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pear, taking his statement as true, the deceased, pending the quarrel, and as part of it, threatened to shoot him. There may be no truth in this part of his statement, and we do not wish to be understood as intimating any opinion on that subject. But this we do say, that if admissions thus obtained could be used for such a purpose, common justice would say that the prisoner should have the benefit of his statement taken as a whole.
For the error indicated the judgment of the court below is reversed, and the cause remanded, with direction to the circuit court to permit the prisoner to withdraw the plea of guilty and to enter a plea of not guilty, and to proceed with the trial of the cause as in other cases. Judgment reve.sed.
WEEKLY DIGEST OF RECENT CASES.
2, 4, 11
MINNESOTA, MISSOURI, 5 FEDERAL SUPREME COURT, 1, 3, 6, 7, 8, 10, 12, 14 FEDERAL CIRCUIT COURT, 9, 13
An appeal bond in an ordinary foreclosure suit in the courts of the United States, does not operate as security for the amount of the original decree; nor for the interest accruing thereon pending the appeal; nor for the balance due after applying the proceeds of the mortgaged premises; nor for the rents and profits, or use and detention of the property pending the appeal; but only for the costs of the appeal, and the deterioration or waste of the property, and perhaps burdens accruing upon it by non-payment of taxes, and loss by fire if not properly insured. It is very doubtful whether mere depreciation in market value is any cause of recovery on the bond. Where an appeal bond, instead of following the words of the statute that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and if he fails to make his plea good, shall answer all damages and costs," super-adds that he shall also pay for the use and detention of the property covered by the mortgage in controversy during the pendency of appeal;" these words will be rejected, and the bond will be construed as having its ordinary and proper legal effect; the judge taking the bond having no right to require such an addition to the condition of an appeal and supersedeas. This case distinguished from those in which official bonds and bonds to the government for the purpose of enjoying some oflice or privilege have been sustained as contracts at common law. Omaha Hotel Co. v. Kountze; Kountze v. Omaha Hotel Co., U. S. S. C., May 7, 1883; 2 S. C. Rep. 911.
2. CONTRACT-SALE-DELIVERY-CONSTRUCTION. Plaintiff sold to defendant 3,000 bushels of wheat to be delivered at a place twelve miles distant, and to be transported by teams. Held, that a single delivery of all the wheat was neither reasonable nor contemplated by the contract, and that refusal to receive, after a part of the grain was delivered, was a waiver of any subsequent offer or tender by the plaintiff. Roberts v. Mazeppa Mill Co., S. C. Minn., May 1883; 15 Ch. Leg. N. 372.
Under the provisions of the charter of the Washing. ton & Georgetown Railroad Company, and the act of congress of July 17, 1876, "authorizing the repavement of Pennsylvania avenue," the company were required to pay all the expense of the work of repaving inside its rails and for two feet exterior to this on each side. Along-side of the exterior rails of the track it was necessary to lay a curb of blue granite stone five inches wide the whole length of the pavement. Held, that the entire cost of all the paving on each side of their track to the sidewalks should not be computed together, and the charge against the company be in the proportion which those two feet bore to the entire distance from each exterior rail to the sidewalk, but that the company were chargeable with the entire expense of this curb. That the paving com missioners adopted the rule of a general apportionment of all the expense, and reported to the commissioners of the district on that basis the amo unt due from the railroad company, was not conclusive, as such report was not made their duty by the statute, and by the express language of the act the latter commissioners were directed to make the assessment on which the parties were to pay, and on which, if they did not pay a certificate should be issued which became an interest-bearing lien on their property. As it became necessary to support the track by underpinning in the process of the work, the expense thereof was properly charged to the railroad company. Washington & Georgetown R. Co. v. District of Columbia, U. S. S. C., May 7, 1883; 2 S. C. Rep. 865.
4. EVIDENCE-COMPENSATION OF EXPERTS-WITNESS NOT SWORN AS EXPERT.
Section 8, c. 70, Gen. St., provides that the judge
5. EVIDENCE-UNTIL THE CHARACTER OF STATES'
there had been a judgment of affirmance, interest would have been allowed to the defendant in error, on the amount of the judgment below, during the pendency of the writ, and in the judgment of dismissal no such interest was allowed. Schell v. Dodge; Barney v. Isler; Barney v. Cox; Barney v. Friedman, U. S. S. C., May 7, 1883; 2 S. C. Rep., 830.
