the facts of this case, the circuit court committed no error in setting aside the settlement. There was no direct evidence of fraud on the part of Brown, who was proved to be a man of good character; but there was nothing to prove the propriety of the charge, and that it was a mistake, appeared beyond question. No such judgment could be found, though the records of all the courts in the county were examined. Brown was a clerk in decedent's store, and lived in his family. His charges as clerk were duly allowed in the final settlement. All the evidence shows that the claim was a false one, and Brown, being acquainted with the facts, must have known it to have been such, and his representatives can suggest no satisfactory explanation. 2. The circuit court, after setting aside the settlement, ordered the administrator of Brown to settle up the estate of Byerly. Held, that this order was in excess of the jurisdiction of the circuit court. The judgment vacating the settlement was right, and left the matter to the probate court, which had the sole jurisdiction to take the necessary steps to secure a settlement of the estate. Judgment affirmed as modified. Opinion by NAPTON, J.— Byerly v. Donlan.

SUPREME COURT OF INDIANA.

December, 1880.

GUARDIAN'S BOND

1.

CHANGING ORDER OF SALE SURETY'S ANSWER PLEADING. Where, upon the petition of a guardian for the sale of real estate of his ward, the court ordered a sale of the same at private sale, upon his executing an additional bond, and afterwards the court modified the order so as to authorize him to sell the real estate at public sale: Held, in a suit by the administrator of the deceased ward upon such guardian's bond, alleging the conversion of the proceeds of the sale by the guardian, that the terms of sale as fixed by the first order of court constituted no part of the contract evidenced by the bond, and the changing of the order did not change the obligation of the bond or impair it in any degree. 2. In such suit the surety answered that such guardian had refused to claim credit for a large sum of money expended by him for the support and education of his ward, etc. Held, that this answer was insufficient because it did not allege that the guardian had used any part of his ward's estate for her support, etc., and it might well be assumed that the money expended by him, as alleged, was such a gift as a father might properly make to his infant daughter; especially as it was not alleged that such expenditure was beyond his means, or had impaired his estate, or that he was at the time insolvent or in danger of insolvency. 3. It was claimed that the bond was insufficient, because it was not conditioned for the "faithful payment and accounting

for all moneys issuing from such sale," but only for "the faithful discharge of his duties." Held, that the bond comes fairly within the scope of sec. 790 of the Code. 2 Rev. Stat. 311; Railsback v. Greve, 58 Ind. 72; Graham v. State, 66 Ind. 386; Lane v. Clodfelter, 67 Ind. 25. Affirmed. Opinion by HowK, J.-Stevenson v. State, ex rel. Ruddell. REPLEVIN-VERDICT NOT SUSTAINED BY EVIDENCE.-In 1871, Samuel Davis mortgaged certain land of which he was in possession, to his mother, to secure the payment of three promissory notes. This mortgage was afterwards foreclosed and the land purchased by Mrs. Davis, who received a sheriff's deed for the same in June, 1876. Davis continued in possession of the land after his mother received her deed, and in the fall of 1876, he and another, as tenants of Mrs. Davis, sowed portions of the farm in wheat. the wheat was harvested, and the amount due from them to Mrs. Davis was put into a separate bin for her use. This wheat was afterwards attached as the property of Samuel Davis, and his mother sued to recover it. There was a verdict and judgment against her. Held, that the verdict was not sustained by the evidence, and a new trial should have been granted. Reversed. Opinion by NIBLACK, C. J.-Davis v. Hamilton.

--

In 1877

RAILROADS-KILLING STOCK-OWNERSHIP OF ROAD EVIDENCE.-1. In an action against a railroad company for killing stock, the defendant offered in evidence the record of the lease of the road on which the stock was killed to the defendant, but the court refused to permit its introduction. Held, that the evidence was competent and admissible under the general denial, the question of the ownership of the railroad being put in issue by the general denial. Pittsburgh, etc. R. Co. v. Bolner, 57 Ind. 572; Pittsburgh, etc., R. Co. v. Hannon, 60 Ind. 417; Jeffersonville, etc. R. Co. v. Downey, 61 Ind. 287. 2. Uncertainty in pleading can not be reached by demurrer for want of facts, and after verdict it can not be made available, either in arrest or for the reversal of the judgment. Cincinnati, etc. R. Co. v. Chester, 57 Ind. 297; Pennsylvania Co. v. Sedwick, 59 Ind. 336; Barnett v. Leonard, 66 Ind. 422. Reversed. Opinion by Howк, J.-Pittsburg, etc. R. Co. v. Hunt.

