SOME RECENT DECISIONS-13TH AMERICAN.

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THE 13th volume of the American Reports is before It is a handsomely printed book of some 800 pages, containing the cream of 21 volumes of reports of the States of California, Tennessee, Indiana, Louisiana, New Hampshire, New Jersey, New York, Ohio, Pennsylvania and West Virginia, and embracing 128 cases. These cases are mostly of great importance, many of them of decided novelty, and arising in so many different communities, widely separated in interests and in geographical situation, and decided by so many different judges, they exhibit an amount of legal learning and a degree of judicial acumen which we dare say is not to be paralleled in any volume of any other series of reports in the world. Indeed, we regard this volume as the most interesting of the series. Nearly every principle of law commonly arising in practice, and many questions of novel and original nature, are here discussed and adjudged. All the branches of the law have light shed upon them. The head-notes and statements of facts are, in most instances, models of style and statement. Thus, in Gagg v. Vetter, the reporter gives the substance of 24 pages of statement and opinion in a syllabus of 9 lines; in McDuffee v. Portland, etc., Railroad Co., Judge Doe's opinion of 15 pages is boiled down into 7 lines, and another of 17 pages, by the same judge, in Darling v. Westmoreland, is fairly expressed in 4 lines.

It may be useful to glance over these pages in review, and cull out a few of the cases remarkable for their importance, their novelty or their singularity.

In Yancy v. Yancy (5 Heisk. 353), page 5, it was held, that after the bar of the statute of limitations becomes complete, neither the legislature nor a constitutional convention can revive the remedy nor furnish a new one. The court, in this case, it seems to us, not only made a sound decision, but evinced a laudable candor, when they said that they were "willing, and even anxious, to correct any error into which we may be shown to have fallen." This was a singular case in one respect; the intestate had given to each of his daughters a female negro slave, and had charged these gifts to his children as advancements. About the same time, civilization made an advancement, and emancipated said slaves. Notwithstanding this, the chancellor held them to be good advancements. The question of the statute of limitations arose, in addition, out of these facts.

In Hutchins v. Gerrish (52 N. H. 205), page 19, it was held, that, in support of the verdict, the plaintiff might furnish the court with a duly authenticated copy of a record of judgment rendered in another State, of which an imperfectly authenticated copy had been admitted in evidence on the trial. This was on the ground that the evidence was merely formal and was for the court and not for the jury.

Rixford v. Smith (52 N. H. 355), page 42, is an important decision, respecting the liability of carriers of live stock. It is held, that where the owner had assumed the responsibility of placing the stock in the vehicles, the carrier is not liable for injuries occurring to the stock in transitu nor through his fault, but through their own fault or the mode of loading them. Doe, J., pronounces a learned opinion. The reporter furnishes an exhaustive note, disclosing the contrariety of decisions on this point. In most of the cases, special agreements had been entered into, modifying the common-law liability, but it may be gleaned from all

the cases that the carrier is not liable for injuries resulting from the natural vices or propensities of the animals themselves. The case of slaves in transitu was one which formerly gave the courts a good deal of trouble.

Darling v. Westmoreland (52 N. H. 401), page 55, is another of Judge Doe's interesting and exhaustive opinions. The action was against a town to recover for injuries sustained by the plaintiff's horse in becoming frightened at a pile of lumber by the side of the road; the exclusion of evidence that other horses were frightened by the lumber was held error. It would seem, at first blush, that this question would depend more on the horses than on the lumber. A very curious case is cited by the court, State v. Knapp, an indictment for rape, in which evidence of specific instances was admitted to show that the defendant was a man of enormous strength; it was proved that he had carried a barrel of sugar ten rods, had put some Frenchmen out of his tavern, had ejected one witness from a town-meeting at a meeting-house, had lifted so much upon scales, and, in a scuffle on the top of Moosehillock, on the 4th of July, had got the better of another party. Different doctrine seems to be held in Massachusetts, and even in New Hampshire, in Hubbard v. Concord, it was thought by one of the judges that evidence that other people had slipped on the ice complained of was incompetent. The question seems to be fair matter of opinion; if a man's horse had been frightened by the same pile he might be called to testify to his opinion that it was frightful to horses, and, if so, why not speak of his actual experience?

