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sonable man, they thought that as there could not be a new trial in felony such a conviction ought not to be set aside because some other evidence has been given which ought not to have been received; but if the case without such improper evidence were not so clearly made out, and the improper evidence might be supposed to have had an effect in the minds of the jury, it would be otherwise."

In the contingency last, stated the admission of the illegal testimony, would operate as an acquittal under the law in force in England, when that decision was rendered, or the pardon of the accused recommended. A different rule prevails in this country and the case cited is therefore inapplicable. I am of opinion that the judgment of the circuit court should be reversed and the cause remanded, in order that the defendant may be convicted by a jury on legal and competent testimony, before he is punished.

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1. ADMINISTRATION-LUNATIC'S ESTATE. The committee of a lunatic's estate rented the farm to himself. Held, that as he had done this at the urgent solicitation of the heirs and others interested in the estate, and as the auditor found that the committee had been exceedingly vigilant, and had managed the renting of the property to the great advantage of the estate, he should not be deprived of any part of his commission, or made to pay more rent than a third party. Pierce's Appeal, S. C. Pa., March 5, 1883; 14 Pittsb. L. J. 32.

2. BANK-INSOLVENCY-TRACING TRUST FUNDS. Complainant sent a draft to a bank for collection, charged with a trust to pay the proceeds to complainant. The officers of the bank knew that it was insolvent at the time. The bank kept the proceeds and mingled them with its own funds. Held, that complainant must trace the funds into the hands of the receiver of the insolvent bank before he can charge him with the duly of recognizing his equitable title. A cestui que trust can not follow his fund into the hands of an assignee or executor of the trustee, but must occupy the position of a general creditor of the estate if the proceeds have been mingled with other moneys so that they are indistinguishable. Illinois Trust & S. Bk. v. First Nat. Bk., U. S. C. C.. D. N. Y., March 16, 1883; 16 Rep. 261.


1. When a through ticket is issued by one railroad to a passenger for his transportation over said road and other connecting railroads and steamboat lines, the road issuing the ticket is liable for the safe transportation of the passenger over the va

rious roads and lines named in the ticket, notwithstanding a stipulation on the ticket to the effect that the company issuing the ticket acted as agent and was not responsible beyond its own line, such stipulation not having been signed by the passenger. 2. Where parties purchased tickets at Macon for Galveston via New Orleans and the Morgan line of steamers, and on their arrival at New Orleans they found that the steamers had ceased running because of a quarantine against yellow fever, and without attempting to proceed to Galveston by any other route, they returned to Macon and brought suit against the road selling them the ticket. Held, that a charge that they would be entitled to recover the cost of their transportation back to Macon, their traveling expenses and for lost time, laid down an improper rule as to damages. Plaintiffs would be entitled to recover what it would have cost them to have reached their destination by other means than by the Morgan line of steamers, including reasonable pays for delays, and it might be also for such special damage as they may have sustained by reason of such delay. 3. If it should appear that no quarantine existed when the tickets were sold and that subsequent to the purchase of the tickets by the defendants in error that the steamers on the Morgan line were withdrawn in consequence of the prevalence of yellow fever in New Orleans or elsewhere, then the plaintiff, in the court below, would not be entitled to recover anything. 4. But if it shall be made to appear that the steamers had been withdrawn when the plaintiffs purchased their tickets and they proceeded to New Orleans on their journey and there was no other convenient or expeditious way by which they could reach Galveston, then they would be entitled to their expens. es, and the rule given by the court below would be applicable. Central Railroad and Banking Co. v. Combs, S. C. Ga., Sept. 1, 1883.

