by a widow in which she sought to recover damages for the mental suffering occasioned by the loss of her husband, Coleridge, J., said: "The legislature would not have thrown upon the jury such great difficulty in calculating the solatium to the different members of the family without some rule for their guidance. When an action is brought by an individual for a personal wrong, the jury in assessing damages can, with little difficulty, award him a solatium for his mental suffering, along with an indemnity for his . pecuniary loss." And Cummings v. Williams, burg is shown to promulgate doctrine,diametrically opposed to that which it is cited to sustain by Mr. Greenleaf. The vexed question of the effect of a stipulation in a promissorynote for the payment of .collection fees was passed upon in First National Bank v. Gay, p. 627. The court follows the doctrine laid down by it in the previous decisions of First National Bank v. Gay, 63 Mo. 33, and that of Samstag v. Conley, 64 Mo. 476, and that of the Supreme Court of Pennsylvania in Woods v. North, 84 Pa. St. 407, and hold that such a stipulation destroys the negotiability of the instrument, and consequently, that a transferrer is to be treated, not as an indorser, but as an assignor; that he is not jointly liable with the maker, and that no joint action can be maintained against them.

LAW RELATING TO STOCKS, BONDS AND OTHER SECURITIES, IN THE UNITED STATES. . By Francis A. Lewis, Jr., of the Philadelphia Bar. Philadelphia, 1881: Rees, Welch & Co.

This is one of that class of books, become quite common of late, in which it is sought to teach the persons engaged in a particular trade or business, the law applicable to their transactions. Of course, this can only be done to a limited extent. When it is attempted to do more than give to individuals, not versed in the general principles of jurisprudence, and not impregnated with its methods of thought and reasoning, more than an outline of the rules applicable to the law of any particular trade or business, the result must necessarily be a failure, as every lawyer will readily realize. In the book in question this seems to have directed and controlled the author's labors. While there is no effort to make an exhaustive statement of the principles of the law of contracts, there is an adequate and plain statement of such doctrines, applicable to the dealings in public securities, as may be readily understood, by any intelligent person, accustomed to such transactions, though he may not have had the advantage of a legal training. As to the value and accuracy of those portions of the work in which the author gives an account of the rise and development of stock-exchanges, and describes the methods and technology of dealings in such securities, we cannot speak authoritatively. We can say, however, that we found them absorbingly interesting.

AMERICAN DECISIONS, Containing 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. San Francisco, 1881: A. L. Bancroft & Co. Vols. 22, 23 and 24.

We have heretofore so expressed our opinion of this excellent series of selected reports, that it is unnecessary for us to print any extended editorial opinion of these volumes, beyond the statement that we see no cause in them to repent or retract anything that we have said. The plan was originally a good one, and the work so far has been done in such a way as to reflect credit upon both publisher and editor.

CORRESPONDENCE.

ANSWER TO QUERY 12.-LIMITATIONS-POSSES

SION.

To the Editor of the Central Law Journal:

The answer contained in 12 Cent. L. J. 264, to query 12, in 12 Cent. L. J. 216, is not exactly in point. The writer does not fully comprehend the question. In the case supposed the land is unoccupied. Says Mr. Washburn: "Seisin is either in law or in fact. Seisin in fact, necessarily implies possession, there being no legal difference between the word seisin and possession.` For a seisin in law there must be a right to immediate possession according to the nature of the interest, whether corporeal or incorporeal." 1 Washb. Real Prop., 34, 35. We take it that the owner of the legal title is, as a general proposition, entitled to the possession, as against the owner of an equity. Or, in the language of the Supreme Court of Pennsylvania, "the legal title to wild land draws to it the possession, unless it has been interrupted by an actual entry and adverse possession by another." Young v. Hardie, 55 Pa. St. 172. Two persons can not be in the adverse constructive possession of the same land at the same time." Hodges v. Eddy, 38 Vt. 344, 345. Consequently, in the case supposed, the plaintiff was neither seized in law nor in fact, within ten years before the commencement of the action. The equity under which plaintiff claims title may have been a resulting trust, for example, which occurred twenty, thirty, or any number of years previous. "Where there is a statute bar at law, the same period, in analogy, or obedience to the statute, is adopted in equity as a bar to equitable claims." Perry on Trusts, § 855, and cases cited. At law, the statute does not commence to run until there is an actual adverse possession, at which time the cause of action accrues. But in equity, the fact of adverse possession does not create the cause of action; and we see no reason why the running of the statute should date from that time. Why not from the time the right of action accrued? Yet the generally accepted theory undoubtedly is

