3. BANK-DUTY OF CASHIER-LIABILITY ON BOND. The cashier of a bank undertakes to supervise the action of his subordinates in their work in the bank in so far as is consistent with the discharge of his other duties. Though the board of directors periodically examine into the affairs of the bank and reported its condition all right, this did not estop the bank from holding the cashier liable for any fraud perpetrated by a subordinate, if by exercising due care and diligence, the cashier could have prevented such fraud. Pepper v. Planters' Nat. Bank, Ky. Ct. App., June, 1883; 2 Ky. L. Rep. & Journ. 85. 4. CONTRACT CONVEYANCE TRUST. VENDOR' LIEN B conveyed lands to G and wife, who, in consideration thereof, promised to pay, or secure to be paid, to B. the sum of $5,000. G and wife, on the same day, in consideration of the conveyance to them, covenanted, in writing, to support B and his wife and daughter, and to pay certain debts and sums of money. G and wife took possession of the property. Held, that B had no vendor's lien for the $5,000; that there was a trust in favor of B and the other person' interested in the contract, and the land ought to be charged with that trust; that G and wife ought not to be permitted to impair the security of the cestui que trusts for the fulfillment of the several trusts, by the creation of liens beyond such as the court may adjudge to be authorized by the title given and the objects to be attained. Benscoter v. Green, Md. Ct. App., April Term, 1883; 10 Md. L. Rec., No. 25. 5. CORPORATION-INTERNAL MANAGEMENT OF FOREIGN COMPANIES-PARTIES. The bill was filed by T on his own behalf and other bona fide stockholders of the "North State Copper and Gold Mining Company," a corporation incorporated under the laws of North Carolina, and doing business in the city of Baltimore, against W and others, to the complainant unknown, as pretended owners, and charging W and the unknown defendants with fraud as to the property of the corporation. Held, that all controversies relating to the internal management of a corporation must be determined by the courts of the State by which the corporation was created. That the corporation itself is an essential party to such a suit. Wilkins v. Thome, Md. Ct. App., April Term, 1883; 10 Md. L. Rec., No. 25. 6. CORPORATION-LIEN ON STOCK FOR DEBT DUE BY SHAREHOLDER. There is no such thing as a common law lien on stocks in favor of a corporation for a debt due it by a shareholder. A bank, which is not a bank of issue, can not claim a lien on shares of one of its stockholders by way of set-off for an indebtedness of his to the bank, where there is not a special provision in its charter giving it that right. Mechanic's Rank of Easton v. Shouse, S. C. Pa., April 16, 1883; 40 Leg. Int., 326. 8. CRIMINAL LAW DEFENDANT'S STATEMENT CREDIBILITY. 1. The statement of facts which a defendant is authorized to make in his own behalf, under the act approved Dec. 2, 1882 (pamp. acts, 1882 3), is in the nature of evidence and must be submitted to the jury in that character. 2. And while the jury can not arbitrarily discard this statement, it is en. titled to only such weight in influencing their verdict as they may in good conscience and justice see fit to give to it. They may apply to it the ordinary intrinsic tests of credibility governing the sworn testimony of witnesses; and the defendant's character if legitimately in evidence may be con. sidered, his demeanor on the stand, etc.; but it is not necessary that it should be corroborated by other independent testimony in order to authorize the jury to believe it. Blackburn v. State, S. C. Ala.; 2 Ala. L. J., 179. 9. CRIMINAL LAW DEFENDANT'S STATEMENT CROSS-EXAMINATION-COMMENT OF COUNSEL. Defendants making statements under the act approved Dec. 2, 1882, are not witnesses, nor are their statements strictly evidence, and therefore they are not subject to examination or cross-examination as witnesses are. The jury may apply to such statements all the tests for ascertaining the truth, to which they are allowed to apply the sworn testimony of witnesses, but the defendant can not be impeached as witnesses may. The statements under this statute are a subject of legitimate comment by counsel in addressing the jury. Campbell v. State, S. C. Ala.; 2 Ala. L. J., 183. 10. DAMAGES-DEATH BY WRONGFUL ACT-MEASURE OF DAMAGES. Action by the wife for damages for the killing of her husband. It was admitted by the pleadings that the deceased had, during his life, comfortably supported his wife by his labor, and that by his death she was deprived of that support; that he was sober and industrious. And it was in evidence and not controverted that the deceased was twenty-five years of age, with an expectation of thirtysix years longer; had been a foreman in mines, and that the average pay of foremen was $100 a month. The only issue made by the evidence was that of negligence on the part of defendant and contributory negligence of the deceased. The jury rendered a verdict for one dollar. The verdict was set aside. Held, no error. Having found for the plaintiff on the issue of negligence, the verdict should have been for an amount reasonably adequate to the case as presented. Woodford v. Lyon Gravel Gold Mining Co., S. C. Cal., June 8, 1883; 11 Pac. C. L. J., 504. 