fairly presumed that it was contemplated or intended to affect the members by other than such by-laws as it was within the competency of the association to enact. But in addition to these the averment of the plea is, that the certificate was accepted by the assured, "subject to the laws of the order now in force, or which may be hereafter enacted by the supreme commandery." These are words of large signification, and clearly express that the assured consented that the contract should be subject to future as well as to existing by-laws. Parties may contract in reference to laws of future enactment, may agree to be bound and affected by them if such laws were existing. They may consent that such laws may enter into and form part of their contracts, modifying or varying them. It is their voluntary agreement which relieves the application of such laws to their contracts and transactious from all imputation of injustice. An engagement of surety ship relating to a particular office, with prescribed duties, by the common law extends only to such duties as are prescribed when the engagement is entered into, and not to such as while the suretyship is continuing may be attached to the office. Chitty Contracts, 11th Am. Ed. 765, note. The statute prescribing the condition of official bonds, and of the bonds of executors, or administrators, or guardians, extends the liability of the surety to performance by the principal of such duties as are required of him by existing laws, or by any law passed subsequent to the execution of the bond. Morrow v. Wood, 56 Ala. 1.

There is no injustice in the statute; nothing retrospective in its operation. The surety enters into the bond with knowledge of the condition, assenting that his liability may be enlarged, if public interest and convenience require that the official duties of the principal should be enlarged.

In consequence of the settled doctrine that the charter of a corporation, whether private or eleemosynary, not instituted as part of the machinery of government, but for the private benefit or purposes of the corporators, is a contract between the State and the corporators, protected by the Constitution of the United States from repeal or alteration, or impairment by subsequent legislation, it has become usual, either by constitutional provision, or by a general law, or by reservation in the charter, to clothe the legislative power of the State with full capacity, at pleasure, to alter, modify or repeal the charter. The power being reserved, its exercise can not, of course, be said to impair the obligation of the grant. Ang. & Ames Corporations, sec. 969; Cooley Con. Lim., 340. The power is reserved by and is a part of the grant, and that it may be exercised is a condition upon which the grant of corporate existence and franchises is accepted.

The members of associations created for purposes and objects like those which seem to be the purposes and objects of this organization, may very properly be required to assent that the contract conferring upon them rights, shall be subject

to and dependent upon the future as well as the existing laws adopted by the governing power. The fundamental principle of such organizations is the mutuality of duty and equality of right of the membership, without regard to time of admission. This can not well be preserved, if the members stipulating for benefits were not required to consent that they would be subject to future as well as existing by-laws. Time and experience will develope a necessity for changes in the laws, and if the consent was not required, there would be a class of members bound by the changed laws, and a class exempt from their operation, that the case before us is an illustration of the legality and propriety of the provision relieving the association from liability, if a member while insane deprived himself of life, there is no good reason to question. If no other reason could be given, that it relieves the association from litigating with the representatives of a deceased member the distressing question of his sanity, would be sufficient. If the law was applied only to certificates issued subsequent to its enactment, there would be a class of members having certificates of greater value than the certificates held by another class, yet each class would be subject to the same assessments and the same duties. There is but little room, if any, for the apprehension that advantage will be taken by the governing body of assent of the member to be bound and affected by subsequent laws, to impose upon him unjust burdens, or to vary the contract, save so far as an alteration or modification of it may be promotive of the general good. Subsequent or existing bylaws are valid only when consistent with the charter, and confined to the nature and objects of the association. While a subsequent law, because of the assent of the member, may add new terms or conditions to a certificate-terms or conditions reasonably calculated to promote the general good of the membership-may be valid and binding, it does not follow that a law operating a destruction of the certificate, or a deprivation of all right under it, would be of any force. Korn v. Mutual Ins. Association Society, 6 Cranch, 197.

Without pursuing the discussion of the question, we are of opinion that the parties intended the certificate should be subject to the laws of the association adopted subsequent to its issue-laws which, if they had been of force at the time of the issue, would have entered into and formed part of it. It is the concurring assent of the parties that engrafts the law upon the certificate, giving it an operation it would not have otherwise.

The circuit court erred in sustaining the demurrer to the plea, and its judgment is reversed and the cause remanded.

2. CHATTEL MORTGAGE

STOCK IN TRADE- FARM STOCK AND IMPLEMENTS FRAUDULENT CON. VEYANCE.