REMOVAL OF CAUSES-COUNTERCLAIM. Editor Central Law Journal:

There is an argument in favor of the decision of the United States Supreme Court in Dennick v. Central R. Co., of New Jersey, 12 Cent. L. J. 393, which seems conclusive.

In Jeffersonville R. Co. v. Swayne's Admr. 26 Ind. 477, the court held that a claim for damages for causing the death of a party under the statute was not assets of the deceased, but went to the widow and children or next of kin of the deceased. Where the death of a non-resident who had no assets in the State, occurred in the State by a wrongful act, the court held letters of administration could not issue in Indiana. If the law were that no action would lie against the wrong-doer, unless it were brought by an administrator appointed in the State where the injury causing death occurred, there would be no remedy for the next of kin of nonresidents, who had met their death in Indiana. As the courts in such cases have no jurisdiction to appoint an administrator, there would be no person to sue. It follows-as there is no wrong without a remedy-that the administrator appointed by the jurisdiction, where the deceased lived and had assets, may sue in any State where he can obtain jurisdiction of the defendant, but he must, of course, rely on the statute of the State where the injury occurred. The Supreme Court of Indiana, after having sustained the petition of the defendant in the case in 26 Ind., cited to revoke the letters of administration, affirmed a judgment rendered against the defendant in an action brought by the foreign administrator for the same cause. C. DENBY.

Evansville, Ind., April 29, 1881.

NOTES.

-The New York Daily Register, in discussing the functions of a lawyer, recently, makes these apt remarks: "One of the disadvantages of our abandonment of the English division of the profession into attorneys, solicitors, barristers, etc.. is, that the great diversity of view and usage among lawyers, as to what is within the scope of their function, finds no external expression to the client. Here is a lawyer who is by nature and habit merely an attorney. He does not like conveyancing; he dislikes the care of investments; but he scents an action afar off. If he is consulted by the trustee of an estate which has drifted into confusion, he advises on any action that ought to be brought, but he thinks it is none of his business to consid

no

er what ought to be done to secure the assets, retrieve losses and improve the condition of the fund. His client, perhaps, has no distinct idea of what he wants to be advised about. To him the whole estate may be a muddle, a source of vague and undefined solicitude, without any discrimination as to the nature of the embarrassments and the different remedies. If he happens to consult such an one as we have mentioned, and the case does not require an action or an accounting, he will very likely get no light. If he happens to consult one whose views and usages are those of a solicitor, he may get a very different kind of assistance. Such an adviser may not think it beyond his function to look over the whole situation in detail, to suggest that this property ought to bring more rent; that that bank balance is too large to be lying where it draws interest; that the expenses of insurance may safely be reduced; that this account ought to be settled, and that loan ought to be called in, and such and such assets converted into money. lustrations might be multiplied indefinitely. Whether it is proper to make such suggestions depends on the circumstances of the inquiry; but many clients in asking advice are not very clear themselves what they want. There is a time in life after which a practitioner does not adapt himself much to the work which offers. He does that which is in his line to do, and the rest gets passed over. But few points are more important to young practitioners who are looking forward to a general practice, than to have a right appreciation of the various functions in which clients may be served within professional limits, and an intelligent readiness in entering on such service when desired, and aptitude in the diverse functions which in our practice are united without nominal discrimination."

