more, each time any such real estate shall be "struck off," the duty is not collectible on a sale of land under a decree of foreclosure, where the purchase money is not paid, and a resale becomes necessary; there being, by fair construction, but a single sale.-STATE V. SEC. OND NAT. BANK OF HOBOKEN, Md., 35 Atl. Rep. 889. 209. TAXATION Certificate of Payment.-Where a deed is executed purporting to convey the title to or affecting an interest, legal or equitable, in several parcels of real property, and the taxes are paid upon one parcel, but are delinquent and unpaid upon the other parcels, mandamas will not lie to compel the county auditor to indorse upon such deed, over his official signature, the words, "Taxes paid, and transfer entered."-STATE V. WELD, Minn., 68 N. W. Rep. 1068.

210. TAXATION Double Assessment.-Held, a taxpayer who has been assessed in each of two different counties for the same personal property cannot ob tain relief under section 1522, Gen. St. 1894, by making an ex parte application to the State auditor to determine in which county he should be assessed, but he should apply to such auditor promptly on notice to the proper authorities of each county, or ask the auditor to fix a time and place of hearing, and give notice thereof.-CLARKE V. BOARD OF COM'RS OF STEARNS COUNTY, Minn., 69 N. W. Rep. 25.

211. TAXATION - Exemption School Lands.-Lands purchased and held by a school district solely for sale or rent, for the sake of profit, are not exempt from taxation as "public property used exclusively for pub. lic purposes."-SCHOOL DIST. OF FT. SMITH V. HOWE, Ark., 87 S. W. Rep. 717.

212. TAXATION-License-Recovery of License Fees.The provisions of Cr. Code, § 3892, declaring that any persons engaged in or carrying on a business for which a license is required, without having taken out such license, shall on conviction be fined three times the amount thereof, cannot be construed as excluding the right of the State to maintain a civil action for the recovery of such a license.-STATE V. FLEMING, Ala., 20 South. Rep. 846.

213. TAXATION-Railroad Companies.-A provision, In the charter of a railroad company, denying to municipal corporations the power to tax its "stock," but giving them power to tax "any property, real or per. sonal," of the company, is in effect, a denial of power totax the shares of stock in the hands of stockholders. -CENTRAL RAILROAD & BANKING Co. v. WRIGHT, U. S. 8. C., 17 8. C. Rep. 80.

214. TAXATION-Undervaluation.-When an assessor, acting within his jurisdiction, and in good faith, and in the exercise of his honest judgment, assesses cer, tain property for taxation at less than its actual value. such undervaluation will not invalidate the entire assessment.-SHATTUCK V. SMITH, N. Dak., 69 N. W. Rep.

5.

215. TAX TITLES-Lien for Taxes.-The recovery of a judgment quieting the title of the holder of a tax title as against the life-tenant, does not defeat his right to assert his lien for taxes afterwards paid against the owners of the reversionary interest, where it does not appear by the findings on what grounds the action in which the title was quieted was based.-WATSON V. LECKLIDER, Ind., 45 N. E. Rep. 72.

216. TELEGRAPH COMPANIES-Failure to Deliver Message. A rule of a telegraph company that it would not make free delivery of messages at the place where a message was received, except within a certain distance from its office, is no defense to an action for a failure to deliver such message, where the rule was not observed, and was not known or stated to the sender of the message, who paid all that was demanded for its transmission and delivery, and such delivery was promised by the receiving agent.-WESTERN UNION TEL. Co. v. ROBINSON, Tenn., 37 S. W. Rep. 545.

217. TRESPASS-Joint Action-Separate Judgments.In trespass against several joint defendants, on proof of separate trespasses committed by each defendant,

separate judgments against each are not authorized.-ASHCRAFT V. KNOBLOCK, Ind., 45 N. E. Rep. 69.

218. VENDOR AND PURCHASER - Contract of Sale.After negotiations for the sale and purchase of a lot had been continued for some time by letter, the purchaser made an offer for a lot of certain dimensions, to which the owner answered by offering to accept the price for a lot of smaller size, provided they could agree on other points. The purchaser then wrote that he accepted the proposition on the terms and condi tions stated in a former letter, and requested that a deed be executed and sent him. When the deed was received it contained conditions to which the purchaser refused to accede: Held, that the letters did not constitute a contract which the purchaser could specificially enforce.-VIRGINIA HOT SPRINGS Co. v. HARRISON, Va., 25 S. E. Rep. 888.