A conveyed to plaintiff, as trustee, to secure a certain debt, certain tracts of land, and also all and singular the farming implements, tools. the live dairy cattle now on said farm, together with all their increase to the value of said tools, implements and cattle of four thousand dollars, and that A, during the lien, shall keep up on said farm a stock of live diary cattle and increase thereof, and substitutes therefor, and farming implements and tools which shall be worth $4,000. The circuit court held this deed of trust as to the personal property void as to the creditors of the grantor. Held, it is well settled that when it appears from the face of the deed of trust or mortgage that the goods mortgaged were to remain in the possession of the grantor, to be disposed of by him in the usual course of trade, the deed is void as to creditors; and though this deed does not in express terms authorize the grantor to dispose of the property, the power to do so is implied from the authority given to substitute other property of the kind conveyed. Goddard v. Jones, S. C. Mo., Oct. Term, 1883.

3. CONSTITUTIONAL LAW-CIVIL RIGHTS ACT OF MARCH 1, 1875-THIRTEENTH AND FOURTEENTH AMENDMENTS.

The first and second sections of the Civil Rights Act, passed March 1, 1875, are unconstitutional enactments as applied to the several States, not being authorized either by the thirteenth or fourteenth amendments of the Constitution. The fourteenth amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not a direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts. The thirteenth amendment relates only to slavery and involuntary servitude (which it abolishes); and although, by its reflex action, it establishes universal freedom in the United States, and Congress may probably pass laws directly enforcing its provisions; yet such legislative power extends only to the subject of slavery and its incidents; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in questions), imposes no badge of slavery or invol

untary servitude upon the party, but, at most, in ́ fringes rights which are protected from State aggression by the fourteenth amendment. Whether the accommodations and privileges sought to be protected by the first and second sections of the Civil Rights Act, are, or are not, rights constitutionally demandable, and if they are, in what form they are to be protected, is not now decided. Nor is it decided whether the law, as it stands, is operative in the Territories and District of Columbia, the decision only relating to its validity as applied to the States. Nor is it decided whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more States. United States v. Stanley, "Civil Rights Cases," U. S. S. C., Oct. 15, 1883; 3 S. C. Rep., 18.

4. EVIDENCE-CRIMINAL CASES-RES GESTÆ. 1. In criminal cases it is essential to the admissibility of the declarations of the injured party as a part of the res gesta that they were made recently after the injury and before sufficient time had elapsed for the fabrication of a story. If made after such time had elapsed, and after the lis mota may be supposed to exist, they are no part of the res gestæ, and are not admissible as such. 2. M was in his store at night with another man who, suddenly and without provocation, shot him through the head with a pistol; M, exclaiming "you have killed me," ran out at the door and around the house to the door of another room in the same house, occupied by R, which door was eighty feet from the point in the store at which he was shot; upon being admitted by R he said: "I am shot; William Kirby has shot me;" not more than two minutes elapsed between the shooting and this declaration. Upon the trial of Kirby for the shooting, Held, the declaration was admissible in evidence as a part of the res gesta. Kirby v. Commonwealth, S. C. App. Va., Sept. 13, 1883; 7 Va. L. J., 678.

5. INFANCY CUSTODY OF CHILDREN-FATHER'S CONTROL.

A father has an absolute right to the custody and control of his children until they attain twentyone. The court never interferes with the rights of the father unless the children are made wards of court; and then only in very extreme cases. The principles on which the court acts in interfering with the rights of the father considered: Children were made wards of court and the mother was, upon the application of the father, restrained from bringing them up as Roman Catholics. Afterwards, when the father and mother were living apart, the father placed his eldest daughter at school where she was allowed to see her mother only once a month, and to write to, and receive from her mother only such letters as were submitted to the inspection of a third person appointed by the father. After the daughter had attained the age of sixteen, the father, at her own request, allowed her to adopt the Roman Catholic religion, but refused to allow her any more unrestricted intercourse with her mother. An application made to the court by the mother and daughter, that the daughter might spend her summer vacation with her mother, and that the supervision of their correspondence might be discontinued, was refused, on the ground that the circumstances of the case were not such as to justify the court in interfering with the rights of the father. In re Agar-Ellis; Agar-Ellis v. Lascelles, Eng. Ct. App., July 24, 1883; 32 W. R., 1.

