due to the town.-Gage v. Dudley, S. C. N. H., March 16, 1888: 13 Atl. Rep. 865.

276. TAXATION-Tax-deed.A treasurer's deed for land sold for taxes is valid, although acknowledged after the treasurer's term had expired.-Herron v. Murphy, S. C. Penn., May 7, 1888; 13 Atl. Rep. 958. Tax-sale- Redemption.

Con. 277. TAXATION struction of Minnesota statutes relative to taxation, tax sales and redemption.-Jewell v. Truhn, S. C. Minn., May 22, 1888; 38 N. W. Rep. 106.

278. TAXES-Sales-Advertising. The board doing the county business has the power and duty to designate the newspaper in which tax sales shall be advertised.-State v. Dixon County, S. C. Neb., April 25, 1888; 37 N. W. Rep. 936.

279. TELEGRAPH COMPANIES - Negligence - Time of Presenting Claim.The provision on a telegraph blank that any claim for damages for delay in delivering the message must be presented within thirty days is reasonable and binding on the sender.- Western U. Tel. Co. v. Dunfield, S. C. Colo., April 27, 1888; 18 Pac. Rep. 34.

280. TENANTS IN COMMON-Rents. A joint lessor has a right to collect the rent from the lessee and apply the same to the payment of a mortgage due by the lessors. He has no right to apply the rents so collected to the payment of an indebtedness of his joint lessor to lessee in a company in which both are stockholders.Miner v. Lorman, S. C. Mich., May 11, 1888; 38 N. W. Rep. 18.

281. TENDER-Condition.

To maintain an action for the payment of money upon a lease under an agree ment, a tender of the lease must be actually made.Nelson v. Nelson, S. S. C. Iowa, May 14, 1888; 38 N. W. Rep. 134.

282. TORT-Married Woman. -The act of Pennsyl vania which provides that a married woman may sue or be sued for tort does not authorize the arrest of such a woman on a charge of tort.-Whalen v. Gabell, S. C. Penn., May 7, 1888; 13 Atl. Rep. 941.

283. TRESPASS-Executor De Son Tort-Statute. A deed by an executor de son tort is sufficient to support an action for trespass quare clausum fregit by the grantee, under the timber statute of Pennsylvania.Keizer v. Beemer, S. C. Penn., April 30, 1888; 13 Atl. Rep. 909.

284. TROVER AND CONVERSION-Accession.A sued B for the conversion of lumber. It appeared that C had cut and removed saw logs from A's land, which he sold to B, who manufactured them into lumber without knowledge of the plaintiff's title or of the trespass committed. The value of the lumber was more than double the value of the logs: Held, that A could not recover.- United States v. Kelly, S. C. Wash. Ter., Jan. 25, 1888; 17 Pac. Rep. 878.

-Where land is conveyed,

285. TRUST-Revocation.and the grantee executes a mortgage back upon it to secure the support of the grantor and his wife during their life, and that the mortgagor will at their death pay a certain sum to each of three children, or if not living to their heirs: Held that, one of the children having died, leaving heirs, the trust in favor of those heirs could not be defeated by any agreement between the grantor and the mortgagor.-Sargent v. Baldwin, S. C. Vt., May 14, 1888; 13 Atl. Rep. 854; 6 N. Eng. Rep. 253. 286. USURY-Transfer of Notes.- A loaned small sums of money to B, taking notes payable to himself, his wife and to a third party, receiving large sums in excess of legal interest. At the close the balance due was included in a note to A's wife: Held, that B might make any defense to this note that he might have made to the loans if this note had not been given.-Robbins v. Muldrow, S. C. Kan., April 7, 1888; 18 Pac. Rep. 64.

