22.

specified that the lessees should keep the premises "clean," and that they should not be occupied for a saloon or meat market. Held, that the agreement to keep the premises clean was not qualified by an implied right on the part of the lessees to use the premises for any purpose, however foul in itself, excepting only those occupations mentioned. A.finding by the court that the condition of the lease had not been broken, held, contrary to the evidence.-Clementson v. Gleason, S. C. Minn., Nov. 22, 1886; 30 N. W. Rep. 400.

Railroad Land-Notice of Forfeiture— Lease-Emblements,-One S took an assignment of a contract or purchase of certain railroad lands, and rented said lands to a tenant for a share of the crops. The contract of purchase contained a provision that, in case of the failure of the purchaser or his assignee to make payments thereon, "and each of them, punctually and upon the strict terms and times above limited, and likewise perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally, without any failure or default, so far as it may bind said first party, shall become utterly null and void." Held (1), that the rights of the vendee did not terminate until there was an actual forfeiture; (2) that where the vendee had been in default for a number of years, and had by his tenant sowed a crop before a forfeiture of his estate in the land, such forfeiture before the crops were ripe did not deprive him of his interest in such crops.-Sornborger v. Berggren, S. C. Neb., Nov. 24, 1886; 30 N. W. Rep. 414.

23. LANDS-Public Lands-Grants to Kansas for Railroad Purposes — Union Pacific Railroad — Neosho Valley Branch-Title to Lands.-The acts of congress of March 3, 1863, July 1, 1864, and July 26, 1866, granting lands to the State of Kansas for railroad purposes, are to be construed in pari materia, and as having the one purpose of building a road from Fort Riley, down the Neosho valley, to the southern line of that State, and not as distinct grants for different roads, which may come in conflict in the claims under them in regard to the lands granted. The junction of this road with the one from Leavenworth, by way of Lawrence, in the direction of Galveston bay, as provided in the act of 1863, was not required to be on the very crest of the Neosho valley, as reached by the latter road, but at a convenient point for such crossing in the narrow valley of the Neosho river; and as this point has been adopted by the companies building both roads, and accepted by the officers of the land department in selecting indemnity lands, there is no sufficient reason to be found in the point of junction to vacate the certification of these lands to the State for the company which has built the road and received the patents of the State. Nor is there any other sufficient reason found in the record in this case for setting aside the evidence of title to these lands issued to the corporation which built the roads within the time required by law, to the approval of the officers of the government, whose primary duty it certify these lands, and who did so within the scope of their powers.-Kansas City, etc. Co. v. Brewster, Atty. Gen., S. C. U. S., Nov. 8, 1886; 7 S. C. Rep. 66.

was to

24. LIBEL-Pleading-Innuendo Publication-Con

struction-Justification-Notice-Order of Proof -Rulings on Immaterial Issues-General Statements of Misconduct.-In an action for libel, the office of an innuendo is to aver the meaning of the language published; if the meaning of the publication is plain, none is needed. The use of it can never change the import of the words, nor add to nor enlarge their sense. It is not needed where the common understanding takes the published words and at once applies a libelous meaning to them. The office of pleading is to make clear and certain the matters set forth and complained of; and when a publication claimed to be libelous has a clear and certain meaning upon its face, there can be no better pleading than to set out the article in terms and in full, when all of it is pertinent to the issue; and the addition of an innuendo, when none is necessary, can add nothing to a clear perception of its meaning, but tends rather to cumber and obscure it. A publication which charges plaintiff with gross misconduct in office, with arresting and hand-cuffing men without right, and oppressing the poor and friendless under color of office, is plainly libelous, as holding plaintiff up to the scorn and aversion of the public. If there is any doubt as to the meaning of the publication, so that extrinsic evidence is needed to determine its actionable or non-actionable character, it is then a question for the jury, under proper instruction from the court, to find its signification. If the article, standing alone, is plainly libelous, or manifestly wanting in any defamatory meaning, it is the duty of the court to so declare and instruct the jury accordingly. Where the notice of justification contained no specific averments, and was confined to the statements in the libel concerning the plaintiff, it was not competent, either in justification or mitigation, to prove another act, not mentioned in the libel, and not justified; and testimony offered for this purpose was properly ruled out. While the order of proof is sometimes discretionary, it is not a safe practice to call upon a court to pass upon a proposed statement of fact which is irrelevant, unless shown to apply to the plaintiff, without at least laying the foundation by showing that the witness can answer as to its application. The practice of allowing parties to get rulings on matters of which the witness may know nothing, or may know nothing relevant-as where, without laying a foundation, plaintiff's counsel twice proposed to let witness answer whether plaintiff arrested him-is a practice which deserves no favor. The practice is settled that it is not competent to prove distinct facts in defense, which have not been made part of the issues as framed. General statements of misconduct are not actionable.-Bonresseau v. Detroit Evening Journal Co., S. C. Mich., Nov. 4, 1886; 6 West. Rep. 151.