6. INSURANCE, ACCIDENT - FORFEITURE OF POL

ICY.

An accident insurance contract provided that no claim should be made for death or injury caused by voluntary exposure to unnecessary danger, or by walking or being on the bridge of any railway. A train on which insured was riding at night stopped on a bridge. He went to the front platform of the car in which he was riding, and stepped off and through a hole in the floor of the bridge, causing his death. Held, that he did not violate the provision of the policy, and the insurance company was liable on the contract for his death. Burkhardt v. Travelers' Ins. Co., S. C. Pa., Oct. 1, 1883; 28 Alb. L. J., 388.

7. JURY TRIAL INCOMPETENCYPROPER PERSONS.

-

EXCLUSION OF

The objection to a juror that he is disqualified to act as such, under section 820 of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, held, waived by a party under indictment after he has pleaded not guilty to the indictment, and gone to trial without making such objection. Objections by reason of irregularities of this nature should be raised by the defendant, either on motion to quash the indictment or by plea in abatement, if he had no opportunity or did not see fit to challenge the array. The action of the court in excluding particular persons, who might properly have served on a jury, is not enough to vitiate all the proceedings, so as to render them null and void. Such action might afford sufficient ground for quashing the indictment, if the objection is timely and properly made. United States v. Gale, U. S. S. C., Oct. 15, 1883; 3 S. C. Rep., 1.

8. PARTNERSHIP--REAL ESTATE-PRESUMPTION AS TO OWNERSHIP.

1. Improvements of a permanent nature, erected upon real estate owned by one member of a partnership who holds the legal title thereto, will, notwithstanding the real estate is used as the place of business of the firm, be presumed to be the individual property of such partner until it is proven that such improvements were erected by the firm and paid for out of firm assets, or contributed as firm capital by such partner. 2. In the absence of proof of such joint ownership by the firm, or representations or conduct of the individual partner as will mislead creditors and, as to them, estop him from denying the ownership of the firm, the right of the creditor to subject such property to the payment of partnership debts, in preference to the individual debts of such partner, must depend upon the right of the partners as be tween themselves. 3. In a case, therefore, where all the facts proved are consistent with the ownership of such partner, and that the use alone of the property was contributed to the firm, during its existence as such, that view should be adopted, rather than one that will subject such property to partnership liabilities to the exclusion of individual creditors. Goepper v. Kissinger, S. C. Ohio, Nov. 13, 1883; 4 Ohio L. J., 470.

9. SLANDER-PRIVILEGE OF COUNSEL-WORDS SPOKEN IN COURSE OF JUDICIAL INQUIRY. No action lies against a counsel or advocate for words spoken with reference to and in the course of a judicial inquiry in which he is engaged as counsel or advocate, even if such words are spoken maliciously and without reasonable and probable cause, and are irrelevant to any issue or question forming the subject of inquiry. Defend

ant, a solicitor, was acting as advocate for the defense of a person whom plaintiff had caused to be charged before magistrates. In the course of the inquiry, defendant made certain statements defamatory of plaintiff's character. Plaintiff sued to recover damages in respect of these statements. At the trial Williams, J., ruled that no action would lie, and directed a nonsuit. Held, that, even if the words were spoken maliciously with the intention to injure plaintiff, and not to assist the defense of the person accused, and without reasonable and probable cause, and were irrelevant to the inquiry, still no action would lie, and, therefore, these questions did not arise, and the nonsuit was right. Munster v. Lamb, Eng. Ct. App., July 5, 1883; 49 L. T. R., 252.

10. STATUTE OF FRAUDS-WHO MAY PLEAD. 1. A case to which the Statute of Frauds does not apply, and a case in which there has been such part performance of a contract as to take it out of the statute, if it did. 2. One of two joint purchasers of real estate under a verbal contract can not take a conveyance to himself, and thereby defeat his co-purchaser's right, upon a plea that the contract between them and their vendor was not in writing. Brown v. Brown, S. C. App. Va., July 26, 1883; 7 Va. L. J., 687.

RECENT LEGAL LITERATURK.

THE LAW OF FRATERNITIES AND SOCIETIES. By A. J. Hirschl, of the Davenport (Ia.), Bar. St. Louis, Mo., 1883: Wm. H. Stevenson.