219. VENDOR AND PURCHASER Enforcement of Vendor's Lien.-Where a vendor's lien is reserved in a note given for purchase money, it may be enforced, though the note is barred by limitation.-BARBER V. HOFFMAN, Tex., 37 S. W. Rep. 769.

220. WATER COMPANIES-Establishment of Rates.-No corporation appropriating water under and by virtue of the constitution and laws of California for sale, rental, or distribution has the right to exact any sum of money or other thing in addition to the legally es tablished rates, as a condition upon which it will furnish to consumers water so appropriated.-LANNING V. OSBORNE, U. S. C. O., S. D. (Cal.), 76 Fed. Rep. 319.

221. WILLS-Conditions in Restraint of Marriage.-A condition that, if testator's widowed daughter marry again, the share bequeathed to her shall go to her son, is valid; the rule forbidding conditions in general restraint of marriage not extending to second marriages. -HERD V.CATRON, Tenn., 37 S. W. Rep. 551.

222. WILLS-Execution-Proof.-An instruction that alleged undue influence must be "proven" by contestants, to the "satisfaction" of the jury by a "prepond erance of the evidence," is erroneous; the court hav ing also instructed that on proof of the due execution and attestation of the will, and of the soundness of testator's mind, it is presumed that the will was his free and voluntary act.-MORTON V. HEIDORN, Mo., 37 S. W. Rep. 504.

223. WILLS-Meaning of "Issue"-Adopted Children. -The word "issue," used in a will, where nothing ap pears to limit its legal import, includes all descendants, and under the statute of adoption (Pub. Laws 1866, ch. 627), which gives adopted children the legal status of descendants, except that they shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption nor property from their lineal or collateral kindred by right of representation, an adopted daughter is entitled to a bequest, the use of which is given to her mother by adoption during her life, the principal to be paid on her death to her "lawful issue."-HARTWELL V. TEFFT, R. I., 35 Atl. Rep. 882.

224. WILL-Vested Remainder.-After devising to his wife a life estate in 40 acres of land, the testator devised the remainder to his son P, "on condition that he takes care of my said wife, his mother, and provides for her a good and comfortable support so long as she may live. The testator survived his wife, but no alterations were made in his will:" Held, that P took a vested remainder, and not an estate conting. ent on his support of his mother.-GINRICH V. GINRICH, Ind., 45 N. E. Rep. 101.

225. WITNESS-Child.-Error cannot be predicated of allowing a witness eight or ten years old to testify, the court certifying that on his preliminary examination he showed that he understood the obligation of an oath, and was a competent witness, and the bill of exceptions merely showing that on his preliminary examination he stated that it was wrong to tell a story; that, if he did, the old buggerman would get him, and, if he got him, would burn him.-MISSOURI, K. &T. RY. CO. OF TEXAS V. JOHNSON, Tex., 37 S. W. Rep. 771.

Central Law
Law Journal.

ST. LOUIS, MO., JANUARY 8, 1897.

On January 1st last, the CENTRAL LAW JOURNAL began its 24th year, and I, its third editor, take the opportunity offered me by the publishers to say a word or two concerning its past history and its present prospects.

What strikes me in the first instance as worth noting is that the JOURNAL is now nearly a quarter of a century old. I look back at the law periodicals which were alive when it was born; at those which have arisen during its life, and at those which have died, while it still survives. Not more perhaps than two of at least a score which were born before it are now remembered; and of another score or more which have sprung up during its existence, how many are ten years old?

In the past 23 years there have been but few changes in the CENTRAL LAW JOURNAL. It has had in all seven different editors. When it was founded the official reports were years behind the work of the courts. Then the profession saw in advance of those reports only such as the JOURNAL and one or two of its contemporaries could print and to the number of five or six a week. Then the editor was obliged to rely for these cases on the courtesies of the counsel engaged in them who had obtained a copy of the opinion, or else to have to make a trip to the State capitol, read the opinions filed and bring away copies of the important ones. Now, the editor has before him every week the whole field of judicial utterance, State and National. Then the question was how to get material; now it is what to take and what to reject from the overwhelming mass.

