ever, useless to multiply citations in support of this doctrine. The cases on this subject are very numerous and may be found in Field on Damages, note to § 278; Benjamin on Sales, § 903, and notes; Smeed v. Ford, 102 Eng. C. L. 600; Passinger v. Thorburn, 34 N. Y. 635, and the authorities there cited.

These decisions, and the principles they announce, I think fully sustain the plaintiffs' right to recover special damages for the injury to their tobacco as the natural and proximate result of the defendant's failure to comply with his contract. If the defendant did not intend to be bound by the rule of law which holds him to an implied warranty he ought so to have provided, and thus put the plaintiffs upon their guard.

That rule (as was said by Park, J., in Jones v. Bright, 5 Bing. 533), is of great importance, because it will teach manufacturers that they must not undersell each other by producing goods of an inferior quality, and that the law will protect purchasers who are necessarily ignorant of the commodity sold.

[The remainder of the opinion was on an immaterial point.]

Judgment affirmed.

NOTE.-See 4 Cent. L. J.j598; 5 Cent. L. J. 116; 6 Cent. L. J. 53; 7 Cent. L. J. 76; 8 Cent. L. J, 20; Wilson v. Dunville, 8 Cent. L. J. 375; 9 Cent. L. J. 496.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF IOWA.

December, 1879. ⚫

RAILROAD IN STREET - CONTINUING NUISANCEDAMAGES.-The right of a railroad corporation to locate, build and operate its road in the public streets of a city or town is subject to the equitable control and proper police regulations of the municipal authorities. The city of Des Moines authorized the construction of defendant's railroad track along the center of Vine street, in said city, and provided by ordinance that at least eight feet on each side of said street should be left between the track of said defendant and the sidewalk. Subsequent to such authorization plaintiff's husband purchased a lot abutting on said Vine street, and erected a brick building thereon. Afterwards defendant, without authority, constructed a line of side track of its road along within six feet of said building, and upon four feet of the space allowed for sidewalk. Plaintiff alleges that by reason thereof, and the operation of said road over said track, the walls of the house have been greatly damaged, etc.; that cars are left standing upon said side track in front of her doorway, etc., so that her premises are rendered almost worthless; and that since the death of her husband, in 1876, she has occupied the same as a homestead. Held, that the ordinance of the city in regard to the location of the tracks on said street was a proper police regulation; that the injury complained of by plaintiff was of a continuing character, and she was entitled to all damages sustained

by her during her occupancy since the death of her husband, although the road complained of was constructed prior to that time, but not for damages sustained by the property during her husband's lifetime. Reversed. Opinion by ROTHROCK, J.-Cain v. Chicago, etc. R. Co. 3 N. W. Rep. 293. WILL PUBLICATION TO WITNESSES NOT NECESSARY.-The publication of a will to the witnesses. thereto is not necessary. Section 2326 of the Code provides that a will to be valid must be in writing, witnessed by two competent witnesses, and signed by the testator or by some person in his presence and by his express direction." The statute requires that the instrument shall be witnessed" by two competent witnesses. This is the only requirement as to the attestation of the will. To witness means "to see the execution of, as an instrument, and subscribe it for This the purpose of establishing its authenticity. may be done without any declaration by the testator to the witnesses as to the character and purpose of the instrument, which amounts to what is called publication. We conclude that the language of the statute does not require publication of this character. Statutes similar in provisions, as the statute of frauds (29 Car. 11, ch. 3), which requires wills to be "attested and subscribed" by witnesses, have been construed by the courts not to require publication in the sense of the term as it is used by counsel in the discussion of this case. See 1 Redf. on Wills (Ed. 1869), ch. 6, § 18. Lorieux v. Keller, 5 Iowa, 196, explained. Affirmed. Opinion by BECK, C. J.-Re Hulse.

