extension of time and also to a change of lots where said house was to be moved. In Alabama the fee is in the mortgagee when condition is broken, and the condition of mortgage in this case was broken when bond was made. M.

Answer. The question might be stated more definitely. As we understand it, C was unwilling to buy the house, or at least to pay for it, unless A would give a bond to remove it to C's premises. A gave him a bond, with D and F as sureties. C seems to have acted in good faith, and was under no obligation to inform D and F as to the title to the premises-in fact he had no reason to suppose that they were ignorant thereof. If A was guilty of deception toward his sureties, that cannot affect the rights of the innocent obligee of the bond. We cannot see that the sureties can claim to be discharged for the reasons stated. J.

QUERY NO. 7.

1. Has a police court of a city of the fourth-class in the State of Missouri jurisdiction to try and punish for petit larceny? Can it pass a valid ordinance fixing a penalty for that offense, and under such ordinance arrest and punish for such offense? 2. Can a police court in the State of Missouri deny defendant the right of trial by jury? Cite authorities. S.

QUERIES ANSWERED.

QUERY NO. 5 [27 Cent. L. J. 107.]

In 1887 the voters of a city of the third-class in Kansas voted to issue bonds, not to exceed $30,000, for water-works. After such election it was discovered that the value of the city would orly admit of $20,000 being issued, and these were issued. Now the value of the city will admit of the issuing of $10,000 more bonds. Can these be issued under the former election? Please give authority. S.

Answer. The additional bonds cannot be issued under the authority of the former election. Hunt v. Hamilton, 25 Kans. 76. If, however, they should be put in circulation, under certain circumstances the city might be estopped to deny their validity in the hands of a bona fide holder. Wilson v. Salamanca, 99 U. S. 499. H. W.

RECENT PUBLICATIONS.

INSANITY, its Classification, Diagnosis and Treatment. A Manual of Medicine. By E. C. Spitzka, M. D., President of the New York Neurological Society, formerly Physician to the Department of Nervous Diseases of the Metropolitan Throat Hospital, Consulting Neurologist of the Northeastern Dispensary, Neurologist to the German Poliklink. W. & S. Tuke, Prize Essay, 1st, etc. New York: E. B. Treat, 771 Broadway. 1887.

This is a work which hardly comes within our jurisdiction. It is a treatise on insanity, which is an important topic of the law, but, of course, chiefly appertains to the province of the medical profession. The work before us is by a gentlemen of eminence in the medical profession, who has made a special study of nervous diseases and those affecting the mental faculties. It is written from a strictly medical standpoint, designed for the use of medical students and addressed to them. Nevertheless, as legal practitioners are often pitiably at a loss when in course of a trial

questions of this character come up, we think that the perusal of this and similar books might tend to edification, especially as the more general subject of medical jurisprudence is so imperfectly and superficially studied by law students and so soon forgotten by legal practitioners.

JETSAM AND FLOTSAM.

THE growing cosmopolitanism of Boston University strikingly shown in the fact that its seven hundred and seventy-five matriculants last year came from nineteen foreign and from thirty American States and Territories. Among them were bearers of university degrees from no less than seventy-one American and foreign universities, colleges and professional schools. The instruction was given by one hundred and twenty professors and lecturers. The number of graduates in June was one hundred and thirty-one. From a lady who died in France last January, the institution has just received a bequest of $25,000.

A WARD statesman, whose testimony was needed in an election fraud case, was put on the witness stand. "Raise your right hand," said the court; "do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so — " "Hold up judge," interrupted the witness; "can't you mitigate that sentence just a little? You know I've been in politics for a good long while."

"THE bulk of my fortune I wish to bequeath to my scapegrace nephew George," said the dying man. "Why, it was only yesterday he called you an old skinfliut," said the lawyer. "I'd cut the boy off." "That's all right," replied the testator. "You make the will out the way I tell you. I know enough about wills to know that if I leave him all the money he won't get a cent of it."

CLIENT (to pension lawyer): Do you s'pose you can get a pension for a man who was wounded at the battle of Gettysburg?

Lawyer: Certainly; were you there?

Client: Yes, sir; last night I sprained my leg coming down the steps.

JUDGE (to jury): Have you agreed upon a verdict? Is the prisioner guilty or not guilty of theft, as charged in the indictment. Foreman: We have not yet reached a verdict your honor. I missed my pocket-book in the night, and I would respectfully ask that each juror be searched.

SELF DEFENSE.-"Did you kill the dog in self defense?" asked a lawyer of a colored defendant who Was testifying in his own behalf. "No Sah! I shot him as he was climbing de fence, and he fell over de fence."

ST. LOUIS, AUGUST 17, 1888.

CURRENT EVENTS.