In all these years there has been hardly a change in the purpose of the JOURNAL. It was intended by its founders as a paper for the practicing lawyer. Once or twice the editor of the day has been tempted to stray into controversies with rival editors over some question of conduct or circulation; but these interruptions have been occasional and brief. To make it a practitioner's paper, to give it an actual money value to the busy lawyer such as his text books and reports and digests-the books of his trade-have, has

been all along the aim of both editor and publishers. There have been journals which have attempted to be critical, literary and scientific, as well as practical, but their names with but one creditable exception, are now almost forgotten, and this side of legal journalism seems to have gone to the law schools, several of which are now publishing magazines of this character. They, however, do not appeal to nor are they much noticed by the practicing lawyer, for they are in most cases rather theoretical and always academic.

The CENTRAL LAW JOURNAL was never more practical than to-day; never more completely what it started out to be, and upon which has been based its prosperity and long life-the journal of the practitioner.

Lastly, the editor of 1877-1881 is glad to meet again in the publishers of to-day the same gentlemen who published the JOURNAL during the four years he occupied the editorial chair.

University of Missouri."

JOHN D. LAWSON.

The Supreme Court of the United States. has just held constitutional the Wright irrigation law of California. Fallbrook Irrigation Dist. v. Bradley, 17 S. C. Rep. 56. It will be recalled that Judge Ross of the United States Circuit Court for the Southern District of California, at the hearing below, declared the statute invalid on the ground that it involved taking property for other than a public use, 68 Fed. Rep. 498. It was claimed that "the citizen is deprived of his property without due process of law if it be taken by or under State authority for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain," and a Federal question was thus raised under the Fourteenth Amendment, even although the taking was under the authority of a State instead of the Federal Government. The courts of the State of California had previously held the act valid. The Supreme Court, in an opinion by Mr. Justice Peckham, reversing the lower Federal Court, holds that when the highest court of a State has decided that a certain statute is in harmony with the State constitution, a Federal court will not be justified in holding adversely on the ground that the decision of the State court is in con

flict with the general principles of constitutional law; that water used for the irrigation of lands which are actually arid is used for a public purpose, and, therefore, a statute providing for the irrigation of arid lands, and authorizing an assessment on such lands to pay the cost of the irrigation, does not deprive the landowner of property without due process of law, by means of an assessment not made for a public purpose, and that to render the use of water for the irrigation of arid lands a public use, every resident of the irrigation district need not have the right to use the water. If each landowner has the right to use a proportionate share upon the same terms as all the others, the use is a public, and not a private, one.

The substance of the conclusion of the court is to be found in the following language by Mr. Justice Peckham:

"Viewing the subject for ourselves, and in the light of these considerations, we have very little difficulty in coming to the same conclusion reached by the courts of California. The use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect. In general, the water to be used must be carried for some distance, and over or through private property, which cannot be taken in invitum if the use to which it is put be not public; and, if there be no power to take property by condemnation, it may be impossible to acquire it at all. The use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation. Cole v. Le Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416. A private company or corporation, without the power to acquire the land in invitum, would be of no real benefit; and, at any rate, the cost of the undertaking would be so greatly enhanced by the knowledge that the land must be acquired by purchase that it would be practically impossible to build the works or obtain the water. Individual enterprise would be equally ineffectual. No one owner would find it possible to construct and maintain waterworks and canals any better than private corporations or companies, and, unless they had the power of eminent domain, they could accomplish nothing. If that power could be conferred upon them, it

could only be upon the ground that the property they took was to be taken for a public purpose. While the consideration that

the work of irrigation must be abandoned if the use of the water may not be held to be or constitute a public use is not to be regarded as conclusive in favor of such use, yet that fact is in this case a most important consideration. Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual obstacle will therefore remain in the way of the advance of a large portion of the State in material wealth and prosperity. To irrigate, and thus to bring into possible cultivation, these large masses of otherwise worthless lands, would seem to be a public purpose and a matter of public interest,

not confined to the landowners, or even to any one section of the State. The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a public use. All landowners in the district have the right to a proportionate share of the water, and no one landowner is favored above his fellow in his right to the use of the water. order that the use should be public, that every resident in the district should have the right to the use of the water. The water is not used for general, domestic, or for drink· ing purposes, and it is plain from the scheme of the act that the water is intended for the use of those who will have occasion to use it on their lands. Nevertheless, if it should so happen that at any particular time the landowner should have more water than he wanted to use on his land, he has the right to sell or assign the surplus of the whole of the water, as he may choose."