11

-One of Matt Carpenter's stories about Choate is to the following effect: Carpenter studied law with Rufus Choate, and got his first start from that great advocate. He was fond of telling this characteristic anecdote of Choate. He went to Choate at his house on some business of the office, and found him alone in his library in the second story. He lay on a lounge chatting freely of everything but the matter his student had come about, and managed to put that by whenever it was approached. At length he said: "Open that sideboard, my boy, and take out the decanter and glasses you find there, and we'll comfort ourselves with a drink." But no sooner had Carpenter obeyed these directions than a footstep was heard on the stairway, furtive, timid, but steadily approaching. Choate listened an instant, with a merry glitter in his eye, and then cried: "Hustle them! Hustle them in! Methinks it hath a presbyterian sound." But the intruder turned out to be an Episcopalian clergyman; the decanter reappeared, and Carpenter left without being able even to mention the business upon which he had gone.

The Central Law Journal,

ST. LOUIS, MAY 13, 1881.

CURRENT TOPICS.

The Kentucky Court of Appeals, in the case of Holmes v. Self, recently added another adjudication to the mass of authority on the very interesting question of when partnership real estate is to be considered as personalty. The facts were as follows: Mayes and Hunter, partners in merchandizing, purchased a lot with partnership funds, and with the intention of erecting a business-house for their business on part of it, and of selling the remainder, or of building upon it and renting. This intention was partially carried out, but a portion of the lot remained unimproved. Upon the dissolution of the firm by the death of one of the partners, his heirs brought the action to recover an undivided third of that portion of the lot, remaining unimproved. It was urged on behalf of the plaintiffs that inas much as the lot was not used for partnership purposes, it did not become partnership assets and never lost its legal character as real estate. Said the court, HINES, J: "We are of the opinion that the use to which the property is applied does not necessarily determine the question as to whether it is to be treated as personal or real estate, but that it is the intention with which the purchase is made that is the controlling element. If it were otherwise, real estate purchased with partnership funds, and for partnership purposes would at one instant be personalty at another realty, depending upon the facility with which the use was executed. So it appears to us that the use to which the property is applied is only an evidence of the intention of the partners to make it personalty or realty, and if the intention to make it personalty is clearly manifested by the partners in the purchase, the fact that there is a nonuser for partnership purposes will not reconvert it into real estate."

The Michigan Legislature recently passed an act requiring the judges of the Supreme Court of that State "to prepare and file a sylVol. 12- No. 19

labus to each and every opinion by them delivered." The judges, after examining the law, addressed to the Governor a rather pithy letter upon the subject of this unique scrap of legislative stupidity, saying that they regarded the law as unconstitutional, and stating as reasons for this view: 1. That it detracted from the dignity and importance of the office of State reporter, which had been established by the Constitution, inasmuch as it took from the office very important duties which, while not specified by the Constitution, were perfectly well and universally understood to be attached to it. 2. That it would operate to make the syllabus a part of the record, public property, and "free for publication by any person," and thus render the firm who at present hold the contract for the publication of the State reports for five years, and who are protected in such publication only by the State's copyright in the name of the secretary of State, utterly defenseless against the competition of private parties, and eventually

make their contract worthless.

The judges might have added, as a reason against the expediency, that it would be productive of no little confusion from discrepancies which would inevitably arise in the construction and comparison, by inquiring members of the bar, of the language of the Each syllabus and opinion respectively. would be a part of the record and the language of the court, and therefore entitled to equal credit; but in the nature of things, discrepancies would arise. It is very difficult, if not impossible, in a syllabus, to state the meaning and effect of an opinion so as to avoid the possibility of mistake. And if the opinion in some minor point seemed inconsistent with the syllabus, annoying difficulties would result.

There are other reasons, however, why we are glad that the court took this view of the matter. Such a law is an impertinence. While we are of the opinion that the American public is more niggardly in its compensation of judicial officers than that of any other civilized country, we have been frequently impressed by the indecent methods taken by legislative bodies to get the greatest possible amount of work. A glaring example of this system is the California law withholding the salary of any judge who happens to be behind his docket, without

any reference to the nature of the cases o which it is composed.

sub

We know that poorly reported decisions and judicial sloth are grave evils, and we sympathize with any rational attempt to remedy them. But we do not believe that any permanent good purpose can be served by attempts on the part of the lawmakers to treat benches of reverend judges as if they were gangs of irresponsible and dishonest employees. A good article of professional service must be well paid for, the world over. If good, accurate, faithful reporting is a desideratum, let the legislature pay well, and there will be little difficulty in getting the work well done. If dockets get behind, in many instances more judges and larger salaries will be found an effectual remedy.