11. MURDER IN SECOND DEGREE-KILLING WITH DEADLY WEAPON PRIMA FACIE.
The defendant was indicted for murder in the first degree, and convicted of murder in the second degree, and his punishment assessed at ten years in the penitentiary. The fourth instruction for the State, which is complained of as error, was to the effect that if defendant wilfully shot and killed the deceased, that in order to be justified on the ground of self-defense, he would have to establish such defense from the whole evidence, to the reasonable satisfaction of the jury. Held, if a defendant sets up a defense, it, of course, belongs to him to establish it to the, satisfaction of the jury, in order to succeed in that particular issue, though, of course, his failure thus to succeed, would not authorize a conviction, if a jury from a review of the whole case, had a reasonable doubt of his guilt, and the usual instruction as to such doubt was given. When the State proves the killing with a deadly weapon, this, without more, makes out a prima facie case of murder in the second degree; any matter of excuse, justification or extenuation rests with accused. State v. Jones, S. C. Mo.
12. PATENT EVIDENCE - UNRESTRICTED PUBLIC USE.
Where an inventor allows the unrestricted use of his invention by another, without injunction of secrecy or other condition, for more than two years prior to his application for a patent, although such use may be secret, this will constitute a public use and render the patent subsequently issued void. As the evidence in this caseshows that there was a public use of the invention with the consent of the inventor for more than two years prior to the application, the patent is void. Manning v. Cape Ann Isinglass & Glue Co., U. S. S. C., May 7, 1883; 2 S. C. Rep., 860. 13. REMOVAL OF CAUSES CASE ARISING UNDER CONSTITUTION OF THE UNITED STATES. Where a railroad corporation sets up as a defense that its charter was a grant by the State, giving to the railroad company, without any qualification, the right to prescribe upon what terms and at what rates freight should be transported on the road, and that this grant was protected by the Constitution of the United States, and that a subsequent statute of the State upon the subject impairs the validity of such grant in violation of the Constitution, such defense involves a question arising under the Constitution of the United States, and the case is removable from a State court under the second section of the act of 1875. People v. Chicago, etc. R. Co., U. S. C. C., N. D. Ill., June 14, 1883; 16 Fed. Rep., 706.
attacked. Held, this was clearly incompetent evidence. There would seem to be much ground for the opinion that a different verdict could have been returned by the jury, but that was a matter for them; so long as proper instructions were given, and there is evidence which supports the verdict, it is beyond our province to interfere. But nothing should occur during the trial, to influence the minds of the jury and lead them to a conclusion different from that to which they propably would have come, had improper evidence not been admitted, especially where, as here, the testimony is very conflicting, and where it would seem to require but a slight circumstance to turn the scale either way. Reversed. State n. Thomas, S. C. Mo.
6. FEDERAL COURTS-JURISDICTION-CITIZENSHIP. Where a promissory note, negotiable by the lawmerchant, is made by a citizen of one State to a citizen of the same State, and secured by a mortgage from the maker to the payee, an indorsee of the note can, since the act of March 3, 1875, sue in the courts of the United States to foreclose the mortgage and obtain a sale of the mortgaged property. Tredway v. Sanger, U. S. 8. C., April 23, 1883; 2 S. C. Rep., 691.
7. FEDERAL SUPREME COURT-WRIT OF ERRORWHEN BROUght.
No judgment or decree of a State court can be viewed in this court, unless the writ of error is filed in the court which rendered the judgment or decree within two years after the entry thereof. Scarborough v. Pargond, U. S. S. C., May 7 1883; 2 S. C. Rep., 877.
8. FEDERAL SUPREME COURT-WRIT OF ERROR TO STATE SUPREME COURT.
The question considered as to when the opinion of the highest court of a State may be examined for the purpose of ascertaining whether the judgment involves the denial of any asserted right under the Constitution, laws or treaties of the United States. In view of the statutory requirement that the Justices of the Supreme Court of Illinois shall file and spread at large upon the records of the court written opinions in all cases submitted to it, such opinions may be examined, in connection with other portions of the record, to ascertain whether the judgment or decree necessarily involves a Federal question within the reviewing power of this court. The act of the General Assembly of Illinois, in force July 1, 1875, validating loans or investments previously made in that State by corporations of other States or countries authorized by their respective charters to invest or loan money, is not in conflict with the contract clause of the Federal Constitution, nor with that part of the fourteenth amendment forbidding a State from depriving any person of property without due process of law. Gross v. United States Mortgage Co., U. S. S. C., May 7, 1833; 2 S. C. Rep.,