287. VENDOR AND VENDEE-Escrow-Canceling Deeds.

A deed was deposited with A as an escrow, to be delivered when the balance of the purchase money was paid. A third party brought suit to recover an undivided interest in the property conveyed. The vendee

paid the money to A, but obtained an injunction to prevent the vendors from demanding the money so paid and to prevent them from canceling the deed· Held, there was no abuse of process, and the vendors were not thereby entitled to cancel the deed.-Atkinson v. Tabor, S. C. Colo., April 27, 1888; 17 Pac. Rep. 905. 288. VENUE-Jurisdiction. An order changing a venue in a civil case confers jurisdiction on the court to which the case is transferred, and is not reviewable upon appeal from an order refusing to set aside a judgment rendered by that court.-Joerns v. La Nicca, S. C. Iowa, May 12, 1888; 38 N. W. Rep. 129.

In an

289. WASTE-Action Possession of Land.action to recover treble the value of trees and timber cut and taken from land, the possession of the land by the plaintiff is not, under Kansas laws, a prerequisite to his right of recovery.-Arn v. Matthews, S. C. Kan., May 4, 1888; 18 Pac. Rep. 65.

290. WASTE-Life Tenant-Life Estate. One who, under a contract with a life tenant of land, cuts timber from that land which, if cut by the life tenant himself, would have been waste, commits waste, and is liable therefor.-Dorsey v. Moore, S. C. N. Car., April 30, 1888; 6 S. E. Rep. 270.

291. WATERS Appropriation. Prior appropriation of the waters of a stream to a useful purpose gives the better right to the tributaries and all direct and immediate sources of supply of the stream.— -Malad, etc. Co. v. Campbell, S. C. Idaho, Feb. 20, 1888; 18 Pac. Rep. 52. 292. WILL-Construction.— -Under a will which directs that the testator's estate shall "be distributed among his heirs, to-wit: J B, the children of C B, Jr., etc.," the grandchildren take as representing their parent, and not per capita.-Eyer v. Beck, S. C. Mich., May 11, 1888; 38 N. W. Rep. 20.

293. WILL-Construction-Descent and Distribution.— Where a testator by will gives to T one-sixth of the share that by law would come to his mother, J, and directs that the remainder of J's share shall be divided among his brothers and sisters: Held, that the will only disposed of the share of J, and testator died intestate as to the remainder of his estate, and in that J was entitled to share in right of his mother.-Appeal of Ellis, S. C. Penn., April 23, 1888; 13 Atl. Rep. 905.

294. WILL-Construction-Estate. A testator devised an estate to trustees to hold for the use of his son C for life, and after his death to the use of such of C's children as C shall appoint. C died, leaving one son, born after the testator's death: Held, that that son took the remainder in fee, and not a conditional fee.-Appeal of Pepper, S. C. Penn., April 30, 1888; 13 Atl. Rep. 929.

295. WILL-Construction-Lapse of Time.- -Circumstances stated under which it was held that a demand for a legacy, which should have been paid fourteen years before, was held to be barred, there being no evidence rebutting the presumption of payment from lapse of time.-Appeal of Phillips, S. C. Penn., April 30, 1888; 13 Atl. Rep. 906.

296. WILL-Lapsed Legacy- Statute. Under the statute laws of New Hampshire, a legacy does not lapse by the death of the legatee prior to that of the testator. In such case, the heirs of the legatee, even if illegitimate, take the legacy.-Goodwin v. Colby, S. C. N. H., March 16, 1888; 13 Atl. Rep. 866.

-

297. WILL Sanity of Testator Presumption.While giving to the general presumption in favor of sanity all that inay fairly be claimed for it, the burden of proving sanity is upon the party who asserts it.Chrisman v. Chrisman, S. C. Oreg., March 9, 1888; 18 Pac. Rep. 6.

298. WILL-Trust-Husband and Wife-Abondonment. -A will which gives to a trustee property, and directs the trustee to pay the income to P or his assignee every six months, gives to P such an interest in the estate as will authorize the assessment of the property for the support of P's deserted wife and children, under the poor laws of the State.-Dicker v. Directors, S. C. Penn., April 30, 1888; 13 Atl. Rep. 925.

