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3 of the act of February 16, 1875 (18 St. at Large, 316), and that this court had no jurisdiction of the appeal. A decree against the vessel for $27,000 would not establish the liability of the claimant for that amount in personam, unless he was the owner of the vessel at the time of the collision, and that fact must appear by the record, in order to be so far a foundation for such liability as to authorize this court to consider the $27,000 as the value of the matter in dispute on said appeal. Starin v. The Jesse Williamson, Jr., U. S, S. C., April 23, 1883; 2 S. C. Rep. 669.
A deed conveyed all that piece or parcel of land described as follows, to-wit, being the northeast quarter of section thirty-two, cept forty acres in the southeast corner of the northeast quarter of said section thirty-two." Held, that the deed did not convey the forty excepted, but whatever title the grantors had thereto remained in them as if the deed had not been made. Babcock v. Latterner, S. C. Minn.; 15 N. W. R. 689.
4. CRIMINAL LAW-TRIAL UPON LEGAL HOLIDAYJUDICIAL DISCRETION.
A statute of the State made February 22, the birthday of Washington, a public holiday, and prescribed that no public business, except in case of necessity, should be transacted on that day. The defendant was indicted for murder, and his trial was continued through the 22d of February, a verdict being rendered on the 23d inst. Held, that the trial judge was necessarily the judge of the necessity for continuing the trial, and that such a continuance did not constitute a mistrial. State v. Lorenson, S. C. Minn., May 23, 1883; 15 Ch. Leg. N., 370.
5. FEDERAL SUPREME COURT AMOUNT-HOW ESTIMATED. The jurisdiction of the Supreme Court is determined by the value of the matter in dispute therein, and for the purpose of estimating such value, reference can be had only to the matter actually in dispute in the particular cause in which the judgment to be reviewed was rendered, and not to the collateral effect of the judgment in another suit, between the same or other parties. New Jersey Zinc Co. v. Trotter, U. S. S. C., May 7, 1883; 2 S. C. Rep., 875.
6. INSURANCE, CO-OPERATIVE FAILURE TO PAY ASSESSMENTS.
Where a certificate of membership, in the nature of a life policy, issued by a mutual benevolent society, provided that the amount of insurance therein specified should be paid in case of the member's death to his beneficiary, on condition that he had complied with the by-laws of the society," and the by-laws provided that members should forfeit their membership if they failed to pay their dues within thirty days after publication of an assessment; and it appeared from the evidence that the assured had failed to pay an assessment within
the time specified, and that it remained unpaid at the time of his death, held, that he had forfeited his membership, and that there could be no recovery under his certificate. Madeira v. Merchants' Exchange Mut. Ben. Soc., U. S. C. C., E. D. Mo., June 4, 1883; 16 Fed. Rep., 749.
7. MUNICIPAL BONDS - LEVEE REPAIRS- LIMITA
The drafts drawn by levee inspectors on the levee treasurer of the county of Phillips, in the State of Arkansas, under the authority of the act of February 16, 1859, to provide for making and repairing levees in Desha and Phillips counties, and the renewal bonds or scrip issued by the county clerk of the county under the provisions of the act of January 15, 1861, to amend the act of February 16, 1859, do not constitute an indebtedness of the county for which bonds of the county may be demanded under the act of April 29, 1873, "to authorize certain counties to fund their outstanding indebtedness," or a money judgment or decree recovered against the county. The county court can not be required in this suit to levy and impose taxes on the levee districts to pay the demands, as all the demands were due more than ten years before the suit was brought, and are barred by the statute of limitations. Meath v. Phillips County, U. S. S. C., May 7, 1883; 2 S. C. Rep., 869.