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After a purchaser of real property has taken a conveyance, and the purchase money has been paid, no action will lie for compensation on account of errors as to the quantity or quality of the subjectmatter of the sale, unless such errors amount to a breach of contract or warranty contained in the conveyance itself, or unless some fraud or deceit has been practised upon the purchaser. "Legal fraud" as distinguished from moral fraud' does not exist, moral turpitude being in all cases necessary to support an allegation of fraud. Where upon a treaty for the sale of real property the vendor bona fide represented the quantity of land to the purchaser as being three acres, whereas in truth it was 2a. 1r. 12p, and in the contract for the purchase the property was described as "containing by estimation three acres or thereabouts," and in the conveyance as two parcels each containing by estimation one and a half acres more or less:" Held, that no action would lie, after the completion of the purchase, against the vendor for compensation. Joliffe v. Baker,

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Where, by the terms of a policy of insurance, when the same has been transferred as collateral security to a mortgagee, and the transfer approved by the company issuing the policy, the insurance shall not be affected by any subsequent breach of the stipulations or conditions set out in the policy; but, in the event of a breach of any of the conditions, the insurance shall thenceforth stand in all respects as though originally effected upon such mortgage, notwithstanding the company is thereby made to assume a greater risk than was contemplated when the policy was issued. And where the company reserves the right of paying such

such proportion of the sum insured age by fire to the premises mortgaged of charged shall bear to their value immediately before the fire, but not exceeding such value." Held, that the company, having assented to the transfer of the policy of the mortgagees, voluntarily accepted the increased risk, and was liable to the mortgages for any loss occurring upon the insured premises. Held further, that the clause "the premises mortgaged or charged," embraced only the premises mortgaged which were insured. Teutonia Fire Ins. Co. v. Mund, S. C. Pa., Feb. 26, 1883; 14 Pitts. L. J. 27.


1. Where an insurance company refuses to receive from the assured a premium on a life policy, on the ground that the policy has lapsed by reason of the non-payment of such premium on the day stipulated for its payment, and the assured claims that the company has waived the right to assert such forfeiture, equity has jurisdiction to determine, on the petition of the assured, the rights of the parties under such policy, and, if the policy is found to be in force, to compel the company to receive the premiums thereon and issue renewal receipts. 2. Although a life policy and the renewal receipts may contain a stipulation or notice that agents of the company shall not have authority to waive forfeitures where premiums have not been paid on or before the day designated for their payment, yet the course of business between the agent, the assured and the company, in giving effect to payments made when overdue, may be such that the company will be precluded from objecting to a payment tendered when overdue, where no notice had been given the assured that in the future such overdue payments would not be received. Insurance v. Tullidge, S. C. Ohio, June 26, 1883; 4 Ohio L. J. 96.

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8. NEGLIGENCE GUARDED CULVERT. The plaintiff, while walking along a highway upon a dark night, turned aside for the purpose of tak⚫ ing a foot-path which led through private property, and, by reason of a miscalculation as to his position, fell over the ungarded edge of a culvert and sustained severe injury thereby. It was in evidence that he was familiar with the condition of the place, having habitually travelled that way about fifteen years, and that, if he had not attempted to leave the street, the accident would not have occurred. Held, that the municipality was not liable. City of Scranton v. Hill, S. C. Pa, May 7, 1883; 40 Leg. Int. 344.



If the party who has transferred a negotiable note to the holder had acquired the note before maturity and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held, although it was overdue and dishonored at the time of transfer. Bank of Sonoma v. Goue, S. C. Cal., May, 1883; 16 Rep. 263.



On a sheriff's sale a judgment creditor is not a pur. chaser, and has no equity as such. He stands on on the footing of his debtor, and is entitled to the protection of a purchaser of the legal title against an equitable owner or his creditors, or to take any advantage which his debtor had not. The declaration of a purchaser, made at the time of the purchase, that he was buying with another's money, is admissible as part of the res gestæ, upon a question of title. Layton v. Brightfield, S. C. Pa., Dec. 30, 1882; 14 Pitts. L. J. 30. 11. STOPPAGE EXPIRATION OF RIGHT.


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A purchaser ordered goods, purchased from W & Co., to be sent by rail to G, and at the same time (un-known to the vendors) instructed M. S & Co. to ship the goods on their arrival at G to R. Some delay occurred at G owing to there being no ship ready to take the goods, and they were warehoused by the railway company at M. S & Co.'s risk. Whilst there they were stopped by the vendors. Held. that as between the vendors and the vendee, the right to stop the goods was at an end when the goods had arrived at G, and when the railroad company no longer held the goods as carriers; for the goods were then in the constructive possession of the vendee, the defendants M. S & Co. being the agents appointed by the vendee to receive and forward the goods upon the fresh journey to R. Kendall v. Marshall, Eng. Ct. App.; 48 L. T. R. 951.

