ground that the defect was in the specifications and not in the work. He is responsible for both. The surety company which signs his bond to guaranty the safe execution of his contract as an "architect and contractor" is equally as responsible as the architect and builder for the defectiveness of the specifications or the work, where the "architect and builder" are one and the same person. -LOUISIANA MOLASSES CO. v. LE SASSIER, La., 28 South. Rep. 217.

5. ASSIGNMENT FOR CREDITORS-Exemption.-A creditor who obtains his judgment against an assignor for the benefit of creditors after the assignment obtains no lien, so that he can avail himself of the clause in the judgment waiving the exemption only by execu

tion or attachment against the property reserved as an exemption in the deed of assignment.-IN RE SHIMP'S ESTATE, Penn., 46 Atl. Rep. 1037.

6. ATTORNEY AND CLIENT-Fees of Attorney.-Where a bill rendered by an attorney for prosecuting a suit for his client is not only fraudulently untrue as to items for services not rendered, but inflated through. out by charges beyond what the services were worth, and, with the retainer paid by his client, amounts to more than the sum recovered of defendant, it is within the rule that if the behavior of the attorney towards his client is dishonest, oppressive, or illegal, and shows a fraudulent intent, the court may proceed summarily against him for his misconduct.-TATE V. FIELD, N. J., 46 Atl. Rep. 952.

7. BANKRUPTCY -Discharge - Books of Account.Under Bank. Act 1898, § 14, providing that a bankrupt shall not be entitled to a discharge if, with fraudulent intent to conceal his true financial condition, and in contemplation of bankruptcy, he has failed to keep books of account from which his true condition may be ascertained, a discharge will not be denied upon such ground where it appears that most of the bookkeeping in question was done before the bankrupt law was enacted, and it is not shown that it was in con. templation of bankruptcy.-IN RE MARX, U. S. D. C., D. (Ky.), 102 Fed. Rep. 676.

8. BANKRUPTCY-Preferences Provable Claims.Under Bankr. Act 1898, § 57, providing that "the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences," a creditor cannot prove any claim against the bankrupt's estate, though it be a distinct and separate debt from the one preferred, until he surrenders the preference he has obtained.-IN RE ROGERS' MILLING CO., U. 8. D. C., W. D. (Ark.), 102 Fed. Rep. 697.

9. BENEFICIAL ASSOCIATIONS-Proceedings in Rem -Jurisdiction.-Where a resident of Maryland became a member of a beneficial association of New York, the contract being accepted by a member in Maryland, and the premium paid there, the contract was one of the State of Maryland; and hence the rights of different claimants to the beneficial fund on the death of the member were to be decided in accordance with Maryland laws.-EXPRESSMAN'S MUT. BEN. ASSN. v. HURLOCK, Md., 46 Atl. Rep. 957.

Notes-AC

10. BILLS AND NOTES-Accommodation tion by Indorser.-An accommodation indorser of a note, who has paid it after protest, is not prevented from recovery thereon from the prior indorsers by the fact that the proceeds of the note were, with his knowledge, borrowed and used for the benefit of a corporation in which he was interested; it not being averred by the affidavit of defense that he agreed or intended by his indorsement to become equally responsible with the prior indorsers for the payment of the note, but merely that he joined with them in rais ing the money for the purpose of promoting the interests of the corporation and paying its obligations. -RUSS V. SADLER, Penn., 46 Atl. Rep. 903.

11. BILLS AND NOTES-Consideration-Mistake-Cancellation. Where plaintiffs, who were sureties on a bond conditioned that they would pay for goods pur. chased by the principal which he did not pay for, through mistake and misrepresentation gave their note for debts incurred before they became sureties, their negligence in falling to discover the true state of the account between the principal and the defendant before giving the note is no defense in a suit to cancel the note.-BELAND V. ANHEUSER BUSCH BREW. ASSN., Mo., 58 S. W. Rep. 1.

12. BUILDING AND LOAN ASSOCIATIONS-Contracts.Where all the negotiations respecting a loan made by a building and loan association are conducted by a clerk in the office of the agents of the association, and the papers are executed by the mortgagor under his direction, the association cannot repudiate his agency

after accepting the benefits of the instruments procured by him.-PIONEER SAV. & LOAN CO. V. BAUMANN, Tex., 58 S. W. Rep. 49.

13. BUILDING AND LOAN ASSOCIATIONS-Stockholders -Usury.-Where, in an action to cancel a building association loan for usury, there was evidence that plaintiff wished to borrow money of defendant com. pany, and was told that in order to do so he must become a stockholder, and that for this purpose he subscribed for 10 shares of stock, telling defendant's secretary that he did so only to obtain the loan, the question whether plaintiff was a bona fide stockholder was properly submitted to the jury.-SOUTHERN HOME BLDG. & LOAN ASSN. V. THOMPSON, Tex., 58 8. W. Rep.