WIFE BEATING-CORPORAL PUNISHMENTECONOMY.-We took occasion in a former number of this JOURNAL1 to comment on the primeval practice of corporal punishment, which we believe lingers only in the State of Delaware. It was suggested that there should be a return to the ancient institution of the whipping post for the punishment of certain nefarious criminals, notably the miscreants who beat their wives.

We opposed the proposal, because we think that such a punishment so long disused and so degrading, although richly deserved by the culprit, would reflect unmerited disgrace upon his injured wife and innocent children. John Tobin, the dramatist, says:

"The man that lays his hand upon a woman Save in the way of kindness, is a wretch Whom 'twere gross flattery to name a coward." The legislature of New Mexico has improved upon this dictum by adding, in effect, that such a creature is also a felon. It has enacted that an assault by a husband upon his wife shall be a felony, punishable by imprisonment in the penitentiary for a term of not less than one, nor more than five years. This line of legislation is liable to serious criticism. The punishment is scarcely, if at all, less disgraceful than that of the whipping post; it is long continued, and for years the family of the convict is deprived of the aid, such as it may be, which his labor may add to its support. No doubt in many cases the room of the delinquent is better than his company, and his enforced absence in the service of the State, howsoever protracted, is a relief and a blessing; but in many other cases the family is so poor, helpless and dependent, that even so broken a reed as a brutal or drunken husband and father is better than no staff at all.

The subject is not only painful but difficult. To treat wife beating as assault and battery of an aggravated character is inefficient unless the imprisonment is protracted, and in that case the objection we have al126 Cent. L. J., 169. VOL. 27-No. 7.

fully applicable; the whipping post and the penitentiary are too disgraceful, and the question remains, what is the best mode of punishing men who beat their wives?

We think that for the punishment of all offenses of this character, where the wife or any member of the family of the culprit is the victim of the crime, there should be work-houses provided, in which the offenders should be kept at hard labor and all proceeds of their toil be devoted to the maintenance of their families, thus by the strong hand of the law, compelling them to perform their duty. The system should be as free as possible from the external indicia of disgrace, a distinctive prison garb should be dispensed with, shackles should be resorted to only in case of the direst necessity, and no punishments of a degrading character inflicted in the prison. As far as possible, which, however, it is to be feared is not very far, the disgrace of the punishment should be averted from the innocent sufferers, and courts would be free to inflict condign punishment upon the guilty, being relieved of any compunctious visitings of conscience, lest the innocent would also suffer by their action.

The chief objection that could be made to this system is specious, and apparently conclusive. It is that such a method of punishment is too expensive, and would add greatly to the burdens of a people already, as politicians sometimes say, "groaning under the It is liable to the weight of taxation." further objection that it would introduce a species of favoritism, giving one class of convicts an undue advantage over another; and still further that it is not the function of a government to give away the people's money in charity, that the carnings of the convict belong to the State, are public money, and cannot be thus disposed of without gross injustice to the people, that supporting a family, even out of the labor of a convict husband and father, is giving away the money of the people.

In answer to this line of reasoning it may be said that the punishment of crime is one of the primary duties of a government, that it is incumbent upon the State to defray the expenses out of the money of the people; and that the earnings of convicts under

punishment are not in any proper sense the money of the people, but constitute a secondary and subsidiary fund, which the legislature may, if in its opinion policy require it, dispense with altogether. We see no reason why a legislature may not abolish the whole system of convict labor and return to the system of punishment by solitary confinement, which in the early years of this century was for a season quite a favorite mode of punishment. In other words, the people have no vested right to the earnings of convicts which is not subject to the control of the legislature, if that body should deem it good policy to change the system under which those earnings accrue, either altogether or in part.

As we intimated in a former article, there seems to be a strong impression prevalent in many portions of the country that the earnings of convicts are in a certain degree a sacred fund which no legislature can justly or safely infringe upon or diminish; that the convict should be made, at all events and at all hazards, to pay his way by his labor from conviction to liberation, and that any public officer who in any manner contravenes this principle is recreant to the responsibilities with which he has been intrusted. As we have already said, we consider this an erroneous opinion, the punishment of offenders at the sole expense of the nation is the primary duty of the State, the diminution of the expense of that punishment is a secondary consideration. If it can be done by exacting from convicts all the labor of which they are capable, the State is barely entitled to the benefit of the diminution, but the legislature in its discretion may well make exceptions from the operation of this rule of such classes of offenses as justice and public policy seem to require. And the class of cases to which this latter view is most applicable is that of convicts who beat their wives, whose labor primarily belongs to their families, so far as it may be necessary for their support, and which in no point of view can be regarded as the property of the State.

NOTES OF RECENT DECISIONS.