DAMAGES GRATUITOUS SERVICES-EVIDENCE OF NOTORIOUS DEFECTS--1. In an action for damages resulting from personal injuries a defendant is liable for the reasonable value of the medical attendance, care and nursing made necessary by the accident, though such services may, as between the plaintiff and the person rendering them, have been gratuitous. 2. Where in such action the evidence shows the employment of a physician, testimony as to the reasonable value of his services is competent, though they had not been paid for, and it does not appear that he claims any compensation for such services. 3. The court instructed the jury that defects in a street can not be shown to be so notorious as to charge the city officers with knowledge thereof by proof that they were known to any number of travelers, sojourners or persons not citizens of the city; such proof, to establish notoriety, must be confined to the knowledge of citizens, Held, error. Travelers, sojourners and persons not citizens use the streets of a city, and have just the same capacity to observe defects that citizens possess. Reversed. Opinion by BECK, C. J.☛ Varnham v. Council Bluffs.

EVIDENCE-MENTAL UNSOUNDNESS OF WITNESS. -Action by a surgeon to recover for his services as such in amputating defendant's leg. The defendant answered that he had settled with plaintiff. The plaintiff introduced a physician who testified that he had known the defendant from a time prior to the amputation of his limb. He was then asked to state the condition of defendant's mind as to memory before and after the injury, to state the effect of the injury upon defendant's memory as to money and finances in particular, and to state whether, in the opinion of the witness, the mind of defendant was greatly impaired. The evidence, upon defendant's objection, was rejected. Held, error. Under familiar rules of law, the credibility of a witness may be impeached by showing moral defects. Mental defects, as a loss or impairment of memory, will detract from the credibility of a witness as much as moral defects. It is not

reasonable to hold that the law will permit impeachment of a witness by showing the moral defects of his character, and will not permit the impeachment by proof of defects of memory caused by disease of the body or mind. The following cases give support to this conclusion: Isler v. Dewey, 74 N. C. 466; Fairchild v. Bascomb, 35 Vt. 398; 2 Phillips' Evidence, Cowan & Hill and Edward's note 950, note 596; Sisson v. Conger, 1 T. & C. 564; Rivara v. Ghio, 3 E. D. Smith, 264; Livingston v. Kiersted, 10 Johns.362. See also, as tending the same way, Fleming v. State, 5 Humph. 564, Tuttle v. Russell, 2 Day (Conn.), 201; McDonald v. Preston, 26 Ga. 528; Gibson, J., arguendo, in Brindle v. McIlvaine, 10 S. & R. 285. A contrary doctrine is held in Goodwyn v. Goodwyn, 20 Ga. 60). Reversed. Opinion by BECK, C J. SEEVERS, J., dissenting.-Alleman v. Stepp.

fairly supposed to exist between parties who have in apparent good faith made mutual promises of marriage, has abused the confidence of a female, and induced her to yield him favors which she might have otherwise withheld. The agreement to yield her person to him was one appearing to have been deliberately made in advance, and where there had been no promise of marriage. It is clear, therefore, that the hypothesis upon which this instruction was based could not be assumed by the jury for the purpose of fixing the amount of damages the plaintiff was to recover. Judgment reversed. Opinion PER CURIAM. -Hanks v. Naglee. 4 Pac. C. L. J. 456.

SUPREME COURT OF CALIFORNIA.

December Term, 1879.

ATTORNEY AND CLIENT

CONTRACT FOR SERVICES.-If a client make a contract to pay his attorney one-half of any money received upon two promissory notes for equal suas, obtained by the attorney in the settlement of a claim, and afterwards collect one of the notes and retain the money, the attorney may elect to take the other and unpaid note as his share of the fund, treating the whole sum as an entirety. Judgment reversed. Opinion PER CURIAM.-Sharpstein v. Friedlander. 4 Pac. C. L. J. 473.

DEATH

CRIMINAL PROCEDURE GRAND JURY OF JUROR.-1. An indictment can not be set aside on the ground that the grand jury was not properly selected, summoned or impaneled. 2. The death of a grand juror does not dissolve the grand jury, notwithstanding the statute fixes the number of the jury in the first instance. An indictment found by twelve of the jurors is good, although there be less than nineteen grand jurors at the time of finding an indictment. Judgment affirmed. Opinion PER CURIAM.-People v. Hunter.

