ernor in such case has no authority except that given by the statute. 3. Habeas corpus. In case of one charged with crime in a foreign State, and brought into Court upon habeas corpus, the matter must be determined upon the facts in the return shown to have existed at the time of the service of the writ, and not upon facts which oc curred subsequent thereto. Knowlton's Case, S. C. Denver, Colorado, Nov. 15, 1883; 4 Col. L. Rep. 193.

2. ATTORNEY AND CLIENT-NEGLIGENCE EVIDENCE.

Appellee sued upon the following instrument: "Received of Mrs. Diana Falls one note against Z. P. Estes for $1,100. * This for collection. H. A. Foulks." Appellee alleged that she instructed the appellant to attach the land of Estes in Knox county, which he failed to do, whereby she lost her debt. While the instrument has the elements of a receipt, taken in all it parts it expresses a contract for the collection of the note, and had it been signed by appellant as an attorney it would upon its face express an attorney's contract for the collection of the note. (3 Johns, 185; 72 Pa. S. 124; 13 Am. R.. 665; 47 Wis., 615.) As it was not signed by appellant as an attorney, parol evidence was admissible to show in what capacity he signed it. (Abb. Trial Ev., 280, 294; 56 N. Y., 574; 38 Ind., 162; 53 id., 575; 68 id., 548.) But conceding that he executed the contract as an attorney, it imposed upon him the duty of skill and diligence, but it also imposed upon appellee the duty of furnishing the necessary bond and making the required affidavit for an attachment. The contract did not impose on appellant the duty of making the affidavit and bond, nor would p sitive instructions from appellee requiring such services have imposed such duty. In a proper case an attorney may be made liable for a failure to prepare the affidavit and bond in attachment; for the failure to give proper advice or the giving of erroneous advice in relation to such procedure. But here the claim was solely for a failure to institute attachment proceedings, and it is not shown that appellee ever offered to make the necessary affidavit or to furnish the bond. Appellant was not, therefore, liable for not bringing an attachment suit. Foulke v. Falls, S. C. Ind. Nov. 20, 1883.

3. CRIMINAL LAW-ALIBI-DYING DECLARATIONS. The commission of a criminal offense implies the presence of the defendant at the necessary time and place. Proof of an alibi is, therefore, as much of a traverse of the crime charged as any other defense, and proof tending to establish it, though not clear, may, nevertheless, with the other facts of the case, raise doubt enough to produce an acquittal. A reasonable doubt of the defendant's presence at the time and place necessary for the commission of the crime, would seem necessarily to raise a reasonable doubt of his commission of it. Proof tending to establish an alibi, though insufficient of itself to establish that fact, is not to be excluded from the case. Whatever doubt, if any, such testimony may raise in the minds of the jurors, is for their consideration; and if its weight alone or added to that of other evidence in the case, be sufficient to reduce belief in their minds as to the defendant's guilt, to a reasonable doubt, they should acquit, for in every criminal case, when all the proof is in, the final question for the jury is, are all the essential averments of the indictment proved beyond a reasonable doubt?

Dying declarations are restricted to the act of killing and to the circumstances immediately attending it and forming a part of the res geste. When they relate to former and distinct transactions, they do not come within the principle of necessity on which such declarations are received. People v. Fong Ah Sing, S. C. Cal., Oct. 26, 1883; 12 Pac. C. L. J., 263.

4. HOMESTEAD-HUSBAND AND WIFE.

B conveyed to his wife the homestead, afterwards they acquired another homestead. The first was levied upon and sold under a judgment and execution against the husband. In a suit for the land, held, that if the property was homestead at the time of the conveyance, the true issue would be as to whether the same was intended to and did pass the title to the wife, or whether it was simulated or colorable. 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 be in the grantor, and when disrobed of its homestead character by abandonment or otherwise, it would be subject. Baines v. Baker, S. C. Tex., Tyler Term, November, 1883; 2 Tex. L. Rep., 430.