ASSESSMENT FOR TAXATION DEDUCTION OF BONA FIDE INDEBTEDNESS-WHAT IS A FINAL JUDGMENT.-1. Under the assessment law a resident tax-payer, in listing his personal property for taxation, has the right to deduct from his "money at interest, either within or without the State,' and the "total amount of all credits" owned and held by him, his "bona fide indebtedness, ," and list or give in the remainder only, for the purpose of taxation. 2. In section 54 of the assessment act of 1872, 1 R. S. 87, the word "or," immediately following the words “money loaned,” and immediately preceding the words "on account of any bond," is a probable error and should be eliminated. 3. Sustaining a demurrer to a pleading, without any further action of the court upon

it, is not a final judgment from which an appeal to the Supreme Court will lie; but where further action is taken upon the demurrer, as a rendition of judgment for costs, an appeal will lie. Reversed. Opinion by HowK, J.-Matter v. Campbell.

CRIMINAL LAW · ASSUMPTION THAT CRIME HAD BEEN COMMITTED-ERRONEOUS INSTRUCTION.-Under an indictment for murder by the malicious changing of a railroad switch, whereby a train was thrown from the track, it was agreed upon the trial that the deceased was a brakeman upon a train that was wrecked by the misplacement of a switch by some person, and was killed. The court, among other things, charged the jury: "A great crime has been committed in this county through an act which resulted in the death of a servant of a railroad corporation," etc. Held, the charge was clearly erroneous. The court should not have assumed that the crime charged had been committed; much less should it have been stated in emphatic language that it had been committed. There was nothing in the agreement that admitted the commission of the crime by any

one.

All that was conceded might be true, and yet the crime charged not have been committed at all. For aught that appears in the agreement, the switch may have been changed by some of the railroal employees, innocent of any malice. Upon that point the court had no right to assume the existence of a fact which the jury were required to find from the evidence. The following authorities may be consulted: Smathers v. State, 46 Ind. 447; Barker v. State, 48 Ind. 163; Killian v. Eigenmann, 57 Ind. 480. Reversed. Opinion by WORDEN, J.-Jackman v. State.

PRACTICE-SPECIAL FINDING-RATE OF INTEREST ON NOTE AFTER MATURITY.-1. A special finding of facts not made at the request of either party, nor signed by the judge, can only be regarded as a general finding. Conwell v. Clifford, 45 Ind. 392; Caress v. Foster, 62 Ind. 145. 2. Where there is no objection below to the form or substance of the judgment, and no motion is made there to modify or correct it, the question can not be raised in the Supreme Court. Smith v. Dodds, 35 Ind. 452; Lewis v. Edwards, 44 Ind. 333. This rule applies to a judgment which is objected to on the ground that it was unlawfully specified therein that it should be executed without relief from valuation or appraisement laws (O Brien v. Peterman, 34 Ind. 556; Johnson v. Prine, 55 Ind. 351); and to a case whereit is claimed that the judgment was erroneous, because a higher rate of interest than judgments ordinarily bear, had been specified by the court in the judgment. 3. Where a note does not in terms provide for the payment of any rate of interest after its maturity, such note bears after that time merely the legal rate, by operation of law. Burns v. Anderson, 68 Ind. 202; Brewster v. Wakefield, 22 How. 118. But where in such a case the judgment bears a higher rate of interest than is thus provided, the

question can not be presented in the Supreme Court merely by assigning as a cause for a new trial that the damages are excessive, or that the court erred in the assessment of the amount of recovery. Spurrier v. Briggs, 17 Ind. 529; Floyd v. Maddux, 68 Ind. 124. Affirmed. Opinion by Howк, J.-Smith v. Toleman.

SUPREME COURT OF WISCONSIN.

November 30, 1880.