9. INFANCY-INFANTS DEFENDING IN FORMA PAUPERIS IN FEDERAL COURTS.
Infant defendants in equity may appear and defend
10. JUDGMENT-ALTERATION AFTER TERM.
14 REMOVAL OF CAUSES-LOCAL PREJUDICE ACT.
all the necessary parties on one side of the suit are citizens of different States from those on th other. It is not enough that there be a separable controversy between parties having the necessary citizenship, nor that the principal controversy is between citizens of different States. If there are necessary parties on one side of the suit, citizens of the same State with those on the other, the circuit court can, not take jurisdiction. Myers v. Swann, U. S. S. C., April 23, 1883; 2 S. C. Rep., 685.
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.
Query 57. [17 Cent. L. J. 120.] A railroad company graded a road across stream and obstructed it with piling. The intention of the company was to throw themselves in communication with the gulf by means of steamers running up to where said road crossed said stream. The legislature of the State of Florida afterwards declared said stream navigable to a point three miles above where said road-bed crossed said stream. Said road is not completed. A company is chartered under the general act for improving the navigation of said stream. What will be the proper remedy at law, or otherwise, to remove the obstructions of said stream, so that steamers which now come up to said road may pass up to the point three miles above said road? Can the said corporation remove said piling without resort to the courts? Please give authorities referred to. Sumpterville, Fla.
A. C. C.
Answer No. 1. There are two classes of streams in nearly all States. One, navigable for certain kinds of crafts certain distances within the State only, and not visited by vessels from without. These streams are highways for trade and commerce within the State. The other is navigable streams leading into other navigable waters without the State. These latter streams are navigable highways for commerce between the States. Over the first class the State has exclusive jurisdiction. If, by legislative act, Florida has declared the stream navigable-that is, a highway,-and prior to said act a railroad has built a bridge across said stream, it will be the duty of the State or of the county, or other authority wishing to perfect said highway, to pay the necessary damages in some manner before removing the obstruction referred to, I think. Depew v. Board of Trustees, etc., 5 Ind. 8. Over the second class of streams, the State has equal. ly supreme authority, in the absence of congressional enactment, so far as they are within her territorial limits. Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; State of Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Rundle v. Delaware, etc. Canal Co., 14 Id. 80. Congress may interfere and deprive the State of Florida of all jurisdiction over the stream, by virtue of art. 1, sec. 8 of the Constitution of the United States. We have not been able to find any congressional enactment that would reach this case, however. If, by congressional enactment, the State has Tost her jurisdiction over the waters of the stream, then it is doubtful whether a prosecution for
maintaining a nuisance could be maintained under the laws of the State; in fact, the act of the Florida legislature would be a nullity. If I am not right in the foregoing, then an action to abate a nuisance would undoubtedly lie against the parties maintaining the obstruction across the navigable streameither a civil action by some citizen, or make a State case of it. Not because the legislature of the State has declared the stream navigable, because if this is necessary, then we should say, that compensation in damages would follow to the railroad company; but because as a matter of fact the stream is and was a public highway without reference to the act of the legislature. If it is a public highway, obstructed without legislative right, any citizen would probably have a right to remove the unlawful obstruction, as he would to clear obstructions placed on any other highway. Neaderhouser v. State, 28 Ind. 257. LEX.
Answer No. 2. Public nuisances may be abated by the act of party, in cases where the abating party suffers from the nuisance a special and peculiar injury, not suffered by the public in general. Lincoln v. Chadbourn, 56 Me. 197; State v. Parrott, 71 N. C. 311 and cases cited. Brown v. Perkins, 12 Gray. 89, 101 holds an individual may remove a common nuisance when it obstructs his individual rights, and cannot be called in question for so doing." Le Sueur, Minn. ORA J. PARKER.
Query 63. [17 Cent. L. J. 140.] A person became a member of "The 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?
Answer. The querist will do well to see Hirschl on on the Law of Fraternities and Societies, now in press, Wm. H. Stevenson, Publisher, St. Louis, Mo.
RECENT LEGAL LITERATURE.
BENJAMIN ON SALES.-Benjamin's Treatise on the Law of Sale of Personal Property, with references to the American Decisions. Third English Edition with the Author's Sanction and Revision. By Arthur Beilby Pearson and Hugh Fenwick Boyd. Fourth American Edition, by Charles L. Corbin, in Two Volumes. Jersey City, 1883: Frederick D. Linn & Co.