202.

14. CARRIERS-Goods-Measure of Damages.-Where, in an action against a carrier for damages sustained in transit to goods which have no market value, the only evidence of value is the price at which plaintiff has sold similar articles, it is not error to instruct the jury to look to the original cost of the articles injured, in estimating plaintiff's damage.-HOUSTON, ETC. R. Co. V. NEY, Tex., 58 S. W. Rep. 43. 15. CARRIERS-Passengers Ejection.-Where a passenger was arrested at a station before reaching his destination, on the mistaken idea that he was the person who had assaulted the conductor at another town some time prior thereto, the company was liable for the ejection, though the conductor acted contrary to orders not to make any arrests.-GULF, ETC. RY. CO. V. CONDER, Tex., 58 S. W. Rep. 58.

16. CARRIERS-Street Railways-Negligence.-Where the conductor of a street car falled to stop at the place plaintiff requested, but stopped a short distance beyond, where the track ran close to the edge of the highway, and plaintiff, in alighting with a number of bundles and wraps, fell into a hole and was injured, the fact that she did not look at the ground before alighting was not sufficient to charge her with con tributory negligence.-BASS V. CONCORD ST. RY., N. H., 46 Atl. Rep. 1056.

17. CARRIERS OF GOODS-Interstate Commerce-Special Rates.-A contract of shipment of goods from one State to another stated that the rate charged was special, and given in consideration of a limited valuation placed on the goods, for which the carrier should be liable. The evidence showed that the rate charged for shipment was the regular rate. Held, that the con. tract of shipment did not limit the consignee's right to recover the full value of goods lost in transit, and the fact that the shipper was required to sign a stipulation that the carrier's liability should not exceed a certain amount, in order to get the rate charged plaintiff, does not show that the rate charged was not the regular rate.-WARD V. MISSOURI PAC. R. Co., Mo., 58 8. W. Rep. 28.

18. CARRIERS OF GOODS-Warehousemen-Storage of Goods. A railroad corporation is not authorized to receive for storage for hire in warehouses, as being incidental to its business as a common carrier, goods and merchandise which are not received by it under and from shipments over its road. It is authorized to receive them for storage from and under shipments from and for its roads, to the extent that such storage is in fulfillment of its obligations as a common carrier, and not otherwise.-STATE V. SOUTHERN PAC. Co., La., 28 South. Rep. 372.

19. CONFLICT OF LAWS-Law of Evidence-Lex Fori. -The law of evidence is the lex fori. Whether a witness is competent or not, whether certain matters require to be proven by writings or not, whether certain evidence proves a certain fact or not, are to be deter. mined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it. It was, therefore, error for the court below to hold at the trial of this case that a Wisconsin statute which established nothing more than a rule of evidence as to the burden of

Discharge.-Where

21. CONTRACTS - Employment plaintiff was employed by defendant for one year, and wrongfully discharged before the expiration of that time, he is entitled, at his election, to treat the con. tract as existing, and sue for his salary as it becomes due, or treat it as at an end, and sue for entire dam. ages, to be assessed in one action.-ALLEN V. COLLIERY ENGINEER'S Co., Penn., 46 Atl. Rep. 899.

22. CONTRACT-Penal Clause-Construction.- One not ready nimself to contract in reference to a matter as to which proposals had been invited is not in a position to enforce a penalty against the other party submitting the proposal for not contracting.-J. G. WAGNER Co. v. CITY OF MONROE, La., 28 South. Rep. 229.

23. CONTRACT-Sale-Measure of Damages.-Where a contract of sale of the entire product of a sawmill, to be made up of several grades of lumber in the propor. tions mentioned in the contract, is violated by the vendor, in furnishing lumber of the different grades in different proportions from those agreed upon, the measure of damages to which the vendee is entitled is the difference between the value of the cut of the mill as described in the contract and that as actually delivered, which is to be determined from proof of the value of both the entire product delivered and that of the different grades.-SLOAN V. ALLEGHENY Co., Md., 46 Atl. Rep. 1003.

24. CONTRACTS-Setting Aside-Mistake.-An Instrument attempting, but failing, to reduce to writing an oral agreement, will be set aside, the party other than the one who wrote it and his attorney having, though hearing it read, acted without negligence, under a mistake of fact as to the terms and the legal effect of the writing.-KELLEY V. WARD, Tex., 58 S. W. Rep. 207.