299. WITNESS-Divorced Persons.- A woman cannot, as to communications made to her by her former husband during the marriage, against his objection, though they have since been divorced, and it is error to allow him to be cross-examined thereon.-Hitchcock v. Moore, S. C. Mich., April 27, 1888; 37 N. W. Rep. 914. 300. WITNESS-Pardon-Instruction.When it appears that a party has been convicted of a felony, an instruction that a pardon makes him a competent witness, of whose credibility the jury are to judge from the facts in the case, is not a charge upon the weight of the evidence.-Costley v. Galveston, etc. Co., S. C. Tex., Feb. 24, 1888; 8 S. W. Rep. 114.

CORRESPONDENCE.

To the Editor of the Central Law Journal:

I am now and have been a subscriber to your valnable journal ever since its first issue. I inclose you slip clipped from the Chicago Times of May 28th, giving a decision in reference to the estate of one "murdering their next of kin." We have just had a similar case decided in this county. The facts in brief are as follows: One Lee Shellenberger was indicted, charged with murdering his child, a daughter; he was convicted by a jury and sentenced to be hanged, and while his case was pending in the supreme court of the State, he was taken from the jail by a mob and hanged. Under our law the father inherits the property of the children. The little girl and her brother were each heirs of Lee Shellenberger's wife, and upon her death the property descended equally to the two children, and after her death it was claimed that the alleged killing took place. Shellenberger was defended, and before he was indicted he transferred the property he was supposed to take under the inheritance to his attorneys, for the fee charged by them in his defense. After Shellenberger was hanged by the mob the attorneys brought suit against the surviving heir (the son of Shellenberger) to have the property divided, and the half of the property that Shellenberger inherited, being the property that was owned by the murdered daughter, to have set over to them. The attorneys of the boy Shellenberger claim that inasmuch as Lee Shellenberger had been convicted of murdering his next of kin, to-wit, his daughter, that he could not inherit the property-that he could not take advantage of his own wrong. This case was tried before the Hon. Samuel M. Chapman, one of the district court judges, and was argued by ex-Chief Justice Mason, of Lincoln, for the boy, and E. F. Warren, F. T. Ransom and John C. Watson appearing for the attorneys, who claimed the property as the immediate grantees of Lee Shellenger. The trial judge decided the case similar to that decided by the North Carolina court, that is, that the father inherited the property. I give you these facts hurriedly and roughly, as I am in the act of leaving on the train for the western part of the State, and thinking this decision may be of interest, have given it to you. You can see our Nebraska statutes by referring to your library. Yours hurriedly and confidentially, S.

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 answer: as brief as may be.-Ed.]

The memorandum is not under seal. There is no date specified when the $800 should be paid. Thirty days after the memorandum was made John Doe tendered the $600 and demanded deed, which was reused. He now files bill for specific performance and asks that Smith and wife make a conveyance. Has he a good cause of action? Can the chancellor compel the wife to join in the conveyance? She refuses, but tenders back the $500. The local laws require that the wife's examination be separate and apart from her husband, and that she execute the deed freely and voluntarily. The properity is community property. When, also, was the balance of the money, to-wit, $600, due? Give authorities.

QUERY NO. 2.

A is the owner of a large tract of land. He contracts to sell it to B, a corporation, upon certain payments to be made. B subdivides the land into 10-acre lots and offers it for sale. C and D are friends and they verbally agree to buy jointly or as tenants in common two of the lots, each to pav one-half of all the several installments of the purchase money, the agreement also being that C shall take the contract with B in his own name. D advances his one-half of the first installment, C takes it, adds to it, pays B and takes the contract to purchase in his (C's) name. Thereafter D regularly tenders to C the one-half of the subsequent installments, but C repudiates the whole arrangement and claims that he is entitled to purchase the whole for himself. A still holds the legal title. Our code (Cal.) § 853, provides "when a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made," and it has been held (38 Cal. 191), that when one pays a portion of the consideration a trust pro tanto arises. Since there has been no conveyance of the legal title to C, can D enforce any resulting or other trust? What, if any, remedy has he to obtain the land? Would equity treat a contract to convey land as a transfer of the title so as to raise the trust? To aid those who may be kind enough to answer, I will add I have found nothing directly in point in either Story or Pomeroy on Equity, or in Perry on Trusts. The New York cases cited by Brown on Statute of Frauds, § 84, do not directly apply. The only case which seems to be in point and which I have examined is the Maryland case, reported in 1st Am. Reports, p. 14. Please cite authorities. Lex.