INSURANCE-ACCIDENT INSURANCE-SUICIDE PRESUMPTION-MURDER.-The Supreme Court

of the United States recently decided a case,' in which was involved the question whether, under its peculiar circumstances, the death of a party insured would be presumed to have occurred from suicide, accident, murder or other means. The facts of the case were that the party insured was found dead in his office with a pistol shot through his heart. Mr. Justice Harlan, in delivering the opinion of the court, said:

"There is no escape from the conclusion that, under the issue presented by the general denial in the answer, it was incumbent upon the plaintiff to show, from all the evidence, that the death of the insured was the result, not only of external and violent, but of accidental means. The policy provides that the insurance shall not extend to any case of death or personal injury, unless the claimant under the policy establishes, by direct and positive proof, that such death or personal injury was caused by external violence and accidental means. Such being the contract, the court must give effect to its provisions according to the fair meaning of the words used; leaning, however, where the words do not clearly indicate the intention of the parties, to that interpretation which is most favorable to the insured.2 The requirement, however, of direct and positive proof, as to certain matters, did not make it necessary to establish the fact and attendant circumstances of death by persons who were actually present when the insured received the injuries which caused his death. The two principal facts to be established, were external violence and accidental means, producing death. The first was established when it appeared that death ensued from a pistol shot through the heart of the insured. The evidence on that point was direct and positive; as much so, within the meaning of the policy, as if it had come from one who saw the pistol fired; and the proof, on this point, is none the less direct and positive because supplemented or strengthened by evidence of a circumstantial character. Were the means by which the insured came to his death also accidental? If he committed suicide, then

1 Travellers' Ins. Co. v. McConkey, U. S. S. C., May 14, 1888; 8 S. C. Rep. 1360.

2 Bank v. Insurance Co., 95 U. S. 678; Insurance Co. v. Cropper, 32 Pa. St. 355; Reynolds v. Insurance Co., 47 N. Y. 604; Anderson v. Fitzgerald, 4 H. L. Cas. 484, 498, 507; Fowkes v. Association, 3 Best & S. 925.

6

the law was for the company, because the policy, by its terms, did not extend to or cover self-destruction, whether the insured was at the time sane or insane. In respect to the issue as to suicide, the court instructed the jury that self-destruction was not to be presumed. In Mallory v. Insurance Co.,3 which was a suit upon an accident policy, it appeared that the death was caused either by accidental injury or by suicidal act of the deceased. But,' the court properly said, "the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person.' Did the court err in saying to the jury that, upon the issue as to suicide, the law was for the plaintiff, unless that presumption was overcome by competent evidence? This question must be answered in the negative. The condition that direct and positive proof must be made of death having been caused by external, violent, and accidental means, did not deprive the plaintiff when making such proof, of the benefit of the rules of law established for the guidance of courts and juries in the investigation and determination of facts. Upon like grounds, we sustain the ruling to the effect that the jury should not presume, from the mere fact of death, that the insured was murdered. The facts were all before the jury as to the movements of the insured on the evening of his death, and as to the condition of his body and clothes when he was found dead, at a late hour of the night, upon the floor of his office. While it was not to be presumed, as a matter of law, that the decased took his own life, or that he was murdered, the jury were at liberty to draw such inferences in respect to the cause of death as, under the settled rules of evidence, the facts and circumstances justified. We are, however, of opinion that the instructions to the jury were radically wrong in one particular. The policy expressly provides that no claim shall be made under it where the death of the insured was caused by intentional injuries inflicted by the insured or any other person.' If he was murdered, then his death was caused by intentional injuries inflicted by another person. Nevertheless, the instructions to the jury were so worded as to convey the idea that, if the insured was murdered, the plaintiff was

3 47 N. Y. 54.

entitled to recover; in other words, even if death was caused wholly by intentional injuries inflicted upon the insured by another person, the means used were accidental' as to him, and therefore the company was liable. This was error. Upon the whole case the court is of the opinion that, by the terms of the contract, the burden of proof was upon the plaintiff, under the limitations we have stated, to show, from all the evidence, that the death of the insured was caused by external violence and accidental means; also that no valid claim can be made under the policy if the insured, either intentionally or when insane, inflicted upon himself the injuries which caused his death, or if his death was caused by intentional injuries inflicted upon him by some other person. The judgment is accordingly reversed, and the cause remanded, with directions to grant a new trial, and for further proceedings consistent with this opinion."

a. Constructive Notice Derived from the Instrument Itself.

b. Question of Construction for the Court.

c. Instances of Notice from the Face of the Instrument.

d. Degree of Care Required.

1. Introductory.-It is a principle of law, settled beyond contradiction, that whoever purchases negotiable paper, before it is due, in the usual course of business, and for a valuable consideration, without notice of the existence of any equities between the maker and the payee, will hold the same free from any defenses or claims the maker may have against the payee.

2. Requisites to Constitute a Bona Fide Purchaser. It will be seen from the above statement then, that in order to clothe the

purchaser of negotiable notes or drafts with an unimpeachable title, five prerequisites must exist.

