boundaries of Knox, the deed passed to Knox, and the block was in the possession of Knox County from its formation until 1873. Plaintiff claims title by virtue of a sheriff's deed under a sale upon an execution against Smallwood. On the face of the plat, block nine is marked "public square," and, under the head of references, No. 9 is declared public property for the purpose of building a court house, should the county seat ever be located at Edina. On the back of the plat is a deed or writing by which Smallwood conveys the streets, etc., with block nine, according to the plat, to Lewis County, to purposes aforesaid, forever. The plat and deed were duly recorded. The facts set out in the answer were proved, and also that the Town of Edina controlled the block up to 1871, and said town became the county seat, but the court house was built on another block. The town conveyed to the school board, the defendant in this suit. Plaintiff claims that the land, when laid out, was in Ralls and not Lewis County; that the plat was not acknowledged, and, if acknowledged and filed, it dedicated block 9, only for the purpose of having erected upon it a court house; and the court-house not being built upon it, there was no acceptance of the dedication, and the block reverted to Smallwood or his grantee. Held, that the land at the time it was platted, was in Lewis County. Ter Laws, vol. 1, p. 650; vol. 2, p. 90, §§ 1, 2 & 8; Statutes 1825, vol. 1. p. 242, sec. 29.-Laws 1833. Plaintiff's replication admits the acknowledging and filing of the plat, and it can not be questioned; and such acknowledgment and filing vested the fee in the county by express statutory provision. Laws of 1835, sec. 4, p. 599. The words "public square," on block 9 of plat in connection with the writing on the back, was sufficient to vest the fee in the county generally, and not alone for the purpose of erecting thereon a court-house. The failure of the county to erect the court-house upon said block does not revest the fee in Smallwood or his grantee. Judgment for defendant affirmed. Opinion by NORTON, J.-Reid v. Board of Education of Town of Edina.

QUERIES AND ANSWERS.

QUERIES.

26. The general rule is that a change of domicil by the parent carries with it that of his minor child. But A leaves New York; his minor child refuses to accompany him, and he leaves it with relations in New York. A acquired property in Texas. The child and its descendants sue for the property. The limitation of New York and Texas is different. Which governs in the courts of Texas? Is the child to be held to be of full age by the laws of New York or Texas? 18 Martin, 69; Story on Conflict of Laws. 52; 8 John189.

son.

QUERIES ANSWERED.

Query 22 112 Cent. L. J. 383]. A sells B a tract of land upon credit; executes a deed which is duly recorded, and in the deed reserves a specific lien

on the land for the unpaid purchase-money. After the sale, a railroad is constructed through the land by a deep cut. To this railroad, B, who is in possession, gives the right of way. For years the railroad company fail to finish the road. In the meantime A files his bill, has the land sold (without notifying the railroad company), to enforce his lien; at the sale buys back the land and has title vested in him, leaving B largely indebted to him upon the original debt. The railroad company now propose to complete the road. Have they any title to the right of way? If not, what is A's remedy against them? L.

Answer. [See, aiso, 12 Cent. L. J. 408.] B's deed was recorded, and thereby became notice to the railroad company of A's lien. The rule caveat emptor would apply. The company, having due notice, ob tained no title, except subject to the lien; and, when B's title was extinguished, the company's title went with it. They have no title, and A's remedy is trespass and damages. However, as they were in possession, the safer plan would have been to have it a party, and thereby effectually cut off their equity of redemption. See Houk on Liens, and 2 Jones on SUBSCRIBER. Mortgages, under the proper heads. Lincoln, Neb.. May 3, 1881.

CORRESPONDENCE.

THE ARREST OF A CORPSE FOR DEBT. To the Editor of the Central Law Journal:

In the April number, 1880, of the Central Law Journal, it is affirmed that in the Middle Ages a corpse could be arrested by a creditor for debt. The writer says: "Among the notable persons and occasions when it occurred in England, was the arrest of the body of the poet Dryden, in 1700. The funeral train was stopped in this manner on the way to the burial.”