The Senate Judicial Committee have re ported adversely upon the nomination of Mr. Stanley Matthews for the vacancy upon the Federal Supreme Bench. If this action should be sustained by the Senate, we hope that the President in making a new nomination will take into consideration the universally expressed desire of the profession that this vacancy should be filled by the appointment of a man eminent as a jurist and of judicial experience.

DEMURRER TO EVIDENCE.

More than any other common-law procedure, demurrer to evidence has been exempt from modification and regulation by statute. In none of the very numerous cases in the books, English and American, is there to be found the slightest allusion to change, enlargement or restriction, by act of Parliament, of Congress, or of any state legislature. As the law on that subject stood in the days of the Richards and Edwards of England, it stands to-day, except, of course, the inevitable modifications wrought by a long course of judicial decisions. single exception, however, may be noted; enough, according to the received maxim "to prove the rule.” In an Iowa case, Hardin v. Snyder,1 a doubt was expressed by the court

1 15 Iowa, 460.

A

The

whether or not, under the "reformed procedure" in force in that state, a demurrer to the evidence was any longer admissible. dictum, however, was obiter, the cause went off on another point, and there was no decision upon the abstract right to demur to evidence.

Although this pleading, if it can be properly so denominated, is ancient, it is by no means familiar to the profession, and, in some of our States is practically unknown. In others, however, are to be found many decisions indicating that it is not unusual thus to withdraw the case from the jury and submit it to the sole arbitrament of the court. What this mode of procedure is, and how far it is of use to the profession, it is the object of this paper to inquire.

A demurrer to the evidence is so far analogous to a demurrer in pleading, that, as the latter puts in issue the legal sufficiency of the declaration or plea to sustain the action, or the defense as the case may be, so the former denies the adequacy of the evidence to sustain in law a judgment against the demurrant. In either case it is a matter of law upon which the decision of the court is invoked, for a demurrer to evidence does not transfer from the jury to the court the duty of deciding upon questions of fact. On the contrary, if properly taken and legally joined, it eliminates from the case every vestige of a question of fact. It is an indispensable condition of the demurrer to evidence that, before the opposite party can be compelled to join the demurrant in the demurrer, the latter shall admit the truth of every particle of his adversary's evidence; not merely the statements directly set forth in the testimony, but every fact that might, from that testimony, be reasonably, and fairly, and legally inferred by a jury if the case had been submitted to them.2

The leading case on this subject is Gibson

2 United States v. Jacob, 1 Brock. 520; Stanchfield v. Palmer, 4 Greene, 23; Shields v. Arnold, 1 Blackf. 109; Cocksedge v. Fanshawe, 1 Doug. 132; McCreery v. Fike, 2 Blackf. 374; Green v. Judith, 5 Rand. 1; Gibson v. Hunter, 2 Blacks. 187; Forbes v. Church, 3 Johns. Cases, 159; Patrick v. Hallet, 1 Johns. 241; Duerhagen v. U. S. Ins. Co., 3 S. & R. 185; Lowry v. Mountjoy, 6 Call, 55; Chapize v. Bane, 1 Bibb, 612; Middleton v. Commonwealth, 1 Litt. 347; Vaughn v. Eason, 4 Yeates, 54; Feay v. Decamp, 15 S. & R. 227; Sawyer v. Fitts, 2 Port. 9; Lewis v. Few, 5 Johns. 1; Alexander v. Fitzpatrick, 4 Port. 405.