BREACH OF PROMISE OF MARRIAGE-SEDUCTION -DAMAGES- DISTINCTION WHERE PROMISE IS BEFORE AND AT THE TIME OF THE SEDUCTION.-1. A contract for illicit cohabitation is void because tainted with immorality. 2. In an action for breach of promise of marriage the plaintiff, Emily Hanks, testified in substance that the agreement between the parties was that the plaintiff should then presently surrender her person to the defendant, and that in consideration of such surrender the defendant would afterwards marry her. He promised me that if I should give up myself to him that he should marry me." Q. What did you say to that?" "A. At first I refused; at last I, of course, gave myself up to him."' The trial court in stating to the jury the elements of injury which go to make up the sum total of damage "' which the plaintiff might be considered to have sustained, instructed them as follows: Next, if the defendant, taking advantage of the promise under which she (the plaintiff) was acting, has had illicit relations and has seduced the plaintiff, that is another element proper for the jury to consider." Held, error, The evidence just detailed, coming as it did from the mouth of the plaintiff herself, shows that this case is not one of the character assumed by the court as a basis for this instruction. It was confessedly not a case in which the defendant, taking advantage of the trust and confidence which may be

66

This is an action of ejectment brought by appellee against appellant for the recovery of certain property. A trial by the court resulted in favor of the plaintiff, and that she was the owner of a life estate in the premises during the term of her natural life. Appellant seeks a reversal upon the ground (as he claims) that plaintiff did not show title. A witness for plaintiff testified that he had known the premises for thirty years, and that for that length of time the husband of plaintiff was in the sole and actual possession of the same claiming to be the owner in fee. On cross-examination this witness said that he could not remember that he had ever heard the husband of plaintiff say anything about claiming to be the owner in fee. DICKEY, J., says: "Appellant insists that plaintiff failed to show title in this that there is no proof that Dewitt claimed title to the land in fee. This position is sought to be sustained on the ground that no witness has testified to having heard him say anything about claiming in fee or how he claimed. This position is not tenable. It is not necessary that such a claim should be expressed in words. He took actual possession, and during his life treated it as his own absolute property by occupying, cultivating and improving it. The judgment must be affirmed."Dewitt v. Bradbury.

-

PARTNERSHIP - DISSOLUTION ACCOUNTING REFERENCE TO MASTER.-C and defendants were partners when the bill was filed. The bill originally alleged violation of the partnership contract, and asked that the partnership be dissolved and an account taken. The term for which the partnership was to run elapsed while the suit was pending. A supplemental bill was filed by leave stating this fact and charging a misappropriation of partnership effects by defendants after the suit was begun, and asking for an accounting be-, tween the partners. This and the original bill were answered, replication filed, proofs taken, the cause referred to a master and report made, and then on a hearing the bill was dismissed. No exception appears to have been taken to the master's report. that report there seems to have been due to complainant, as one of the partners, several thousand dollars from one of the other partners, and divers parties who had received certain parts of the partnership goods are shown to be respectively debtors to the firm in considable amounts. Though there was no exception to the master's report, a decree was entered dismissing the bill. DICKEY, J., says: "It would seem that if there be no ground for setting aside the master's report, a decree should have been entered upon it, and if otherwise the report ought to have been set aside and the matters

By

referred to the master to state an account correctly between the partners. In any event the complainant is entitled to an accounting and a decree settling the accounts and providing for the disposition of the effects of the firm. The decree must be reversed and cause remanded.'' Reversed. Curyea v. Beveredge.