11. DAMAGES-FALSELY ASSUMING AUTHORITY TO SELL REAL ESTATE. In an action for falsely assuming authority as agent for a third person to sell and agree to convey land, the plaintiff is entitled to damages for the loss of his bargain, viz., to the difference between the value of the price which he agreed to pay, and the market value of the property at the time when the agreement was made. Skaaraos v. Finnegan, S. C. Minn., July 17, 1883; 16 N. W. R. 456. 12. EVIDENCE CRIMINAL LAW REASONABLE DOUBT AND PREPONDERANCE OF TESTIMONY. The defendant Mitchell had testified in the trial of one Taylor for arson that he and Taylor had committed the offense. Mitchell was charged with perjury for having so testified, and, at his trial for perjury, Taylor was placed on the stand as a witness against him and was shown certain letters alleged to have been written by him, which tended to show the truth of Mitchell's testimony at the arson trial. Taylor denied that he wrote the letters. An expert was called and gave testimony tending to prove that Taylor wrote the letters. The court then instructed the jury that in order to find that Taylor is the author of these letters you must be entirely satisfied, beyond a reasonable doubt, from the testimony adduced before you in this case." Held, error; Taylor was not on trial for perjury. He was a witness and had denied that he wrote the letters, and upon the truth or falsity of this testimony depended the guilt of Mitchell; and that he testified falsely in the case and Mitchell truthfully in the arson ease needed only to be proved by a preponderance of evidence. People v. Mitchell, S. C. Cal., June 7, 1883; 11 Pac. C. L. J. 506. 13. EVIDENCE INSTRUMENT IN FOREIGN LAN GUAGE-TRANSLATION. When an instrument written in any other than the English language is sought to be introduced in evidence, it must be translated into English by a competent person having knowledge of both languages. The party offering the paper in evidence must have the interpretation made. Sartor n. Bollinger, S. C. Tex., May 8, 1883; 2 Tex. L. Rev. 34. 14. EVIDENCE-PROOF OF HANDWRITING. A witness may testify as to the handwriting of another when he has seen letters purporting to be in such handwriting and has afterwards personally communicated with the writer respecting them, the party having known and acquiesced in such acts founded upon their supposed genuineness, or where the supposed writer has so adopted them into the ordinary business transactions of life as to induce a reasonable presumption of their being his own writing. Sartor v. Bollinger, S. C. Tex., May 8, 1883; 2 Tex. L. Rev. 34. 15. INSURANCE, FIRE-STORE FIXTURES.'' "Store fixtures" in a policy of fire insurance mean those store fittings or fixed furniture which are peculiarly adapted to make a room a store rather than something else. "Store" must be distinguished from factory," and means a shop or warehouse. Thurston v. Insurance Co., U. S. C. C., D. N. H., June 1883; 16 Rep. 161. 16. JUDGMENT-AMENDMENT AFTER TERM. This court has authority to amend a judgment after the expiration of a term at which it was rendered, in order to correct clerical errors, or to add an omitting clause necessary to give it effect when there is anything in the judgment by which to amend, but it has no revisory or appellate power over such judgment, and can not, under the guise of an amendment, modify or enlarge a previous judgment so as to make it express something which the court did not pronounce, though it should clearly appear that they should have so decided. Lorance v. Marchbanks, S. C. Tex., June 12. 1883; 2 Tex. L. Rev. 44. 17. NEGLIGENCE-BAILMENT. The defendant James was the secretary of the plaintiff (corporation), and gave bond for the faithful performance of his duties. One of the duties required of him was to pay over all moneys received by him to the treasurer. He permitted moneys to remain in his hands more than one month, and while in his possession they were stolen from him. Held, that he was not the cus todian of the moneys, and the failure on his part to pay over the moneys within a reasonable time (under the circumstances of this case not later than the next day after the receipt) is such negligence as to render him and his bondsmen liable for the moneys stolen. Odd Fellows Mut. Aid. Assn. v. James, S. C. Cal., June 29, 1883; 11 Pac. C. L. J. 44. CORRESPONDENCE. THE SUPREME COURT AND THE SUPREME COURT COMMISSION. To the Editor of the Central Law Journal: The commissioners appointed by the Supreme Court of Missouri, under the act of March 22, 1883, have completed the labors of their first term. Their work is not sufficiently before the public, their adjournment being so recent, and their opinions-"reports," as they are designated by the statute, not yet published, to justify the expression of an opinion as to its quality. As to quantity, it is all that could have been expected. They disposed of eighty cases during the short period of ten weeks in which they were in session, and during the greater portion of this time one member of the commission, Charles Winslow, Esq.,was incapacitated by severe illness from attendance upon its sessions. The quality of their work can only be inferred