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ed be entitled to have such judgment sustained. Gibson v. Galloway, S. C. Mich., June 22, 1883; 1 Denv. L. J., 277.

3. CONTRACT-USE OF GOODS NOT Ordered. Defendant agreed with the Empire Oil Company to drill some wells for them, they promising to furnish the fuel for the drilling from the Gas Company and pay for it. The Gas Company sued the defendant for the gas used. Held, that the fact that he used the gas, although he never ordered it, and the Oil Company had agreed to pay for it, was no defense in the suit against him. Chamberlain v. Summit Gas Co., S. C. Pa., May 25, 1883; 40 Leg. Int., 383.


C having agreed to sell a sow and pigs to S, pointed out as his a sow and pigs that belonged to F, S paid C for them and drove them off: Held, that C could be indicted for larceny or hog stealing under the statute. He was guilty of the act of felonious taking through S as his instrument. Cummins v. Commonwealth, S. C. Ky., June 14, 1883; 5 Ky. L. Rep. & Jour., 200.



Upon a trial for murder, corpus delicti need not be established in every case by direct proof of the killing or by inspection of the body itself; circumstantial evidence is admissible for this purpose. Johnson v. Commonwealth, Ky. Ct. App., Sept. 22, 1883; 5 Ky. L. Rep. & Jour., 197.

6. EMINENT DOMAIN-PUBLIC CONVENIENCE. A public convenience is not such a necessity as authorizes the exercise of the right of eminent domain. Spring Valley Waterworks v. Sau Matteo Waterworks, S. C. Cal., Aug. 30, 1883; 1 Denv. L. J. 274.



7. FRAUDULENT CONVEYANCE CREDITORS' RIGHTS. This, though in form an action of trespass to try title, is, in effect, a proceeding to vacate and annul a conveyance from Baines to his wife, of property claimed, at the time, to be their homestead, on the ground that it was made to hinder, delay and defraud creditors. The court seems to have treated the case as one coming within the operation of the Statute of Frauds. If, as claimed, the property was their homestead at the time of the conveyance, then the true issue would be as to whether the same was intended to and did pass title, as between the parties to it, or whether it was simulated and not intended to pass title. In the first instance, the conveyance would be valid as to existing creditors, for the reason that the property being exempt from forced sale, the conveyance did not take from their reach any property that they could subject to their claims. But, in the second instance, the title, in fact, would still lie in the grantor, and when disrobed of its homestead character by abandonment, or otherwise, it would be subject to seizure or sale for his debt. It seems the court considered that the Statute of Frauds was applicable to the case, and instructed the jury upon that view of the law. Held, "a conveyance of property which is exempt by law from execution or forced sale, can not be a fraud upon creditors. Such a conveyance is not within the purview of the Statute of Frauds." If the property was, at the time of the conveyance, their homestead, and the conveyance was simulated and not intended by the parties to pass

title, but merely to enable Mrs. Baines to hold it as ostensible owner, after it had lost its homestead character by abandonment, and in that way secure it to Baines as against his creditors, then the conveyance would be invalid as against creditors, and upon a proper showing would be annulled at their instance. The court erred in not observing the distinction between conveyances of property exempt from forced sale and those subject to seizure and sale. Baines v. Baker, S. C. Tex. Tyler Term, 1883.