8. MUNICIPAL BONDS · RAILROAD AID BONDSUNITING SEPARATE JUDGMENTS.
The town of Amboy, Lee county, Illinois, on the 5th of April, 1872, issued a series of bonds in payment of subscriptions voted by the voters of the town to the capital stock of the Chicago & Rock River Railroad Company, under authority of secs. 12 and 13 of the charter of the company, approved May 24, 1869. When the bonds were issued, the town clerk did not transmit to the county clerk the statement required by sec. 12 of the charter of the railroad company, but the president of the company caused them to be registered in the office of the auditor of public accounts in accordance with the provisions of sec. 4 of the act of April 16, 1869. During the years 1872 and 1873 the auditor made the proper certificate, under the registry law, for the taxes to meet the interest for those years, and the taxes were extended by the county clerk in due form on the tax collector's books; but before the collections were made, certain tax-payers of the town obtained from the circuit court of Lee county an injunction against the county clerk, the county collector, and the town collector, restraining them from collecting the taxes that had already been assessed, and also restraining the same parties and the auditor of public accounts of the State from taking any steps for the levy or collection of any other taxes to pay either the principal or the interest of the bonds. After this injunction was obtained, the relators, being severally the holders and owners of certain of the bonds and coupons of the town, began separate suits against the town to recover the amounts due them respectively on their coupons, and obtained judgments for the amounts so due which remain unpaid, and have been audited and allowed by the auditing board of the town; but the town clerk, whose duty it is to certify to the county clerk on or before the second Tuesday in August of each year the amount of taxes to be levied and collected to pay the charges against the town for the current year, refused to so certify, and concealed himself to avoid the process of the courts. Upon
presentation of the judgment to the county clerk, and demand that he compute and assess upon the taxable property of the county a sufficient sum to pay such judgments, and the interest and costs thereon, he refused so to do, whereupon the several judgment plaintiffs united as relators in an application to the circuit court of the United States for a mandamus requiring the county clerk to comply with their demands. Held, 1. That section 13 of the charter of the railroad company made it the duty of the county clerk, annually, after the issue of the bonds, to compute and assess on the taxable property in the town a sum sufficient to meet the interest as it matured and provide a sum for the redemption of the principal and a statement of the town clerk, under section 12, was not a condition precedent to such computation and assessment; but that when the judgments of the circuit court were presented to him he was officially informed of the liability of the town for the payment of the coupons sued for, and it became his duty to compute the tax necessary to pay them, and put it in the way of collection. 2. That the certificate of the town clerk that the judgments had been audited and allowed by the the town auditors, was not, in this case,, any more a condition precedent to the action of the county clerk, than it was under the requirements of section 12. 8. That the certificate of the auditor of public accounts was not an indispensable requisite to the action of the county clerk. 4. That the relator, not having been a party to the suit in which the injunction was obtained, and having established her right to the tax by the judgment of the circuit court in a suit to which the town in its corporate capacity was a party, she may use the power of that court to command the assessment and collection of the tax as a means of carrying the judgment into execution, notwithstanding the injunction obtained against the officers of the town before the judg ment against the town was rendered. When distinct causes of action in favor of distinct parties are united in one suit, and distinct judgments are rendered for or against the several parties, their judgments cannot be joined to give this court jurisdiction; but where, as in this case, one of the parties has two judgments, and the aggregate amount due thereon, including interest to the time the mandamus was awarded, exceeds $5,000, the cause may be retained for adjudication in respect to the rights of that party. Hawley v. United States, U. S. S. C., May 7, 1883; 2 S. C. Rep. 846.
9. LARCENY AND EMBEZZLEMENT IN SEPARATE COUNTS-FOUND GUILTY OF LARCENY JUDGMENT ARRESTED, AND NEW INDICTMENT FOR THAT OFFENSE ALONE.
The indictment contained two counts; first, for larceny, in stealing a mare; second, for embezzling the same. He was found guilty of the larceny, but not guilty of the embezzlement, and an order of discharge on that count. The judgment for the larceny was arrested for a fatal defect in the indictment, and a new indictment found for that offense alone. To this defendant interposed his plea of auter fois acquit, which was overruled by the trial court. Held, the statute provides that a person may be indicted for embezzlement and convicted of larceny, or vice versa; and in either case he is punished according to the facts as found by the verdict, whether the indictment charges embezzlement or larceny. R. S., sec. 652. Had the indictment contained but one count, for either embezzlement or larceny, and there had
been simply a verdict of acquittal, doubtless no further prosecution could have been maintained for either of such offenses based on the same facts. But had the indictment contained but one count, and that for embezzlement, and had a trial been had on such count, and defendant been found guilty of larceny, and not guilty of embezzlement, either tacitly or expressly, no one could question that if the indictment had beeu held bad on motion in arrest, the defendant could be indicted and tried on an indictment charging larceny alone. State v. Owen, S. C. Mo.