In Winchester v. Nutter (52 N. H. 507), page 93, a meeting was held to make arrangements for a squirre. hunt; the plaintiff presided; it was agreed that the beaten party was to pay for the supper of the victors, and the captains of the respective parties engaged the plaintiff to furnish the supper; in an action against defendant to recover for the supper for the whole party, the plaintiff had judgment.

In Wolfe v. Barnett (24 La. Ann. 97), page 111, the defendant was enjoined from selling an imitation of the plaintiff's gin, under the name of "Aromatic Schiedam Schnapps," or "Wolfe's Aromatic Schiedam Schnapps." In Burke v. Cassin (45 Cal. 467), page 204, the defendant was enjoined from using the name of Wolfe or Von Wolfe in the same sort of manufacture; but, it was held, that neither of the words "Aromatic Schiedam Schnapps" was entitled to protection as a trade-mark, on the ground that these words do not furnish any reason for a monopoly of their use. The reporter might also have referred in his note to Wolfe v. Burke, 56 N. Y. 115, where the same decision was reached, on the ground that the words were a fraud on the public, because they palmed off an alcoholic beverage, in common use, exclusively as a medicine and specific for certain diseases. These three cases are a singular exhibition of what diverse judgments different courts will reach on the same facts, and what different reasons they will adduce for the same conclusions.

In Hubbard v. Moore (24 La. Ann. 591), page 128, it was held, that the plaintiff could recover for furniture sold, although he knew the defendant intended it for a house of prostitution. The court remark: "Although it is not shown that when he delivered the furniture he told the defendant to go her way and sin no more, it is not thence to be inferred that he encouraged her in continuing in her immoral course of life." "To the vicious and depraved, as well as to the good and vir

tuous, belongs the right to acquire the needs and comforts of a common humanity. A different doctrine would adopt the visionary notion that there are to be · no more cakes and ale.'"

To Avegno v. Hart, page 133, is appended a valuable note on the "Law of the Road," in respect to travelers in vehicles.

Van Valkenburgh v. Brown (43 Cal. 43), page 136, is a decision calculated to drive Miss Anthony mad. "Women are not entitled to vote by virtue of the fourteenth or fifteenth amendment to the constitution of the United States." We will now take back a good deal of what we recently said as to our fears of the action of the California legislature at the investigation of Mrs. Aborus, who wants to live away from her husband, and yet have him pay her debts all the same. What makes this decision the more aggravating is, that the United States Supreme Court have just decided the same way. We suppose there will now be "weeping in Ramat."

In People v. Eddy (43 Cal. 331), page 143, it was held, that as the constitution of that State provides that "all property in the State shall be taxed in proportion to its value," an act exempting mortgages and debts secured by mortgages from taxation is unconstitutional.

To Callahan v. Donnolly, respecting restraint of trade, and People v. Woodward, respecting the abetting of felony, the reporter has appended elaborate and learned

notes.

In Redington v. Woods (45 Cal. 406), page 190, it was held, that where a bank had paid a raised check, had timely notified the defendant of the forgery, but had failed to return, or offered to return, the check, they could not maintain an action to recover the amount.

In regard to the California decisions reported in this volume, we feel authorized in saying that they are remarkable for the variety, interest and importance of the questions, and for the learning and ability with which they are discussed and adjudged. California is evidently taking a front rank in respect to the weight of its legal decisions.

In Ohio, we find the vastly important case of Board of Education of Cincinnati v. Minor (23 Ohio St. 211), page 233, deciding that the courts have nothing to say as to the "bible in the public schools." We presume most of the protestant clergy will tear their hair when they read that "we are not called upon as a court, nor are we authorized to say whether the christian religion is the best and only true religion." This court also say: "Three men-say a christian, an infidel and a Jew-ought to be able to carry on government for their common benefit, and yet leave the religious doctrines of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his searches after truth. If they are sensible and fair men, they will so carry on their government, and carry it on successfully and for the benefit of all. If they are not sensible and fair men, they will be apt to quarrel about religion, and in the end have a bad government and bad religion, if they do not destroy both."

In Ridgway v. Mastin (30 Ohio St. 294), page 251, it is held, in agreement with Malloney v. Horan, 49 N. Y. 111, that where a wife joins with her husband in a conveyance of lands, which is subsequently set aside by the husband's creditors as fraudulent, the wife's right to dower is revived.