At five o'clock P. M. on Saturday the jury retired to consider of their verdict. At 10:30 o'clock on the same day the judge of the court was sent for by the jury, and he immediately went to the room occupied by them, and then and there asked them if the had agreed upon their verdict. Some one in the room answered that they had. The judge thereupon asked what their verdict was, and one of the jury, in the presence of all, answered that a member of the jury would write it out. Imme. diately afterwards a paper was written and handed to the judge, as follows: "We, the jury, find no cause of action." Signed, "C. H. Upham' Foreman." The judge did not read the same aloud to the jury; nor was it read by them; nor were they asked if it was their verdict; nor was the jury called to ascertain if they were all present; nor were the clerk of the court, either of the parties, or their attorneys, present; nor were they notified to be present; nor had the parties or their attorneys, or any one of them, waived the right to be present, or to have the jury polled as to their verdict. The judge immediately handed the paper to the officer in charge of the jury, and directed him to seal it up and hand it to the clerk of the court, and told the jury that they were discharged from any further consideration of the case. The officer sealed up the paper and kept the same in his possession until the next Monday morning, when he handed it to the clerk. On the opening of the court on that day, and before the clerk had recorded the paper, the plaintiff appeared by his attorney and objected to the receipt and entry of said paper as a verdict in the case, and asked to have the jury inquired of as to their verdict, and demanded to have the jury polled as to whether such was their verdict, all of which the court refused, upon the ground that the jury had been discharged on the Saturday previous. The paper was then entered of record as the verdict. A motion to set the verdict aside was overruled, and judgment rendered thereon for defendant. Held, that the verdict should have been set aside, and that the judgment must be reversed and a new trial ordered. Lyle n. Light, S. C. Wis., Sept. 25, 1883; 16 N. W. R. 630.



A mortgagee may assign his interest in fractional parts to different persons, and stipulate for priority of payment to any of them if the property should not bring enough to pay all in full. There is nothing in Moore's Appeal, 11 Norris, 309, at variance with this doctrine; in that case, the distribution of the fund was made pro rata only for the reason that there was nothing to show that the parties had agreed otherwise. The question is always whether priority was given and intended. Mc. Lean's Appeal, S. C. Pa., April 30, 1883; 40 Leg. Int. 383.



In an action for damages for injuries alleged to have been caused by the negligence of a railroad company in allowing its track to be and to remain out of repair and defective, the defects in that respect, which it is claimed caused the injury, consisting in a broken rail and imperfect switch at or near the place of the accident, it is error to admit evidence of other defects at other places on the road Morse v. Minneapolis etc. R. Co., S. C. Minn., June 14, 1883; 1 Denv. L. J. 276.


The omission of a railroad company to warn an inexperienced brakeman of the specific danger of coupling cars that are furnished with double deadwoods does not make the company liable for an injury received by him in so doing, if the risk is such as to he manifest to any person, and if, on being employyed, he was warned in general terms of the danger of coupling cars of different construction, and was told not to take any chances. Hathaway v. Michigan Cent. R. Co., S. C. Mich., Oct. 3, 1883; 16 N. W. Rep. 634.

12. NEGOTIABLE PAPER-RAILWAY AID BONDS NOT ACCOMMODATION PAPER. Accommodation paper is paper to which the accommodating party has put his name, without consideration, for the purpose of accommodating some other party, who is to use it and is expected to pay it. Jefferson and Wapello counties issued to the Burlington, etc. R. Co. certain bonds in consideration of the construction of the railroad through such counties by certain towns therein. The company negotiated the bonds, and at maturity the counties were compelled, by suit, to pay them. It was supposed, when the bonds were issued, that the counties had authority to issue them, and it was intended that they should pay them; but it was subsequently decided that they had no such authority, whereupon the counties sued the company to recover the amount paid, alleging that the bonds were accommodation paper. Held, that as the company had constructed the road as agreed, there was a consideration for the bonds, and as it was intended that the counties should pay them when due, they could not be considered as accommodation paper. Jefferson County v. Burlington, etc. R. Co.; Wapello County v. Same, S. C. Iowa, Sept. 20, 1883; 16 N. W. R., 561. 13. NUISANCE-LIMITATIONS-WHEN STATUTE BEGINS TO RUN.

In an action for damages and for the abatement of a nuisance, the statute of limitations will not be considered to have begun to run until some injury has been caused by the alleged nuisance. As no cause of action accrued in this case until the injury to the land was caused by the overflow of the land by reason of the negligent construction of the ditches, and plaintiff was at that time the owner of the land, it is not a valid objection that he was not the owner of the land injured at the time the ditch was constructed. Miller v. Keokuk etc. R. Co., S. C. Iowa, Sept. 20, 1883; 16 N. W. Rep. 567.