10. LIMITATIONS-INFANTS AND MARRIED WOMEN. The exemptions from the operations of statutes of limitations usually accorded to infants and married women, do not rest upon any general doctrine of the law that they can not be subjected to their action, but in every instance upon express language in those statutes giving them time, after majority or after cessation of coverture, to assert their rights. Vance v. Vance, U. S. S. C., May 7, 1883; 2 S. C. Rep. 854.
11. REVENUE LAWS IMPORT DUTIES STATUES. Marble statues, executed by professional sculptors in the studio and under the direction of another professional sculptor, whether from models just made by another professional sculptor, or from antique models whose author is unknown, are "professional productions of a statuary or of a sculptor," liable to a duty of only ten per centum ad valorem, under Rev. St., sec. 2504, Schedule M. Tutton v. Vith, U. S. S. C., April 23 1883; 2 S. C. Rep. 687.
12. SURETY-GUARDIAN'S BOND- EXTENT OF LIA
The court having ordered the sale of infants' real estate, appointed the guardian special commissioner to receive the proceeds from the master commissioner and reinvest the same. The guardian gave bond, with appellant as surety, to faithfully perform his duties, etc., as such commissioner. The proceeds of sale were paid to him by the purchasers, instead of to the master commissioner, as was proper. Held, the surety is liable to the infant on the bond, if the guardian fails to account for the money so received, notwithstanding the money was received from the purchaser instead of frem the master commissioner. Taylor v. Hemingray, Ky. Ct. App., May 15, 1883; 1 Ky L.Rep. & Jour. 43. 13. USURY - PENALTY FOR NON-PAYMENT IN THE FORM OF INTEREST. Promissory note in the following form: "Beatrice, Neb., June 27, 1878. On or before the first day of January, 1850, we promise to pay to the order of P. Weyrich & Co., one hundred dollars, with interest at ten per cent. from date until matu rity; the principal to draw interest at the rate of twenty-four per cent. per annum from maturity until paid, as compensation and damages for nonpayment thereof." Held, in an action thereon, that the note was not usurious on its face, the twenty-four per cent. being construed as a penalty, and the plaintiffs held entitled to recover interest at the legal rate. See Conrad v. Gibbon, 29 Iowa, 120. Weyrich v. Hobelman, S. C. Neb., July 10, 1883; 16 N. W. R. 436.
RECENT LEGAL LITERATURE.
AMERICAN DECISIONS.-The American Decisions containing the Cases of General Value and Authority, decided in the Courts of the Several States from the earliest issue of the State Reports to the year 1869, Compiled and Annotated by A. C. Freeman. Vols. 43, 44, and 45. San Francisco, 1883: A. L. Bancroft & Co.
These volumes bring this valuable series down to the years 1846-1847, leaving a period of but little more than twenty years yet to be spanned. The standard of excellence continues to be well sustained. Among the topics discussed in the numerous learned notes, with which the series is enriched, are: Custody of the Jury in Criminal Cases; Power of a Legislature to Repeal a Corporate Franchise; Entirety of Contract for Service; Right of Riparian Owner to use water; Injuries to Passengers in Volume 43; Seduction; Estate upon Condition, in Volume 44; and Compulsory Payment; Marine Collisions; and Regulations of Railway Passenger Traffic, in volume
OHIO DIGEST.-Supplement Containing all Reported Ohio Cases. from July 1875 to July 1882 in Vols. 23-37, and part of 38 Ohio State Report; Vols. 1-7 inclusive. Cincinnati Weekly Law Bulletin; Vols. 3-10, American Law Record, and Vols. 1 and 2 Cleveland Law Report
By Clement Bates. Vol. III. Cincinnati, 1883; Robert Clarke & Co.