12. TORT

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ILLEGAL DETENTION OF IMPOUNDED ANIMAL-VOLENTI NON FIT INJURIA. After a horse had been impounded under Pub. St. R. I., ch. 108, the pound-keeper neglected to give the statutory notices which were to be given after the expiration of forty-eight hours, but gave the owner of the animal verbal notice of the impounding immediately after it took place. In an action brought by the owner against the poundkeeper for illegal detention. Held, that the plaintiff could not recover. "Volenti non fit injuria." Sweeny v. Sweet, S. C. R. I, June 16, 1883; R. I. Index, March Term, Providence Co., 1883, p. 43.


[*** The attention of subscribers is directed to this department,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 communications are not requested.


66. A and B own a tract of land in common. A mortgaged to C his half interest in said land to secure a promissory note executed by him alone. After ma

turity of the note C entered into a contract and agreement with A and B for the sale and purchase of the whole tract. No part of the purchase money was paid, and no mention was made of the mortgage or the mortgage debt. Did Close his mortgage interest in the land by entering into that contract? Q. E. D.

68. A erects a building on his lot, the south wall resting on a thick foundation wall which extends out south of the house. He builds another house close, south of the first, and resting on the same foundation wall, with a front of twenty feet, and reaching, as he thinks, just up to the southern line of his lot. Both A and B having this impression, and A desiring to sell and B to buy the last named house with the land under and back of it, A gives to B a deed of the south twenty feet of said lot, containing the usual covenants and an agreement that the above-mentioned foundation wall shall be a party wall. It is afterward discovered that the southern building extends four inches south of the lot into C's land, and consequently the land described in the deed reaches four inches into the south wall of the northern building, which A still occupies. What are the rights of A and B? Can A bring ejectment for the four inches covered by the northern house? Can he tear down so much of the wall as stands on the four inches, and appropriate the materials? Can he recover damages, and if so, what is the measure of damages? If A can obtain title to the north four inches of C's land, has he the right to demand the reformatian of the deed so as to conform to the original intent of the parties?

69. A entrusts his goods to B, a factor, to sell on commission, B takes the goods to C, and hires them stored pending the sales. B sells a part of the goods and then abandons then on C's premises. C makes a demand on A the owner for the storage. A denies his liability, demands his goods of C, and offers to take them away. C refuses to give them up but instead wrongfully sells them and keeps the money. In an action by A against C for conversion. C sets up his claim against A for storage, in nutigation of damages. Has C, under the circumstances, any claim against A which he can so rely upon? The question is, if a commission merchant or factor takes the goods of his principal to a warehouseman and hires them stored, from these acts can a contract be implied on the part of the owner of the goods to pay for their storage? or is the factor such an agent as that these acts will bind the owner to pay the storage, the lien, if any, having been lost? Boston, Mass.



EIGHTH SAWYER.-Reports of Cases deci ed in the Circuit and District Courts of the United States for the Ninth Circuit. Reported by L. B. S. Sawyer, Vol. 8. San Francisco, 1883: A. L. Bancroft & Co.

The most notable case in this volume is the Railroad Tax Case, as it is termed, or more properly, County of San Mateo v. Southern Pacific R. Co., in which the principle is laid down that the fourteenth amendment of the constitution in declaring that no State shall deny to any person within its jurisdiction, the "equal protection of the laws" imposes a limitation upon the exercise of all the powers of the State, whịch can touch the

individual or his property, including among them that of taxation; and that the "equal protection of the laws" to any one, implies not only that he has a right to resort on the same terms with others to the courts of the country for the security of his person and property, the prevention and redress of the wrongs, and the enforcement of contracts, but also that he is exempt from any greater burdens or charges than such as are equally imposed on all others under like circumstances. This equal protection forbids, unequal exactions of any kind and an ong them that of unequal taxation.