[*** The attention o subscribers is directed to this department,as a means of mutual benefit. Answers to queries will

be thankfully received,and due credit given whenever request ed. 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 communications are not requested.


70. (a) The statutes of Texas gives every justice of the peace in a county jurisdiction to try and determine every misdemeanor cause arising in his county. A was indicted in justice R's court on the 18th of April, 1883, for a misdemeanor, but not arrested. On the 19th of same month he was indicted for same offense before justice S-arrested, tried and plead guilty, fine assessed and paid. On the 20th of May, 1893, was arrested by order of justice R. Pleads former conviction in bar of further prosecution. Is his plea a bar? (b) Same statement of facts as (a), except that A was arrested by order of R before filing of the indictment with S, but turned loose without bond for his appearance on the 20th of April, 1883. How would his arrest affect his plea of former conviction? G.

Corsicana, Tex.

71. Post-nuptial agreement between husband and wife residing in the State of Indiana, whereby the husband releases and relinquishes all of his right, title and interest in the property of" the wife, both real and personal from this time henceforth and forever," and binding his executors, administrators and assigns "not to molest in any way any of her prop. erty" after her death. "And in consideration of the above obligation" the wife "releases and relinquishes all of her right, title and interest in the property of" the husband, "both real and personal, from this time forward and forever," and forbiding her administraors and heirs from attempting to change said agreement after her death, dated Nov. 12, 1878, signed by the parties and acknowledged before notary public. The husband dies in 1881, and letters of administration are issued on his estate. The wife dies one month afterwards, and the administrator of her estate seeks to recover from the estate of her husband the $500 allowed widows by sec. 2269, R. S. Ind. 1881. Is the foregoing agreement a bar to the claim? F. Noblesville, Ind.

72. A rents a store by the year and sub-lets to B by the same tenure. B sub-lets a part of the room to C for the purpose of conducting a different business, and agrees to let C have possession of such portion of the store as was assigned him as long as B can retain possession as tenant of A, and C pays promptly to B one-half rent as agreed. After eight months of joint occupancy under this agreement by B and C, B gives C notice that he wants the whole room, and seeks to remove him. The agreement is not in writing. Is the case within the Statute of Frauds? Please cite case. J. N. W.

Lexington, Ky.

73. Suppose a man and wife take a child in its infancy under a verbal promise with its parents to adopt it. They raise the child, educate it, and treat it in all respects as one of the family. They often state to the child, and to others, that they intend to adopt it and that it shall share equally with the other children. No proceedings are had, however, the child grows to majority, marries, and is shown by the husband (i. e. the adoptive father) a certain tract of land which it is intended he shall have, and even puts him to work on the land; the adoptive father then dies intestate-no administrator is appointed and the

other children proceed to divide up the property among themselves and leave out the adopted one. Query 1.Can such promises amount to an adoption? or where there are statutes prescribing the method of adoption, are its provisions exclusive? 2. Can such statements and the giving of possession under them, amount to a gift? 3. Does the statute of limitations run against the child's right of action, if so when does it commence and what is the term in Illinois? 4. If the child has any rights should we not proceed first to have an administrator appointed? A. E. P.

Wellington, Kansas.

73. A makes affidavit charging B with theft; has him arrested and bound over to answer to grand jury. The first and second grand juries thereafter convened find no bill of indictment. Thereupon B sues A in damages for malicious prosecution. The next grand jury convened (after the institution of this suit) reurns indictment against B for theft. This fact is pleaded by A in bar of the suit for malicious prosecution (for the reason that the prosecution is not at a end). B, plaintiff in that suit. demurs to the plea. What effect, if any, does the finding of the indictment, after the filing of the civil suit, have upon that suit? T. S. R.