from the fact that all of their opinions (with the exception of two, which it is understood involve questions upon which the Supreme Court itself is divided, and which are still under advisement), have been approved by the Supreme Court, and from the deservedly high reputation for learning and accuracy which the members of the Commission, Alexander Martin, Esq., of the St. Louis Bar. Charles Winslow, Esq., of the Jefferson City Bar, and John F. Philips, Esq., of the Kansas City Bar, enjoy. The supreme court is to be felicitated, and the bar and suitors of the State congratulated upon the admirable selection for this important and responsible position made by the court from the bar of the State. Much is expected from this commissioners' court in the future, and this expectation seems to be well justified by their work in the past. Their labors will, no doubt, largely assist the court in catching up with its docket. At the recent meeting of the Missouri Bar Association, held at Sweet Springs, Mo., the act of the legislature submitting to the people, the constitutional amendment for the re-organization of our appellate system, was unanimously endorsed. There is every reason to believe that it will be adopted by the people. This change in our appellate system, giving an additional appellate court at Kansas City, with the same jurisdiction as that of our St. Louis Court of Appeals, and making all causes within its jurisdiction final, and providing for direct appeal of all cases to the supreme court which must now pass through the St. Louis Court of Appeals, together with the aid to be expected from the commission, well warrants the belief that the supreme court will be enabled in the near future, to catch up, and to keep up, with its docket. During the term just closed, the supreme court dispossed of one hundred and eighty-five cases heard by it on its own docket, including causes dismissed or otherwise summarily disposed of, making the total number of cases disposed of at the April Term, two hundred and sixty-three. It might seem. upon a superficial view, that the supreme court, composed as it is of five members, should have disposed of a proportionally larger number of cases, as the work of the commission was in the main done by two members. But a consideration of the respective labors of the two tribunals will show that such is not the case. It must be understood that in the cases passed upon by the commission, "every report shall be promptly delivered to the chief justice, who shall lay the same before the court," and the same must be examined by the court, and approved, modified or rejected. The examination of these reports of the commissioners, together with the time which must be given to the consultation, in respect to the cases on its own docket, heard by the court, and the preparation of its own opinions, will take the larger portion of two days of every week of the term. This leaves but four days for the hearing of cases by the supreme court. In addition to this, every motion, or order concerning causes which are to be sent to, or are pending before the commission, must be made in the supreme court; and every petition for rehearing of causes disposed of by the commission, must be presented to the supreme court, and considered by it, and argument on rehearing made before the court itself. Moreover, the supreme court has, in addition to its regular docket of cases for hearing, the consideration and disposition of all extraor dinary proceedings, such as mandamus, quo warranto, probibition, habeas corpus and other original remedial writs. When all this additional judicial labor is taken into the account, it is apparent that the fiye judges should not be expected to dispose of a much greater number of cases during the term than the three members of the Commission. The labors of the term just closed, both on the part of the Supreme Court and the Commission, have been all that could be fairly expected of them, and justifies the belief that the court will steadily gain upon its docket; and that, when the new appellate system has been inaugurated, it will soon have its docket so in hand that cases can be carried through all our courts to final disposition with as much expedition as in any State in the Union. St. Louis, Mo. W. L. SCOTT. RECENT LEGAL LITERATURE. PARLIAMENTARY PRACTICE. A Hand-book of Parliamentary Practice. By Rufus Waples. Chicago, 1883: Callaghan & Co. This little hand-book differs from most parliamentary manuals in not being the law of order of any particular assembly, but is founded upon reason and established precedent. The work is well and carefully executed, and can not fail to be of service to those who have occasion to take part in the proceedings of such bodies. Re THIRD DELAWARE CHANCERY REPORTS. This volume is well printed and fairly reported. The chief fault is the very liberal amount of space that is devoted to the argument of counsel. The reporter seeks to apologize for this defect, by saying in the preface that he "is aware that in many cases the merit of the volume would have been enhanced by a compression of the arguments. The intervals, however, afforded by the varied and engrossing occupations of an active prosessional life, for the preparation of these reports, have not sufficed for the increased labor involved in the intelligent abbreviation of the arguments, and it is hoped that their uniform thoroughness and ability will render the reports of them serviceable. It will be apparent that fuller reports of argument are permissible than in jurisdictions where the volume of business makes the issue of reports more frequent and voluminous. INDEMAUER'S COMMON LAW CASES.