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The following speech was delived by Byron Bacon, Esq., of Louisville, at the banquet of the Kentucky Bar Association in Louisville, June 30, 1883: Mr. Byron Bacon, in an inimitable style, told "How to explain to your client why you lost your cause." I deprecate any thought that I respond because, from a more extended experience than my legal brethren, I bring to the solution of this question the exhaustive learning and skill of the specialist. The characteristic modesty of our profession forbids that I should arrogate to myself to instruct the eminent lawyers around me wherein they doubtless have attained the perfection that only long practice can give. I therefore assume that the subject was proposed for the edification of the novitiates, those young gentlemen to whom Blackstone so often and so feelingly alludes, who, after a long and laborious course of study, have been found, upon an examination by the sages of the law, not to have fought a duel with deadly weapons since the adoption of the new Constitution, and have been admitted to our ranks. To them, then, I shall offer briefly some suggestions upon this point, hoping that they may

not have need of them upon the termination of their first case.

The question as framed is not unlike that with which Charles II. long puzzled the Royal Society. He demanded the cause of phenomena, the existence of which he falsely assumed. The answer was simply the denial of the existence of the phenomena. What lawyer ever attempted to explain the loss of a case upon the hypothsis that he had lost it?

That a lawyer can not lose a case is as well established a maxim as that "the king can do no wrong," or that a tenant can not deny his landlord's title. Eliminate this error in our question, and it is easy of solution. Coke tells that "law is the perfection of human reason;" Burke, that it is the most excellent-yea, the exactest of the sciences; and the eloquent Hooker, that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and on earth do her homage-the least as feeling her care and the greatest as not exempt from her power. But we know that if it it be the purest of reason, the exactest of sciences, its administration is not always intrusted to legal scientists or the severest of logicians. We know that the great, the crowning glory of "our noble English common law," is its uncertainty, and therein lies the emolument and pleasurable excitement of its practice.

ff, oblivious of this, you shall have assured your client of success in the simplest case, the hour of his disappointment will be that of your tribulation, for which professional experience can extend to you no solace or aid. But your client's cause has resulted unfavorably. You, of course, are never to blame; the fault is that of the judge, the jury, or your client himself, and, it may be, of all three. It becomes your duty to divert the tide of your client's wrath into those channels where it can do the least possible harm. If he be a crank and shoots the judge or cripples a juryman, they fall as blessed martyrs, and their places and mantles are easily filled; but the place of the lawyer is not readily filled, as one of America's sweetest poets, Mr. George M. Davis, has beautifully expressed it in a touching tribute to our professional worth, which for delicacy of sentiment, boldness of imagery and beauty of diction, is unequaled in the whole range of English poesy:

Judges and juries may flourish or may fade;
A vote can make them as a vote has made;
But the bold lawyer, a country's pride,
When once destroyed can never be supplied."

The selection, then, of a target for your client (I use the word target metaphorically), must rest upon the peculiar facts and circumstances of the case and the "sound discretion," as the venerable Story has it, of the counsel. But avoid, if possible, imputing the blame to your client, for although I have known this to be attended with very happy results, yet his mood at such times is apt to be homicidal, and

besides, you should bear in mind that your aim is to conciliate him.

First, as to the jury. Upon this head I need not enlarge, but only remind you that you are not held by the profession as committed or estopped by any eulogism, however glowing you may have pronounced during the progress of the trial on their intelligence or integrity. It is only in the capacity of a scape-goat that the American juror attains to the full measure of his utility, and as such he will ever be regarded by our profession with gratitude not unmingled with affection.

But it is to the Judge that we turn in this extremity with unwavering confidence. The serenity and grandmotherly benignity that sits enthroned upon his visage is to the layman that placidity of surface which indicates fathomless depths of legal lore; to the lawyer it bespeaks the phlegmatice temperament of one whose mission to bear unmurmuringly the burdens of others.

It comes upon you like a revelation that your elaborate preparation, your weeks of study, your voluminous brief, are all for naught; that the impetuous torrent of your eloquence has dashed itself against his skull only to envelop it in fog and mist, and, more in sorrow than in anger, you confess that the presumption that every man knows the law can not be indulged in his favor. Even your luminous exposition has failed to enlighten him. You need not spare him. He thrives on abuse. Year in and out he bears the anathemas of disappointed lawyers and litigants with the stolid indifference of Sancho Panza's ass in the valley of pack-slaves or under the missiles of the galley-slaves, and society comes finally to regard him pretty much as was Sancho's ass. It berates him, overtasks him, half-starves him and loves him.

