sum then due at 6 per cent. For the error in allowing interest after that date at 8 per cent., the rate contracted for in the note and then lawful, the judgment is reversed. Wheeler, &c. v. Glenn. October 15, 1884. Lou. Ch. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Elliott & Hemingray for appellants; Russell & Helm and Helm Bruce for appellee. 5. Where an assignee holds notes maturing at different times he must, in order to preserve his recourse on the assignor, pursue his remedies on each note as it matures. If all are secured by lien, and he has the property sold which was in lien and it does not sell for enough to pay the debts in full, he can not appropriate the money arising from the sale to satisfy any of the debts as to which the recourse may be lost, but must first apply it to the debts as to which there is recourse, and he can only recover from his assignor such part of the consideration paid for the assignment as is left after such application. Towsend & Massie v. Dittoe. October 22, 1884. Ohio Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Towsend & Massie and W. N. Sweeney & Sons for appellants; G. W. Ray and A. Duvall for appellee. Attorneys-See Pleadings, &c., in Criminal Cases. 4 1. An attorney who accepts for collection an assigned note is liable to his client for failing to use the diligence necessary to preserve the assignee's recourse upon the assignor. Towsend & Massie v. Dittoe. October 22, 1884. Ohio Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Towsend & Massie and W. N. Sweeney & Sons for appellants; G. W. Ray and A. Duvall for appellee. Champerty 1. Although a vendee in possession, who has performed his part of the contract, holds a perfect equitable title, leaving in his vendor no right whatever as against him but only the naked legal title and the duty to convey it, a deed by the vendor to a third party is not champertous, and an action may be maintained on the warranty therein. The tendency of adjudged cases is to restrict, rather than to enlarge, the operation of the champerty law. Akers v. Percifull's Adm'r. October 1, 1884. Har: din Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. Wilson & Hobson for appellant; Montgomery & Poston for appellee. Churches 1. Property rights-Under the General Statutes when there is a schism in a church, the excommunication of one party by the other does not impair the right of the former to the use of the church and appurtenances for divine worship, unless the excommunication be "on the ground of immorality," the mere refusal of a minority to obey the wishes of the majority, or to subscribe to every view the majority may express as to their religious convictions, does not amount to "immorality." To have that effect the conduct must be such as “amounts to dishonesty, wickedness, injustice-such action as contravenes the moral or divine law." There was a division in a Baptist church, growing out of the refusal of a majority of the members to allow a certain minister to preach oc casionally in the church and administered baptism, and a council was called from other churches to determine the matters at issue. The refusal of the minority to abide by the decision of the council resulted in their expulsion, and the expelled members insisting on their right to use the church, the majority brought this action, asking that their title be quieted and the defendants enjoined from the use of the church property. Held-That these facts bring the case within the statute, and that the expulsion of the defendants does not impair their right to the use of the church property for such a part of the time as the statute provides. 2. Although the church was organized and its property conveyed to it while the act of 1814, determining the right to the use of church property in such cases, was in force, yet as the trustees who then held the title for the church died, and it was without any organization until it was finally re-organized by the appointment of new trustees long after the adoption of the Revised Statutes, the provisions of which were the same as those of the General Statutes, the General Statutes, and not the act of 1814, must govern. 3. The courts will not assume to determine whether there has been a valid expulsion of members of a church in accordance with the rules governing the church. The organic law of the church must control in all such matters. It is only when the church undertakes to invade the property rights of its members, and to exclude them from the use of the church property, that the courts will interfere. Ransom, &c. v. Rogers, &o. October 2, 1884. Boone Cir. Ct. Opin. by Pryor, J., Ct. Ap., aff. A. G. Winston and O'Hara & Bryan for appellants; Pryor & Chambers for appellees. Common Carriers 1. Special contract-Common carriers may limit their common law liability by special contracts, but can not, by such contracts, protect them. selves against the consequences of their own negligence. 