25. MALICIOUS PROSECUTION-Evidence-Character of Defendant-Damages-Attorney's Fees.In an action for malicious prosecution, evidence of the bad character of the defendant for peace and quietude is not admissible in chief, although it appears that the original prosecution grew out of a personal collision between the parties. In an action for malicious prosecution, the plaintiff may prove, as an element of damages, the amount of expense incurred for attorney's fees in defending the criminal charge, without showing that the

same has actually been paid.-Walker v. Pittman, S. C. Ind., Nov. 23, 1886; 9 N. E. Rep. 175. 26. MALPRACTICE-Burden of Proof-Evidence of Professional Reputation.-In a suit against a physician for malpractice in treating a fractured leg, the burden of proof to show want of proper skill is on the plaintiff; and in such a case, while the skill of the defendant, or the want of it, is put in issue, his reputation in that respect is not put in issue, and evidence to establish it is properly excluded.-Holtzman v. Hoy, S. C. Ill., Nov. 13, 1886; 8 N. E. Rep. 832.

27. MORTGAGE-Rights of Mortgagee-Mortgagee in Possession-Application of Rents and Profits -Contract Affecting Judgment ReversalFailure to Find on Issue Raised.-A mortgagee in possession may, under contract with the mort gagor to that effect, apply the rents and profits of the mortgaged premises, in excess of the interest due on the mortgage debt, to the payment of unsecured indebtedness due or to become due from the mortgagor to the mortgagee. A judgment rendered upon a finding of the truth of the allegations of a cross-complaint, without any findings on the issues raised by the answer to the original complaint in the action will not be sustained, when the allegations of the cross-complaint do not cover the issue thus raised. Demick v. Cuddihy, S. C. Cal., Dec. 7, 1886; 12 Pac. Rep. 287. 28.

Foreclosure - Death of Defendant No Revival-Decree and Sale Void-Guardian and Ward-Plaintiff's Attorney Guardian ad Litem of Infant Defendant.-Where a defendant in an action for the foreclosure of a real-estate mortgage dies during the pendency of the cause, and a decree is obtained, and sale had under it, without suggesting the death of such defendant, nor reviving the suit against his heirs, such sale is a nullity; nor could a revival occur until such suggestion is made. The appointment of the attorney of plaintiff as guardian ad litem for an infant defendant is wholly unauthorized; nor does it help the matter that the plaintiff and one of the adult defendants consented of record to such appointment. Sargeant v. Rowsey, S. C. Mo., Nov. 15, 1886; 1 S. W. Rep. 823.

29. PARTNERSHIP-Liability of One Holding Himself Out as Partner-Instruction-Verdict Rendering Refusal Immaterial-Necessity of Requesting Instruction Evidence Admissible for One Purpose, and not for Another.-An instruction of the court, in an action seeking to hold two defendants liable as partners, that if the jury believe from the evidence that defendants represented themselves to be partners, and thereby induced plaintiffs to sell them goods, they would be liable as partners, whether so in fact or not, is correct, and not objectionable as being an instruction upon the weight of evidence. If two defendants are found liable by the verdict, it is unimportant that the court refused to give instructions asked in relation to the result which would follow if only one of them should be found liable. If evidence is admitted which is admissible for one purpose, but not for another, a party desiring that it should be excluded from the consideration of the jury, so far as the latter purpose is concerned, should ask an instruction to that effect. Walker v. Brown, S. C. Tex., Oct. 26, 1886; 1 S. W. Rep. 797.