This American edition of this really great work is properly termed authorized, for as appears from a card of the English publisher which is prefixed to it, it is printed from advance sheets purchased from him by the American publisher. The work itself is too well known to the profession everywhere to require comment or criticism. The recent retirement of the eminent author from the scene of his active labors at the English bar and the extra
ordinary honors which were heaped upon him upon that occasion by his brethern, lend an additional interest to the reissue of this work which is a lasting monument of his unprecedented suceess.
TWENTY-Eighth KANSAS Reports. Reports of
Cases Argued and Determined in the Supreme Court of the State of Kansas. A. M. F. Randolph. Vol. 28 Containing Cases Decided at the January and the July Terms, 1882. The State of Kansas has one of the ablest courts in the country, which manages to keep pretty well on the heels of its docket. Besides, by a statute these judges are required to write a syllabus to each opinion as it is delivered. The labors of the reporter must therefore be comparatively slight. Why is it, then, that the publication of these reports is delayed from six monts to one year after the decisions are rendered? It seems to us our brethren in Kansas have a legitimate ground of complaint here.
THIRTY-SIXTH NEW JERSEY EQUITY. Reports
of Cases Decided in the Court of Chancery, the Prerogative Court, and, on Appeal, in the Court of Errors and Appeals of the State of New Jersey. John H. Stewart, Reporter. Trenton, N. J., 1883: The W. S. Sharp Printing Co.
This volume abounds in interesting matter, not the least of which are Mr. Stewart's exhaustive and learned notes to many of the more important decisions.
bill, on the 2nd ult., said: "Everyone knew that wrong verdicts were often given in civil cases, and that first trials were constantly found to be incorrect. In such cases of a criminal or quasicriminal character, in which appeals were now permitted, he found that in the last six years 876 appeals had been heard, and, though a trained judgment had been brought to bear on all the cases, the result of the first trial has been reversed in 44 per cent. of the number. If that happened in cases involving questions of fact, in which every one concerned was anxious that justice should be done, he might fairly regard it as a very strong argument in favor of the bill. What he suggested was the obvious probability that juries, however desirous of doing their duty, sometimes made grievous mistakes. It was, he knew, the habit of those who took part in trials, and even of judges of great experience, to aver that they never knew cases of wrongful conviction, but that was necessarily so, for a judge could only form his opinion of a case by facts elicited or apparent at the trial, and the appearance of guilt in such cases at once justified the assertion of the judge, and caused the error. His own experience of these matters was very indirect, but he had come to the conclusion that a greater number of innocent people suffered than was generally supposed. It had already been the duty of his right honorable friend the Home Secretary to set at liberty twelve different persons convicted of the gravest crinies, and this had been done either because their innocence had been fully established or because their guilt was so exceedingly doubtful that he dared not keep them in custody. In eyery of these
facts lovg concealed had
almost miraculously to light; deathbed confessions of the real criminal and the depositions of fellow-prisoners had proved the error of the original convictions. And even if this occurred in every case in which an innocent man was convicted, the Secretary of State was helpless, and had no means of making the necessary investigations. He had no machinery by which that could be done, no power to examine witnesses, or to compel persons to give evidence. All he could do was to listen to statements without being able to test them, and so to surmise, but not to establish, the truth. Nor could the judge who presided at the trial under review give the Home Secretary much real assistance, for his impressions and recollections of the case were necessarily derived from what took place at the trial, and might not lead to the right appreciation of the new circumstances which formed the ground of the appeal. The result was extreme injustice, and the pardon, after, perhaps, years of suffering of an innocent man, whose former position could never be restored to him. A man so convicted could never be restored to the position of innocence which he occupied before, and such a pardon was rather an acknowledgment of the failure of justice than the exercise of the prerogative of mercy.”-Australian Law Times.
TAYLOR'S PRINCIPLES AND PRACTICE OF MED.
ICAL JURISPRUDENCE. The Principles and Practice of Medical Jurisprudence. By the late Alfred Swaine Taylor, M.D., F.R.S., Fellow of the Royal College of Physicians of London. Third Edition. Edited by Thomas Stevenson, M.D., London. Two volumes. Philadelphia, 1883; Henry C. Lea's Son & Co.