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SUTHERLAND ON DAMAGES. A Treatise on the Law of Damages, embracing an Elementary Exposition of the Law, and also its Application to Particular Subjects of Contract and Tort. By J. G. Sutherland. Vol. 3. Chicago, 1883: Callaghan & Co.

We have heretofore noticed the first and second volumes of this work (16 Cent. L. J. 120), and a careful examination of the one before us does not incline us to withdraw any of the commendation there expressed. It treats of the law of damages as applied to the subjects of Agency, Insurance, Landlord and Tenant, Carriers, Telegraph Companies, Breach of Marriage Promise, Ejectment, Injuries to Real Property, Taking Property for Public Use, Trespass to Personal Property, Conversion, Replevin, Fraud, Infringement of Patent Rights, Infringement of Copyright, Infringement of Trade- Marks, Slander and Libel, Malicious Prosecution, Personal Injury, and Seduction. The three volumes constitute a most valuable work.



A lawyer of the Trojan bar,
Modest and meek as lawyers are,
Though quite decided that he knew,
For general use, a thing or two
Which must some day bring to his net
The larger fish that dodged him yet,
Sat nodding in his office chair-

(In truth he had much time to spare)

When just as his glad dream had centered
On a large fee, a client entered.

Th' unwonted footstep, creaking, broke
Along the floor-the lawyer woke,
Thrust out his hand as if to seize
(Fruits of his dream) the expectant fees;
But finding no retainer in it,
Stared at the stranger for a minute,
Then motioned to a seat, and muttered
Something about his bread unbuttered,
And then proceeded to explain
That lately such excessive strain
His mind had undergone while he
Was bending all his energy
On an important case, involving
Such intricate points of legal solving
That he believed, in point of fact,
Ilis brain was hardly left intact;
And that revenging nature cast
His weary eyelids down at last.
But he was ready now, he thought,
To give such counsel as was sought.

The country man-for such he seemed
Look dazed as if, he, too, had dreamed;
For not a word of all was stated

His dull, crude sense had penetrated.

"Wall, Squire, I've come-if you're awake-
To see what course I orter take
With Bill O'Neill who's run away
And owes me for a ton of hay.
The biggest rogue I ever saw;--

Now tell me, lawyer, what's the law?"
"Why, sir, the case requires some thought:
The fellow then, it seems has bought
Your personal property"-"No! my hay!"
"Absconded and refused to pay."
"No! no! Squire, no!-Did I not say,
The dirty dog has ran away?
"Precisely, but my Blackstone says
Absconded is a legal phrase.

Now let me see:-You must get out-"
"Oh, I will go, Squire, never doubt-"
"A short attachment; seize upon

His household goods-your suit is won!"
"His household goods!-why what a dunce!
His household goods-I told you once
That he's got nothin' anywhere,
No more than you!-Oh, you may swear,
I'll find some shrewd lawyer yet,
Who'll tell he how to get my debt!"

Out rushed the hind with visage grim,
The legal boot assisting him,
The lawyer cheated of his fee
Stalked out more grimly e'en than he;
But first he tacked upon his door
A card that read:-"Return at 4."
-F. J. Parmenter in Troy Press.


Notwithstanding the great improvement which this generation of lawyers has brought about in diminishing "the law's delay," the popular ob

jection to litigation as a means of settling controversies continues, and prevents a great deal of business which would otherwise employ the profession. The reason is not far to seek. The methods and habits of business men have been greatly accelerated and the increased dispatch of law business has not overtaken the impatience of clients. Men of business say they can not afford to litigate; a law suit keeps one running too long In fact it keeps one running not so much and not so long, by a great deal, as it did thirty years ago; but every thing else that business men do, is so much quickened that it seems worse instead of better. We venture to say that the last generation never saw such litigations as the recent cases of the Western Union or the Reading receivership carried through so rapidly, but the rapidity was not appreciated by the public.

