Payment of the note was not made at maturity, and when it was attempted to sell the premises under the trust deed, it was discovered that the -certificates were untrue and that the grantors, on the thirteenth of March previous, had conveyed the premises in fee simple by deed duly executed and recorded.

Attorneys-at-law are officers of the court, admitted as such by its order, but it is a mistake to suppose that they are officers of the United States, as they are neither elected or appointed in the manner prescribed by the Constitution for the election or appointment of such officers. Ex parte Garland, 4 Wall. 333, 378. When a person adopts the legal profession and assumes to exercise its duties in behalf of another for hire, he must be understood as promising to employ a reasonable degree of care and skill in the performance of such duties, and if injury results to the client from a want of such a degree of reasonable care and skill, the attorney may be held to respond in damages to the extent of the injury sustained. Proof of employment and the want of reasonable care and skill are prerequisites to the maintenance of the action, but it must not be understood that an attorney is liable for every mistake that may occur in practice, or that he may be held responsible to his client for every error of judgment in the conduct of his client's cause. Instead of that the rule is that if he acts with a proper degree of skill and with reasonable care and to the best of his knowledge he will not be held responsible. Bowman v. Tallman, 27 How. Pr. 212, 274. If he fails in any of these respects he may, and sometimes does not only forfeit all claim for compensasation, but may also render himself liable to his client for any damage he may sustain from such neglect. Such liabilities frequently arise, and an attorney may also be liable to his client for the consequences of his want of reasonable care or skill in matters not in litigation. Business men not infrequently seek legal advice in making or receiving conveyances of real property, and it is well settled that an attorney may be liable to his client for negligence or want of reasonable care and skill in examining titles in such cases, whether the error occurs in respect to the title of property purchased or in the covenants in the instrument of conveyance, where the property is sold.

Where the relation of attorney and client exists there is seldom any serious difficulty in determining whether the client has or has not a cause of action, or its nature and extent if one exists. Criterions of standard character are established in legal decisions by which every such controversy may be determined, but in the case before the court the defendant was never retained or employed by the plaintiffs, nor did they ever pay him anything for making the certificates, nor did he ever perform any service at their request or in their behalf.

Neither fraud nor collusion is alleged or proved, and it is conceded that the certificates were made by the defendant at the request of the applicant for the loan, without any knowledge on the part of the defendant what use was to be made of the

same or to whom they were to be presented. None of those matters are controverted, but the plaintiffs contend that an attorney in such a case is liable to the immediate sufferer for negligence in the examination of such a title, although he, the sufferer, did not employ the defendant, and the case shows that the service was performed for a third person without any knowledge that the certificate was to be used to procure a loan from the injured party.

Persons acting professionally in legal formalities, negotiations or proceedings by the warrant or authority of their clients may be regarded as attorneys-at-law within the meaning of that designation as used in this country, and all such. when they undertake to conduct legal controversies or transactions, profess themselves to be reasonably well acquainted with the law and the rules and practice of the courts, and they are bound to exercise in such proceedings a reasonable degree of care, prudence, diligence, and skill. Authorities everywhere support that proposition, but attorneys do not profess to know all the law, or to be incapable of error or mistake in applying it to the facts of every case, as even the most skilful of the profession would hardly be able to come up to that standard. Unless the client is injured by the deficiencies of his attorney he can not maintain any action for damages, but if he is injured the true rule is that the attorney is liable for the want of such skill, care and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment.

Both parties concur in these suggestions, but the defendant insists that in order that such a liability may arise there must be some privity of contract between the parties to enable the plaintiffs to maintain the action; that inasmuch as the defendant was never retained or employed by the plaintiffs, and never rendered any service at their request or in their behalf, he can not be held liable to them for any negligence or want of reasonable care, skill or diligence in giving to a third party the certificates in question.

Beyond all doubt the general rule is that the obligation of the attorney is to his client and not to a third party, and unless there is something in the circumstances of this case to take it out of that general rule, it seems clear that the proposition of the defendant must be sustained. Sh. & Red. on Neg. sec. 215. Conclusive support to that rule is found in several cases of high authority. Fish v. Kelly, 17 C. B., N. S. 194. Argument to show that the direct question was involved in that case is unnecessary, as the affirmative of the proposition sufficiently appears in the head-note, which is as follows: That an attorney is not liable to an action for negligence, at the suit of one between whom and himself the relation of attorney and client does not exist, for giving, in answer to a casual inquiry, erroneous information as to the contents of the deed. Although the inquiry was addressed directly to the defendant, and the case shows that the answer was given to the person making it, the court held,

the indictment is insufficient if, attempting to specify the forms of license, it simply negatives the three forms named in the dram shop act. Affirmed. Opinion by BREWER, J. All the justices concurring.— State v. Pitzen.