Franklin Insurance Co. v. Hazzard (41 Ind. 116), page 313, decides, contrary to the law of this State, but in

conformity with that of Massachusetts, that the assignee of an insurance policy, procured by the assignor on his own life, cannot maintain an action thereupon. We stand by New York in this. If the person procuring the insurance has an insurable interest in the subject, he may do what he has a mind with the policy.

Gagg v. Vetter (41 Ind. 228), page 322, decides, that the proprietor of a manufactory in a populous part of a large city is bound to a high degree of care and skill in the construction and use of its furnaces and chimneys, and liable for any injury to the property of others caused by a failure to use such care and skill. An interesting review of the cases respecting the communication of fire.

State ex rel. Sanford v. Court of Common Pleas of County of Morris (36 N. J. 72), page 442, holds the "local option " law constitutional. Iowa and California have declared similar enactments unconstitutional, but "Jersey" seems to leave it to her people locally to say whether they will or will not tolerate "lightning." The same is held in Locke's Appeal, 72 Penn. St. 491, reported in this volume.

In Slocum v. Seymour (36 N. J. 138), page 432, it was held, that a sale by the owner of the freehold of timber standing thereon is a sale of an interest in lands. The court say there is great diversity in the cases, and that the English cases are "conflicting," but they regard this as the result of the best-considered decisions. They also intimate that there may be such a thing as a legal severance "by the force of a written instrument," sufficient to change the character of the property. This idea we have taken pains (10 A. L. J. 226) to controvert. We cannot conceive that real estate can be converted into personalty by a deed conveying it.

A very important case is Wolcott v. Mount (36 N. J. 262), page 438. M., a market gardener, applied to W., a dealer in agricultural seeds, for "early strap-leafed red-top turnip seed." W. showed him seed which he said was of that kind, and sold it to him as such. M. informed W., at the time of the purchase, that he wanted that kind of seed to raise a crop for the early market. M. sowed the seed, and it turned out to be of a different and inferior kind. W.'s representation was in good faith, as he had bought the seed for what he sold it. It was held, that whether W.'s statement was a warranty or a mere expression of opinion was a question of fact for the jury, and that the measure of damages was the difference between the crop raised and that which would have been raised had the seed been genuine. We suppose this holding is supported by the decisions cited by the reporter in this note, on which we have heretofore commented (11 A. L. J. 41), but the question still remains, whether if the seed sold had really been raised from "early strap-leafed redtop turnip," but had failed to produce the like, the vendor would have been liable; in other words, whether in the absence of an express warranty the vendor of seeds will be held impliedly to warrant any thing more than the genuineness of the origin of the seed. In Kirland v. State (43 Ind. 146), page 386, it was held, that the beating of a horse, which the prosecutor was driving, was not assault and battery. There are some rather fine distinctions on this point. Thus, cutting a rope which bound a negro, beating a house in which one is, striking a cane which one holds in his hand, or the horse on which he is riding, is assault and battery; but it seems that the assault cannot be communicated through the reins with which one is driving. The dis

LIABILITY OF BANKS FOR DEPOSITS FOR SAFE

KEEPING.

The attempt was made in Scott v. The National Bank of Chester Valley, 13 Am. Rep. 711 (72 Penn. St. 471), to hold a bank liable for bonds deposited, without compensation, for safe-keeping, and which had been stolen by the teller of the bank, on the ground that his accounts had been falsely kept and he had been abstracting the funds of the bank for about two years, and also, that he was suffered to remain in employment after it was known to the officers that he dealt

once or twice in stocks. It was contended that the want of discovery of the state of his accounts for so long a time was negligence. The court denied this, and held that the bank was not bound to search his accounts for the benefit of a gratuitous bailor. The court remarked, however, that the neglect of the bank was culpable "and might have led to responsibility to those with whom they had dealings, if they suffered from that neglect." The court denounced "stock gambling" by bank officers, but held that in this case it did not render the bank liable.

NEGOTIABLE INSTRUMENTS.