66

EVIDENCE-WITNESS-BANKRUPTCY.- This is an action of covenant brought by appellee against appellant alleging the execution of a deed and charging a breach of the covenants of warranty. On the trial before a jury a witness was asked on cross-examination whether he had gone through bankruptcy without mention of this claim, and on objection the court refused to require witness to answer, and this ruling appellants insist was error. The witness had testified that any judgment in this case goes to my benefit." It is now insisted that defendant ought to have been allowed to prove that this claim was not in his schedule of credits, for the purpose of impeaching the witness. DICKEY, J., says: "It would seem the proof would have been competent for that purpose. Appellant had the right to ask the question, but the witness was not bound to answer the question, for the answer sought seems to tend to criminate the witness. Affirmed.-Taylor v. McIrwin.

DAMAGES WRONGFULLY CAUSING DEATH-PROOF OF THREATS MADE BY DECEASED, WHEN ADMISSIBLE. This is an action under the statute by the administratrix of the estate of George Snyder, deceased, brought for the use of the next of kin against appellants, upon the allegation that defendants wrongfully caused the death of Snyder. The killing occurred in the presence of many witnesses. There were hostile feelings between Snyder and the appellants. Verdict and judgment was for plaintiff, and defendants appealed. It is assigned for error that the circuit court refused to permit defendants to prove previous threats of violence by Snyder, which had been communicated to defendants before this meeting. DICKEY, J., says: "In this there was no er

ror.

There is no evidence whatever tending to prove any overt or even equivocal act of Snyder, indicating present danger to appellants or either of them. Previous threats are competent only to give character or coloring to to some act of the party having made the threats. The mere fact that another has threatened to take my life does not justify me in seeking him and killing him on sight. This is not necessary selfdefense. If another threatened to kill me on sight and I know of such threats and on meeting my enemy without fault on my part he makes a demonstration apparently hostile and I kill him, I have a right on trial to prove my knowledge of the previous threat, that the jury may determine whether I really acted from a reasonable apprehension, that my enemy was about to kill me or do me great bodily injury. In the absence of any fact which may in any light be reasonably construed to be a hostile movement or demonstration, prior threats do not tend to show a defense. It is true when life or liberty is at stake, as in a trial in a criminal proceeding, courts will permit threats to be proven upon very slight proof of a foundation for such evidence, and this in favor of life and liberty; but in a mere matter of dollars and cents, involving no vindictive damages and seeking merely compensation civilly for the wrong, no such leaning of the courts should be countenanced. There was no evidence tending to lay the necessary foundation for evidence of previous threats, and it was therefore right to exclude the proof. See 88 Ill. 312.” Affirmed.-Forbes v. Snyder.

SUPREME COURT OF WISCONSIN.

January, 1880.

SURETY ALTERATION-DISCHARGE.-A surety for the performance of a contract is discharged by any subsequent material change therein. Thus, where during the life of a lease for three years, an agreement was entered into by lessor and lessee, by which the latter was to surrender the premises at the end of the second year and pay certain sums, etc., in full of all rent due under the lease: Held, that a surety for the performance by the lessee of the original lease was discharged by such agreement. Affirmed. Opinion by ORTON, J.-Nichols v. Palmer.

WHEN COURT MAY ORDER STAY OF CASE AND PAYMENT OF COSTS ON APPEAL,-1. On reversal by this court of a judgment in favor of the plaintiff in an action, the circuit court has power to stay his further proceedings therein until he shall pay the costs adjudged against him on the appeal; and the order being grantable at discretion is not appealable. 2. Plaintiff's remedy in case he deems the stay unreasonable, considered but not determined; and cases suggested in which an order staying proceedings until a specific act be performed may be appealable, under subdivision one, § 3069, Rev. Stats. Appeal dismissed. Opinion by TAYLOR, J.-Felt v. Amidon.

SALE-PURCHASE-TERMS CASH."-1. One who receives goods sent to him knowing that the sender claims that the receiver has purchased them for him, can not in the absence of mistake or fraud, appropriate them to his own use and then disclaim the purchase. 2. The words "terms cash" upon an unreceipted bill of goods sent by a wholesale to a retail dealer, can not be held as matter of law to imply that the goods were paid for before they were shipped. Reversed. Opinion by TAYLOR, J.-Wellauer v. Fellows.

