MURDER.-See HOMICIDE.

1. Eaton v. Alger, 57 Barb. (N. Y.) 179-190.

2. Sections 870 and 872 of the New York Civ. Code of Procedure provide that the examination of a party to an action may be taken at the instance of an adverse party at any time before trial, and specify what the affidavit to obtain an order for such an examination must contain. Held, that it is discretionary with the judge whether he grants the order to examine, although section 873 provides that the party to whom such an order is granted must grant an order for the examination if the action is pending, etc., and that while it is said in section 873 that the judge "must" grant the order where an affidavit conforming to the previous section is presented to him, yet we do not think that the language is absolutely mandatory, and that it was intended to deprive the judge of all discretion, and that the affidavit is required to disclose the nature of the action and to set forth that the testimony of the party is material and necessary, and the judge must be able to see, from the facts stated, that the testimony is material and necessary; that if, from the nature of the action and the other facts disclosed, he can see that the examination is not necessary 16 C. of L.-]

for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order. Jenkins v. Putnam, 12 N. E. Rep. 613.

in a

Section 544 N. Y. Čiv. Čode of Proc. provides that "the court proper case 'must,' upon such terms as are just," permit a supplemental answer. Held, that the court has a discretion to permit or to refuse a supplemental pleading, but that discretion must be exercised reasonably, and not capriciously or wilfully. Spears v. Mayor etc. of New York, 72 N. Y. 442.

Section 1678, which is designed to provide for judicial sales, declares that if the property consists of two or more distinct buildings, farms or lots, they shall be sold separately, unless otherwise ordered by the court. Wallace v. Feeley, 61 How. (N. Y.) 225; affirmed 88 N. Y. 646. It has been held that this section was directory; but subsequently, and by chapter 682 of the laws of 1881, that section was amended by substituting the word "shall" for "must," and this would seem to be an indication on the part of the legislature to obviate the construction which has been placed on the word “must” by pro1

MUTE.1-See also WITNESS.

nouncing it to be directory merely in its effect.

Section 2393, and which is one of the sections relating to foreclosure by advertisement, declares that "if the property consists of two or more distinct farms, tracts or lots, they must be sold separately," but has the further provison, "and as many only of the distinct farms, tracts or lots shall be sold as it is necessary to sell in order to satisfy the amount due at the time of the sale and the costs and expenses allowed by law." Although the word "must" is used in this section, and if its effect were to be construed in view of the decision to which reference has been made, it would be necessary to declare it direc⚫ tory, such a conclusion would not be justified, taking the whole context of the section into consideration, and from which it is manifest that it was intended to be absolute and mandatory, as evidenced by the prohibition of the sale of any more of the farms, tracts or lots than necessary to satisfy the amount due at the time of the sale. The section may be said, with great propriety, to be not only mandatory but prohibitory, its whole context considered together. Hemmer v. Hustace, 51 Hun (N. Y.) 457.

.

In construing section 41, Rev. Stat. of Minn., p. 334, which provides that certain actions "must be tried in the county in which the parties, or one of them, resides at the commencement of the action subject, however, to the power of the court to change the place of trial as provided in section forty-three" of the same statute, and that section provides, among other things, that "the court may change the place of trial on the application of all the defendants who answer," the court said: "The principal difficulty in construing these provisions of the statute arises out of the positive terms used in section 41, 'the action must be tried,' etc. In construing statutes, all the provisions relating to the same subject must be considered together and with reference to each other, and also with reference to the effect which each provision was designed to secure.

The primary and controlling object to be secured by the provisions of the statute regulating the place of trial in transitory actions was, manifestly, to protect defendants against the oppressions which plaintiffs might otherwise maliciously or capriciously practice upon them through the general jurisdiction of the district courts. . . . Such being the design and purpose of the statute, Ought the word 'must' in section 41 to be construed as an absolute and inflexible mandate upon the court and the parties, so as to put the case, situated as this is, beyond the power of the court or the parties to proceed any further therein? I cannot consent to such construction. It irretrievably destroys the power of the court to try a cause of which it has a full and unquestionable jurisdiction. No acts or agreement of the parties, however solemn or explicit, could, under such construction, confer upon the court the power to try a cause out of the proper county." Merrill v. Shaw, 5 Minn. 148.

1. Under the old system if, the prisoner stood mute it was deemed that no trial could be had. If a plea could not be extorted from him, and it was ascertained that he was not dumb ex visitatione Dei, he was sentenced as on conviction. But as the legal system dedeveloped, methods of procedure yielded in importance to substantial rights, and the courts were authorized to enter a plea of not guilty for the prisoner who declined to plead, and to investigate the question of his guilt upon this enforced plea. State v. Ward, 48 Arkansas 36-39.