5. USURY.

Where a purchaser executes his note for the purchase price of land with interest, until maturity, at a rate greater than the legal rate, the contract is not usurious, the rate of interest being part of the consideration paid for the land; but if the note bear interest at such rate, after maturity, it is usurious, the interest becoming then the consideration for for bearance to demand the money already due. A claim should be purged of usury, whether usury has been pleaded or not. Warton v. Warton, Ky. Ct. App., Oct. 17, 1883; 5 Ky. L. Rep., 302.

6. SPECIFIC PERFORMANCE - INCOMPLETE TITLE AFTERWARDS PERFECTED.

Where a bill in equity was filed to compel the specific performance of an agreement to purchase lands, and it appeared that the complainant had not been able to give a perfect title at the time agreed, and that after an extension of thirty days he was still unable, but afterwards he brought this suit to compel the defendant to accept the title, and on the trial tendered a good title, held, that the defendant was justified in rejecting the title when it was tendered, and that, even if the complainant were able at the time of the trial to give perfect title, it would not be doing equity to compel the defendant to accept it after nearly two years had elapsed since the day named in the contract for passing the title. Fox v. Phelps, U. S. C. C., E. D. N. Y., June 29, 1883; 10 Fed. Rep., 120.

7. NEGOTIABLE PAPER-INDORSEMENT-BONA FIDE

PURCHASER-DEFENSES.

It is a settled doctrine of the law merchant that the bona fide purchaser for value of negotiable paper, payable to order, if it be indorsed by the payee, takes the legal title unaffected by any equities existing between the payor and payee. But if it be not so indorsed, the purchaser becomes only the equitable owner of the claim or debt evidenced by the security. As a general rule, the legal title to negotiable paper, payable to order, passes only by the payee's indorsement on the security itself

The only exception to this rule is where the indorsement is made on a piece of paper, so attached to the original instrument as, in effect, to become a part thereof or be incorporated into it. Words of mere assignment and transfer of negotiable paper contained in a separate instrument, executed for a wholly different and distinct purpose, are not equivalent to an indorsement within that rule which admits the payor to urge, as against the holder of an unindorsed negotiable security payable to order, any valid defense which he has against the original payee. A subsequent indorsement of negotiable paper after notice of the payor's defense, though the paper was purceased without notice of such defense, will not relate back to the time of purchase so as to cut off the equities existing between the payor and payee. Osgood v. Artt, U. S. C. C., N. D. Ill.; 17 West. Jur.,463.

8. PRINCIPAL AND AGENT-INSTRUCTIONS— VERDICT-NEW TRIAL.

The unauthorized act of an agent, when ratified by the principal, is equally binding as though embraced within the scope of the agent's power; and when the issue in a cause turns upon the authority of an agent, and there is testimony tending to prove the ratification of the act of such agent, the verdict of a jury finding such act to be the act of the principal, will not be disturbed. It is the duty of a court to instruct the jury in the law of the ease, whether requested so to do by counsel or not; and when it fails to do so, and the jury find a verdict which, upon a view of the whole case, appears to be wrong, such verdict will be set aside and a new trial ordered; but otherwise, when, upon a general view of the case, the verdict seems to be right. Sandwich, etc. Co. v. Shiley, S. C. Neb., Nov. 13, 1883; 16 N. W. Rep., 267.

9. TRUST-PURCHASE BY TRUSTEE.

A trustee cannot become the owner of the trust estate, except where it is clear that the cestui que trust intended that, the trustee should buy, and the transaction is beyond suspicion; and the burden is on the trustee to establish the latter fact. Lathrop v. Pollard, S. C. Colorado, 1883. 16 The Rep., 650.

10. NEGOTIABLE PAPER-AGENCY-BANKS. Naming a bank as the place of payment of a promissory note, bill of exchange, or other obligation, does not make the bank an agent for the collection of the paper or the receipt of the money due on it; and the debtor cannot make the bank the agent of the holder by depositing with it the funds to pay the paper. If maturing paper be left at a bank for collection, the bank becomes the agent of the holder to receive payment. But unless the bank has been made the agent of the holder by indorsement of the paper or the deposit of it for collection, any money which the bank receives to apply in payment of it, will be deemed to be money taken by the bank as the agent of the payer, and the loss sustained by the failure of the bank with the funds so deposited in hand, will be the loss of the payer. Adams v. Hackensack etc., Co., N. Y. Ct. Errors and Appeals, Nov. 1883; Journal of Banking Law.