MECHANIC'S LIEN WHEN PETITION MAY BE AMENDED-COSTS.-1. Where one entitled to a mechanic's lien has in good faith filed his petition in time, but through mistake it is imperfect (as where it describes the premises incorrectly) the court in which suit is brought to enforce the lien may permit an amendment of the petition, as against all persons who have not in the meantime acquired vested rights in respect to the premises. Rev. Stats. § § 3320, 4980. 2. Plaintiff appealed from the whole judgment, although a part thereof was in his favor, and on affirming the judgment as to that part, and reversing it as to the remainder, it not appearing that defendant was injured by the form of the appeal, this court, in the exercise of its discretion (Rev. St. § 2949), awards costs to the appellant. Affirmed in part and reversed in part. Opinion by TAYLOR, J.-Sherry v. Schraage.

RES ADJUDICATA― HOMESTEAD-SELECTION.-1. The judgment in ejectment against a tenant of the land is not binding in a subsequent action of ejectment by the same plaintiff for the same land against the landlord, and a question determined in the former is not res adjudicata in the latter. 2. The owner of a legal subdivision of land precisely equal to the stat utory measure of a homestead right, whose dwellinghouse is situate upon such subdivision, and who has made no different selection, will be held to have selected that subdivision for his homestead, although he also own adjoining lands from which he might have selected his homestead in part. In Kent v. Agard, 22 Wis. 150, it was held that where one owns and lives on more than forty acres of agricultural land, or more than a quarter of an acre in a city or village, although his dwelling-house be upon a legal subdivision of land, exactly commensurate with the right of home

stead given by the statute, the limits of his homestead remains undetermined until fixed by his selection. Such now appears to the court an unsound, inconvenient and dangerous construction of the statute, 3. C, owning 200 acres of land in one body, conveyed the whole to L, his wife not signing the deed. Afterwards with his wife he mortgaged the whole 200 acres to K, who purchased the same at the sale on foreclosure of his mortgage. Held, that the deed to L was inoperative to convey the quarter-quarter section on which C's dwelling-house was situate at its date, and that title thereto passed to K by the foreclosure sale. Affirmed. Opinion by RYAN, C. J.-Kent v. Lasley.

JURISDICTION OF COURTS OVER CORPORATIONSBOARD OF TRADE-POWER TO ESTABLISH RULES— MANDAMUS.--1. The jurisdiction and duty of the courts of this State, in exercising the visitorial or superintending power of the State over its own corporations, to confine them within their franchises and correct and punish abuses thereof, asserted, and the modes of exercising such jurisdiction stated. 2. A demurrer to the relator's answer to the return to an alternative mandamus, treated as a demurrer to the relation. 3. The imposition of a fine upon a member of the defendant corporation, in his absence, without notice, formal complaint or trial, held a void proceeding. 4. Where, after a member had been suspended for refusal to pay such fine, the proceeding was annulled by the directors, and the member restored, such void proceeding against him is no bar to a subsequent regular proceeding for the same offense. 5. A rule of the defendant Chamber of Commerce prohibiting its members from "gathering in any public place in the vicinity of the exchange room," and "forming a market" for the purpose of making any trade or contract for the future delivery of grain or provisions, before the time fixed for opening the exchange room for general trading, or after the time fixed for closing the same daily, held to be within the power conferred on the corporation by its charter (chapter 157, P. & L. Laws of 1857, amended by chap. thirtynine, of 1877), and not to be unreasonable, or an unlawful restraint upon trade, nor void for uncertainty. 6. Under the present charter of said defendant it may by rule or by-law confer upon the board of directors the power and impose upon it the duty of suspending a member convicted of a violation of the foregoing rule, who refuses to pay the fine imposed upon him therefor by the president, in pursuance of another clause of the same rule. State ex rel. Graham v. Chamber of Commerce, 20 Wis. 63, approved but distinguished. 7. The relator having been fairly tried, upon due notice, and in accordance with the rules of the corporation, and there being abundant proof against him tending to show that he had committed the offense charged, he will not be restored by mandamus. But whether the court in such a case will look into the testimony for any purpose, quære. Affirmed. Opinion by LYON, J.-State v. Chamber of Commerce.