Where a defendant stood mute it was contended for him that the court had no jurisdiction to try him, and had no power to enter a plea of not guilty for him, or to proceed to trial as if he had pleaded not guilty. Held, that the court has power to try a person who refuses to plead to an information or who wilfully stands mute when arraigned on it, without entering for him a plea of not guilty, and has a right to proceed in such trial as if there were a plea of not guilty, even though no statute of the United States specific

does not prove marriage, because the relation between man and woman cohabiting may not be that of husband and wife. But cohabitation, with evidence of a reputation that they were married, created by the conduct of the parties, proves a previous consent and marriage. So, under the code, cohabitation with direct evidence of previous consent, proves a marriage; because when viewed with the previous consent, cohabitation is evidence of a 'mutual assumption' of marital rights, duties or obligations." Sharon v. Sharon, 16 Pac. Rep. 345.

1. 2 Bouv. L. Dict. 265.

2. Green v. Disbrow, 79 N. Y. 1; s. c., 35 Am. Rep. 496; Angel on Limitations, 136; Norton v. Larco, 30 Cal. 127; s. c., 89 Am. Dec. 70; Lockwood v. Hanson, 16 Oreg. 102; Adams v. Carroll, 85 Pa. St. 209; Abbott v. Keith, 11 Vt. 525; Hutchinson v. Pratt, 2 Vt. 149; Wood v. Barney, 2 Vt. 369; Becker v. Jones, 37 Hun (N. Y.) 35; Trueman v. Fenton, I Smith's Lead. Cas., H. & W's Notes 966; Hutchinson v. Pratt. 2 Vt. 149; Wood v. Barney, 2 Vt. 369; Becker v. Jones, 37 Hun (N. Y.) 35, Warren v. Sweeney, 4 Nev. 101; Peck v. New York etc. U. S. Mail S. S. Co., 5 Bosw. (N. Y.) 226; Abbott v. Keith, 11 Vt. 525; Hodge v. Manley, 25 Vt. 210; Schall v. Eisner, 58 Ga. 190; Seitzinger v. Alspach (Pa.), 4 Atl. Rep. 203; Beaty v. Bordwell, 91 Pa. St. 438; Mattern v. McDivitt, 113 Pa. St. 402; Penniman v. Rotch, 3 Metc. (Mass.) 216; Green v. Caldcleugh, 1 Dev. & B. (N. Car.) L. 321; s. c., 28 Am. Dec. 567; Higgs v. Warner, 14 Ark. 192; Loeffel, v. Hoss, 11 Mo App. 133; Huebner v. Roosevelt, 6 Daly (N. Y.) 337; Kimball v. Kimball, 16 Mich. 211; Thompson v. Reed, 48 Ill. 118; Cuck v. Quackenbush, 13 Hun (N. Y.) 107; Sawyer v. Lufkin, 58 Me. 429; Parker v. Schwartz,

136 Mass. 30; Safford v. Barny, 121 Mass. 300; Gordon v. Lewis, 2 Sumn. 143; Greene v. Darling, 5 Mar. 201; Fox v. Fisk, 6 How. (Miss.) 328, 346; Talcott v. Smith, 142 Mass. 542; Chamber v. Marks, 25 Pa. St. 296; Campbell v. White, 22 Mich. 178; Madden v. Blain, 66 Ga. 49; Sanders v. Sanders, 48 Ind. 84, 86; Davis v. Smith. 4 Me. 337; Cogswell v. Dolliver, 2 Mass. 217; s. c., 3 Am. Dec. 49; Smith v. Ruecastle, 7 N. J. L. 357; Coster v. Murray, 5 Johns. (N. Y.) Ch. 522; Tucker v. Ives, 6 Cow. (N. Y.) 193; Kimball v. Brown, 7 Wend. (N. Y.) 322, 325; Chamberlain v. Cuyler, 9 Wend. (N. Y.) 126; Sickles v. Mather, 20 Wend. (N. Y.) 72; s. c., 32 Am. Dec. 521; Chambers v. Marks, 25 Pa. St. 296; Fitch v. Hilleary, 1 Hill (S. Car.) 292; Wood v. Barney, 2 Vt. 369; Abbott v. Keith, 11 Vt. 525; Hodge v. Manley, 25 Vt. 210.

When men deal with an express or implied agreement that what each sells or delivers shall, instead of giving rise to a demand payable at once, stand as a payment or set-off for what has been or may be received from the other, their liability will be limited to, and depend upon, the balance, as finally disclosed, and the statute will not begin to run until the date of the last item." Green v. Disbrow, 79 N. Y. 1; s. c., 35 Am. Rep. 496.