Settlement

· Mistake

ments-Issues Formed Evidence.-Before the rejoinder was filed issues had been formed upon all the matters in controversy, and there was no averment contained in the rejoinder which required to be traversed, or that could be taken as confessed by reason of failure to deny it. Held, that it was not error to disregard the averments contained in the rejoinder. After a settlement had been made between three partners in the cattle business, A, B, and C, by which a certain amount was found due from A and B to C, A and B sought to avoid the same on the ground of a mistake made in the settlement in failing to credit them with the full amount paid out by them in the purchase of cattle. They showed checks representing the sums claimed to have been thus omitted, which aggregated between $14,000 and $16,000, but no book-entries. A and B were engaged, at the same time, under the same firm name, but independently of C, in buying sheep and hogs. The number of cattle bought by A and B on the one hand, and by C on the other, was known, and a computation, based upon the amounts now claimed to have been paid out by A and B, as compared with the amounts claimed to have been paid out by C in the purchase of cattle, showed the average price per head paid by A and B to greatly exceed that paid by C. Held, upon this evidence, that a finding of the lower court supporting the settlement in the respects mentioned should be sustained. Dixon v. Ford, Ky. Ct. App., Nov. 20, 1886; 1. S. W. Rep. 817.

31. PAYMENT-Promissory Note-Fraud Against Creditors.-A creditor who has accepted in payment of a debt, a note which is void because given under an agreement which is in fraud of creditors, may maintain an action upon the original debt, and the defendant cannot set up as a defense the illegality of the agreement made between himself and the plaintiffs. Walker v. Mayo, S. J. C. Mass., Nov. 23, 1886; 8 N. E. Rep. 875.

Stranger.

32. PRACTICE - Affidavit of Defense · Where an affidavit of defense is made by a stranger, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability on the part of the defendant existed, which prevented him from making the affidavit himself, and the circumstances giving rise to it. An affidavit of defense filed by one styling himself "attorney for the defendant," and alleging that he transacted all the business in the case and has full knowledge, etc., will not be received. Griel v. Buckius, S. C. Penn., Oct. 4, 1886; 4 Cent. Rep. 507.

33. PROMISSORY NOTES Liability of Outside Party Signing on Back. - A promissory note, payable to M or order, was delivered to the payee, who indorsed it in blank, and offered it to R in part payment for property purchased. R declined to take it without the signature thereon of C, a stranger to the note. C thereupon, before the maturity of the note, and to give it credit, signed his name under the indorsement of the payee, and the note was then taken by R. Held, that C was an unconditional guarantor, and that the owner and holder of the note had a prima facie right of recovery against him, without proof of demand and notice. Castle v. Rickly, S. C. Ohio, Dec. 7, 1886; 9 N. E. Rep. 136.

35. TRESPASS- To Real Property Measure of Damages. Where defendant, without malice or oppression, has entered upon plaintiff's lot without consent, and opened trenches and laid waterpipes through said lot, the rule for ascertaining the true measure of damages, in an action of tres: pass therefor, is that plaintiff may recover as damages the sum required to put the premises in as good condition as they were in before the injury, with compensation for the use and enjoyment thereof, if he should be deprived thereof by the injury, and the value of such property, e. g., trees as cannot be restored to its former condition. Graessle v. Carpenter, S. C. Iowa, Dec. 3, 1886; 30 N. W. Rep. 392.

36.