25. CORPORATIONS-Collateral Attack on Charter.Whether a charter for a public purpose was originally invalid or has been forfeited can be determined, not In a collateral proceeding by a private suitor, but only in a direct proceeding by the commonwealth.-OLY. PHANT SEWAGE-Drainage Co. v. BOROUGH OF OLY. PHANT, Penn., 46 Atl. Rep. 896.

26. CORPORATIONS-Officers-Right to Compensation. -Where a director rendered services for the corpora. tion as manager, which were outside of his duties as director, for which he received payment without the authority from the board, such payment might be properly ratified thereafter; and the directors cannot be held liable therefor, as for a wrongful expenditure of funds.-BASSETT V. FAIRCHILD, Cal., 61 Pac. Rep. 791.

27. CORPORATIONS-Stockholders in Foreign Corpo. rations. When a person subscribes for stock in either a domestic or a foreign corporation, he thereby consents to be governed by the provisions of its charter or the general law under which it is incorporated, and by such by-laws as the corporation may lawfully en. act, and that his rights and liabilities as a stockholder shall be tested and determined by such laws.-GIESEN V. LONDON & NORTHWEST AMERICAN MORTG. Co., U. S. C. C. of App., Eighth Circuit, 102 Fed. Rep. 584. 28. CRIMINAL EVIDENCE Rape-Res Gestæ.-In a prosecution for rape, evidence that the girl told defendant's witness that she left home because her father had ruined her was not admissible as part of

29. CRIMINAL LAW-Grand Jury-Discharge and Reassembly.-Under Code Cr. Proc. art. 411, providing that when the grand jury has been discharged it may be reassembled at any time during the term, and, in case of failure of one or more members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed for completing the grand jury in the first instance, where all the grand jurors reassemble, but one of them is disqualified, the court cannot discharge him and complete the panel.-MATTHEWS V. STATE, Tex., 58 8. W. Rep. 86.

30. CRIMINAL LAW - Homicide-Conspiracy.-Where several persons confederate together to commit a crime of a nature or under such circumstances as will, when tested by human experience, probably result in the taking of human life, if such necessity should arise to thwart them in the execution of their unlaw. ful plans, it must be presumed that they all understood the consequences which might be reasonably expected to flow from carrying into effect their unlawful com. bination, and to have assented to the taking of human life if necessary to accomplish such unlawful act; and, if death happens in the prosecution of such a common design or object, all are alike guilty of a homicide.REEVES V. TERRITORY, Okla., 61 Pac. Rep. 828.

81. CRIMINAL LAW-Homicide-Malice-Intent.-In a prosecution for murder, an instruction that express malice might be established by proof of the cool deportment and bearing of the party when the killing was done, immediately preceding and subsequent thereto, his apparent freedom from passion or excitement, the absence of any known cause to disturb his mind or cause his passion, was correct, and was not a charge on the weight of the testimony, nor did it sug. gest the court's view of the condition of defendant's mind.-HOWARD V. STATE, Tex., 58 S. W. Rep. 77.

32. CRIMINAL LAW-Larceny Variance.-Where an indictment charged that the owner of the stolen prop. erty was a corporation chartered by the laws of the State of Rhode Island, and the proof was that it was chartered by the State of Rhode Island and Providence Plantations, the variance, if any, was immaterial.STATE V. WINDER, R. I., 46 Atl. Rep. 1046.

33. CRIMINAL LAW-Larceny-Venue.-Where defend. ant was indicted for stealing four steers in one county, evidence that they ranged in that county, and were missed late in September, and were sold in another county on the 2d of October, was sufficient proof of the venue as laid in the indictment to support a con. viction, since venue may be proven by circumstantial evidence.-BLOOM V. STATE, Ark., 58 S. W. Rep. 41.

84. DEED-Bona Fide Purchaser-Estoppel.-A purchaser of real estate from one actually the owner thereof, and so appearing on the public records, is not affected by facts dehors the record, of which he had no knowledge, by which his vendor, as between himself and other parties, might have been held estopped to have claimed such ownership.-BRIAN V. BONVILLAIN, La., 28 South. Rep. 261.

35. DEED-Collateral Attack.-Where a widow hold. ing a life estate in land conveyed it, without consider. ation, to those holding the reversionary interest, the life estate merged in the fee-simple in reversion, and the reversioners, or those claiming under them, can. not attack the conveyance by the widow, in ejectment, as void because voluntary and in fraud of creditors.WHITAKER V. WHITAKER, Mo., 58 S. W. Rep. 5.

36. DEEDS-Delivery-Agency.-The giving of a deed by the grantor, after signature and acknowledgment, to one employed by the grantee to prepare it and take the acknowledgment, without suggestion or direction by any party thereto regarding its custody or disposition, constituted a sufficient delivery thereof, though