RAPE-ULTIMATE CONSENT.-1. In a prosecution for rape, where the evidence did not show such personal violence and threats that, through terror, the power of volition and of resistance was wholly lost, the court charged the jury that, "if the woman ultimately consented to the intercourse, such consent not being freely or voluntarily given, but being obtained through fear, duress and fraud, or partly by fear and partly by force, then the offense was rape;" and it gave other instructions of like effect. Held, error. 2. Strictly speaking, while ultimate submission of the woman, induced by fraud or fear, or by incapacity for further resistance, may not be inconsistent with the crime of rape, her consent, which properly implies a positive act of the will, is always inconsistent with that crime. Opinion by ORTON, J.-Whittaker v. State.

MURDER-EVIDENCE CHARACTER OF THE DECEASED.—In a prosecution for murder in the first degree, under the statute, where it appeared that the fatal blow was inflicted with a pocketknife, and that the deceased made the first assault: Held, that it was error to reject evidence offered by defendant to show that deceased was a man of great physical strength, and was a "desperate, fighting, ruffianly character," and that defendant had knowledge of these facts. Brucker v. State, 19 Wis. 539, distinguished. Opinion by COLE, J.-State v. Nett.

CRIMINAL LAW-INTEREST OF COUNSEL FOR PROSECUTION.-1. On trial of an information for burglary, the person who is alleged in the information to have been the owner of the house broken and entered, and of property stolen therein, being an attorney-at-law, was permitted to assist the district attorney at the request of that officer. No other special interest in the prosecution on the part of such attorney was shown. Held, that his participation in the trial is no ground of reversal. 2. Evidence returned with a writ of error, but not included in a bill of exceptions, cannot be considered by this court. Opinion by LYON, J.-Lawrence v. State.

PARTNERSHIP-WHAT CONSTITUTES-COMPENSATION BY A PERCENTAGE OF PROFITS.-1. A mere agreement that, for his services in conducting A's business, B shall be paid out of the profits, is not sufficient to constitute a partnership. 2. In an action by A against an officer who, on an

attachment against B, had seized property as partnership property of A & B, where the clear proof as to the actual arrangement between A and B, showed that there was no partnership: Held, that there was no error in taking that question from the jury, notwithstanding proof that on some occasions A had spoken of B as his "partner." So held where no question of estoppel was involved. Opinion by COLE, J.-Nicholaus v. Thielges.

DEED POSSESSION OF GRANTEE - PRESUMPTION OF DELIVERY-EVIDENCE.-1. Possession of a deed by the grantee therein named is presumptive evidence of a delivery thereof to him by the grantor, and throws the burden of proof upon the party who denies such delivery. 2. In this case, the grantor went to a magistrate alone, and executed and acknowledged the deed, without previous communication with the grantees on the subject; his remarks to the magistrate indicated that he expected the making of the deed to defeat a railroad mortgage on the land, which he thought he ought not to pay; there is no testimony, except that of the grantees, showing that the deed was ever seen afterwards by any one until after the grantor's death, thirteen years after the date of its execution, when it was found among his papers by one of the grantors, and procured to be recorded; the grantees, nephews of the deceased (who was unmarried), lived with him upon the land, which they all worked in common; there was no visible change in the control or management of the land after the execution of the deed; it was assessed for taxation to the grantor until his death, and the receipts for the taxes were found among his papers. Held, that these facts are sufficient to rebut the presumption of delivery arising from the possession of the instrument by the grantees. 3. The testimony of the grantees, if accepted as true, would show a delivery to them; but, in addition to the facts above stated, their testimony is contradicted in some important particulars by other witnesses; and the trial court found against them. Held, that there is no

such preponderance of evidence against the finding as will justify a reversal of the judgment. Opinion by LYON, J.-Stewart v. Stewart.

NOTES.

-On Jan. 5th, Mr. Justice Woods, the newly appointed associate justice of the United States Supreme Court, subscribed the usual oaths of office, and took his place on the Supreme Bench. What is known as the "ironclad oath" to "support and defend the Constitution," and declaring that the taker has "never borne arms against the United States," etc., was administered by Chief Justice Waite, in the presence of the associate justices in the robing room. They all

then proceeded to the court room, and, the court being opened, Judge Woods read aloud the following special oath of office, and subscribed it before Clerk McKenney: "I, William B. Woods, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent on me as an associate justice of the Supreme Court of the United States, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United Statesso help me God." He signed a copy of the foregoing upon the back of his commission, and then took his seat next to Justice Bradley, on the extreme left of the Chief Justice. His predecessor, Judge Strong, assisted at the ceremony in the robing room, and occupied a seat among the lawyers within the bar, while Judge Woods took the final oath.