But seriously considered, our question is but a long-standing and harmless jest of the bar meaningless in actual practice.

The lawyer is untiring in his client's behalf, and his client knows, whatever be the result, that he has had the full measure of his lawyer's industry, zeal and ability, and requires no explanation.

Lord Erskine said that in his maiden speech "he felt his children tugging at his gown and heard them them cry, 'Father, now is the time for bread." The British bar applauded the sentiment. But the American lawyer throughout the case feels his client tugging at his gown, and, if unsuccessful, is sustained by the consciousness that he has done his whole duty as God has given him to see and perform it, and if he wants further consolation he can open one of the oldest of all the books of the law and there read these words, which will soothe his wounded spirit and possibly best answer the question of tonight:

"I turned and saw under the sun that the race is not to the swift, nor the battle to the strong, neither yet is bread to the wise, nor yet riches to the man of understanding, nor yet favor to the man of skill, but time and chance happeneth to them all."

The Central Law Journal. it unless it be in its nature illegal or immoral.



The principle embodied in the decision of Wrought Iron Bridge Co. v. Town of Utica, which we printed last week, that a municipal corporation which has acquired property ultra vires must compensate for it or restore it, is parallelled and extended to the case of corporations generally in the case of Manville v. Belden Mining Co., recently decided by Judge McCrary in the circuit court of Colorado. The suit was upon a promissory note for money advanced to the defendant company. The answer set up, among other things, a clause in the by-laws, as follows: "No debt shall be contracted for or in the name of the company, except by order of the board of directors, and then not in excess of the funds actually in the treasury;" and that the debt. set out had not been contracted by order of the board of directors. To this answer the plaintiff demurred. Said the court: "I consider the third paragraph of the complaint as a claim for money had and received by the defendant from the plaintiff. It avers that the plaintiff advanced money to the amount of $3,166 to said defendant, at its special instance and request, and for its use and benefit. Under this allegation it will be competent for the plaintiff to prove that he furnished, advanced or loaned money to the defendant, which the defendant received and used; and if this proof is made, it will be no answer to show the limitation of the powers of the defendant, contained in the by-laws above quoted. It is insisted that under some peculiar provisions of the statute of Maine, under which this corporation was organized, its bylaws have the force and effect of charter provisions; that all persons must take notice of them. I do not inquire into the soundness of this claim, as, even if it be admitted, if the third paragraph of the complaint is true the defendant is liable. A corporation, like a natural person, may be compelled to account for the benefits received from a transaction, even if it be one not enforceable by reason of the fact that its agents have no right to make Vol. 17-No. 12.

If the agreement under which the corporation has received money or property can not be enforced, an action may be sustained without reference to the agreement to recover whatever money be justly due for the value received. A corporation that has received money or property from another, and appropriated it, can not be heard to refuse to account for it on the ground that it had no power under its charter to take it. See rule 14, p. 121, Mor. Priv. Corp. and cases cited. The demurrer to so much of the answer as sets up the defendant's want of power, as a defense to so much of the answer as is contained in the third paragraph, is sustained."

Probably the most singular sentence ever passed by a court of justice, was the one which Judge Krekel, of the United States District Court, for the Western District of Missouri, is said to have recently passed in the case of one Hannah, arraigned in that court on the charge of selling liquor to the Indians. He pleaded guilty, and gave as his excuse, his ignorance of the law, and stated that he could neither read nor write. As he was a young fellow, and it appeared to be his first offense, the court gave him some good advice, and proposed to him that he should learn to write, and to insure success, sentenced him to the Cole county jail until he should be able to write a letter. Upon the defendant expressing a doubt as to his ability to accomplish that result, the court assured him that it could be done with proper application, and to help him, assigned him a teacher in the person of one Martin, convicted of cutting timber on public land, whom he sentenced to the same jail until he should have taught Hannah to write, a task which he most willingly undertook. The desired result was accomplished within three weeks' time, and both prisoners discharged. This is a combination of compulsory education and reformatory punishment, which seems to us a very wise exercise of the court's discretion and well worthy of imitation elsewhere.

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