11. LIFE INSURANCE-POLICY - SUICIDE - BURDEN OF PROOF.

In this action which was upon a policy of life insurance containing a proviso that it should be null and void in case the insured "shall, under any circumstances, die by his owr hand," issue was joined as to whether his death was within the

proviso. Held: 1. Whilst it is competent for the parties by plain stipulation to qualify or restrict the popular meaning of words in a policy, yet a proper construction of the words of the proviso requires that the words, "under any circumstances," be disregarded as too general and indefinite. 2. Where, as in this case, there is no qualification to the expression, shall die by his own hand," the popular and legal definition will obtain; and the death of the insured by his own act, is not within the proviso, if, at the time, he was under the controlling influence of insanity, although he intended to take his life and understood the physical nature and effect of his act. 3. On the trial, the onus is upon the company to show that the death was within the proviso. 4. The testimony having been given by the company tending to show that the insured committed self-destruction, it was competent for the plaintiff in rebuttal to give testimony tending to show the insanity of the insured at the time of committing the act. Schultz v Insurance Company, S. C. Com. Ohio, Oct. 23, 1883; 4 Ohio L. J., 514.

12. CORPORATION - LIEN - ENDORSER - SUBROGA

TION.

The charter of a joint stock company provides for the payment of $5 per share when the subscription is made, and the residue thereafter as may be required by the president and directors. By a by-law of the company each stockholder is required to give his note, satisfactorly indorsed, for his unpaid stock. Held, that a stockholder having given his note with an indorser for his unpaid stock, the amount due thereon is still a lien on the stock, and the indorser is entitled to have the stock applied to his relief. Petersburg etc. Co. v. Lamsden, S. C. Va., November, 1883, 3 Journal of Banking Law, 83.

QUERIES AND ANSWERS.

[*** The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries will be thankfully received,and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.

QUERIES ANSWERED.

A standing

Query 76. [17 Cent. L. J. 399.] account is existing between A and B. They met On August 4th, and balanced accounts, in which Bowes A $1.75, pays him, and B gives A a receipt in full up to date. Afterwards B finds that A owes him $4.80, and brings suit before magistrate to set aside the settlement, and gives him judgment for $4.80, claiming the error was made in settlement. Query: Has a justice of the peace jurisdiction in such case, and is it not an equitable proceeding? Higginsville, Mo.

X.

Answer No. 2. Like a settled account, it is only prima facie evidence of what it purports to be upon the face of it, and upon satisfactory showing being made, that it was obtained by fraud, or was given under a mistake, either of facts or under ignorance of legal rights of the party who gave it, it may be inquired into and corrected in a court of law as well as in a court of equity. When this is made out by evidence, it then appears that beyond the sum actually paid, it was given without consideration, but the want of consideration must be made clearly to appear by the party who attempts to impeach the validity of the receipt; if that is not done, the presumption is in favor of the written receipt. See Thompson v. Fauset, 1 Pet. 183; Harden v. Gorden, 2 Mass. 541; Elwell v. Lessley, 2 Halst. 349. The case of receipts is exempt from the application of the rule that parol evidence is not admissible to vary or contradict a written agreement, for a receipt is not evidence of a contract, but a payment, and it has always been permitted to show that something short of the actual terms of the receipt was intended, it being conclusive only as to the amount of money paid; and not even for that, provided any mistake can be shown to have taken place in the adjustment between the parties. See Stackpole v. Arnold, 11 Mass. 26; Hunt v. Adams, 7 Mass. 518; Parker v. Prentiss, 6 Mass. 430; Watson v. Blaine's Ex'rs., 12 S. & R. 131; Jorden v. Cooper, 3 Id. 464; Hamilton v. McGuire, 3 Id. 355; Oniel v. Lodge, 3 Har. & McHen. 433; Heilner v. Imfrie, 6 S. & R. 410; McDermot v. United States Insurance Co, 3 Id. 607; Miller v. Heller, 7 Id. 36; Corbit v. Lucas, 2 Bail. 186; Joyner v. Cooper, 2 Bail. 179; Stephenson v. Rogers, 2 Hill, 291. The Jurisdiction of justices depending upon the statute in all cases, so in civil cases, it is regulated by a certain amount of debt or damage, and if it does not extend beyond $6.55, it must be a limited jurisdiction indeed; if the whole debt amounted to $6.55, and after deducting the amount of said receipt, $1.75, a judgment was rendered for plaintiff in the sum of $4.80, it was strictly in accordance with law, and is so ably supported by the above authorities.