The growth of benevolent organizations in this country within the past decade has been rapid. With objects in the main the same, societies are to be found in each State and in almost every town, with names at once dissimilar and unique. Outside of the two large and able bodies-the Masons and the Odd Fellows-Druids, Chosen Friends, Foresters, Knights of Pythias, Red Men, Members of the Ancient Order of United Workingmen, of the Royal Arcanum, of the Knights of Honor, of the Legion of Honor are met everywhere. Their combined membership in this country is estimated at the present time at something over 1,500,000, and their revenues are proportionately large. Engaged, all of them, in the insurance business-that is to say, a mutual insurance business of a peculiar and novel kindthey may be said to form a mercantile class of a somewhat peculiar nature, and it is not strange that already many questions of their powers, duties and liabilities, and the powers, duties and liabilities of their members, have been before the courts for judicial settlement.

The author has made a collection of these decisions in a monograph of eighty pages. The book will certainly be of interest and value to very many people. A variety of questions which no legal treatise that we know of would be able to furnish any considerable information upon, are here satisfactorily discussed and answered. What is the nature of such bodies? Are they partner

ships within the rules of law as to the rights of partnerships and the liabilities of partners? Are they insurance companies within the State laws regulating such corporations? Are the members personally liable, say for the sum due from the lodge to the representatives of a deceased member? Is the certificate in all respects like an ordinary insurance policy? How is such a right enforced, forfeited or lost? To what extent are the societies permitted to decide disputes among members without an appeal to the courts of law? What are the remedies of an expelled member? To what extent have the associations the power to make by-laws? Not only the profession, but the officers and members of these varied societies will be indebted to Mr. Hirschl for his valuable labors and investigation in this direction.

We have not space to notice the decisions collected in these pages at any length, though there are several which are more than ordinarily interesting. In Ballou v. Sole, 7 N. W. Rep. 273, it was held that where a deceased member had made no designation as to where the benefit coming to him should go, it belonged to his widow, and that if she were not there to take it, it would revert to the association. In Worley v. Northwestern Masonic Aid Association, 3 McCrary, 53, the deceased's certificate stated that the amount of should be paid to his "devisees." He left no will, and the administrator claimed the amount, but without success. These decisions show that the beneficiary certificates of these associations are not insurance policies to this extent at least. An ordinary life insurance policy, on the death of the assured, is a debt payable by the company to his estate, while to suppose these beneficiary certificates to be general assets collectible on failure to designate any beneficiary, by the administrator, is said to be "utterly repugnant to the whole purpose, scope and design of the association as provided in the very law of its existence." In State v. Georgia Medical Society, 38 Ga. 608, a physician had been expelled from a medical society on the ground that he was no longer, as the rules required, "a gentleman of respectable social position," because he had gone on the bail and official bonds of some negroes. He was reinstated by the court. This is a case for the author of John Eax.

The book is very handsomely printed on good paper with clear type, and is well indexed.

J. D. L.

BROWNE ON DOMESTIC RELATIONS. Elements of the Law of Domestic Relations and of Employer and Employed. By Irving Browne. Boston, 1883: Soule and Bugbee.

This is an admirable little volume intended as a sort of primer of the legal principles of Domestic Relations, and also to serve as a manual for those who have passed their novitiate and are called upon suddenly to refresh or conflrm their memories. It is carefully and accurately written in Mr.

Browne's singularly easy, readable style. The mechanical execution is excellent.

TWENTY-NINTH KANSAS. Reports of Cases Argued and Determined in the Supreme Court of the State of Kansas. A. M. F. Randolph, Reporter. Vol. 29. Topeka, Kansas, 1883: Kansas Publishing House.

This volume contains 140 cases in which opinions were written by the judges as follows: HORTON, C. J., 36; VALENTINE, J., 50; BREWER, J., 41. In thirteen cases Per curiam opinions only were filed. Mr. Justice Valentine filed separate opinions in two cases-concurring specially in each case. Mr. Justice Brewer tiled separate opinions in five cases- -concurring specially in four and dissenting in one. This speaks well for the harmony as well as the industry of the court.

POMEROY'S EQUITY JURISPRUDENCE. A Treatise on Equity Jurisprudence as Administered in the United States of America; Adapted for all the States and to the Union of Legal and Equitable Remedies under the Reformed Procedure. By John Norton Pomeroy. In three volumes. Vol. III. San Francisco, 1883: A. L. Bancroft & Co.