This is an excellent digest, carefully and logi cally arranged, and seems to be precise and accurate in all its details. Appended to it in a modest sort of fashion without notice on the title page is a "Table of Cases Cited, Approved, and Overruled" etc., which alone is worth far more to the thorough going practitioner in that State than the entire price of the volume. The time is not far distant when such a table of cases will be regarded as an indispensable part of every digest.
QUERIES AND ANSWERS.
[*.* The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communicationsare not requested.
59. A sells to B a tract of land for $500. C has a mortgage on said land to secure a debt of $500, of which B has full notice when he buys. B does not go into possession, and C forecloses as against A, not making B a party. The land is sold and brings only
60. A case is now before the Circuit Court of the United States, District of Minnesota, removed from the State court of Ramsey county, on the ground of citizenship, it being alleged by defendant that plaintiff was a citizen of Great Britain. The defendant is a corporation created under the laws of the State of Minnesota, and a resident of the State. Plaintiff moved to revoke the order of removal, for the reason that under the various laws of the United States on the subject of removal, a domestic corporation bad no power to remove a cause, even were the plaintiff an alien; which motion was denied. Sec. 2 Dillon on the Removal of Causes, says that suit against Federal corporations or their members, as such may be removed upon petition stating that defendant has a defense arising under or by virtue of any treaty or law of the United States. This act, it is held, was not repealed by the act of March 3, 1875. It applies, says Dillon, in its true construction, only to corporations organized under a law of Congress, and does not include national banks or corporations created by for. eigu governments or by the laws of the several States. It has also been decided, after much fluctuation of opinion, in the Supreme Court of the United States, and has become a settled rule, that a corporation for all purposes of Federal jurisdiction is considered a citizen of the State which created it. Does that decision imply that a domestic corporation has a right to remove a cause as against an alien? and is not the privilege given to the alien alone, unless the corpora tion avers that it has a defense arising under or by virtue of the Constitution, or of some treaty or law of the United States? Is the allegation simply of citizenship by the corporation sufficient? If the act of 1875 does not repeal the former laws organizing the right of removal of causes by corporations which compels them to state their defense, are they not estopped from doing so upon any other ground? Can any portion of the act of 1875 give the right of removal to domestic corporations on any other grounds other than those of a defense arising under some law or treaty of the United States? and would it not be inconsistent with the weight of authority? E. G.
61. A man married, and during the "honey moon" bought real estate with his arrears of pension money, and without any definite object, caused deed to be made to his wife. A year afterwards she deserted him without just cause and took possession of the property. Can the husband, in Missouri, in his petition for divorce, join a count to divest her of title and invest the same in himself? She didn't put a dollar of her own in the property. B.
62. Section 3715 Revised Statutes of Wisconsin, provides that when the defendant in attachment shall be summoned by publication, and shall not appear and answer, that no execution shall issue on said judg ment, or money paid thereon, until a bond shall be executed, conditioned that if the defendant shall, within one year from the rendition of such judgment, appear and disprove the debt or damages adjudged against him, the plaintiff will refund the same. der the above statute, a garnishee paid a judgment against him before a justice, without any notice except publication to his creditor, i. e., the defendant in the attachment proceedings. The garnishee was sued by his creditor, i. e., the defendant in the at
tachment proceedings, within a year. Quære: 1. Was said creditor not bound, in the first instance, to resort to the bond before suing said garnishee? 2. Was not his action in electing to waive a resort to said bond a ratification of garnishee's payment of said judgment? 3. Again, supposing said judgment against said garnishee to be void for any reason, what effect, if any, would that have on the bond? Cite authorities.