SUPREME COURT OF MISSOURI.

February, 1880.

EJECTMENT-WHEN HUSBAND MUST SUE ALONE FOR WIFE'S LAND - WHEN DEATH OF HUSBAND ABATES ACTION.-Plaintiff brought ejectment against G and wife for land which he had conveyed at one time to her as a separate estate, and which she subsequently conveyed to a third person, by whom it was

reconveyed to her, no words being used in the latter conveyance sufficient to create a separate estate. Held, that the action should have been brought against the husband alone, his marital interest giving him the right to the possession, and he was the only proper and necessary party defendant. 61 Mo. 148;: 46 Mo. 48. Nor is this affected by the fact that the wife in her answer claimed a separate estate and istroduced testimony in support of such claim; such testimony in the present case could not countervail the force and effect of the last conveyance to her, and the judgment against her was therefore erroneous. Hunt v. Thompson, supra. Though the judgment was properly entered against the husband, yet he having died pending appeal and before the submission of the cause, and having been entitled to possession only during the life of the wife, the judgment as to him. must abate, for no one can claim possession under him nor be his representative as to such possession. And as the wife was not a terre-tenant to the husband but on his death became entitled to a new and independent possession of her own, it follows that plaintiff. had no cause of action against her when this one was brought, and is therefore compelled to bring a new action. Reversed. Opinion by SHERWOOD, C. J.Wilson v. Garaghty.

JUDGMENT IN EJECTMENT WHEN NO BAR.- Action of ejectment. Defendant made a general denial and . set up certain special defenses. Plaintiff replied that in a former action of ejectment between one V as plaintiff, from whom present plaintiff bought, and the defendant, the same identical matters were in issue as are in the present case, and that V, plaintiff therein,recovered judgment and possession of same land now in controversy, and that thereafter defendants wrongfully and unlawfully entered thereon. Held, that the former judgment constituted no bar to the defense set up by defendants. At the common law a judgment in ejectment was not a finality, whether the titles or defenses were the same or not. Adams on Ejectment, p. 420. Nor is the common law rule changed by the Missouri statutes which have abolished lease, entry and ouster, and require the action to be brought in the real names of the parties. 32 Mo. 185; 38 Mo.. 304; Ibid, 552; 50 Mo. 86. The common law rule has always been the law of this State, except while sec.. thirty-three, ch. fifty-eight of the revision of 1855, was in force which provided that judgment in ejectment, except of non-suit, should be a bar to any other action between the same parties, or those claiming by or under them as to the same subject-matter.. The decision of Mr.Justice Miller, 4 Wall. 35, was based on the act of 1855, which was repealed in 1857, and the common law rule restored as it previously existed. It is a mistaken assumption that the sole reason for the ancient rule. in regard to the want of finality of judgments in ejectment, was the employment of fictitious parties in the proceedings. A judgment in ejectment confers no title upon the party in whose · favor it is given. "It is therefore manifest," observes. Mr. Adams, "that the judgment can never be final, and that it is always in the power of the party failing whether claimants or defendants to bring a new ac-tion." This reason is just as applicable since the abolishment of lease, entry and ouster as before. 4 Conn. 276. It is true, since the courts have allowed parol testimony to establish the matters actually litigated in a case without regard to the issues made by the pleadings, a change from the old law might be more plausible than when the courts held that to create an estoppel the precise point of the judgment must be made to appear from the record alone, and we do. not undertake to say that such an innovation might not be wise and beneficial, although the experiment

14. A bill in equity is filed on behalf of several complainants, whose interests are joint and identical. Their names are all signed to the bill by the solicitor who appears for them. The defendant has reason to believe that the bill is filed without authority from some of the complainants and without their knowledge. Will the court on motion rule the solicitor to exhibit proof of his authority to appear for all the complainants and stay proceedings until the rule is complied with, or if compliance is impossible dismiss the bill?