QUERY NO. 3.

Where a corporation, in 1883, permitted an obstruction to be placed across a public street, by reason of which a citizen is seriously, and as he (now believes), permanently injured, is his right of action barred by the statute of limitations? Please answer. J. D. P.

QUERIES ANSWERED.

QUERY NO. 37 [26 Cent. L. J. 648.]

A testator in Missouri, in separate clauses of his will, devises certain specified tracts of lands to trustee for each of his children for life and then to their children; and then provides, in case the bequests are unequal, that the circuit court may appoint commissioners to equalize their portions out of other lands belonging to the estate. This was done. One of the children of testator, by warranty deed, conveyed the land given him to equalize his portion with the other children, and died leaving children. The question is, did he have merely a life estate or a fee in the part given him in equalization? D. T.

Answer. The intent of the testator always controls in the interpretation of his will. 1 Redfield on Wills, 433; 3 Jarman on Wills, 709. In making the equalization the court merely acted as trustee or donee of the power. The child had only a life estate in the part given him in equalization. H. A.

RECENT PUBLICATIONS.

THE UNITED STATES AND THE STATES UNDER THE CONSTITUTION. By Christopher Stuart Patterson, of the Philadelphia Bar. Philadelphia: T. & J. W. Johnson & Co., 535 Chestnut street. 1888. This is rather a small book on a large and very important subject, the relations of the State and general government, respectively, under the constitution of the United States, so far as the same have been settled by judicial decisions. The scope and object of the work have been so well and curtly expressed by the author in his short preface that we deem it expedient to present it to our readers. It is as follows:

"This book has not been written to give expression to any theories, either in politics or in law. Its only purpose is to show by a classification and an analysis of the judgments of the Supreme Court of the United States, what the relations of the Untied States and the States are under the constitution, as judicially construed by the court of last resort."

The work has been very methodically arranged and is manifestly the result of laborious and careful investigation, and is well worthy of a place in all legal libraries.

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. Compiled and Annotated by A. C. Freeman, Counselor-at-Law, and Author of Treatises on the "Law of Judgments," "Co-tenancy and Partition," ""Executions in Civil Cases," 93 etc. Vol. XCIX. San Francisco: Bancroft-Whitney Company, Law Publishers and Law Booksellers. 1888. Before us lies the 99th volume of the collection of select cases so well and favorably known to the profession as American Decisions. Another volume will complete the series, and it will be succeeded by the American State Reports, the first volume of which will be issued in August next. The new series will be the successor not only of the American Decisions, but also of the American Reports, formerly published in Albany, New York, and will take up the line of State decisions at the period at which the American Reports closes its collection.

Of the volume now before us we can say no more nor less than we have repeatedly said of many of its pred

ecessors. It is fully equal to the series in form and substance, in editorial ability and typographical execution, and is well worthy of the high reputation the series has so long enjoyed in the profession.

JETSAM AND FLOTSAM.

HABEAS CORPUS.-The following extract from a newspaper indicates a novel application of a timehonored writ and that the reporter was a very learned limb of the law:

"Hugh McChesney was in town to-day and told us that in his land case the justice decided to hold it over to the district court. In the meantime application will be made to the judge for a writ of habeas corpus to dismiss the case."

THE medical witness, in giving his evidence in the case, informed the court that on examining the prosecutor, he found him suffering from a severe contusion of the integuments, under the left orbit, with great extravasation of blood, and ecchymosis in the surrounding cellular tissue, which was in a tumefied state. There was also considerable abrasion of the cuticle. This magniloquent description for a time bewildered the court, until it was resolved by the judge himself into the simple words, "a black eye."