63. A person became a member of "Th Knights of Honor," and received a policy or certificate of insurance upon his life, by the terms of which the amount to be paid was made payable on his death to the order of his will." He subsequently made a will by which he, in substance, directed that the proceeds of the insurance should be invested at interest and should be paid to his children as they arrived at majority, and appointed executors to carry out the provisions of the will, but does not specifically direct by whom the insurance money is to be collected and controlled. He died and his estate is insolvent. Under these facts does the money vest absolutely in the children as beneficiaries of the policy to the exclusion of creditors of deceased, or does it vest in his estate to be first administered and then pass to his children, if at all, only after the debts are paid?
64. At an early date in the settlement of a certain town in Maine, and before a burying place had been established by the proper authorities, one was needed and in those early days, people were less selfish than
A gentleman selected a knoll in his field and the person who had died was buried there. Time wore on and as others died, they were buried on this knoll until some thirty or more bodies had found their last resting place on this little knoll of land. Finally the owner of the land, made a proposition to others interested, that if they would build a fence he would furnish the lumber necessary and that such a piece as they should fence, should be set apart for a burying ground for the parties interested. The proposition was accepted and all conditions fully complied with. In the lapse of time, the property or land around, and with no reservation of this ground, was sold and deeds were given. Now, after nearly forty years, from the first burial on this ground, the party who owns the farm and land around this knoll, and claims to own the knoll itself, wishes to have all the bodies removed, and this ground given up to him. I will state further that while it has never been considered as entirely a public burying ground, yet no one who desired has ever been denied the privilege of burying their dead there. Now then, what we desire to know, under this statement, and they are the subscribed facts in the case, is, 1st. What are the rights, if any, under the law, of the parties who fenced this land? 2nd. What are the rights of the party who claimed to own the land? 3rd. Would the setting apart of this piece of land, as above described, be suflicient to hold it by dedication? 4th. If so, would any title pass, even though a deed was given, conveying as usual, all rights and appurtenances, etc., to, and have the parties who fenced that piece of ground under the request of the original owner, any rights thereto? 6th. Has the party who now has a deed of adjacent land, including, or there being no reservation of this knoll in his deed, a right to move or cause to be removed, the bodies now resting there? 7th. Would a license to move the bodies by the select men of the town, be of any protection to the party removing, or of any legal effect whatever?
-The costly law library of the late Mr. Justice Clifford is to be purchased by the citizens of Maine and will be retained in Portland as a free library for the use of Maine lawyers and law students.
-This from Tennessee: "State of Tennessee, G. County. Personally appeared before me, J. S., J. P. for said county, David Donohue, and made oath in due form of law, that one M. W. Hobgood is committing depredations at the Long Creek side track, and this morning has the neighbors all alarmed from insanity, etc. Sworn to and subscribed, etc. J. S., J. P. for G. C."
"Next day de ole "Then say ThursDat's de day Mrs.
We were sitting on the hotel steps at Franklin, Tenn., when a colored man came up and asked the time of day. A gentleman whom every body addressed as Major gave the hour and added : "Say, Moses, I want a good, stout man to move some fencing for me to-morrow. "Couldn't do it, sah. I'ze got to 'tend dat Peters law suit tomorrer." "Well, next day?" man Brown has his law suit." day." "Couldn't do it, sah. Simpson am to be tried fur frowin' an ax at Elder Barrow." "Well, will you agree to be on hand Friday?" "No, sah. On Friday I'ze gwine seben miles out to 'tend a law suit befo' Squar' Marshall." "Can you come Saturday?" "Recken not, Major. More'n likely de Taylor hog-killin' case will come off Saturday." "See here, Moses," said the Major, as he dropped his feet and leaned forward, "can you spare me any one day next week?" "Can't promise fur sartin, sah, kase some of dese law suits may be disjourned ober, you know." He was only a fair sample of the race. Next day, as I rode out on the Springhill pike, I met five slashing fellows walking at a gait of six miles an hour. After dividing a plug of tobacco among them I asked: "Going to town?" "Yes. sah." "Circus coming in to-day?" "Reckon not, sah, but dar's gwine to be a lawsuit, an' we's pushin' right 'long fur front seats."-Detroit Free Press.