This late edition of this standard work will be found most useful to the profession. The distinguished author's treatment of the many difficult and interesting topics is of course always satisfactory, but the chapters on Poisoning and on Wounds and Personal Injuries, are particularly full and interesting. The learned editor has added many illustrative cases of recent date, including the Lamson poisoning case and the trial of the Peltzer brothers for the murder of M. Bernays.
MISCARRIAGES OF JUSTICE. The English Attorney-General, in moving th: second reading of the court of criminal appeale
The Central Law Journal. 22, is declared and re-asserted to be the proper rule,
ST. LOUIS, AUGUST 31, 1883.
and numerous cases are cited by the court in harmony
We print the above in the hope that it may have the effect of preventing any of our readers from being misled by the discrepancy noted. We deprecate, however, any criticism of the article in question, and desire to call attention to the fact that the case referred to was not published until June, 1883, after the article was prepared. Besides, even if such were not the case, it seems to us that the responsibility of misquoting so agile a court, which changes its position so frequently and with so much facility, should be borne, in part at least, by the court itself.
York on a visit of pleasure and recreation to this country. During his stay he will be entertained by the American Bar Association.
The Supreme Court of California in deciding a murder case (People v. Wong Ah Teak) recently said: "A person who has sought a combat for the purpose of taking advantage of another, may afterward endeavor to decline any further struggle, and, if he really and in good faith does so before killing the person with whom he sought such combat for such purpose, he may justify the killing on the same grounds as he might if he had not originally sought such combat for such purpose." This decision which was rendered by On Friday last, Lord Chief Justice Colea divided court, seems to us a very question-ridge, of the English Bench, arrived in New able law. The principle certainly is not sound in all the boldness of the above statement. We take it as unquestionable that one who seeks a combat must be held responsible for the natural consequences of his act, and if those consequences are such that the person assailed, so retaliates that the assailant, who has meanwhile experienced a "change of heart," so to speak, is compelled to kill him to save his own life, such killing is not in self defense unless it appears that such change of intent, was not only experienced but was clearly indicated to the person so assaulted. The toleration of any other rule would in a few years produce in our criminal courts an interesting crop of "quickened consciences" and "changed hearts" that shortly would be worthy to rank with the long array of emotional aberrations that is now their chief adornment.
A watchful correspondent has kindly favored us with the following communication: Editor Central Law Journal:
In No. 7 of Vol. 17 is published a "Leading Article" from Elisha Greenhood, of Boston, Mass., on The Measure of Interest,'' and in enumerating the States as to the "Rate after Maturity" of the contract, he cites Indiana among the States where the legal rate only is recoverable after the maturity of the contract, on the authority of Burns v. Anderson. 68 Ind. 202, which overruled Kilgore v. Powers, 5 Blackf. 22. In that he is in error. In Shaw v. Rigby, 84 Ind. 375 (published in June last), Burns v. Anderson, supra, and all the cases following it, are expressly overruled, and the rule declared in Kilgore v. Powers, 5 Blackf. Vo. 17-No, 9.
GARNISHMENT, FUNDS IN THE HANDS
In regard to what may be made the subject of garnishment, the general rule is, that all effects of an attachment debtor, subject to attachment, in the hands of a third person, may be reached by the process; but to this general rule there exists some reasonable and perhaps necessary exceptions. It is well said that no person who receives his authority from the law, and is obliged to execute it according to the rules of the law, can be charged as garnishee in respect to any money or property held by him by virtue of that authority; and further, that when property is in custodia legis, it can not be distrained nor interfered with otherwise than provided by law.2 Money in the hands of an officer, col
1 Brooks v. Cook, 8 Mass. 246; Corbyn v. Ballman, 4 W. & S. 342; Colby v. Coates, 6 Cush. 558; Thayer v. Tyler, 5 Allen, 94; Mock v. King, 15 Allen, 66; Hagan v. Lucas, 10 Pet. 400; Woodfall's Tenant's Law, 389. 2 Watson v. Todd, 5 Mass. 271; Vinton v. Bradford, 13 Mass. 114; Burlingame v. Bell, 16 Mass. 318; Odiorne v. Calley, 2 N. H. 66; Moore v. Graves, 3 N. H. 408; Stout v. Bradbury, 5 Me. 313; Burroughs v. Wright, 16 Vt. 619; Harbinson v. McCartney, 1 Grant, 172; Robinson v. Ensign, 6 Gray, 300; Oldham v,