CANVASS OF RETURNS-NEWLY ORGANIZED COUNTIES-TERM OF OFFICES.-1. Where returns of an election on file in the oflice of a county clerk are regu lar in form and genuine, and the result of the election is not procured through fraud or illegality, it is the duty of a canvassing board to canvass all the returns, and where the board canvass only a part, it may be compelled by mandamus to discharge its whole duty and canvass all. 2. Where the first election in a newly organized county is held for county officers on the Tuesday succeeding the first Monday in November -the day for holding general elections-all county offcers then elected continue to hold their offices until the next general election, and until the successors are elected and qualified. Sec. eight, Comp. Laws, 1879, p. 267. Original judgment for plaintiff., Opinion by HORTON, C. J. All the justices concurring.-State v. Commrs. of Hodgewan County.

-

CERTIFICATE OF ELECTION QUO WARRANTO CONTEST.-1. A certificate of election issued to a justice of the peace upon a legal canvass of the votes of the election, regular in form and signed by the proper authority, constitutes prima facie evidence of the title to the said office in the person therein named. 2. A person can not avoid the effect of the decision of a board of canvassers by simply holding on to the office of justice of the peace, and claiming the decision of the canvassers is erroneous. 3. At the general election in November, 1877. the same being the time appointed by law for the election of justices of the peace, B then legally holding such office in Great Bend township, Barton county, and one G were rival candidates for justice of the peace of said township; after the election, the official board of canvassers of Barton county duly canvassed the votes and declared G elected as the successor of B, and forthwith issued to him a certificate of election to said office, which certificate is in due form, and G, within the time prescribed by law, duly qualified and entered upon the exercise of the duties and rights of the office. B at once instituted a contest against G for the office over the election which is pending and undetermined. Held, that the pendency of such a contest between B as contestor and G as contestee is no defense in an action in the nature of quo warranto brought by the State against B to oust him from said office. Original judgment for plaintiff. Opinion by HORTON, C. J, All the justices concurring.—State v. Buckland.

to the township trustee nor was it signed by H. Held, that defendants were not liable, it being clearly required that H should have executed such a writing as the law required. It is the received doctrine that securities who execute a writing as such only can show in discharge of their liabilities that the principal never was bound, and there is no reason that it should not be applied in this case where the constable never executed the bond. 2 Pick. 24; 17 Mass. 591. Opinion by NORTON. J. Affirmed.-Bunn v. Jetmore. HUSBAND AND WIFE-SEPARATE ESTATE SUIT BY WIDOW TO DIVEST TITLE.-Suit by plaintiff, widow of K, to divest title to real estate out of defendant, heirs of K, and to vest it in her. The petition alleged that during marriage there came to plaintiff as an inheritance large sums of money and property, and that she also acquired during said marriage property and money by her own frugality and industry and by the consent of her husband; that in order that herself and husband might acquire title to a home she designated and constituted him to purchase landsfor that purpose, and gave into his possession the above money and property amounting to $1,000 in value; that her husband purchased the lands with the money and property but took title in his own name. Demurrer to the petition which was overruled, and judgment for plaintiff granting the relief prayed for: Held, error. Whenever it clearly appears that the husband has received money or property belonging to the wife under an agreement to appropriate the samefor the sole and separate use of the wife in the purchase of lands, and he purchases and takes the title in his own name, she will be held in equity to be the equitable owner and he to be her trustee. 51 Mo.. 443; 46 Mo. 77. But the facts contained in the petition do not bring plaintiff's case within the above rule. One thousand dollars is alleged so have been placed in the husband's hands, not for the wife, but for the husband and wife. There is no averment of purchase for plaintiff, or that the title should be taken in her name. Besides, so much of the $1,000 as came out of the money and property inherited became the husband's absolutely by virtue of his marital rights. That part of it which was the accumulation of the wife's frugality and industry, and with the consent of her husband, may be regarded as her property, concerning which she might have made him her agent, but the petition fails wholly to show how much of said amount was so made up. Reversed. Opinion by NORTON, J.-Kidwell v. Kirkpatrick.