-An aged negro clergyman of the Baptist faith, named Andrew Jackson Carter, brought suit on Tuesday in the Justice's Court, at Euharlee, S. C., to recover $25 claimed to be due from Pinkney Cayson, a white man. The defendant' lawyer took occasion to denounce colored preachers in general as great rascals, and, being a Methodist himself, to condemn the Baptists with special emphasis. The plaintiff's lawyer followed with a vigorous defense and closed by invoking a particular blessing upon the gray head of his client. This was more than the Rev. Andrew Jackson Carter could bear with composure, and falling upon his knees he exclaimed, "Let us jine in pra'r!" Judge, lawyers and spectators sat in silent amazement while the aged darky vociferated a fervent petition. When he had resumed his seat the court rendered judgment in his favor.
The Central Law Journal. no consideration be expressed therein, and
every such conveyance is presumed to have
been made for a valuable and sufficient conST. LOUIS, AUGUST 24, 1883.
sideration.” There are other provisions not
less important and some of them of questionCURRENT TOPICS.
able propriety which it is not necessary to enu
merate, as those above quoted will suflicientSome of our eastern contemporaries are ly show the drift of the proposed measure, discussing the practicability of introducing which, altogether, seems to us to be worthy of into the conveyancing of the present, shorter consideration. forms of mortgages and deeds. The law has unquestionably made great progress in the last thirty years in the task of ridding itself of superfluous forms and verbiage, but the SURVIVAL AND ASSIGNMENT OF degree of improvement in this respect is not
ACTIONS. equal in the different departments of the legal science, and many corresponding super
The dificulty of understanding the precise fluities to those which have been so suc
doctrine of the common law, with respect to cessfully weeded out of the system of plead
the survival of actions, has suggested the idea ing, still inhere in the law of conveyancing,
of a brief discussion of that topic. So far as which naturally inherits many of the artifici
statutes give or deny any right of action to alities and formalities of the feudal system
the administrator or executor of the deceased, that have long since become entirely mean
there can be no controversy; for the powers ingless. Still, any reform which is underta
of the personal representation are then easily ken in this respect must, in the absence of
determined. It was only when the statutes legislation, as was recently very pertinently
are wholly silent, or make provision that observed by a correspondent of the New York
merely certain actions shall survive in addiDaily Register, be by way of perilous exper
tion to those enumerated at common law, iments on clients' interest, and consequently
that any doubt arises. can not be expected to meet with any marked
Assignability. Insomuch as the title of an degree of favor on the part of the profession
executor or administrator to the effects of the or public. That the legislature has been slow
deceased is regarded as a title by assignment, to act in this matter, is probably due to the fact that the interests most affected are pure-l assignability or non-assignability of choses in
courts have very naturally concluded that the ly private ones, and that the inconvenience
action between living parties is a correct arises in a multitude of isolated cases. It
standard by which to determine what actions would seem, however, that the time has ar
survive and what do not. rived when some legislative action is desirable,
It is decidedly well established, then, that though the difficulties of making such legisla
those actions which survive and are transmittion effective are manifest. It is proposed in
ted to the personal representation as assets a bill drafted by another correspondent of the
are assignable; while those which do not pass Register to provide, for the sake of brevity of
to the administrator or executor are not as. covenants, that a short covenant, for instance, signable. The terms, then, may with propri
. "that the land is free from incumbrances,”
ety be used interchangeably, since the assignshall be construed as meaning the same as the
able quality of a chose in action aids very long covenant now used enumerating gifts, materially in determining the question of surgrants, titles, charges, estates,judgments,tax-vival of the action. 1
, es, assessments, etc., etc. ; and so on for each
Actions by Administrator or Executor. Conofthe usual covenants in a full deed, and this
tracts.-According to the common law auis thought to be declaratory of the law as it
thorities, an executor stands in the place of now stands. Land is to include all tene
his testator, and represents him as to all his ments, hereditaments and appurtenances. The
personal contracts, and therefore may regujoining of a wife in a deed is to bar her dower. “A conveyance of land shall be valid although
1 Byxbie v. Wood, 24 N. Y. 607. Vol. 17-No. 8.