A. Must be Negotiable Paper.-First, the paper must be what is known in law as negotiable paper. This is ordinarily said to be a simple promissory note, made payable to A B "or bearer," "or order," "or assigns." Were the parties always satisfied with this simple designation in the ordinary promissory note, and not encumber it with some outside matter, the question as to whether a certain instrument was negotiable or not, would be one of very easy solution, but such is not the case, hence the trouble. It has been decided that a stipulation for collection expenses would destroy its negotiability,' as would the attachment of a seal,2 or the uncertainty of the amount.3 The question whether or not a stipulation for the payment of attorney fees will destroy the negotiability of an otherwise negotiable instrument, is a very much mooted question, there appearing in this journal no less than three leading articles, a prominent notice on current topics," and numerous other cases. There is also an article on a kindred subject by a very able contributor.7

4

B. Must be before the Instrument is Due.Secondly, the purchase must be made before the pote is due. The instrument usually shows the fact, and it is one which is generally easy of solution. In this connection, however, it is well to remember that a purchase made on the last day of grace will be held to have been made before the instrument was due. It has also been held that a bill of exchange was not past due until after it had been presented for payment." Likewise, where a note is due on demand, or one day after date, it is not past due until a

1 Morgan v. Edwards, 14 Cent. L. J. 33.

2 Brown v. Jordhal, 19 N. W. Rep. 650.

3 Miller v. Page, 15 Cent. L. J., 137, dig.; Smith v. Marland, 15 Cent. L. J., 437, dig.

4 E. Vanlise in Vol. 14, 286; E. G. Taylor in Vol. 14, 86; J. N. Payne in Vol. 17, 282.

5 Vol. 12, 337; Vol. 16, 241.

6 Maryland v. Newman, 18 Md. 19; First National Bank v. Laiser, 18 Wis. 399; Trader v. Chidester, 19 Wis. 318; Janes v. Radolz, 11 Wis. 512.

7 "Stipulation to Pay Exchange Fees," etc., by Adelbert Hamilton, Vol. 17, 146.

82 Am. & Eng. Ency. of Law, 398; Continental Nat. Bank v. Townsend, 87 N. Y. 8.

92 Randolph on Commercial Paper, 701; Swan's Treatise, 725-733.

reasonable time has elapsed after its date.10 C. Must be in Usual Course of Business.— Third, the purchase must be made in the "usual course of business." If it has been made out of the usual course of business and under circumstances sufficient to impart notice of defects, it will not be a purchase free from the existing equities." The paper must be actually delivered to the purchaser, as mere promise to deliver it in the future will not do.12 Not only delivery, but indorsement is necessary to constitute the holder a purchaser in the ordinary course of business, 13 unless the paper is payable to bearer; 14 and where the note is held by a bank or other corporation the indorsement must be made by the duly authorized officer. 15 And it will not be due course of business if the note is delivered before and indorsed after maturity, 16 or transferred before and indorsed after maturity. 17 A purchaser of a note after its maturity, under an execution against a collecting agent, will not be in the ordinary and due course of business. 18

D. Must be for a Valuable Consideration. -Fourth, a valuable consideration must be paid for the note. The inadequacy of the consideration is immaterial, except as evidence of bad faith. 19 By the "usual course of trade" is meant a transfer according to the usages and customs of commercial transactions.20 and the purchase of negotiable paper by a bank at its counter for cash is receiving the paper in the usual course of trade, whether its fair or reasonable value was paid or not.21 Gross inadequacy is ad

missible in order to show bad faith in the purchaser.22 And it is said by leading au

10 Parker v. Stalling, 1 Philips, 590.
11 Moore v. Moore, 39 Iowa, 466.
12 Russell v. Scudder, 42 Barb. 31.

13 Sturges v. Miller, 80 Ill. 241; Allum v. Perry, 68 Maine, 232; Boody v. Bartlett, 42 N. H. 555; Gibsom v. Miller 29 Mich. 355; Losee v. Bissell, 76 Penn. St. 459.

14 Norton v. Pickens, 21 La. Ann. 575.

15 Smith v. Lawson, 18 W. Va. 212.

16 Lancaster v. Taylor, 100 Mass. 18. 17 Southard v. Porter, 43 N. H. 379.

18 McCormack v. Williams, 54 Iowa, 50.

19 Tod v. Wick, 36 Ohio St. 370; Cromwell v. County of Sac, 96 U. S. 60; 2 Parsons N. and B, 428; 1 Daniel on Neg. Inst., § 777.

20 1 Daniel on Neg. Inst., § 780.

21 Tod v. Wick, 36 Ohio St. 392.

221 Dan. on Neg. Inst., § 628; 1 Edwards, § 452; Story on Prom. 197; 2 Randolph on Com., § 992.