-The statement made by Surrogate Calvin, of New York, as to the work done in his court in the last year, presents many interesting facts. Of the 994 wills offered for probate, 62 were contested, letters testamentary were granted upon 923, and 30 will-contests are still pending. The Surrogate issued letters of administration in 1,941 cases, disposed of more than 5,000 motions, and granted 2,403 decrees. The Surrogate presided at will-contests on 213 days, and heard motions on 94 days. The additional room given to the Surrogate by the completion of the wing of the courthouse, has provided much better facilities both for the keeping of the records and for the work to be done in the court. The Surrogate's statement also presents some statistics as to the result of his administration since April 12, 1876, to "show that testamentary dispositions of property have been quite as secure and the expenses of the litigation respecting them have been very much less than the dispositions of similar property by sale, conveyance or gift consummated in the life of the owner." At least $400,000,000 in property has been disposed of by the 4,719 wills offered for probate. The 296 wills contested, including the Vanderbilt and Stewart wills, have covered over $200,000,000 of property. Only 22 wills have been rejected, covering $600,000 in property, or three-tenths of one per cent. of the amount involved in the contests. The allowance to unsuccessful contestants amounted to $50.000, and all allowances to counsel (which are in lieu of costs in other courts), amounted to $150,000. The total of the expenses of administering the Surrogate's office has been about onethirtieth of one per cent. of the amount coming within the jurisdiction of the court.

Not long ago, in the New York Court of Appeals, an Irish lawyer, while arguing with the earnestness of his race, stated a point which the court ruled out. "Well," exclaimed the attorney, "if it plaze the court, if I am wrong in this, I have another point that is equally as conclusive."

ST. LOUIS, JANUARY 21, 1881.

CURRENT TOPICS.

Before we permit the year 1880 to drift completely into the past, it is fitting to call to mind the names of the many eminent, and some distinguished, members of the bench and bar who must be enrolled in its necrology. The Federal Judiciary suffered in the loss of Judge Trigg, of the Western District of Tennessee, a man of strong practi 1 sense, Judge Hays, of the District of Kentucky, and Judge Ketcham, of the Western District of Pennsylvania. Among these, too, should be mentioned ex-Judge Huntington, of the Court of Claims.

Wisconsin lost the brightest legal luminary of one of the best courts in the country in the person of Mr. Chief Justice Ryan.

Early in the year Mr. Chief Justice Church, of the New York Court of Appeals, died. An able lawyer and learned judge, he was conceded to be the master mind of the court. The New York Supreme Court, too, lost Mr. Chief Justice Curtis, and the Marine Court Judge Sinnott. The Alabama judiciary sufered in the death of Associate Justice Man. ning, of the Supreme Court. Among those less widely known, whose deaths are to be chronicled, are Chancellor Pirtle, in Kentucky, and Judge Montague, of Virginia.

The bar suffered much less severely, the only names of note which have attracted our attention being those of Mr. Henry Wharton, of Philadelphia, ex-Judge Alfred Blackman, of Hartford, Connecticut, and the distinguished, learned and accomplished Isaac Grant Thompson, editor of the Albany Law Journal, who had probably spent more years in the harness than the editor of any other legal publication in the country.

The English bench also experienced severe losses. The death of Lord Chief Justice Cockburn, although he was probably in no sense of the word a great lawyer, is not an event which will pass without effecting great changes. The Chief Baron of the Exchequer, Sir Fitzroy Kelly, and Alfred Henry Thesiger, one of the judges of the English Court Vol. 12-No. 3

justices of the Common Pleas, are among the others who have ceased forever their judicial labor.

Among the English bar the only names of note we find among the dead of 1880, are those of John Humphrey Parry, a distinguished sergeant at law, and the famous Dr. Kinealy who fought the battles of the Tickborne claimant with more enthusiasm than discretion.