Query 77. [17 Cent. L. J. 399.] A, & married man, gets a divorce, a vinculo matrimonii, from B, his wife, who owns real estate. They have children, born alive, capable of inheriting. Does A lose his estate by the courtesy in his wife's land per force of the decree of divorce, or does divorce bar cortesy in the husband as against the wife? Marion, N. C. B. D. S.

Answer No. 1. In this country, the effect of divorce a vinculo is generally regulated by statute. But, independently of statutory provisions, rights dependent on marriage and not actually vested are ended by an absolute divorce. Schouler, Husb. and Wife, § 559. An absolute divorce destroys and annuls the marriage relation, so that the wife (independently of statute) is not entitled to dower, for Ubi nullum matrimonium ibi nulla dos-61 Mo. 152. So likewise, the husband is not entitled to curtesy. summate the right of dower, three things are requisite, viz: Marriage, seizin and death of the husband. By common law no woman can have dower in her husband's lands, unless the coverture continues up to the time of his death. She must be his wife at that time. By parity of reasoning, the estate by the curtesy being that to which a husband is entitled upon

To con

the death of the wife, in the lands of which she was seized &c., during their coverture, provided they had issue born alive &c. 1 Washb. Real Prop. 148, and one of the essential requisites of this estate being the death of the wife, his estate can never become consummate by the death of his wife, if the woman whom he married ceases to be his wife during her life. 1 Greenl. Cruise, 150; 1 Hilliard, Real Prop. ch. 6, § 42. She must be his wife at the time of her death. 2 Bish. Mar. & Div. 5th Ed. § 725; Id. § 717; 1 Pick, 506; 3 Havr. (Pa.) 182; 22 Pick, 61; 7 S. & R. 500; 11 Ill., 105. Schouler, Husb. and Wife, § 560. In nearly all of the states the property rights of husband and wife as affected by divorce, are regulated by statute.

Query 78. [17 Cent. L. J. 399.] The Constitution of the State of Alabama provides the manner in which foreign corporations may do business within that State as follows: Sec. 4, Art. XIV. "No foreign corporation shall do any business in this State without having at least one known place of business and an authorized agent or agents therein, and such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in this State." Query 1. If A is a corporation doing business in said State as a railway corporation, and, failing to comply with the provision mentioned, the State refuses to allow it to do such business, is such constitutional provision a regulation of commerce," A running its line of road through two States? 2. When a foreign corporation elects to do business as required by the Constitution, is is not a waiver of the right to have the cases brought against it in the State courts removed to the U. S. Courts? ALABAMA.

Montgomery, Ala.

Answer. It may be doubted that sec. 4 was intended to apply to railways. As to insurance companies, etc., it is valid. Paul v. Virginia, 8 Wall. 168. A State can not prevent a railway, a steamboat or stage-coach from entering its borders, nor in any manner interfere with these instruments of commerce, or by prescribing business methods or rates for interstate traffic. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Kaiser v. Illinois Central R. Co., 7 Cent. L. J. 349, and cases cited., 2d. Doing business in another State does not change its citizenship, the jurisdictional fact, (Paul v. Virginia, supra); and jurisdiction can not be conferred or waived by agreement. The section, however, provides only for the institution of suits against that class of defendants, without reference to the jurisdiction of any court.

Query 79. [17 Cent. L. J. 399.] Can a party who has notice of facts impeaching the validity of a note (for instance, failure of consideration), purchase it of an innocent holder, having a right of action therein, and collect it from the maker, or would his knowledge of the defense against the note defeat his recovery, even though the party he purchased it from had a right to recover thereon? Council Bluffs, Iowa. S. & S.