LAWYERS AND QUOTATIONS.—Judges and lawyers have contributed their quota to the common stock of popular sayings:

It is Francis Bacon who speaks of matters that "come home to men's business and bosom," who lays down the axiom that "knowledge is power," and who utters that solemn warning to enamored Benedicts, "he that hath a wife and children hath given hostages to fortune."

We have the high authority of the renowned Sir Edward Coke for declaring that "corporations have no souls," and that "a man's house is his castle."

The expression, "an accident of an accident," is borrowed from Lord Thurlow. "The greatest happiness of the greatest number" occurs in Benthan, but as an acknowledged translation from the jurist Bec caria.

To Leviathan Hobbs we owe the sage maxim, "words are wise men's counters, but the money of fools." It is John Selden who suggests that by throwing a straw into the air you may see the way of the wind; and to his contemporary, Oxenstiern, is due the discovery, "with how little wisdom the world is governed."

Mackintosh first used the phrase, "a wise and masterly in activity." "The schoolmaster is abroad," is from a speech by Lord Brougham. It does not mean that the teacher is "abroad," in the sense of being absent, as many seem to interpret the phrase, but that he is "abroad" in the sense of being everywhere at work.

In the familiar phrase, "a delusion, a mockery and a snare," there is a certain Biblical ring which has sometimes led to its being quoted as from one or other of the Hebrew prophets; the words are, in fact, an extract from the judgment of Lord Denman at the trial of O'Connell.

ST. LOUIS, JULY 13, 1888.

CURRENT EVENTS.

JUDICIAL DISCRETION.-We have for some time past entertained a suspicion that the head of the law was not strictly and precisely level on the subject of judicial discretion. Everybody knows, of course, that many matters must be necessarily adjudicated by the trial court, and as to those matters its decision is final. These questions are usually of minor importance, but it has occurred to us that appellate courts often decline to review decisions of inferior tribunals of which they ought, in the interests of justice, to assume jurisdiction.

It is a rule in these matters of discretion that the appellate court will not interfere, unless there has been a manifest abuse of that discretion, and to decide whether such an abuse has been committed is a critical and sometimes an invidious duty, and it is not at all strange that in such cases, which are really issues between the aggrieved party and the presiding judge, the leaning of the appellate court will be very heavy in favor of the latter.

We have said that matters within the discretion of the trial court are usually of minor importance, but that is not always the case. What seems to the outsider to be of little moment, may be to the party interested of great consequence, and the interlocutory order of a trial court may turn the scale against a party to his lasting injury, and that order might not be reviewable by any appellate court. Hasty, morose or irrritable judges sometimes force a cause to trial, so that serious injustice is done, and yet the record may show no reviewable error. On the other hand, continuances may be granted by a good-natured and too-complaisant a judge upon inadequate and even frivolous grounds, thus delaying and finally defeating justice. And yet in such a case the injury is without remedy, as no appeal can be taken until after a final judgment.

We do not mean to impugn the good faith, VOL. 27-No. 2.

they are worthy of the highest praise, but even the best and wisest of them are fallible; and as two heads are better than one, it is well that where practicable their rulings should be reviewed by another tribunal. The question is, however, whether the law, as it stands, has done all that can be effected in the way of affording the means of rectifying the mistakes of trial courts by appeal or writ of error.

Any change which might be made in the existing law should be very carefully considered, for it might well happen that the remedy would prove worse than the disease. Nevertheless, we think the subject well worthy of the attention of the profession and of legislative bodies.