To Try Title-Intervenors - Joint Judgment-Error – Who Shall Join in · Aliens-Inheriting Lands-Defeasible and Indefeasible Titles -Foreign Law-Texas Acts of March 18, 1848, and February 13, 1854-Deed-Proof of Execution-Subscribing Witnesses-Erasure in NameHusband and Wife-Community Property-Presumption Rebutting Principal and Agent Power of Attorney Revocation-Death- Construction of To Recover Interest of Heirs — Estoppel-Deed-Warranty-After-Acquired Title. -If, in trespass to try title to real estate, third persons intervene, setting up a claim of title derived through the plaintiffs, a judgment in favor of plaintiffs, and against intervenors and defendants, although joint in form, is not so in substance. and the intervenors and defendant therefore, need not join in a writ of error. Section 9, of Texas act of March 18, 1848, (Paschal, Dig, art. 44,) allowing alien heirs nine years in which to naturalize, or to sell land inherited by them, before they shall forfeit it, is not repealed by the act of February 13, 1854, providing that aliens shall enjoy in Texas the same rights as are accorded to Americans in their country under the laws and treaties thereof, the latter expressly repealing the former only so far as inconsistent therewith. Under the former act, alien heirs by the law of whose country aliens cannot inherit real estate, obtain a defeasible title to lands in Texas good for nine years at least, and which will ripen into an indefeasible title, if, before the expiration of the nine years, the law of their country is so changed as to enable aliens to inherit. A deed executed abroad is properly proved by testimony that the grantor and subscribing witnesses reside abroad, and that the testifying witness is acquainted with the handwriting of one of the subscribing witnesses, and believes that appearing on the deed to be genuine. Erasures changing the name of the grantor from Elizabeth to Eliza are sufficiently explained by showing the identity of the two. Although, by Texas law, property purchased during marriage is prima facie community property, whether the conveyance be to the husband or wife, yet the presumption may be rebut

ted, in case of a conveyance to the wife, by proof that the consideration was nominal, and that the conveyance was intended as a gift to the wife. A power of attorney given by three persons is, by the death of two of them, revoked at least as to the two. A power of attorney to recover the interest of heirs in an estate, and, for that purpose, to do all acts that may be necessary, including the execution of conveyances, does not empower the agent to give away lands inherited by the donors of the power. A warranty deed of the grantor's "right, title, and interest in and to" certain described premises will not convey an after-acquired title, if the deed recites the title then possessed by the grantor, or contains no recital as to the character of his title. Hanrick v. Patrick, S. C. U. S., Nov. 29, 1886; 7 S. C. Rep. 147.

37. VENDOR AND VENDEE-Evidence ExaminedNotice of Prior Sale Estoppel Principal and Agent-Equity-On the facts stated in the opinion held, that the appellent had no contract for the purchase of the real estate in controversy. At the time of the attempted purchase the appellant had notice of the prior sale of the premises to a third party, and, could acquire no title as against such party, where the sale was bona fide. A purchaser with notice is liable to the same equity, and is bound to do that which the person he represents could have been required to do but for the conveyance. Whitehorn v. Cranz, S. C. Neb., Nov. 24, 1886: 30 N. W. Rep. 406.

38. WILL. Construction - Independent Clauses· When Subsequent, will not Control-Life-Estate in Widow-When Law Will not Imply.-Where an interest or estate is given by one clause of a will in clear and decisive terms, it cannot be taken away or cut down by inference from the terms of a subsequent clause, nor by any subsequent words not as clear and decisive as the words of the clause giving such interest or estate. The rule that, where a devise to an heir of the testator is to take effect only upon the death of testator's wife, the wife takes a life-estate by implication of law, is not applicable where the terms of the will show that the devisee is entitled to possession immediately upon the death of the testator. Bailey v. Sanger, S. C. Ind., Nov. 19, 1886; 9 N. E. Rep. 161.

39.

Construction of - Widow and ChildrenTrusts-Where a testator bequeathed and devised his estate in these words: "I bequeath to my beloved wife, E, all my property, real and personal, to be solely under her care and management, in trust for the benefit of mine and her children. She may distribute it at any time, and in any manner, that she may think proper." The will was admitted to probate, and E elected to take under its provisions. Held, (1) that E takes the entire legal estate; that she is entitled to the use of the property for her own benefit, and is legally responsible only for the original amount, the principal; (2) that the children are entitled to equal benefits in the distribution of the devised estate; and, (3) it appearing that the property is being disposed of in a manner inconsistent with the execution of the trust, the widow will be required to make a showing regarding the property, and to give bond, failing to do which, a trustee will be appointed by the court. Cassidy v. Hynton, S. C. Ohio, 1886; 8 N. E. Rep. 129.