In discussing in our last number the measures of reform which have been set on foot in many of the States, with a view of facilitating the transaction of business in the courts, and of avoiding the delays and reducing the expenses of litigation, we called attention to what we consider one of the chief causes of the difficulties under which our appellate courts labor, to-wit: the imperfect manner in which, in the very great majority of instances, causes are tried at nisi prius. We did so merely as a hint to arouse the intelligent thought of the leading minds among our readers on this topic. We do not arrogate to ourselves the province of formulating method by which these evils may be remedied and recommending its adoption. If we can succeed in calling the attention of the bar to some of them, we shall conceive that our task is accomplished and our responsibility discharged.

In pursuance of this idea then, we would suggest that no scheme of reform can be considered complete which shall fail to remedy the evils attendant upon the present system of transacting business in magistrates' courts. It may, at first blush, seem to be a trifling matter, because of the limited jurisdiction of these courts. But a little reflection will show that an immense mass of litigation, when taken in the aggregate, passes through the hands of these officers, and the fact, that a great majority of litigants in such courts are poor and unable to indulge in the luxury of appeals, and writs of certiorari, and such remedial process for the correction of errors, is only an additional reason why they should be organized in such a manner as to do, as nearly as possible, exact justice in the first instance. In addition to the many instances in which the

litigant is unable to appeal from an unjust judgment, and, consequently, suffers a wrong, there are numberless cases in which he does so appeal, and thus the dockets of the higher courts are crowded with causes involving trifling amounts and no particular legal principle of importance. In many instances, where the courts of record and the magistrates have concurrent jurisdiction, cases which ought, for the good of the parties and the convenience of the public, to be settled in the court of a justice of the peace, are brought in the first instance in the court of record as the shorter method of the two. The cause of all these evils we conceive to be two-fold. In the first place, in many, if not all of the States, it is not a necessary qualification for the office that the candidate should be a lawyer; and second, that in most instances it is provided by law that the compensation of the justice shall be made by means of costs to be paid by the unsuccessful litigant; whereby it comes that the judgment is usually against him that is best able to pay the costs. We think that justices should be members of the bar, and that they should be compensated by fixed salaries for their services.

We are well aware that any plan for carrying these reforms into effect would be met by the objection that they are impracticable, because the justices and the constables are a political power in the land. But we would remind any who are inclined to be disheartened on that account, that there are many indications that public opinion is already educated up to the point of putting into effect radical changes in our various systems of procedure. It seems to be only a question whether the bar, who alone are qualified for such a task, are to lead and direct the movement, or are to be driven by it.

To recapitulate, we think that any scheme of reform ought to embody these features: 1. Courts by magistrates, who shall be chosen from the profession and shall be compensated by salaries. 2. Nisi prius courts, held by judges who shall have less to do, greater compensation and longer terms of office. 3. A Supreme Court, strong enough in numbers and material to do its work without inconvenience with terms of office long enough, and salaries sufficient to make it practicable to obtain the very best talent for the positions.

We see from the Law Times that the Employers' Liability Act, as it is termed in England, which went into effect on the 1st inst., is already beginning to produce results, though not of that nature which was expected and hoped by its friends. This act, it may be briefly stated, so far changes the law of master and servant, as to make the former liable for personal injuries received by the latter in the course of his employment, through the negligence of a fellow-servant. It is provided, however, that special contracts may be made in which this liability may be released.

Says the Law Times: "The Employers' Liability Act does not appear to give that amount of satisfaction to working men which was expected. At any rate, the principal mining delegate of the South Staffordshire and East Worcestershire district says: 'A great mistake has been made by some persons in urging on the present Government to pass and bring into operation the Employer's Liability Act, for which the working men had made so little request and were so ill prepared for the charge it has brought about.' The latter statements are somewhat strange, after all the discussion which took place before the Act was passed. It is nevertheless a serious matter for workmen to find an employer, like the Earl of Dudley, giving his employees notice that on and after January 1 next, his subscriptions to medical attendance and support to the sufferers, and allowances to widows and fatherless children, will be withdrawn." Judging from this extract, it would not seem an improbable guess, that the act was the work of impractical philanthropists who had failed to study all the conditions of the problem. The measures of retaliation on the part of the employers are natural, and perhaps right. If the subscriptions referred to were a recognition of a moral obligation to care for employees injured by the negligence of fellow-employees, it is well that the act has converted that moral obligation into a legal liability. If they were not such a recognition, then they constituted a charity, incompatible with the relation of employer and employee, and such as an American workingman would hesitate to accept. The operation of the act will be watched by many persons in this country with great interest.