A voyage now takes ten days that formerly might take ten weeks; a bargain is wired back and forth in a few moments which took formerly weeks by mail. A fortune is made and half lost again in the time which it formerly took to mature

tedious rules. The Statute of Limitations should be shortened for all the courts. Judgment liens should be short-lived, but the right to sue on a judgment to renew its lien should not be limited. These are the obvious suggestions which the present usages of business make to the jurist. Whether the time has arrived to act upon them is a debatable question. That they will sooner or later be acted on to some extent and in some form, no one who watches the course of affairs can doubt. But any change, to be advantageous to the profession, should be sufficiently decided and sufliciently conspicuous to make it.-Nero York Daily Register.

ANECDOTE OF JUSTICE MILLER. Justice Miller is talked of as a possible presidential candidate. He would take the nomination if it were handed to him. IIis reputation on the bench for ability and integrity is very high. He is nearly sixty, but is very strong and active. He las very black eyes, a broad, full, double-chinned,

done by a touch and go process. A word, a shake of the finger, a nod, a telegram, a memorandum torn from a pad; processes that formerly took days following days are now the work of an instant.

If the law is to keep up with the wants of the community its processes must imbibe something of this spirit, and share the general acceleration, otherwise the lawyers will get left. Business will grow dull, clients scarce; and slow minded atLorneys, adepts in nothing so much as the old art of getting adjournments, will wonder why it is there is so little to do.

We should like to see at least one court of general jurisdiction in this city, in which every measure of time slonld be shortened by about one-half and in which no extra allowances could be granted. For convenience sake i: would be better to adopt the week for the measure of time whenever practicable, but allowing for this modification the time might be shortened on the average a half without inconvenience to wide-awake practitioners. Say the time to demand a copy of complaint, if not served, one week; time to answer, two weeks; notice of motion, five days, returnable any day in term; notice of trial, one week; time in which to serve notice of appeal, four weeks, and so on. All extensions by order to be on terms of paying motion costs to the adverse party.

It is not unlikely that a court of general jurisdiction, with the facilities for business which this curtailment of delays would produce, would have a large influx of suitors. If the bench were able, vigorous and scrupulously careful, practitioners in that court would have moje to do, and for what they did would get paid quicker, than under the present system. The client who succeeded in a short suit would feel better, and the client who gets beaten in a short suit would feel less sore than they respectively do under the present more

mouth like the opening of a bottomless pit. He has a rich, full voice that rumbles up from his cavernous stomach with great distinctness. He wears a rusty dress-coat suit morning, noon and night, summer and winter. He is as bad a penman as Horace Greeley. His manuscripts to the unfamiliar gaze are nearly as unintelligible as if written in cipher. Several years ago he was seated upon the porch of his favorite Block Island IIotel, rocking lazily to and fro, reading a newspaper. He was suddenly interrupted by a New York lawyer, who said: “I want to introduce you to Mr. Biggins, of Delaware, who has come here to address you on professional business. He wants you to grant a stay of proceedings in a case where a man has been sentenced to death. He thinks there was gross irregularity in the proceedings, and would like to present bis argument as soon as he can, as there are only five days more to run before the execution will go into effect."

Justice Miller put aside his newspaper as he said: “I will hear him now if you will kindly run over to Justice Harlan's and ask him to come here. I would not ask you to go but you are a much younger man than I.”

Soon Harlan arrived, and the argument began. It was the case of O'Neil, of Delaware. Colored men were excluded from the jury that tried him, in violation of the civil-rights bill. Justice Miller heard the argument as he rocked in the chair, then glancing over the papers, he said to Harlan : "Well, I guess we will have to give the nigger a chance, eh?"

Yes,” said IIarlan. “He is entitled clearly to another chance."