40. WILLS Fee Power of Disposision - Rule in Shelley's Case-Remainder to Heirs.-A devise of the beneficial interest to parties named, with a power to the executors to sell and convert at their discretion, for the interest of the beneficiaries, invests the executors with the fee. A devise to be secured to devisee so that she shall enjoy it during her natural life, and after her decease, then to her "right heirs" forever, is directly within the rule in Shelly's case, and vests a fee in the first taker. Wicker v. Ray, S. C. Ill., Nov. 13, 1886; 8 N. E. 835

QUERIES AND ANSWERS.*

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

Query No. 1.-A owned a hotel called the O House. He leased it for five years to B, who named the hotel the L House. B put up his sign across the sidewalk, "L House," and painted the same on the face of the mansard roof. The hotei became well-known and a resort as the "L House," in B's hands. The lease is about to expire, and B buys another hotel in the same town and has named it the L House. He contends the sign was and is his, that his success as a hotel man gave it its value and he threatens to deface and take down the old "L House "signs from the old hotel when he moves out and intends to paint that sign on his new one. The owner of the old house objects and refuses to allow this. Whose is the better right? All in Tennessee; answer at once, urgent.

QUERIES ANSWERED.

Query No. 19. [23 Cent. L. J., 251.]-Under Code of Geogia, §§ 2598, 2599, any person interested as distributee or legatee, may cite the administrator to appear before the ordinary for a settlement of his accounts; or, if the administrator chooses, he may cite all of the distributees to be present at the settlement.

Upon proof of such citation by a distributee, the ordinary may proceed to make an account, and settle finally between the distributee and administrator, and enforce the same by execution or by attachment for contempt. Courts of ordinary have general jurisdiction over testate and intestate estases. Under these provisions, on a citation by the executor, to one of the legatees, a Lon-resident of the county, has the court of ordinary jurisdiction to render judgment against said legatee for money overpaid him, by said executor, and enforce it either of the ways mentioned? G. W. A.

Answer.-The executor has no right to overpay a distributee, and any such payment made by him is a devastavit, and in contemplation of law such money is still in his possession. Consequently, the court must order the distribution as though the executor still had the money. The process referred to can be used against an executor but not against a legatee. Davis v. Bagley, 40 Ga. 181.

RECENT PUBLICATIONS.

THE AMERICAN DECISIONS containing the Cases of General Value and Authority Decided in the Courts of the Several States from the Earliest Issue of the State Reports to the Year 1869. Complied and Annotated by A. C. Freeman, Counsellor at Law, and Author of "Treatise on the Law of Judgments," "Co-tenancy and Partition," "Executions in Civil Cases," etc. Vols. LXXVII, LXXVIII, LXXIX, and LXXX. San Francisco; Bancroft-Whitney Company, Law Publishers, Booksellers and Stationers, 1886.

We have now before us four volumes of this excellent series of reports, and yet we can say very little in addition to what we have heretofore said in commendation of former volumes of the series. The compilation leaves Lothing to be desired. The arrangement is in all respects excellent, and, above all, the notes of the learned editor are of themselves worth more than the cost of the volume in which they appear. These volumes bring down the decisions to the year 1861, leaving only the cases decided during eight years to complete the series which,by the plan of the work,is to close with the year 1869. It is hardly necessary to add that, in accordance with their invariable customs, the publishers have done their whole duty in these volumes, which are, in a typographical sense, perfect.

JETSAM AND FLOTSAM.

SHE was posted in law, and she would have no more nonsense, "I am a lawyer's daughter, you know, George, dear," she said, after George had proposed and been accepted, "and you wouldn't think it strange if I were to ask you to sign a little paper to the effect that we are engaged, would you?" George was too happy to think anything strange just then, and he signed the paper with a trembling hand and a bursting heart. Then she laid her ear against his middle vest button, and they were very, very happy. "Tell me, darling," George said, after a long, delicious silence, "why did you want me to sign that paper? Do you not repose implicit confidence in my love for you?" "Ah, yes," she sighed, with an infinite content, "indeed I do; but, George, dear, I have been fooled so many times."