-An Epitome of Leading Common Law Cases with some Short Notes thereon; Chiefly intended as a Guide to "Smith's Leading Cases." Fifth Edition, by John Indemauer, Solicitor. American Edition by Charles A. Bucknamn and Bordman Hall, Boston, 1883: Soule and Bugbee. This little book will be found an excellent aid to the student in reviewing his knowledge of the principles of the legal science, and will be available too for a similar purpose to the practitioner whose few moments of leisure will not suffice for a systematic rereading of the original cases. The task of condensation has been carefully and judiciously accomplished, and the notes, both English and American, contain many valuable suggestions. JONES ON CHATTEL MORTGAGES. A Treatise on the Law of Mortgages of Personal Property. By Leonard A. Jones. Second Edition. Revised and Erlarged. Boston, 1883: Houghton, Mifflin & Co. Of this second edition of this well and favorably known treatise, the author says in his preface that the revision has been accomplished by incorporating into the text and notes the new decisions that have been published since the work was first written, as well as some earlier decisions that had been omitted. The book has thus been enlarged by the addition of some sixty pages of new matter; most of this has been wrought into sections as they were originally formed, which retain the same numbers; and only a few wholly new sections have been written for the treatment of new subjects. The number of cases cited has been increased by about three hundred. QUERIES AND ANSWERS. [** The attention of subscribers is directed to this depart · ment,as a means of mutual benefit. Answers to queries wil be thankfully received, and due credit given whenever request ed. To save trouble for the reader each query will be re peated whenever an answer to it is printed. The querie must be brief; long statements of facts of particular case must, for want of space, be invariably rejected. Anonymou communicationsare not requested. QUERIES. 65. What is meant by permanent improvements under a statute allowing the defendant in ejectment to recover for permanent improvements? Are improvements to the soil itself of that character by putting on manure and the like, so that land that once produced ten bushels to the acre by such improvements now produces twenty bushels? I. B. H. Union, Monroe Co., West Va. Query 63. QUERIES ANSWERED. [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 No. 2. The insurance money vests absolutely in the children as beneficiaries, to the exclusion of creditors of the estate. The right of collecting the fund is in the executors, who, for this purpose, are testamentary trustees under the will. If their administration of this trust is likely to become embarrassed by reason of the fact that they are also executors of an insolvent estate, the proper court of equity will protect the trust estate, either by requiring the executors to give separate bonds as testamentary trustees, or by appointing new trustees of this fund in their place. P. NOTES -The mayor of a small town in northeast Georgia had Simon Green before him, charged with disorderly conduct." Green entered "a plea of guilty," whereupon the mayor proceeded to say: "Mr. Green, the charge ag'in you is using obscure and infain language; but as you has plead guilty and flung yerself on the murcy of the court, I'll use as much liniment on you as possible. I'll only found yer one dollar and costs. May the Lord have mercy on your soul.” "I think Henry L. Clinton is the best technical lawyer in the profession," was the remark of a gentleman often associated with him, in response to a criticism that Mr. Clinton dwelt too much on small points. "He comes near to being what I once heard old Judge Hogeboom describe as a perfect lawyer-‘one who could foresee the end of his case.' Clinton sees all there is in the case before he opens it. He will rise at 7 o'clock, eat a breakfast that would kill an ordinary horse, and then climb to his library and work without interruption, and without any more to eat, until midnight. When he gets through, however, there will be nothing more left of the case to find out. Talking of 'small points'," he added, "they are no more to be despised than the day of small things. I once put in among a lot of other, and as I thought strong points, in demurring to an action, one which I believed trivial, setting forth a denial of jurisdiction because a motion set down for hearing on a Saturday was not heard until the following Monday. The Judge threw my opponents out of court on the trivial or small point and never even looked at my strong ones.' -An illustration of the extent to which, in early days in this country, mere matters of police regulation were permitted to encroach upon the domain of personal liberty, is