The London Law Times thus discusses the law of negotiable instruments:

"There is no part of our law relating to commerce that is of more importance than that which decides what are and what are not negotiable instruments. From one point of view, this is a question of fact rather than of law, the answer depending, in many cases, upon the custom of merchants; and it is highly desirable that questions such as these should be kept distinct from all that is arbitrary or technical, as far as that may be possible, and considered rather than with reference to what is convenient in practice and reasonable in principle. It is not of itself sufficient to make an instrument legally negotiable that it is transferable by established custom. The custom of merchants (unless part of the ancient law merchant), with all the weight that has been given it for the benefit of commerce, cannot confer upon the holder of an instrument the right to sue upon it, unless the instrument is one the legal right to sue on which passes by delivery, or because the parties are not themselves competent to introduce such an incident by express stipulation. And negotiable instruments must be of this last class. In order, therefore, to ascertain whether an instrument is negotiable, the question of fact must always be inquired into, 'Is it by the usage of trade transferable like cash?' But there remains the equally essential question of law, 'Does the mere delivery of it confer upon any person receiving it bona fide and for value a good title to the property which it symbolizes?'

"Of what instruments this last question may be answered in the affirmative was the point in the recent case of Goodwin v. Robarts and others; and though there could be little room for doubt as to what the judgment would be, the case was one of such immense importance in commercial circles that it must have been with a feeling of relief that that judgment was heard in the city. The facts were as follows: The plaintiff purchased certain Russian and Austrian scrip in February, 1874, through one Clayton, who improperly pledged it to the defendants as security for a loan to himself. Clayton having been adjudicated a bankrupt, the defendants appropriated the proceeds of the scrip to the discharge of their advance to him; and the

plaintiff then brought an action against the defendants to recover the sum they had received for the scrip. In delivering judgment, Baron Bramwell said that the question whether foreign bonds were negotiable instruments had been decided in Gorgier v. Mieville, 3 B. & C. 45, and that decision had never been overruled. The remaining question was, whether there was such a substantial distinction between bonds and scrip that the law that applied to the former did not apply to the latter. The case that had been relied upon by the plaintiff was Crouch v. The Credit Foncier of England (Limited), 29 L. T. Rep. (N. S.) 259, where it was held that an engagement to pay money to bearer not entered into by a promissory note or bill of exchange could not be rendered a negotiable instrument. But the argument that these scrips, being merely engagements to give bonds, cannot be made negotiable instruments, was founded upon the assumption that the agents of the foreign governments for the negotiation of these loans in this country took upon themselves some liability, which they clearly did not. It appeared to him shocking to common sense that such scrip, which were in a manner interim bonds, should not be negotiable, while the bonds to which they related were negotiable. The case was governed by the decision in Gorgier v. Mieville, and the judgment of the court must be in favor of the defendant. Baron Cleasby concurred. From the above very brief summary of a most able judgment, it will be seen that these scrips are, as regards their negotiability, placed on exactly the same footing as bonds.

"The leading case on this subject is Miller v. Race, Smith's L. C. (6th ed.) 479, in the notes to which the authorities are collected. It was held in that case that property in a bank note passes like that in cash by delivery; and a party taking it bona fide and for value is entitled to retain it as against a former owner from whom it has been stolen. Lord Mansfield, in delivering judgment, gave the true reason why bank notes and cash are on the same footing after delivery: It has been quaintly said that 'the reason why money cannot be followed is, because it has no ear-mark,' but this is not true. The true reason is upon account of the currency of it; it cannot be recovered after it has passed in currency. So in case of money stolen, the true owner cannot recover it after it has been paid away fairly and honestly upon a valuable and bona fide consideration; but before money has passed in currency, an action may be brought for the money itself. So in Foster v. Green, 31 L. J. (Ex.) 158. It is essential to the currency of money that property and possession should be inseparable. In Gorgier v. Mieville, ubi supra, the case on the authority of which Goodwin v. Robarts and others was decided, the king of Prussia had given bonds whereby he declared himself and his successors bound to every person who should, for the time being, be the holders of the bonds, for the payment of the principal and interest in a certain manner, and it was held that the property in those instruments passed by delivery as the property in bank notes (Miller v. Race, ubi supra), exchequer bills (Brandao v. Barnett, 12 Cl. & Fin. 987) or bills of exchange, payable to bearer; and that, consequently, an agent, in whose hands such a bond was placed for a special purpose, might confer a good title by pledging it to a person who did not know that the party pledging it was not the real owner. See, also, Jones v. Peppercorn, 28 L. J. (Ch.) 158, and Attorney-General v. Bouwens, 4 M. & W. 171. In this last case, the point as to negotiability arose upon the question whether the instrument was subject to pro

bate duty; and it was held that probate duty is payable in respect to bonds of foreign governments, of which a testator, dying in this country, was the holder at the time of his death, and which have come to the hands of his executors in this country; such bonds being marketable securities within this kingdom, saleable and transferable by delivery only, and it not being necessary to do any act out of this kingdom in order to render the transference of them valid. And in the case of Glyn v. Baker, 13 East, 509, where it was held that East India bonds were not negotiable instruments, the alarm created by the decision was so great, that within a month an act (51 Geo. III, ch. 64) was passed, putting them on the same footing as cash and bank notes. In Byles on Bills (5th Am. ed.), 281, it is said that in the State of Georgia it has been held that any bond payable to bearer is a negotiable instrument."