2. Liability to consignee-Ordinarily the carrier's liability is to the consignee, yet the shipper is his agent in making the contract, and it is sufficient for the carrier to prove a special contract with the shipper. This may be done by showing that the shipper has voluntarily accepted a bill of lading containing the stipulation in question. Adams Express Co. v. Marshall. October 22, 1884. Bracken Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. M. F. Wilson, E. H. Kilpatrick and Hallam & Myers for appellant; A. Duvall for appellee. Constitutional Law 1. Peddler's license-The legislature has no power to impose burdens upon citizens of other States that are not imposed upon citizens of its own State, or upon goods manufactured in other States that are not laid upon goods manufactured in its own State. The legislature having, by an act approved February 21, 1874, provided "that itinerant persons who are citizens of this State and who vend exNovember, 1884-5 clusively goods, wares and merchandise which are the growth, product or manufacture of this State, shall not be deemed peddlers, nor required to take out license," and to that extent modified the General Statutes, which declared all itinerant persons vending goods, wares, etc., to be peddlers, and required them to procure a license, that act must be construed as repealing in toto the provisions of the General Statutes requiring peddlers to procure a license, as to exempt the citizens and products of this State operates as an exemption of the citizens and products of all States. Rash v. Holloway. October 22, 1884. Henderson Cir. Ct. Opin. by Richards, J., Sup. Ct., rev. Thomas E. & E. C. Ward for appellant; R. H. Cunningham for appellee. Corporations 1. Organizations under General Statutes-In order to organize a corporation under chapter 56 of the General Statutes, the notice required by section 5 of that chapter must be published at least four weeks, a publication for a shorter time will not suffice, and a compliance with this provision of the statute is a condition precedent to the validity of the acts of such a corporation. 2. Where the attempt to organize the corporation is abortive by reason of the failure to make the publication, the members of the association are individually liable to the creditors. Bamberger, Bloom & Co. v. White &c. Carter Bros. & Co. v. Same. McClung, Day & Riley v. Same. Oc tober 29, 1884. Caldwell Cir. Ct. Opin. by Richards, J., Sup. Ct., rev. F. W. Darby for appellants; Geo. W. Duvall and Wm. Marble for appellees. 3. Liability to indictment-A corporation can be indicted or punished for causing a public nuisance, for not performing a duty cast upon it by law, or for the doing of an unlawful act where the intention is not an ingredient necessary to constitute the offense. 4. Failure of city to abate nuisance-A municipal corporation can not be held liable for nonfeasance unless it has power, and it is its duty, to prevent the act through its ministerial officers. The appellee can not be punished for permitting a nuisance, in that it did not prevent a "bawdy house" from being kept and did not punish the keeper and those who assembled there, as it is not made the duty of appellee to abate nuisances, except such as are defined by it, and it does not appear that the acts permitted by appellee have been defined by it to be a nuisance. Commonwealth v. City of Paducah. October 29, 1884. McCracken Ct. Ct. Opin. by Ward, P. J., Sup. Ct., aff. C. H. Thomas and P. W. Hardin for appellant; E. W. Bagby for appellee. Costs 1. Appellant and appellees were both claiming to be lien holders as to a fund in court, and the court having held that the lien of appellees was prior to that of appellant, appellant appealed, and pending the appeal an agreement was entered of record that the cost of two copies of the record, for the use of the court and counsel upon the appeal, should be paid out 293 of the fund in controversy, it being agreed "that the unsuccessful litigants pay for both records in like manner as they would be bound to do for a single copy." The judgment was affirmed as to the appellees to this appeal in all respects, and reversed as to the appellant, because of the failure of the lower court to allow him a certain claim against the fund in controversy, which did not affect these appellees, their lien being prior. Held, That appellant was the unsuccessful litigant within the meaning of the agreement, and must pay for both copies of the record. Miller v. October 18, 1884. Lou. Ch. Ct. Opin. Mount Savage Furnace Co., &c. by Holt, J., Ct. Ap., aff. John R. M. Polk for appellant; R. H. Blain and Barret & Brown for appellees. 