X.

15. Is a gratuitous loan in the nature of a mutuum of the civil law, i. e., corn, money or wine, a strict bailment? If so does Blackstone in 3 Comm. 432, in speaking of trusts, mean to say in this clause: "But there are other trusts which are cognizable in courts of law as deposits and all manner of bailments," that there is a trust relation in the aforesaid gratuitous loan or bailment? R. M. N.

ANSWER.

6. [10 Cent. L. J. 98.] The question in this case is: Was the extension of time from year to year," and the fact that it was extended for one year sufficiently definite to release the surety? In this State there must be a contract such as to preclude the holder from sueing for any definite period. 57 Mo. 100. In other words, could the payee have forced collection by law ten days after the year to year" contract was made? An agreement to extend the time until the next summer of a given year means the month of June, and is sufficiently definite to release the surety. Brandt on Surety. p. 298; Able v. Alexander, 45 Ind. 523. If the surety knows of the contract it is not necessary that he should object thereto in order to entitle him to his discharge. Stewart v. Parker, 55 Ga. 655; 12 Id. 271. The time must be extended by virtue of a contract made by the creditor with the principal and without the concurrence of the surety. 55 Mo. 142.

CURRENT TOPICS.

As we are in the month of February, and this is leap-year, we are constrained to say a word concerning the trouble which the extra day in this month has given to lawyers. As long ago as the middle of the thirteenth century, the English Parliament, by an act called the Statute 21 Henry III. declared that the day occurring in leap-year and that next going before shall be counted as one day." In some of the States there are similar statutes, while in Indiana it has been held that the English statute is in force in that State, and that the 28th and 29th days of February in every bissextile year are to be computed and considered in law as only one day. Helphenstine v. Vincennes Nat. Bank, 7 Cent. L. J. 27. But where the statute does not expressly require this, it would seem that in counting days for commercial or other purposes, the 29th should be reckoned as any other. A different rule will lead to very ridiculous results. Thus it may be and has been asked: "Is a man who works on February 28th and 29th to have pay for one day only? Is one who borrows money on February 27th for one day only entitled to the use of it for one day longer, and that too without interest? Has a judgment rendered February 28 no priority as a lien over one rendered February 29th? Could a man sentenced to be hung on February 29th be legally executed on February 28th? Could a man indicted for selling whiskey on Sunday, February 29th, escape punishment on the plea that he sold the liquor on the latter part of Saturday, February 28th?" The decision of the Supreme Court of Indiana in Helphenstine v. Vincennes Nat. Bank, supra, shows that such a contention has little of reason or common sense on which to rest. In that case a statute required that a defendant should be served with process ten days before the first day of the term. The term began on the 6th day of March, and the service was made on the 25th of February-ten days before the first day of the term, if the 29th was to be counted as a separate day, but only nine if the 28th and 29th were to be reckoned together. The court held that the latter rule was the correct one. and that the service was irregular and voidable. The decision has been already criticised in these columns in a paper from which we take the liberty at this time to quote: "Why upon any reasonable principle of law or logic should a summons served the prescribed length of time before a term be held to have been insufficiently served merely because the 29th day of February is included in the said time? That day is not usually regarded or observed as a holiday; and, if it were, that would not seem, upon analogy, to make any difference; for, though service of process upon Sundays and certain other holidays would be irregular, one or two Sundays are certain to be in cluded in every ten days' service, and yet are computed as part of that time; for instance a term of court very frequently begins on Monday, and service of initial process upon the second Friday preceding is uniformly held sufficient, though two legal holidays, and perhaps more, are included in the ten days. If such service as that-where the Sunday laws, moral principle and need for rest, prevent a man's using more than eight of the days for the preparation of his case-be sufficient, why is not a service so that merely includes the 29th of February, which is not a holiday, which is as long as any other day at that time of the year, and on which an ordinary days work can be done by the officers of the court, the defendant, his counsel, and all parties concerned? It can not be said that any party's rights are prejudiced by counting the 29th day of February, in the years in