In his life of Dryden, Dr. Johnson gives a different account from this, of the burial of Dryden. He says in substance that on the death of Dryden, the Bishop of Rochester tendered a spot in Westminster Abbey free of charge, and that Lord Halifax offered to defray the cost of a gentleman's private burial, which the widow and his son Charles Dryden accepted. That at the moment the hearse was ready to move from the house, Lord Jefferies, son of Lord Chancellor Jefferies, was passing; and being informed the hearse contained the remains of Dryden, offered to undertake a more brilliant funeral, and to appropriate £1000 for a monument. That he so far succeeded as to suspend the burial, and have the body sent to an undertaker's to be embalmed. But that, when applied to three days afterwards by the undertaker, he had the effrontery to say he was drunk when he disturbed the funeral, and would have nothing further to do with the matter. This statement that our forefathers allowed the bodies of dead folks to be arrested, should be well sustained by authority. otherwise it is a heavy tax on our credulity. But I must confess Dr. Johnson's account of Dryden's burial is a tax of the same kind.

La Grange, Ga.

B. H. BIGHAM,

ST. LOUIS, MAY 13, 1881.

CURRENT TOPICS.

The strictness with which courts have been accustomed to construe the contracts of carriers, seeking to limit their common-law liability, received a happy illustration in the recent decision of the English High Court, in the case of Goldsmith v. Great Eastern Railway Co. Clover seed consigned to the plaintiff by the defendant's railway was misdelivered by the defendants, and the plaintiffs did not receive it till after a fortnight's delay, too late for the season's market. The goods had been forwarded at the defendant's lower rate of charge, and therefore by special contract, "solely at the risk of the sender," with the exception of loss occasioned by the fraud or theft of the company's scrvants. It was contended, and successfully, that a misdelivery was not a danger which was to be understood in the use of the words "owner's risk." Said LINDLEY, J.: "The real and important question for us is whether the special contract applies to this case. The words are that the lower rate being paid, 'the goods are to be forwarded solely at the risk of the sender, with the exception' mentioned.. Now the risk of the sender would apply only (as has been decided) to the loss or destruction of the goods, and not to mere delay, unless there is something in the exception to extend its meaning.

ex

There is nothing, it seems, in those ceptions to enlarge the generally received meaning of the word risk, and although I think it was more like ordinary carelessness than wilful default which caused the delay, yet it appears to me on the contract that the company can not resist the plaintiffs' claim in this action." See Lewis v. Great Western R. Co., 26 W. R. 14; Alexander v. Green, 7 Hill, 533; Moore v. Evans, 14 Barb. 524; Wells v. Steam Nav. Co., 8 N. Y. 375; Wallace v. Sanders, 42 Ga. 486; Nashville etc. R. Co. v. Jackson, 6 Heisk, 271; Lawson's Contracts of Carriers, Ch. VIII. Vol 12-No. 20

VICE OF COUNSEL AS A DEFENSE.

In an action for malicious prosecution, it is incumbent on the plaintiff to show that in the prosecution of which he complains and for which he demands satisfaction in damages, the prosecutor in that case, and the defendant in this, acted maliciously and without probable cause. Other things he must show also, in particular cases, such as that the prosecution has terminated and that he was acquitted or discharged; but these two are absolutely essential in all suits of this character. It is

not enough to prove one, i. e., that he acted with malice, though with probable cause, or that he acted without probable cause and without malice, for both must concur. It follows, therefore, a prima facie case of want of probable cause being made, and malice being frequently inferrible therefrom, that upon the ability of the defendant to prove probable cause, actions of this character will generally depend. And a safe and generally conclusive mode for him to do this is to show that he acted in the matter upon the advice of counsel.

Snow v. Allen,1 decided at nisi prius by Lord Ellenborough in 1816, is one of the earliest cases in which the advice of couusel was presented as a defense. The action was for maliciously, and without reasonable and probable cause, suing out a writ of capias against the plaintiff, upon which he was arrested and imprisoned. The defendant, who was a tailor, had commenced an action against the plaintiff in which he obtained judgment for his debt and costs; but the plaintiff being absent from England, he took his bail in execution. Subsequently he sued out the writ against the plaintiff, and arrested him, the plaintiff's attorney having previously notified him that it was not competent to proceed against the plaintiff after he had taken the bail on execution; but the defendant's attorney, relying on a previous adjudication 2 and an opinion of a special pleader, persisted in his course; and the plaintiff was subsequently discharged by the King's Bench. The case coming on for trial, Lord Ellenborough asked: "How can it be contended here that the defendant acted maliciously? he