2. Unless the succesful party to an appeal has paid the clerk for a copy of the records, or is liable for the cost of a copy, the cost of the copy can not be taxed as a part of the cost and included in the execution against the unsuccessful party. A mere agreement by a party that the cost of a copy may be taxed as a part of the cost in the event he is successful is not sufficient to authorize the clerk to tax it. McCormick Harvesting Machine Co. v. Ripley. October 29, 1884. Jeff. Ct. Com. Pleas. Opin. by Richards, J., Sup. Ct. Sust. Mo. by appellant to quash execution. N. T. Crutchfield for appellant; John Stites for appellee. Devise 1. Defeasible fee-A testator, after devising land to each of his children, provided that "if any of my children should die without heirs the prop erty received by him or her shall be equally divided with the remaining children." the Held, That the first takers took each a defeasible fee, but upon death of one of them without children the survivors took an absolute estate in the interest of the deceased brother or sister. 2. A defeasible fee ought not to be created by implication. Bryant v. J., Ct. Ap., rev. Dower 1. Laches of doweress-Appellant having stood by and allowed judgment to be rendered for the sale of the property in which she now asserts her claim to dower, and allowed the property to be sold, can not disturb the purchasers for no other reason than that the chancellor has sold the productive property and left her with that which is unproductive, she having received one-third in value of the entire real estate. Keegan v. McAtee. October 9, 1884. Lou. Ch. Ct. Opin. by Pryor, J., Ct. Ap., aff. Rodman & Brown for appellant; Muir & Heyman for appellee. 2. Sale under execution-The fact that dower has not been assigned does not, under the statute, protect it from sale under execution. Funk v. Walter. October 9, 1884. Lou. Ch. Ct. Opin. by Pryor, J., Ct.. Ap., rev. Thomas B. Fairleigh for appellant; Kohn & Barker for appellee. Evidence-See Pleading, &c., in Crim. Cases, 4; Wills— 1. Res Gesta-While the statements or conduct of an agent during the performance of à tort are imputable to the principal as part of the res gestæ, whenever the tort itself is so imputable, upon the trial of an action by appellant against appellee for willful negligence resulting in the death of appellant's intestate, who was at the time a passenger upon one of appellee's boats, the statements of the mate and second clerk of the boat, made many days after the accident, as to how it occurred, were properly excluded, and the fact that the statements were made in response to inquiries by the plaintiff as to the whereabouts of her husband does not alter the rule. Hank's Adm'r v. Louisville & Cincinnati Mail Line Co. October 11, 1884. Jeff. Ct. Com. Pleas. Opin. by Pryor, J., Ct. Ap., aff. Marc Mundy for appellant; Hamilton Pope for appellee. Exceptions 1. To commissioner's report-When an amount reported by a commissioner is made up of numerous smaller sums, an exception should point out the particular sum which it is supposed the commissioner should not have allowed. 2. Assignments of error complaining of the action of the commissioner, and not of the court, can not be considered. Eubanks, &c. v. Vance. October 29, 1884. Simpson Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff Milliken & Bush for appellants; Geo. C. Harris and J. T. Montgomery for appellee. Executions 1. Sufficiency of levy-An execution levy upon land is sufficient although it fails to state that the land lies in the county to the sheriff of which the execution is directed; that is to be presumed. 2. A levy upon 90 acres of land as part of a tract of 412 acres conveyed by G to the defendant, giving the book and page where the deed is recorded, is held in this case to be sufficient. 3. Liability of sheriff-The appellee being the plaintiff in certain executions which had been levied upon the land of the execution defendant, who, subsequent to the levies, had been adjudged a bankrupt, filed his petition in the bankrupt court asking that court to sell, by its decree, the land on which he held his lien, and to order the proceeds to be first applied to the payment of his execution debts. The levies were adjudged by the bankrupt court to be void because of uncertainty, and the appellee was permitted to share in the proceeds of the land as a general creditor only. The appellee then brought this suit against appellants, sureties on the sheriff's official bond, to recover the amount of the executions, on account of the sheriff's failure to properly levy them. Held-That as the levies were in fact valid, although the bankrupt court erroneously decided otherwise, and the property was sufficient in value, the sheriff, by reason of his statutory right to have the judgments assigned to him, stood secured against any liability he might have incurred by reason of any default of his concerning the executions, and |