SUPREME COURT OF MISSOURI.
February, 1880.

OFFICIAL BOND-FAILURE OF PRINCIPAL TO SIGN -RELEASE OF SURETIES.-H was elected a constable of a township in a county under the township organization. The law provided that before entering upon the duties of his office he should execute with two or more securities an instrument in writing to the township trustees to be approved by the township directors, in which the constable and his securities should bind themselves jointly and severally to pay to each and every person who may be entitled thereto all sums which the constable should become liable to pay on account of any execution delivered to him and all damages for malfeasance, etc., in office. The writing sued on was signed by defendants, but was neither executed

SUPREME COURT OF IOWA. December, 1879.

WHAT IS

.

MEDICAL ATTENDANCE.'-Section 1361 of the Code provides that a board of supervisors shall be · liable for medical attendance'' rendered to paupers. Held, that these words are not limited to the professional service of a physician but include nursing and watching. "While the words medical attendance are often used to denote the rendering of professional medical services, we do not think that their use in that respect is such as necessarily to exclude all other meanings. The efforts of the physician, however skilful or assiduous he may be, must usually be supplemented by an attendance which he can not give. It matters not that the persons who give such attendance · are usually denominated nurses. Their office is to assist the physician to obtain certain medical results." Affirmed. Opinion by ADAMS, J.-Scott. Winnesheih Co.

CURRENT TOPICS.

Another stage in the controversy regarding the question of the inviolability of telegrams has been reached in the introduction into Congress of the following bill which the telegraph companies will it is said endeavor to have made law: "That all telegraph messages delivered for transmission to any telegraph company availing itself of the provisions of title sixtyfive of the Revised Statutes, and copies thereof made by such company at the place of destination, or at any intermediate point, shall be deemed to be private papers of the senders and receivers of such messages, and shall be protected from unreasonable search and seizure, and from production as evidence in individual and legislative proceedings to the same extent as letters sent by the United States mail." This short act, similar in its features to one for the same object presented in the United States Senate three years ago by Senator Morton, is intended mainly to put a stop to the drag-net" subpoenas which have recently come into use by courts as well as legislatures, and which it needs no argument to demonstrate the abuses to which they may lead. The bill, however, is open to much criticism. In the first place the legislative declaration that telegrams are to be considered as private papers does not protect them from production in the courts, as the latter are every day engaged in the issuing of subpoenas to produce private papers which they think necessary to the investigation of cases and the administration of justice. And while the first provision is abortive the second is ambiguous. Letters in the United States mail are privileged from seizure during transmission; but what protection is it to say that a telegram shall be inviolate during transmission, for the latter is instantaneous, and it is only after this has taken place that there is anything which can be seized. On the other hand it would, as we have pointed out once before, be both absurd and dangerous to give to a telegram that complete protection which the law extends to privileged communications. The transactions and correspondence of rogues would be committed to the telegraph in every case, and the criminal courts would find it hard ever to obtain documentary evidence which was not privileged. Such a law would be without doubt favored by the telegraph companies whose business would speedily be increased in a very large ratio.

In a very able letter written to the New York Tribune, Mr. Henry Hitchcock. of this city, suggests a substitute to this bill, which he believes would place the matter on a proper footing. We give his views in his own words. "Let the act declare that telegrams and copies thereof remaining in the hands of the company are private papers. Let it further provide expressly that no court nor legislative committee shall have power to compel any telegraph company complying with title 65, Revised Statutes, to produce any telegram in evidence or for inspection, unless the party applying for the same shall (1) first file in the cause or proceeding an affidavit, at least upon information and belief, of the existence, the sufficiently certain description, and the alleged or supposed contents of the dispatches called for, showing their relevancy in the cause, and shall satisfy the court that there is probable cause for the production; and shall (2) give reasonable notice of such application, as far as practicable, to any third person, sender or receiver of such telegrams and reasonable opportunity to show cause against the same. And let the act further provide, in addition to the criminal penalty for falsely making such affidavit, a right of ac

tion for exemplary damages against any party who shall wilfully or maliciously procure, by means of such a process, the unnecessary disclosure of any private message. Such an act would leave no more to the discretion of the court than is absolutely necessary under the infinitely varying circumstances of cases which may arise. But it would impose conditions which on the one hand would prevent the issue of the 'drag-net subpœnas' altogether, while recognizing the indispensable power of the courts in proper cases to compel the disclosure even of private confidential papers." Mr. Hitchcock has given this subject much study (vide his paper on the Inviolability of Telegrams, read at the last annual meeting of the American Bar Association, Southern Law Review, October-November, 1879), and his suggestions are certain to be considered in the settlement of this question by the legislature.