A

A DISTINCTION WITHOUT A DIFFERENCE. woman recently occupied the witness stand in Belfast, Me., who was a match for the lawyers. She was a witness in the pauper case between Liberty and Palmero, and had been a pauper in the latter town. On cross-examination the attorney asked her if she was a pauper on the town. "I was a liability," said the woman. "You were a pauper," said the attorney. "I want you to understand," said the woman, firing up, "that poor people are not paupers, they are liabili ties."

ST. LOUIS, JANUARY 14, 1887.

CURRENT EVENTS.

tions are only occasionally judicial, as to those who are presumably deficient in literal discretion.

THE MEASURE OF PUNISHMENT.-We have before us the report of the acting judge-advocate-general of the U. S. Army to the secretary of war. Among other interesting matter we find a suggestion that there should be legislation designed to regulate and equalize punishment for military offenses. In illustration are given two cases of soldiers convicted by garrison courts-martial, at different posts, of drunkenness when on duty, and without mitigating circumstances. The graver offense was punished by imprisonment with hard labor for one month; the lesser offense by like imprisonment for six months. The term of imprisonment, we infer, is, by the present military law, only limited by the discretion of the court-martial. We think the reform suggested by the judge-advocate might well be transplanted into the ordinary administration of criminal law. Between the maximum and the minimum of punishment prescribed by our penal codes for misdemeanors, there is necessarily a margin within which may be exercised the discretion of the court or magistrate, and this debatable ground should be carefully limited and circumscribed to prevent, as far as possible, undue leniency on the one hand, or gross oppression on the other. From the carelessness of legislators, or from some other cause, there has been too little attention paid to this subject and we frequently hear of magistrates abusing the discretion which the law confers upon them, sometimes in one direction and sometimes in the other. In England, as we learn from our exchanges, there has been, and still is practiced, especially by justices of the peace, the very grossest abuses of judicial powers, heavy punishments being inflicted for minor misdemeanors, and those charged with graver crimes escaping with an almost nominal retribution. Under the most favorable circumstances, and employed by the highest judicial officers, judicial discretion is one of the edgetools of the law, and its powers should be as Vol. 24-No. 2.

INDIAN NATIONS-AND INDIAN COURTS.-The government of the United States and its general polity is quite symmetrical compared with the systems prevalent in the old world. There are, however, several anomalies in the relations of the government to large bodies of people subject to its sway, to-wit: Indian tribes and Indian nations. These people are

not citizens, nor are they in every sense subjects. Some of them as "Indian Nations " have been vested with a certain measure of autonomy, which is in some respects less distinctly defined than it should be.

We are led into this line of reflection by a newspaper report of a recent decision of United States District Judge Parker, at Fort Smith, Ark., in a habeas corpus case. It seems that a white woman of Missouri, some years ago had the bad taste to marry a Pawnee Indian; that she and her husband were citizens of the Cherokee nation of Indians; that she was left a widow with several children, and that she was a person of unblemished character. Nevertheless she was accused of setting fire to a school house, indicted in an Indian court, convicted, and sentenced to ten years imprisonment in the Indian penitentiary. According to the newspaper, the Indian procedure seems to have been primitive if not barbaric. Mrs. Dougherty was denied the assistance of counsel and the privilege of introducing witnesses to prove on alibi, and her conviction was apparently effected by what is sometimes termed in country parlance, "main strength and awkwardness." The question before Judge Parker was, however, one of jurisdiction: If the Indian tribunal had jurisdiction of Mrs. Dougherty's person she was in lawful custody, and however that court may have abused its powers the courts of the United States were powerless to protect her.

Judge Parker, however, solved the problem by deciding that by reason of Mrs. Dougherty's American birth and original citizenship, she was not amenable to the jurisdiction of the Indian courts. Now, we have no doubt that she was innocent, our gallantry utterly pro