Answer No. 1. A bona fide holder for value of a negotiable bill or note has all the world for a market," and may confer as good a title as he himself has; hence, if the bill or note be good against all defenses in his hands, it is equally as good in the hands of his endorsee, no matter if the latter pays no value

for it and has notice of defects in and defenses to the instrument, for he claims by virtue of his indorser's title. The purchaser can't be placed on a worse footing than his transferrer, although he himself could not in the first instance have acquired the vantage ground occupied by such transferrer." 1 Dan. Neg. Inst. 2 Ed. 656, and cases cited Byles on Bills, 6 Ed. 194, 35 Iowa, 257; 33 Iowa, 537; 18 Iowa, 571, 10 Md. 118; 12 La. Ann. 126; 20 La. Ann. 282; 34 Ind. 380; 14 Tex. 354.

Answer No. 2. Any want or failure of consideration, whether partial or total, between antecedent parties, will constitute no defense to a note or bill in the hands of one who obtained it in good faith, for a valuabie consideration, before maturity and without any notice of any circumstances impairing its validity. Bostwick v. Dodge, 1 Doug. (Mich.) 413; 29 Mich. 355; 33 Mich 32. When the plaintiff has purchased a note before due, and is a bona fide holder, any inquiry into the consideration of the note is immaterial, the defendant can not prevail against such a holder for a defect of consideration. 27 Mich. 44. The general rule that a purchaser from a bona fide holder of negotiable paper, takes it with all the rights of such holder, whether he has notice of any infirmity, as between the original parties, or not, is subject to the exception that when the payee becomes such purchaser from the bona fide holder, he takes it subject to all equities and defenses originally existing against it between the maker and himself. Rost v. Bender, 25 Mich. 515. Grand Rapids, Mich.

T. H. GIRARD.

Answer No. 3. A party who has notice of failure of the consideration of a promissory note may purchase of an innocent holder having a right of action therein, and collect the note of the maker, because when the note becomes due in the hands of an innocent purchaser for value the maker's liability becomes fixed and it is of no consequence to him to whom he pays it. On the other hand, there is no reason why the innocent purchaser's right of sale should be any more restricted than his right to col. lect. Bassett v. Avery, 15 Ohio, St., 299; Peabody v. Rees, 18 Iowa, 571; Mornyer v. Cooper, 85 Iowa, 257; Simon v. Merritt, 33 Iowa, 537; Miller v. Talcott, 54 N. Y., 114; Edwards' Bills, etc., § 517; Story on Notes, 191; Story on Bills, § 188, 220. See also Hoffman v. Bank of Milwaukee, 12 Wall, 181; Commissioners v. Clark, 94 U. S., 278; Cromwell v. County of Sac. 96 U. S. 51.

Further Bradlaugh litigation is in prospect. The pending action is to obtain a declaration from the court that the order of the House of Commons excluding a member is void, and au injunction to restrain the Sergeant-at-Arms from, by violence or otherwise, preventing Mr. Bradlaugh from entering the House and taking his seat. In the days of Lord Ellenborough or Lord Denman such an appeal to the court might have stood some chance of success. Modern judges are not strong enough to administer a rebuke to the House of Commons, much less to declare its orders bad in law.-London Law Times.

-A case which will be of far-reaching importance under the Married Women's Property Act was decided by Mr. Justice Chitty last week. A husband had left his wife and was, it was stated, in occupation of a separate establishment, but he occasionally returned to the house in which his wife was living and on leaving took with him any article on which he could lay his hands. The house had been comprised in the marriage settlement, and was settled upon trust for sale with consent of both husband and wife, while the house itself until sale, and, when sold, the proceeds of sale, were to be for the separate use of the wife, without power of anticipation. Acting on the precedents of Green v. Green (5 Hare 400) and Allen v. Walker (L. Rep. 5 Ex. 187) Mr. Justice Chitty, on the application of the wife, made an order restraining the husband from going to the house. It was urged that this was in effect to grant a judicial separation, which could only be done in the Divorce Court; but the learned judge pointed out that it was only granting the wife that protection for her property to which she was as much entitled against her husband as against a stranger, and if the husband was aggrieved he could provide another house for his wife, and if she refused to live there could sue for the restitution of conjugal rights. As in such a case he could scarcely be successful, it is obvious that under the new Act, by which all a married woman's property is henceforth settled to her separate use, the power of the wife is likely to be materially extended, not only over her property, but also over her person.-London Law Times.