RECENT LEGAL LITERATURE.

WOOD'S MAYNE ON DAMAGES.

No better opportunity is offered for the presentation to the legal profession of a new treatise than upon the occasion of a decision which marks a "departune" in the law, either by the introduction of some new rule, or the modification or overruling of one previously understood to be settled. Mr. Mayne had this advantage in the first presentation of his treatise on Damages. The case of Hadley v. Baxendale, 9 Exch. 341, marked a new departure in the English law of Damages, by recognizing the rule of the civil law in a large and increasing class of cases, as not only not hostile to, but entirely consistent with the genius of the common law, and thus by depriving the English law to that extent of its insular character. It is noticeable too, and it could scarcely fail of notice on the part of Englishmen, that the English judges of exchequer, accepting the invitation of eminent English lawyers, followed the authority of the American author, Sedgwick, and the lead of American courts, in taking the rule of the civil law in this class of cases as one proper to govern the adjudications of the courts of English-speaking peoples.

The tendency thus indicated toward harmonizing the common and the civil law, and the willingness to accept and follow, to a certain extent, American authority, were not more remarkable than was the fact then disclosed (1854) that English text-writers offered no modern treatise on the subject of Damages. Mr. Mayne thinking, as he said in his preface, that notwithstanding the conceded merits of Professor Sedgwick's treatise, there was still room for an English work on the same subject," embraced the opportunity in 1856. He thought it proper to confine his investigations to the English cases, resorting to the American decisions "only where none of our own were in point." We can not help thinking him in error in adopting such a limitation. Too many English text-writers confine their treatises to a discussion of the cases in the English courts. Not only has the common law outgrown the limits of the "tight little island," but very often its peculiar capacity for adapting itself to new circumstances and situations is best illustrated this side of the Atlantic. The facts above stated furnished Mr. Mayne a most cogent in

Wood's Mayne on Damages. Third English and First American Edition. By John D. Mayne and Lumley Smith, of the Inner Temple, Barristers at Law. Adapted to the American Law by H. G. Wood. Albany: John D. Parsons, Jr. 1880.

Abstracts of titles and certificates of the same are frequently if not usually made by recorders, prothonotaries, or clerks, and in some States their liability is prescribed and regulated by statute. Sess. Laws (Pa.) 1872, 1,040. By that act those officers are declared liable for all loss or damage which may happen by reason of any false or erroneous certificate of search, not only to the person or persons to, for or upon whose order the said certificate of search is made or given, but also to any person or persons claiming title through, from, or under such person or persons, or who may suffer loss by reason of the making or giving of any such false or erroneous certificate. But it is unnecessary to enter into any discussion of such regulations, as it is clear that there are none such in this district which can have any application in this case.

Testimony was introduced at the trial tending to show that there is a local usage in the district that the attorney examining the title of such an applicant for a loan shall be considered as also acting for the lender of the money, and complaint is made that the court below did not submit that evidence to the jury, with proper instructions. Evidence of usage is not admissible to contradict or vary what is clear and unambiguous, or to restrict or enlarge what requires no explanation. Omissions may be supplied in some cases by such proof, but it can not prevail over or nullify the express provisions of the contract. So, where there is no contract, proof of usage will not make one, and it can only be admitted either to interpret the meaning of the language employed by the parties or where the meaning is equivocal or obscure. Thompson v. Riggs, 5 Wall. 663, 679.

Suffice it to say these parties never met, and there was no communication of any kind between the defendant and the brokers, or the lenders of the money. Nothing of the kind is pretended, the only suggestion in that direction being that it may be held that the applicant for the loan, when he employed the defendant, may be regarded as the agent of the plaintiffs. Such suggestion being entirely without evidence to support it, is entitled to no weight, especially as it appears that the principal certificate was procured several days before any interview upon the subject of the loan took place between the brokers and the plaintiffs. Judgment affirmed.

Mr. Chief Justice WAITE, dissenting.