THE LAW's DELAY THE APPEARANCE TERM-CONTINUANCES.-Many relics of the past linger in the law, not only in its body, but in its procedure as well. Among these is the practice still prevalent in many of the States of making the first term of the court after the service of process on the defendant the "appearance term" and allowing him, as a matter of right, without reference to the merits of the case or the existence of any actual ground of defense, a continuance to the next term of the court, four or even six months later. This practice had its origin in the complicated system of common law pleading and survived the reformation of that system, which has been effected in nearly all of the States. It gives an undue advantage to the defendant, and places the plaintiff at an unmerited disadvantage, it often works manifest injustice, and fully sustains the ancient reproach of the "law's delay." In any case, an unnecessary delay of justice is pro tanto a denial of justice, and is highly discreditable to any administration of law in which it occurs. The protracted delays of the English court of chancery is an enduring stain upon the jurisprudence of that country. It had, however, the mitigation that large interests and very complicated questions were often involved, but what can be said in defense of a system under which cases involving small sums and no questions at all are habitually protracted for a year or more? Such is the result of the "appearance term" in those

States in which it still prevails. All cases, great and small, litigated or unlitigated, in which the defendant has appeared and pleaded, must needs lie over four or six months after such appearance before a trial can be had, or a judgment obtained. This is well enough where there is real and serious litigation; the interval may be needed to prepare for the forensic battle, but no such excuse exists where the defense is manifestly frivolous, and especially where there is no defense at all, as in collection cases. The proper practice, in our opinion, is to require every defendant, when he appears and pleads, to state upon oath a sufficient ground of defense, and if he fails to do so, or if the court should hold his statement insufficient, judgment should be rendered against him at the first term.

NOTES OF RECENT DECISIONS.

INTERNATIONAL LAW-CONTRACTS OF DEPOSED GOVERNMENT-LIABILITY OF SUCCESSFUL GOVERNMENT.-An English court has found it necessary to decide, in a very recent case,1 the converse of a well-established principle of international law, and to show that upon deposing a de facto government, its successor is not only entitled to enforce the rights of the defunct regime, but is also bound to perform some of its duties. The facts were that the defendants, a French firm, had, during the administration of the Peruvian government by Senor Pierola, then dictator of that country, made certain contracts with his government for the purchase of guano on islands off the coast of Peru, and among the other terms of the contract it was agreed that all controversies growing out of the contract should be settled by the Peruvian authorities. Such a controversy was so settled, and afterwards there was a revolution, as is usual in Spanish-American States; the dictator was deposed and a republic established. The republic repudiated the settlement made by the dictator's government and brought suit in an English court against the French firm. The defense set up was the settlement made by the defendants with the defunct govern

1 The Republic of Peru v. Dreyfus Brothers & Co. 23 Law Journal (Eng.), 329.

ment of the dictator. The court held that that settlement concluded the republic, and cited as authority the case of the United States of America v. McCrea.2 In that case the law on the subject is laid down thus:

"I apprehend it to be the clear public universal law that any government which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all public property to everything in the nature of public property-and to all rights in respect of the public property of the displaced power, whatever may be the nature or origin of the title of such displaced power. Any such public money in any treasury, any such public property found in any warehouse, forts or vessels would, on the success of the new or restored power, vest ipso facto in such power; and it would have the right to call to account any fiscal or other agent, or any debtor or accountant to or of the persons who had exercised and had ceased to exercise the authority of a government, the agent, debt or accountant having been the agent, debtor or accountant of such persons in their character or pretended character of a government. But this right is the right of succession, is the right of representation, is a right not paramount, but derived, I will not say under, but through the suppressed and displaced authority, and can only be enforced in the same way, and to the same extent, and subject to the same correlative obligations and rights as if that authority had not been suppressed and displaced, and was seeking itself to enforce it."

The court rightly concluded that if a government could justly enforce the rights of its predecessor, it was in like manner bound by its contracts in the nature of a settlement of demands due to such extinct government upon this the real point in the case. Mr. Justice Kay said:

"It is a question of international law of the highest importance whether or not the citizens of a foreign State may safely have such dealings as existed in this case with a government which such State has recognized. If they may not, of what value to the citizens of a foreign State is such recognition by its government? There have been successive governments in European countries-usurpa

2 38 Law J. Rep. Chanc. 406; L. R. 8 Ex. 69.