So the stay of proceedings was posted promptly and quietly. O'Neil was saved. The case was taken to the supreme court, and a new trial was ordered. In the second trial O'Neil was acquitted. - Chicago News


The Central Law Journal. so specially charged, that it appeared that

the end of the arrest was not the expectation ST. LOUIS, NOVEMBER 2, 1883.

of benefit to himself by a recovery, but a de

sign of imprisoning the other.' And in the CURRENT TOPICS

case of Woodmansie v. Logan, 1 Pennington

(N. J.), 67, the same learned julge expressMuldoon v. Rickey is a case recently deci- es a doubt whether actions for malicious prosded by the Supreme Court of Pennsylvania, ecutions in civil cases will lie at all. Our in which an attempt was made to recover own cases, whilst they do not carry the doc. damages for the malicious prosecution of an trine stated quite as far as those cited, do, action of ejectment. The plaintiff averred nevertheless, confine actions of this kind to ownership of the property, and that the action

very narrow limits. Thus it was held in Krawas maliciously instituted and prosecuted, mer v. Stock, 10 Watts, 115, that to sustain and averred special damage arising from the an action on the case for malicious prosecufact that he was hindered and prevented from tion, it was necessary that the party should using the property to borrow money to meet have committed an illegal act, from which obligations, incurred with the expectation of positive or implied damage ensued; but that so doing, but did not allege any interference to bring an action, though there was no with his person or property.

But the court

good ground for it, was not such held that there could be no recovery for such illegal act. On the other hand, where one injury, saying: “The action of ejectment abuses legal process, as by maliciously holdtemporarily clouds the title to the property in ing one to bail, or wantonly levies an execucontroversy, and so may, for the time, pre- tion for a larger sum than is due, or after the vent a sale of, or mortgage upon it. But a payment of the debt, an action will lie against damage of this kind is not more direct than

him ; 'for these are illegal acts, and damage that resulting from the expenses, loss of is thereby sustained.' Again, Mr. Justice time, and often loss of credit, arising from Sharswood, in the case of Mayer v. Walter, the ordinary forms of legal controversy. All 1 P. F. S. 583, has, without qualification, are troublesome, expensive, and often ruin- declared, that a mere suit, however malicious ous, and if for such damage the action of or unfounded, cannot be made the ground of case could be maintained, there would be no

action for damages. 'If,' says the learnend of litigation, for the conclusion of one

ed justice, the person be not arrested, or suit would be but the beginning of another.

his property seized, it is unimportant how It has, therefore, been wisely determined, futile and unfounded the action may be, as that for the prosecution of a civil suit, how- the plaintiff, in con-ideration of law, is punever unfounded, where there has been no in

ished by the payment of costs.' Then again, terference with either the person or property we have the case of Eberly v. Rupp, 9 Nor. of the defendant, no action will lie. In Potts 259, the very latest expression of this court v. Imlay, 1 Southard, 330, Chief Justice

upon the subject in band, and a case much Kirkpatrick alleged that the books, for four

stronger in its facts than the one under conhundred years back, had been searched to sideration, for there the action was for the find an instance where an action on the case recovery of damages resulting from the serfor the malicious prosecution of a civil suit, vice of a writ of estrepement. But it was held like the one then trying, had been successful- that the action could not be maintained, inly maintained, and that it was conceded by asmuch as the writ, being purely preventive,

, the counsel for the plaintiff, that no such case

neither arrested the person of the defendant had been found. He also, in this connection, nor seized his goods. It will also appear, cites with approval the case of Parker v.

upon an examination of the opinion in that Langley, Gilbert's Cases, 161, wherein it was

case, that the point now under discussion is said: “An action on the case has not yet there met and disposed of. In opposition to succeeded, but only where the plaintiff in the

this array of authorities, the counsel for the first suit made the course of the court, re- defendant in error has produced nothing that quiring special bail, a pretense for detaining

can have weight with this court. We have another in prison, and where the malice was examined his citations of Pennsylvania cases,

Vol. 17-No. 18.

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