I am unable to agree to the judgment in this case. I think if a lawyer, employed to examine and certify to the recorded title of real property, gives his client a certifiacte which he knows or ought to know is to be used by the client in some business transaction with another person as evidence of the facts certified to, he is liable to such other person relying on his certificate for any loss resulting from his failure to find on record a conveyance affecting the title, which, by the use of ordinary professional care and skill, he might have found. That, as it seems to me, is this case. Ward was employed by Chapman to examine and certify to the title to a certain lot in Washington. The circumstances were such as ought to have

satisfied him that his certificate was to be used by Chapman in some transaction with another person as evidence of the facts certified to. In examining the records he overlooked a deed, in all respects properly recorded, which showed on its face that Chapman had conveyed the lot away in fee simple, and certified as follows: "Lot 55, in Chapman's subdivision of lots, in square 364. The title of Leonard S. Chapman to the above lot is good, and the property is unincumbered. Wm. H. Ward." The National Savings Bank, relying on this certificate as true, loaned Chapn.an $3,500, taking for security a deed of trust on the lot. It seems to me that under these circumstances, Ward is liable to the bank for any loss it may sustain by reason of his erroneous certificate.

I am authorized to say that Justices SWAYNE and BRADLEY concur in this dissent.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MICHIGAN.

October, 1879.

INFANCY-WHEN INFANT MUST SUE. In this case the court below held that where a joint contract was sued on, made by an infant and an adult, under which money had been earned the father of the infant could not sue with the adult in his own name, as the infant's substitute in action, as if he himself had been joint contractor. Held, correct. An infant's contract of partnership is not void. Dunton v. Brown. 31 Mich. 182. The suit was for a completed cause of action, which is for the infant's benefit. The contract was either the joint contract of the firm, or the sole contract of one; and there was never any contract relation between Farr and Osborn, the father of the minor. The infant should have been the plaintiff and not his father. Teed v. Elworthy, 14 East, 210; Collyer on Part. 395; Story on Part. § 241. Judgment affirmed. Opinion by CAMPBELL, C. J.—Osborn v. Farr.

CONTRACT TO BUILD DESTRUCTION BY FIRENO RECOVERY.- A agreed with B to construct an addition to his house, the price being a gross sum. After the work was partly done the house and addition were destroyed by fire without the fault of either party. Held, that A could not recover for the value of the work done prior to the destruction of the building. Under the strict common law rule, where a party had failed to comply substantially with an unapportionable agreement, he could not recover for what had been done. This rule has been so far modified that where anything has been done from which the other party has received a substantial benefit, and which he has appropriated, a recovery may be had based upon such benefit. The basis of this recovery is not the original contract, but a new-implied agreement deducible from the new delivery and acceptance of some valuable service or thing. Allen v. McKibbin, 5 Mich. 454. Applying this rule to the case before us, and there can be no recovery for the work and labor done and materiels furnished. The contract was not apportionable, if to complete the building for a fixed sum, and there was no acceptance of what was done or any benefit

derived therefrom or an account thereof at the time of the fire. Judgment affirmed. Opinion by MARSTON, J.-Filden v. Besley.

MARRIED WOMAN-MUST PLEAD INCAPACITY WHEN SUIT IS BROUGHT.-A married woman is allowed, in many cases, to contract and to sue and to be sued, as though she were unmarried, and her competency to assert and maintain her rights either as plaintiff or defendant is fully acknowledged. In case she is sued upon a contract she has no capacity to make, or against which she has some other valid objection, the door of justice is open to her and the law invites her to explain her case and expose her objection reasonaably and in the due course of proceeding. The act or matter may not be enforcible against her in case of objection; yet, if she refrains, and suffers the case to go on to judgment against her and, still more, suffers the judgment to stand, the circumstance that she was not originally bound will not suffice to render the judgment void. In case it has not been impeached on error, or appealed, it can not be repudiated; and when recourse is had to legal process to enforce it, its conclusiveness can not be brought into question on account of the invalidity of the cause of action or the right which she held to successfully resist it. We are aware that a different doctrine prevails in some courts of high authority, and it is possible that reasons exist in their systems for peculiar rules. The weight of authority is otherwise, and we are satisfied that our regulations require us to concur with it. Decree affirmed. Opinion by GRAVES, J.-Wilson v. Coolidge.

SUPREME COURT OF INDIANA.

December, 1879.