11 Stark. 502.

3

acted ignorantly." The attorney-general for the plaintiff replied: "He proceeded to arrest after full notice of the irregularity of his proceedings." But Lord Ellenborough said: "He was acting under what he thought was good advice it was unfortunate that the attorney was misled by Higgins' Case; but unless you show that the defendant was actuated by some purposed malice, the plaintiff can not recover," and he was non-suited. Said Mr. Justice Story in an early case in this country: "It is certainly going a great way, to admit the evidence of any counsel that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice and establishing probable cause. My opinion, however, is that such evidence is admissible, although it is sometimes open to the objections stated in Hewlett v. Crutchley."4 It will be likewise It will be likewise found that the rule while one not of great difficulty to expound, is subject to many exceptions, and that many novel questions have presented themselves to the courts in applying the law to the facts of particular cases.

In the case of Sommer v. Wilt,5 which came before the Supreme Court of Pennsylvania in 1818, Duncan, J., said; "If this act had proceeded from ignorance or mistake of the law on a fair representation of facts to the attorney, I would not impute the honest mistake of a professor of the law to malice in the client; for here would be innocence which would strip the case of its malignant qualities, and would, as I rather incline to consider the law, be a defense in the action." In LeMaistre v. Hunter,6 decided in the same State in 1851, Rogers, J., said: "The opinion of private counsel of a prosecution can not amount to proof of probable cause, nor prevent a recovery, unless the facts clearly warrant it, and are correctly and truly stated. Even the application to counsel and the opinion of counsel, in order to be available in the establishment of probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose, and the statement made at the time must be fair and full, and consistent with

2 Higgins' Case, Cro. Jac. 320 (1614).

3 Blunt v. Little, 3 Mason, 102 (1822). 45 Taunt. 277.

4 S. & R. 20 (1818).

6 Bright. 495.

7

that purpose." Woodward, J., in a still later case, thought the words "unless the facts clearly warrant it," as used by Judge Rogers in Le Maistre v. Hunter, il chosen and liable to misapprehension. What must the facts "clearly warrant"-the opinion of counsel, or the prosecution? Whichever was intended, this expression would make the defense depend on the soundness of the legal opinion. If the facts must clearly warrant the legal opinion, then the legal opinion, to be a defense, must be the judgment of the highest court, must be correct at all hazards; if the facts must clearly warrant the prosecution, then the professional opinion is useless. "No matter how candidly and faithfully a prosecutor has submitted the facts to his legal adviser and followed his advice, if they turn out insufficient for the support of the prosecution, he is liable to an action for malicious prosecution. On this principle every acquittal of a defendant would be followed by such an action. A qualification of the rule in terms like these destroys the rule itself. The law is not so. Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause. It may be erroneous, but the client is not responsible for the error. He is not the insurer of his lawyer. Whether the facts amount to probable cause is the very question submitted to counsel in such cases; and when the client is instructed that they do, he has taken all the precaution demanded of a good citi

zen."

The opinion in Walter v. Semple, very clearly states the law on the subject as far as it goes. It has been held in many States that examination of the facts, will protect the the advice of an attorney, given after a full prosecutor; and this even though his opinion

7 Walter v. Semple, 25 Pa. St. 275 (1855).

8 Chandler v. McPherson, 11 Ala. 916 (1847); Turner v. Walker, 3 G. & J. 380 (1831); Wood v. Weir, 5 B. Mon. 544 (1845); Skidmore v. Bricker, 77 Ill. 164 (1875); Wicker v. Hotchkiss, 62 Ill. 107 (1871); Fisher v. Forrester, 33 Pa. St. 501 (1859); Potter v. Searle, 8 Cal. 217 (1857); Lemay v. Williams, 32 Ark. 166 (1877); Soule v. Winslow, 66 Me. 447 (1876); Palmer v. Richardson, 70 Ill. 545 (1873); Davie v. Wisher, 72 Ill. 262 (1874); Phillips v. Bonham, 16 La. Ann. (1861); Gould v. Gardner, 8 La. Ann. 11 (1853).

may be incorrect, and his advice wrong,9 provided they were understandingly given. 10