In ordinary cases of mutual dealings no obligation is created in regard to each particular item, but only for the balance, and it is the constantly varying balance which is the debt. It has uniformly been held that distinct and different items of charge in an open and mutual account do not constitute separate claims; but that the claim or debt is found in the balance of the account, and that it is the balance only that constitutes the claim of the party

to whom it is due. Abbott v. Keith, 11 Vt. 525; Hodge v. Manley, 25 Vt. 210. It appears that it is unimportant as to the particular mode of keeping such an account whether on books or loose scraps of paper, or without any written charges, or whether it is all kept in one shape or in different forms. Abbott v. Keith, 11 Vt. 525.

Upon the trial of an action brought to recover for goods sold and delivered, it appeared that all the goods except one item, costing one dollar, had been delivered more than six years prior to the commencement of the action. It also appeared that more than six years prior to the commencement of the action the defendant had charged the plaintiff with one dollar and eighty cents, and within that period with two dollars for use of a wagon, and seventy cents for repairs on the same. Held,

that the evidence was sufficient to authorize the jury to find that a mutual account existed between the parties, and that the trial court erred in refusing to submit that question to them. And it was that because the action was brought for goods sold and delivered, it was not improperly brought that the plaintiff could properly allege their claim upon one side of the account as for goods sold, etc., and if the defendant failed to allege or prove his claim, the plaintiffs could protest theirs against the bar of the statute by proving one or more items of the account existing on the part of the defendant, and the action will be deemed to have been brought for the balance within the meaning of the statute. Becker v. Jones, 37 Hun (N. Y.) 35.

There are cases in which the practical effect of their decisions are, that there can be no mutual accounts only between merchant and merchant concerning the trade of merchandise; or, in other words, that the statute of limitations does not admit of any exception being extended to any class of accounts excepting accounts concerning merchandise between merchant and merchant. Landsdale v. Brashear, 3 T. B. Mon. (Ky.) 330, 333; Dyott v. Letcher. 6J. J. Marsh. (Ky.) 541, 545; Smith v. Dawson, 10 B. Mon. (Ky.) 112, 114; Sprogle v. Allen, 38 Md. 331; Blair v. Drew, 6 N. H. 235; Livermore v. Rand, 26 N. H. 85; Craighead v. Bank of Tennessee, 7 Yerg. (Tenn.) 399; Lowe v. Dowborn, 26 Tex. 507.

South Carolina seems to follow a different rule from the rest of the States.

There the rule is that where the demand of one party arises subsequent to the demands of the other it does not constitute a mutual account-that is, it is essential that the demands of the respective parties should arise together. Cunningham v. Guigner, Dud. (S. Car.)

351.

In New Hampshire a different rule is followed. In that State, items in mutual accounts, within six years next before action brought, constitute of themselves no admission of an unsettled account extending beyond six years, nor any evidence of a promise to pay a balance so as to take a case out of the statute of limitations. Gage v. Dudley, 64 N. H. 271; Russell v. Copp, 5 N. H. 154; Blair v. Drew, 6 N. H. 235.

It seems that in New Hampshire, the only exception made in regard to accounts by the statute of limitations, is the excepting of accounts "concerning the trade of merchandise between merchant and merchant, their factors and servants." Gage v. Dudley, 64 N. H. 271.

So that there is practically no distinction in New Hampshire in regard to mutual accounts. They are put on to the same footing as any other account, except as to accounts between merchant and merchant. And the doctrine, in regard to all accounts, except as to accounts between merchant and merchant, concerning merchandise, is that an acknowledgment, in order to take a case out of the statute, must contain an unqualified admission of a previous subsisting debt which the party is liable and willing to pay. Gage v. Dudley, 64 N. H. 271; Ventris v. Shaw, 14 N. H. 422; Douglass v. Elkins, 28 N. H. 26; Manning v. Wheeler, 13 N. H. 487; Holt v. Gage, 60 N. H. 536; Blair v. Drew, 6 N. H. 235. For a further discussion of this question, see the article on LIMITATION OF Ac

TIONS.

In Iowa, the statute of limitations commences to run from the date of the last item, whether debit or credit, on a continuous open current account. Thorn v. Moore, 21 Iowa 285; Mills v. Davies, 42 Iowa 91; Keller v. Jackson, 58 Iowa 629; Sec. 2531, Iowa Code. Hence the question of mutual accounts does not arise in the courts as a distinct feature from other accounts, for the reason that the rule applicable to the running of the statute as to mutual accounts is applied to all open current