CRIMINAL LAW - COMMON SENSE AS A JUROR'S GUIDE.- Indictment for larceny. On the trial the court instructed the jury as follows: "Bearing in mind all I have said to you as to how you are to consider the evidence and arrive at your verdict, I may add that what is commonly called common sense is, perhaps, the juror's best guide in these particulars.'' Held, erroneous, WORDEN, J.. saying: "While common sense is a very desirable and admirable quality in man, and exceedingly useful in all the practical affairs of life, including the duties of jurors, it can not be a better guide to them in the discharge of their duties than the rules of law. Indeed, the rules of law are generally the condensed common sense of ages. But the common sense of twelve jurors would not be likely to be all alike. If each juror were to act upon his common sense instead of the rules of law, there might be as many different opinions as there were jurors." Judgment reversed.-Densmore v. State.

CHATTEL MORTGAGE RIGHT OF POSSESSIONREPLEVIN-DEMAND.-1. Action of replevin for a mare, buggy and harness. The property was mortgaged by appellant to appellee, the mortgage providing.that appellant should retain possession of it until the debt became due and upon default of payment should deliver it to appellee. Held, that the action of replevin would not lie unless the property was wrongfully detained. It is clear there was no wrongful taking of the property by the defendant, and its detention after the debt became due did not become unlawful until the plaintiff had made a demand for the property. Trover would not lie in such case without a demand and refusal, and so far as a demand is con

cerned there is no substantial difference between trover and replevin. 8 Blackf. 244; 4 Greene (Iowa), 23; 7 Minn. 502; 6 Ind. 455; 17 Ind. 90. A demand before the debt becomes due is as unavailing as if no demand at all had been made. 2. Such an action of replevin, no demand having been made, is not a bar to a subsequent action after demand. The case is not unlike that of an action upon a claim not matured when the action was brought, whereby the action was defeated. Such action would not bar a subsequent one brought after the maturity of the claim. Freeman on Judg., sec. 329; 10 Allen, 22; 97 Mass. 519. Affirmed. Opinion by WORDEN, J.-Roberts v. Norris.

VENDOR'S LIEN-MORTGAGE-INVERSE ORDER OF SALE.-1. If the vendor of real estate fails to take a mortgage to secure the unpaid purchase money at the time of sale and allows another creditor without notice of the non-payment of the purchase money to secure a mortgage on the real estate sold, such mortgage will have preference over a mortgage thereafter acquired by the vendor to secure his unpaid purchase money. 2. Where the real estate covered by a mortgage consists of several parcels, and subsequent to such mortgage some of the parcels have been sold and conveyed by the mortgagor to different purchasers without any assumption by them of the mortgage debt, upon foreclosure of the mortgage the parcels so sold and conveyed will be ordered sold for the payment of the mortgaged debt in the inverse order of the sale thereof by the mortgagor, so that the parcel last sold by the mortgagor will be first sold by the sheriff before any sale is made of the next preceding parcel, and so on. This is subject to the primary rule that if at the time of foreclosure any part of the mortgaged premises is still owned by the mortgagor, such part must be ordered sold first for the payment of the mortgage debt. Affirmed. Opinion by Howk, J.-Houston v. Houston.

SUPREME COURT OF KANSAS.

January, 1880.

66

CONSTITUTIONAL LAW-CITY ORDINANCES.-The constitutional provision that no bill shall contain more than one subject, which shall be clearly expressed in its title" has no application to city ordinances. Reversed. Opinion by BREWER, J. All the justices concurring.-City of Humboldt v. McCoy.

PRACTICE DISMISSAL OF ACTION.-After a case has been finally submitted to the jury or court, the plaintiff has no right to dismiss the action without prejudice to a future action, but while all legal right on the part of the plaintiff has ended the court may in its discretion and to prevent injustice and wrong, permit the plaintiff to recall such submissions and dismiss without prejudice, and in such case the action of the court, unless it has abused its discretion, is no ground of error. Affirmed. Opinion by BREWER, J. All the justices concurring.-Ashmead v. Ashmead.

INDICTMENT-PLEADING-DRAM SHOP ACT.—1. In an indictment for selling liquor without license, the pleader, if he attempts to negative the forms of license by name, should include all the different forms of license by which authority to sell liquor may be granted. 2. The dram shop act names only three forms of license, dram shop, tavern and grocer, but the act providing for cities of the second class authorizes the city council to issue licenses in other forms. Therefore, where the selling is charged to have been done in such a city,