v. Hunter,3 decided in the House of Lords in 1793. Chief Justice Eyre, of the Common Pleas, delivering the answer of the judges to the questions propounded to them by the House of Lords, says that "a demurrer to the evidence, though not familiar in practice, is a proceeding well known to the law, and is analogous to the demurrer to facts alleged in pleading." He proceeds to set out the function of the jury, and adds: "But when the party wishes to withdraw from the jury the application of the law to the facts, he demurs to the evidence." He then asks: "Under what circumstances can a party demur to the evidence and oblige his adversary to join in the demurrer?" and answers his own question to the effect that, if a matter of record or in writing constitute the evidence, a party may

32 H. Blackst. 187.

4 This answer, as reported by H. Blackstone, is something of a legal curiosity, as exhibiting, in a new and striking light, the intense devotion of the English judicial mind to ancient forms and venerable legal fictions. It is well known that when the House of Lords sits as the highest appellate court of the realm, the hereditary peers, those born to the purple and utterly innocent of legal lore, are conspicuous by their absence. The House, upon these occasions, is usually composed of the Lord Chancellor, presiding, and those of the peers, ex-chancellors and the like, that have risen to their positions by virtue of their services and distinction in the legal profession. This has been the case for probably two or three centuries; but, in the olden time, a very different state of affairs existed; the barons who actually sat as the court were ignorant, not only of law, but literally of letters, and, to discharge the duties of judges, needed a deal of instruction. The judges, therefore, were summoned by writ to attend the lords and advise them upon matters of law, in effect to decide the cases themselves. Following the old fashion, the reason of which had so long ago vanished, the learned chief justice expounded the law to his venerable and erudite confreres of the ermine much after the fashion of a professor drilling the awkward squad' of a law class. He said: "My lords, in the nature of the thing, the question to arise out of the fact can not arise till the fact is ascertained. It is the province of the jury to ascertain the fact under the direction and assistance of the judge. * My lords, in the

first stage of that process under which facts are ascertained, the judge decides whether the evidence offered conduces to the proof of the fact which is to be ascertained; and there is an appeal from his judgment by a bill of exceptions. The admissibility of evidence being established, the question how far it conduces to the proof of the fact which is to be ascertained, is not for the judge to decide, but for the jury exclusively, etc." When it is remembered that this elementary instruction is administered by the chief justice of one of the highest law courts of the realm to the court of last resort, it is matter of wonder how a great system of judicature could not only live, but thrive, under such a load of anomalies, and useless, and antiquated forms and customs.

demur, and his adversary must join in the demurrer. If, however, the matter be parol, he can demur, and his adversary may join in the demurrer. This is the doctrine of the old books, but, as will be seen, the later decisions leave to the adversary much less freedom of action. The reason why a party must join in a demurrer to written evidence is stated in Baker's Case,5 to be because "there can not be any variance of matter in writing."

This last expression furnishes the rule as to joinder in demurrer. Certainty is the indispensable quality of the issue to be made by the demurrer to evidence. When the evidence is in writing, there can be no variationlitera scripta manet; parol testimony, however, is often loose and indeterminate, and hence the rule was adopted as early as Baker's Case that, "if the plaintiff produces witnesses to prove any matter of fact on which a question of law arises, if the defendant admits their testimony to be true, he may demur in law upon it." In Wright v. Pyndar, it was held that "he who demurs upon the evidence, ought to confess the whole matter of fact to be true, and not refer that to the judgment of the court." These old cases have been abundantly sustained by modern decisions heretofore cited, and it may fairly be concluded as the settled law upon the subject, that a party being willing to admit as true all the evidence produced by his adversary, and every conclusion which can be fairly and legally drawn from it, may demur to that evidence, and the court will require his adversary to join in the demurrer.

This qualification of the rule should, however, be noted, that a demurrer to evidence is only applicable to the party holding the affirmative of the issue, and can not be applied to negative testimony,7 and consequently, a demurrer is rarely taken to the evidence of the defendant, who seldom holds the affirmative of the issue. Of course, when his plea confesses and avoids the allegations of the declaration, he holds the affirmative, and his evidence becomes liable to a demurrer by the plaintiff.8

It has been held a matter of doubt, whether

5 Cro. Eliz. 753.

6 Aleyn, 18.

7 Goodman v. Ford, 23 Miss. 592.

8 Williams v. McConnico, 27 Ala. 572.