found in a law passed by the provincial legislature of Pennsylvania in 1696, for "preventing accidents that may happen by fire in the towns of Philadelphia and New Castle." Persons in those towns were forbidden to fire their chimneys to cleanse them, or to suffer them to be so foul that they shall take fire so as to flame out of the top, under penalty of forty shillings for each offense. And each owner of a dwelling-house was obliged to provide and keep in his or her house a swab twelve or fourteen feet long, and a bucket or pail to be always ready against such accidents of fire, under penalty of ten shillings for each neglect. No person should presume to smoke tobacco in the streets, either by day or night, under penalty of twelve pence. All of which fines were to be employed for buying and procuring leather buckets and other instruments or engives against fires, for the public use of each town respectively. Harmony Fire Co. v. Trustees of the Fire Association, 35 Pa. St. 496. The Central Law Journal. rection of the learned judge in telling them ST. LOUIS, SEPTEMBER 7, 1883. CURRENT TOPICS. Tomson v. Dashwood is an interesting libel suit recently decided by the Queen's Bench Division, in which the state of facts is quite unique. The plaintiff was the managing director of a corporation, and a part of his duty was to make journeys to various places on the Continent on business connected with the company. The defendant was a director, and Col. Wood (to whom the alleged libelous letter was addressed) was the chairman of the company. On the 29th of November, 1882, the plaintiff and the defendant were about to go together on business connected with the company, and at the expense of the company. On the same day and before leaving, the defendant wrote a letter (which was the alleged libel), as follows: DEAR COL. WOOD:-Should you come to Birmingham, take a look over the secretary's cash book and see the amounts paid to J. L. T. (the plaintiff), from petty cash right-hand column, for expenses, etc., in the months of October and November. To my mind they are enormous, but do not mention me in the matter. Of course, they may be all right and genuine, traveling and other expenses. I am going to pay my own this journey to keep them separate, and have drawn 101. for that purpose. This letter was addressed to Col. Wood, the chairman, and was intended to be sent to him, but at the same time the defendant had written another letter to the secretary of the company, and by mistake he inclosed the letter intended for the secretary in the envelope addressed to Col. Wood, and the letter intended for Col. Wood in the envelope addressed to the secretary. The secretary thus by accident got the letter, which he gave to Col. Wood, after having taken a copy of it, which he showed to the plaintiff, who was his brother. At the trial, the learned judge, after directing the fury that the occasion was privileged, left to them two questions, viz., first, whether the statements contained in the letter were a libel or not; and secondly, if they were, whether the publication of them was malicious. The jury found a general verdict for the defend. ant. A rule nisi for a new trial was obtained by the plaintiff, on the ground of the misdiVol. 17-No. 10. that the letter was privileged. Said MATHEW, J.: "There is no evidence here of a malicious publication, but only of an accidental and negligent publication. The writing of the letter was honest, the preparation of it for the post was honest, and the sending it to the wrong person was due only to negligence. This act of negligence is not sufficient to deprive the defendant of the privilege, which, it is admitted, he otherwise would have had. It has been argued that the defendant ought to be held responsible for this negligence; but if this were so, and if an action would lie in this case, it would enable a plaintiff to bring an action in a case where it might be that all the defendant had done was to leave a letter carelessly about his room, so that another person could read it. I think the evidence of negligence here is extremely slight, as the person to whom the letter was sent had only to look at the first line of it, to see that it was not intended for him, and that it had been put into the wrong envelope by mistake. I am of opinion that the rule should be discharged." USER OF DANGEROUS INSTRUMENTALITIES FOR THE PROTECTION OF PROPERTY. The It is told that an ingenius country parson once succeeded in scaring trespassers by putting up a notice on the wall of his garden, that a polyphloisboio was set there. Rev. Sydney Smith himself, trenchantly as he inveighed in the Edinburgh Review (1821) against man-traps and spring-guns, and vigorously as he impugned the opinions of Best, J., in Ilott v. Wilkes,2 would have failed to find fault with that mode of protecting property from intrusion. Not, indeed, that he would have admitted, had the mysterious engine of destruction been really as formidable in force as alarming in name, that the notice would have rendered the use of it morally or legally justifiable. For the fifth imaginary judge, whose pseudo opinion on the law as it then stood with reference to this use of dan 1 13 Parl. Deb. (2d) 1858, 23 B. & A. 304. |