The rule that the client must make a full disclosure of all the facts to his counsel is a radical one. "It appears to me," said Mr. Justice Story in an early case, "that a necessary qualification of the admission is that it should appear in proof that the opinion of counsel is fairly asked upon the real facts, and not upon statements, which conceal the truth or misrepresent the cause of action. If the law were otherwise, nothing would be more easy than to shelter the most malicious prosecution, under the opinion of counsel, honestly given, but under a total mistake of the facts. Probable cause of action, in the opinion of counsel, must depend upon the facts which are brought before him; and if the whole facts which are material to form such opinion, are not presented to the mind, how can the court say that he has given any opinion as to the true cause of action?" Several cases illustrate the extent of this principle. In Ross v. Innis, 12 the plaintiff had been in the employment of the defendants, a mercantile firm, as cashier for four years. A charge was made against him of a debt due from his brother, and which the defendants claimed was to be paid by the plaintiff, and which they sought to set off against his salary. He denied any such agreement, and on leaving the concern, appropriated to the payment of salary due him, the sum of $166, out of moneys of the firm in bis hands. There was a rule of the house that sums over five dollars paid to clerks should be paid only on checks drawn by one of the partners, but the plaintiff was not considered a clerk within this rule; and the rule even as to clerks was frequently violated. The defendants had the plaintiff arrested for embezzlement, after consulting one B, their attorney; but they did not, among other things, inform B either that the plaintiff was not considered an ordinary clerk, or that the rule had been often violated. "These," said the Supreme Court of Illinois, "were im

9 Bartlett v. Brown, 6 R. I. 37 (1859); Wills v. Noyes, 12 Pick. 324 (1832): Murphy v. Larson, 77 Ill. 172 (1875); Richardson v. Virtue, 2 Hun, 20 (1874); Eastman v. Keasor, 44 N. H. 518.

10 Hall v. Hawkins, 5 Humph. 359 (1844); Clements v. Ohrly, 2 C. & K. 686 (1847).

11 Blunt v. Little, 3 Mason, 102 (1822).

12 35 Ill. 487 (1864).

portant facts, and should have been revealed to counsel. The whole truth, all the facts, should have been fully disclosed. As they were not, the defendants are not permitted to seek refuge under the advice given on a garbled statement of the facts." In a New York case, H took a wagon from the yard of Sin the day time, claiming it as his own under a bill of sale from his brother C to him; and S, after being informed of his claim, had him arrested for stealing the wagon. It appeared that, previous to the arrest, S had stated that he had sold the wagon to C. S had purchased it from one M and paid part of the purchase-money, and C had afterwards paid the residue. C executed a bill of sale of it to H, the former having previously asked S to buy it of him, which S refused to do. Before making the complaint, S consulted counsel who advised him to prosecute, but S omitted to tell him of the bill of sale from C to H. The jury were instructed that if S, in making the complaint before the magistrate, acted upon the advice of counsel given upon a full and fair statement of the facts within his knowledge, this would be a defense to the action. A verdict was returned for the plaintiff which was affirmed on appeal.13 In Thompson v. Lumley, 14 it appeared that the affidavits upon which the plaintiff's arrest was based were submitted to the district attorney, and he indorsed upon them that it was a proper case for the warrant to issue. But this was held not to protect the defendant, it being shown that there had not been a full disclosure in the affidavits of all the facts and circumstances. In Cooper v. Utterbach, 15 a witness, an attorney at law, having testified that the defendant had proceeded only after his advice as a lawyer to do so, the plaintiff asked him the following question: "You have stated that, with all the facts before you, you advised the defendant that the plaintiff had been guilty of obtaining money under false pretenses; please state what were the facts upon which that advice was based?" It was objected that as the correctness of the witness' opinion was not in issue in the case, nor the grounds on which he based it, the question was improper. But the court held otherwise; its object being to

13 Hall v. Suydam. 6 Barb. 83 (1849).

14 50 How. Pr. 105 (1875).