-The Council of Discipline of the Turin Bar held a meeting a few days ago, under the presidency of Senator Vegezzi, for the purpose of deciding whether the Signora Lydia Poet should be ad itted upon the list of advocates. She had completed all the prescribed course of studies, and passed all the requisite examinations. Eight votes were given for admitting the young lady and four against her. She was accordingly enrolled among the advocates. But the consequence of this was, that two members of the Council withdrew from it, as a protest against the admission of women advocates.-Irish Law Times.

"Prisoner, this is the third time this year that you have appeared before this court. What has brought you here now, eh?" "The police' sir!"

right of private property, are construed

ST. LOUIS, DECEMBER 7, 1883.

CURRENT TOPICS.

A case, entitled Alabama Railroad v. Gilbert, which illustrates the necessity of a strict compliance with statute provisions to entitle corporations to condemn private property for their use, under the right of eminent domain, has just been decided by the Supreme Court of Georgia. By the acts of the legislature of that State for the year 1854, p. 464, the plaintiff was empowered to condemn for its right of way so many feet of land for its roadbed and on each side thereof, with the proviso that it should not interfere with any building. The plaintiff, without condemnation, as provided by law, at once constructed its road over defendant's land, and has had the exclusive use and enjoyment of the road-bed since its construction. In 1873, the plaintiff constructed a building upon that portion of his land, which the plaintiff might have legally condemned, for its right of way, but not actually occupied by the company, and has been in the peaceable possession thereof ever since. In 1882, the plaintiff proceeded to condemn the land in the formal way, and claimed its right to demolish the building, on the ground that it had been erected since the construction of its road-bed, and appropriation of the defendant's land. In denying its claim, the court, (per Jackson, C. J.) declared that "the right of private property is very sacred in the eye of the law. It stands on the same foundation as the co-ordinate rights of personal liberty and personal security. It only yields to the right of eminent domain in the State, and it can be taken for public use only after just compensation. Const. Ga., Code, secs. 4994-5, 5024.

It is upon this principle that railroads are for public use that private property can be condemned for their way over the lands of others, and provision is made in the charter of railroad companies for the manner of condemning it and the extent to which the condemnation can go, - always upon just compensation and the mode of ascertaining it. These chartered rights, overriding as they do, the Vol. 17-No. 23.

with equal strictness be held to a rigid compliance with the law of its existence,-5 Ga. 561; 7 id., 221; 49 id., 151. But it is said that at the time this road-bed was constructed, the defendant had not erected the building in question, and that he built with knowledge that the company was entitled to condemn that part of his land whereon he did build. The reply is that the company saw fit to content itself with road-bed only. It did not even condemn under the charter that much of defendant's property, but it was either given to the company or bought by it from the defendant, or the company was permitted by a sort of tacit license to use so much of defendant's property. Was he thereby prohibited or estopped from using his own just as he chose? that which remained his and had not been touched? The company was not obliged to condemn and pay for all the width which the charter allowed the entire fifty feet. We think that he had the right to reason and believe that the company had all it wished for the exercise of its franchise, and to act upon such reason and belief, and build upon his own land not embraced within what the company had elected by its own conduct as sufficient for its use under its charter. The law favors laches in nobody. "Vigilantibus, non dormientibus, jura subveniunt” is its unvarying maxim. Certainly, in the exercise of a franchise to take another's for its own, it will not aid a sleepy corporation. the building had been where it is when the road was constructed, the land could not have been condemned. The corporation slept over its rights until the property increased in value and changed its character by being built upon, and now seeks to do what it could not have done, had it been so valuable and improved then. Besides, the authorities are to the effect that what a corporation first condemns, or buys, or takes as necessary for its franchise, it will be bound by, as its election: and the chartered rights will be thereby exhausted, so far as the then existing charter vests it with power. Mills Em. Don., sec. 258; 35 Barb., 373; 9 Paige, 323; 10 Bush., 529; 17 O., 340; 30 Me., 498; 31 N. J., Note to 1 Am. Ry Cases 147."

If