Certificates attached: negotiability.-No. 219. Hotchkiss v. The National Shoe and Leather Bank of New York, et al. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Justice Field delivered the opinion. Bonds of the Minnesota and St. Paul Railroad Company were issued and sold under certificates which showed that the holder of the bond was entitled to convert it into stock. These certificates were pinned to the bonds and not otherwise attached to them. Held that the presence or absence of this certificate did not affect the negotiability of the bonds, and when these were stolen and sold to innocent purchasers, without the certificate, the sale passed the title to the bond. Affirmed.

DISMISSAL OF BILL.

Demurrer on several grounds.- No. 200. Eliza House et al. v. Muller et al. Appeal from the District Court of the United States for the Middle District of Alabama. Mr. Justice Miller delivered the opinion, holding that where on a demurrer to a bill in chancery which sets out several grounds, some of which go to the merits and others only to abate the suit, a decree dismissing the bill in general terms, with no statement of the grounds, is erroneous where the only good cause of demurrer does not go to the merits; and the decree will be reversed because it would or might be a bar to another suit on the merits of the case. Reversed.

LAND PATENT.

Title.-No. 189. Conneyer et al. v. Shaffer. Appeal from the Supreme Court of Missouri. Mr. Justice Davis delivered the opinion, holding that in cases where a patent has issued for claims of land in Missouri under Spanish and French concessions, the title inures to the benefit of the legal representatives of the

conceder; and where the person presenting the claim for confirmation files with it evidence of his individual right to the land, it will be held to be referred to him. If none is filed it will be open to proof. Affirmed.

LIFE INSURANCE.

Answers to questions in application.—No. 209. Jeffries, adm'r, etc. v. The Economical Mutual Life Ins. Co. In error to the Circuit Court of the United States for the Eastern District of Missouri. Mr. Justice Hunt delivered the opinion, holding that the answers of an applicant for insurance to the questions whether he was married or single, and whether he had before applied for insurance, when in fact he was married and had then another policy of insurance, avoided the policy when that instrument stated that it was made on the express condition that all representations of the application were true; that in this regard it made no difference that the answers that were untrue were immaterial to the risk, or were unintentionally false. Affirmed.

TAXATION.

Railroad dividends.-No. 528. Bailey, late collector, etc., v. The New York Central & Hudson River Railroad Co. In error to the Circuit Court of the United States for the Southern District of New York. Mr. Justice Clifford delivered the opinion, holding that the certificates of dividends of earnings made by the Central Railroad Company in 1869 were taxable as dividends of income and profits of that company, within the internal revenue law of the United States. Reversed.

WITNESS.

Parties to suit.-No. 6. Original. The State of Texas v. White and Chiles. Mr. Justice Swayne delivered the opinion, holding, that since the act of congress removing the restriction on parties to suits as witnesses, it is not necessary to obtain an order of court to take the deposition of a party to a suit in chancery. They stand as other witnesses, and may be compelled to testify in the same manner as persons not a party to the suit.

RIGHTS OF RIPARIAN OWNERS-USE OF WATER BY MINERS IN THE PUBLIC LANDS. 'N Atchinson et al. v. Peterson et al., the United States

Isapreme Court decided the following points: (1)

On the mineral lands of the public domain in the Pacific states and territories, the doctrines of the common law, declaratory of the rights of riparian proprietors respecting the use of running waters, are inapplicable or applicable only in a very limited extent to the necessities of miners, and inadequate for their protection; there prior appropriation gives the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is applied. (2) What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and in controversies between him and parties subsequently claiming the water, the question for determination is, whether his use and enjoyment of the water to the extent of the original appropriation have been impaired by the acts of the other parties. (3) Whether, upon a petition or bill asserting that the prior rights of the first appropriator have been invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are