15 37 Md. 282 (1872).

test the good faith of the defendant, by ascertaining whether he had disclosed to his legal adviser all facts in his possession bearing on the guilt or innocence of the accused. It is not error to reject an offer by the defendant to prove that before commencing the prosecution, he consulted counsel; as this shows neither that he laid all the facts before him, nor that he advised it.16 There must be no suppression, evasion or falsehood on the client's part, in stating his case to the attorney; he must not make the application as a mere cover for the prosecution. 17 It is important to note that the party must not omit to state every fact known to him, even though he honestly supposed it was not material;18 and he must have divulged every fact which by reasonable diligence he might have ascertained; 19 it is not necessary that he shall have been grossly negligent in stating them.20 So it has been held that the act of the defendant in carrying on an unfounded prosecution, will not be excused even where he was supported by his attorney's opinion, the latter, while giving it, having expressed doubt of its propriety, 21 and of course, where both counsel and client act in bad faith, it will be no defense. 22

Good faith in acting upon the counsel's advice is as requisite as good faith in obtaining it. It does not follow, in every case, that because a party makes a full and correct statement of the case, as he honestly believes it, to his counsel, and receives his advice thereon, and thereupon acts upon it, his action is bona fide. It may generally be presumed to be so; but evideuce that after the advice he was informed of facts which should have satisfied him that the party whom he accused was not guilty, would destroy this presumption. 23 If under the advice of coun

16 Aldridge v. Churchill, 28 Ind. 62 (1867). 17 Walter v. Semple, 25 Pa. St. 275 (1855). 18 Hill v. Palm, 38 Mo. 13 (1866); Sharpe v. Johnston, 59 Mo. 557 (1875).

19 Sappington v. Watson, 50 Mo. 83 (1872); Thompson v. Mussey, 3 Greenlf. 305 (1825); Stevens v. Fassett, 27 Me. 266 (1847); Galloway v. Stewart, 49 Ind. 156 (1874), Bliss v. Wyman, 7 Cal. 257 (1857); Hewlett, v. Crutchley, 5 Taunt. 277 (1813).

20 Scotten v. Longfellow, 40 Ind. 25 (1872). 21 Kendrick v. Cypert, 10 Humph. 291 (1849). 22 Center v. Spring, 2 Iowa, 393 (1856); Sherburne 4. Boardman, Sup. Ct. Wis., March, 4 (1881).

23 Cole v. Curtis, 16 Mum. 182 (1870); Center v. Spring, 2 Iowa, 393 (1856); Stone v. Swift, 4 Pick. 389, 16 Am. Dec. 349 (1826).

sel, a person swears out a warrant against another, and before he causes his arrest, he ascertains his innocence of the charge, there is no principle on which he can be justified in proceeding, even though he was protected by professional advice in taking out the warrant.24 If the party consult one attorney, who advises him to proceed, and he afterwards receives from another attorney whom he consults advice of a contrary kind, the first opinion will not avail him as a protection. 25 And so if he does not himself believe that he has any ground for his cause of action, the opinion of a lawyer that he has is irrele

vant. 26

Whether the prosecutor acted bona fide upon the opinion of his counsel, believing he had a good cause of action, is a question for the jury.27 M, an army accoutrement maker, residing in London, had in January, 1822, made a contract with one D, an agent of the government of Columbia, to supply and ship to the latter a quantity of arms and accoutrements. M shipped the goods, and received from D certain debentures signed by D as agent of the Columbian government. When the goods arrived in South America, the government of Columbia repudiated the contract, alleging that D had exceeded his authority. In February, 1823, R arrived in England in the character of the accredited agent of the Columbian government, and to him M applied to acknowledge the contract with D, and to confirm the debentures, which he refused to do. A month later, M's attorney informed R by letter, that, by the laws of England, he was personally liable for the debt, and that if he did not satisfactorily arrange the matter, he would be proceeded against. In reply, R's attorney asked for copies of the contract between M and D, that he might form an opinion as to R's responsibility, and stated that R was not authorized either to confirm the contract or the debentures, and that the government of Columbia had disapproved of the contract, in consequence of D having gone beyond his authority. M's attorney refused to furnish the copies. M thereupon laid his

24 Ash v. Marlow, 20 Ohio, 119 (1851).

25 Stevens v. Fassett, 27 Me. 266 (1847).

26 Ravenga v. Mackintosh, 2 B. & C. 693 (1824)

27 Hall v. Suydam, 6 Barb. 83 (1849); Potter v. Searle. 8 Cal. 217 (1887): Thompson v. Lumley, 50 How. Pr. 108 (1875); Anderson v. Friend, 71 Ill. 475 (1874).