We have heretofore described the plan and scope of this work, and spoken of the author's peculiar views upon the subject of the development of equity jurisprudence as a system, and the effect upon it, of the fusion of equitable and legal procedure, in notices of the two former volumes, 13 Cent. L. J. 99; 15 Cent. L. J. 60. It only remains to say that Mr. Pomeroy has very happily completed his great undertaking, and that the third volume, devoted chiefly to equitable remedies, is a worthy fellow to its predecessors.

NOTES

-Solicitor, sharply-"What did the prisoner do next?" Witness, hesitatingly-"I think —” Solicitor-"Stop there; you are not to say what you think." Witness-That's lucky for you; you might hear something you wouldn't consider flattering."-Irish Law Times.

-Mr. Henry Fielding Dickens, barrister, has been appointed Recorder of the Borough of Deal, in succession to Mr. Robert John Biron, Q. C., who has been appointed a metropolitan police magistrate for the metropolis. Mr. Dickens is the son of the late Mr. Charles Dickens. He was formerly scholar of Trinity Hall, Cambridge, where he graduated as a wrangler in 1872. He was called to the bar at the Inner Temple in Hilary Term, 1873, and he practices on the Southeastern Circuit, and at the Kent Sessions-Solicitors' Journal.

ST. LOUIS, NOVEMBER 30, 1883.

CURRENT TOPICS.

It seems that Lord Coleridge is not so wise that he will not learn. On the contrary, during his recent tour in the United States, he kept his mind open to a sufficient extent to take in some of the more obvious of American "modern improvements" in the constitution and organization of courts of justice. And so deeply was he impressed by the American systems of judicature, that he has successfully urged the Ministry of Mr. Gladstone to propose to Parliament an imitation of one feature at least, of the American system. In the St. Louis Post-Dispatch of the 29th of November, appears the following special cablegram:

"LONDON, Nov. 26.– Lord Chief Justice Coleridge has already begun to put into practical use the professional information he obtained in the United States during his recent tour. His lordship, since his return, has discussed freely with the great lawyers and judges of London the merits aud demerits of American jurisprudence, and in these semiprofessional conferences has never hesitated to express great admiration for the manner in which Americans have developed the local or home government idea until, as he says, it has become to observant foreigners the most striking feature of American institutions. The general government, Lord Coleridge thinks, although not strictly more constitutional than that of England, appears to the foreign observer to have less to do with the people or their personal affairs, than any government in the world, and to be confined in its functions within a sphere that it might be described as simply an international agency or bureau, with practically no absolute power of its own, and acting under popular direction. Lord Coleridge has taken every opportunity of impressing these views upon the liberal members of the profession in England, and has already succeeded in breaking down much conservative prejudice. His first attempt to Americanize British practice has been entered u pon, and has already gone beyond the mere Vol. 17-No. 22.

able Cabinet action. This step has for its object the formation of a system of district courts throughout England, after the model of the district courts in the United States. A bill for the creation of such a system of courts in England has been prepared under the supervision, it is understood, of Lord Coleridge, and has been accepted by the Cabinet."

This is a rather remarkable step considering the conservative tendencies of the English mind generally, and especially in all matters connected with the modes of administering justice. Stare decisis have in that country always been words of power in judicial affairs, and besides their legitimate application to the due interpretation of the law, have often been misapplied to collateral matters and have caused much public inconvenience and private injury. Ancient institutions which had long out lived their usefulness have been religiously preserved to the detriment of both public and private interests, and hoary abuses are always tenderly handled by the English reformer in deference to their antiquity.

A system of District Courts in England, by which a law suit in the provinces can be commenced and concluded, without reference actual or theoretical to the great judicial centre London, is a wide departure from the old constitution of the court of King's Bench in which each defendant was, theoretically at least, required to appear "before the King himself, wheresoever in England he might

be."

A lie of any sort is proverbially long lived, and a legal fiction has no less vitality than more nefarious falsehoods. The fiction that the King presided in person in the court of King's Bench, operated for centuries, more. or less directly, to centralize the administrator of law in England, rendering it much more inconvenient and costly than was at all necessary. It was evaded by the system of assizes and nisi prius courts, but until recently it does not seem to have occurred to anybody in England, that justice could be duly administered by a system of distinct local courts, each being independent of all others, except an appropriate appellate tribunal. We all live and learn, and so it seems does Lord Coleridge and the Gladstone Ministry.