It is not necessary, in

The court also cites Hagar v. Reclamation Dist., 111 U. S. 701, in which it was held that the power of the legislature of California to prescribe a system for reclaiming swamp land was not inconsistent with any provision of the federal constitution, saying that the two cases do not essentially differ. It is pointed out that such power of reclamation does not rest only upon the ground of preserving the public health.

NOTES OF RECENT DECISIONS.

UNREASONABLE

MUNICIPAL CORPORATION ORDINANCE.-In City of Grand Rapids v. Newton, 69 N. W. Rep. 84, decided by the Supreme Court of Michigan, it was held that a city ordinance providing that no person shall allow or permit any indecent, loud or boisterious noise, or any fighting or other disturbance, in or about his house or tavern, inn, saloon, cellar, shop, office, or other residence or place of business, or permit drunkards or persons having the reputation or name of being prostitutes to congregate, visit or remain therein, is unreasonable, as not limited in its application to such assemblages or to such places of business as are properly within police control, and consequently void.

ARREST OFFER OF REWARD - DEPUTY SHERIFF ESTOPPEL.-In Witty v. Southern Pacific Co., 76 Fed. Rep. 217, decided by the United States Circuit Court, Southern District of California, it appeared that three men, in search of certain criminals for whose arrest a reward had been offered, fired upon and wounded one of them, who was concealed behind a pile of straw, so that the extent of his injuries was unknown. One of the attacking party, being also wounded, was conveyed to a distant town by another, who returned next morning, accompanied by a deputy sheriff and others. The third member of the original party remained on watch near the straw pile, all night, to prevent the criminal's escape. The deputy sheriff, with other persons, approached the straw pile, and, finding the wounded man utterly incapable of offering the least resistance, formally arrested him. It was held that the arrest was in fact effected before the deputy's arrival, and the latter was not entitled to claim the reward, and that it is the duty of a deputy sheriff, when specific information is conveyed to him that a felon is at a particular place within his jurisdiction, to take measures for his prompt apprehension, and he cannot claim that an arrest thus effected is made in his private capacity, so as to entitle him to a reward offered by private parties. The court distinguished Russell v. Stewart, 44 Vt. 170, and followed Warner v. Grace, 14 Minn. 487 (Gil. 364). It appeared also in the case that on the day after the arrest the deputy

stated to an agent of defendants that only those who made the fight were entitled to the reward, and that he himself would not claim any part of it. Thereupon the entire amount was paid to the searching party. It was held that the deputy was estopped from thereafter claiming the reward for himself.

STATUTE OF FRAUDS-PAROL PROMISE AS TO WILL.-In Dicken v. McKinlay, 45 N. E. Rep. 134, decided by the Supreme Court of Illinois, it was held that a legal adoption by one, of her deceased son's only daughter, as her own child, is not such part performance as will take out of the statute of frauds the parol contract of the grandmother, in consideration of consent to the adoption, to make no will which should deprive the child of any portion of the grandmother's estate which the child would take as heir if the

grandmother made no will. It was further

held that a contract to make no will which will deprive one of property which she would take as heir if there was no will, having relation to real estate and personalty, and being within the statute of frauds as to the former, and not being divisible, is wholly void. The court said in part:

The weight of authority is in favor of the position that a man may make a valid agreement to dispose of his property in a particular way, by will, and that such contract may be enforced in equity, after his decease, against his heirs, devisees or personal representatives. 22 Am. & Eng. Enc. Law, p. 974, and cases cited in note 2; Schouler, Wills (2d ed.), sec. 454; Wat. Spec. Perf. Cont. sec. 41; Fry, Spec. Perf. (3d ed.) sec. 223; Weingaertner v. Pabst, 115 Ill. 412, 5 N. E. Rep. 385. But such contracts are looked upon with suspicion, and are only sustained when established by the clearest and strongest evidence. Id. There is a want of harmony among the decisions in regard to the enforcement of such contracts when they are oral, and in regard to the scope and applicability to them of the statute of frauds. Without entering into a discussion of the authorities upon the subject, we regard the case at bar as governed by the recent decision in this court in the case of Pond v. Sheean, 132 Ill. 312, 23 N. E. Rep. 1018. In the Pond Case, a person, having no children of his own, took an infant daughter of a relative of his wife to raise as a member of his family, and promised orally, with his wife's consent, that if the child's father would permit her to become a member of his family, and assume the name of her adopter, and allow her to live with the family of the latter, he would, on his death and that of his wife, give the child all the property he might own. The contract was fully performed by the child and her father. She lived with her adopted parents from the time she was 4 years old until she reached the age of 29 years, and was married, rendering, all this time, the same services as though she was an own child. But it was there held that a court of equity would not enforce a

specific performance of the oral contract; that the agreement to make provision for the child by will was, so far as the real estate was concerned, an agreement for the sale of such real estate; that, as the agreement was merely verbal and the child never obtained possession of the property under it, it was void under the statute of frauds; that payment of the purchase money without taking possession is not sufficient to take such a case out of the statute of frauds; and that a court of equity will not decree the specific performance of a parol agreement to convey lands where the purchaser has not entered into possession under the contract. Here the adoption of the plaintiff in error by her grandmother did not require a change of name, because her name, as well as that of her grandmother, was Dicken; nor was her relation, as expectant heir of her grandmother in the event of the latter's death without making a will, changed by the adoption, because, as the only child of her deceased father, she would have inherited one-fifth of the estate from her grandmother if the latter had died intestate, without any legal act of adoption. It was not necessary to adopt her to make her the heir of her grandmother. As adopted child she would inherit no greater interest than would have descended to her as grandchild. As the grandmother only lived about six months after the adoption, she received but little from the plaintiff in error in the way of services or companionship. But, even if the formal and perfected adoption was the consideration for the agreement alleged in the bill, and the deceased received and accepted such consideration, still the agreement was not removed from the operation of the statute of frauds, any more than the payment of purchase money would have relieved it from such operation, because no possession was taken of the real estate by the plaintiff in error.

Counsel for plaintiff in error claim that the Pond Case is different from the present case upon the ground that here there were proceedings under the statute resulting in a legal adoption, while there no formal adoption took place. We regard this distinction as immaterial. The services of Mrs. Pond for 25 years in the case cited constituted a consideration as valuable as is a mere formal act of adoption. The material circumstance in the case at bar, as it was in the Pond Case, is that no possession was taken of the land under the contract, and therefore the contract was subject to the operation of the statute.

If the verbal contract set up in the bill is not a verbal contract to devise to plaintiff in error a certain portion of her grandmother's estate, or what is equivalent thereto a verbal contract to make sale to her of a certain portion of the estate, then it is diffi cult to see upon what theory plaintiff in error claims to be entitled to the relief prayed for in her bill. The bill prays that the oral contract therein set forth may be enforced against the defendant. By the will of the testatrix the title to the realty has passed to the defendants, her surviving children; and an enforcement of the contract against them would require them to convey to the plaintiff in error the portion of the realty claimed by her. But this can only be done by charging the land in the hands of the defendants with a trust in favor of plaintiff in error. The theory upon which the courts enforce an agreement to execute a will in a certain way, against the representatives and estate of the party who makes the agreement, is "to construe such agreement, unless void under the statute of frauds, or for other reason, to bind the property of the testator or intestate, so ar as to fasten

a trust upon it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased." Bolman v. Overall, 80 Ala. 451; 3 Pars. Cont., marg., p. 406.

Even if the contract here is, as counsel for plaintiff in error contend, a contract by which the deceased promised to let the statute of descents have its operation and not a promise to make a devise in a particular way, it is, nevertheless, a merely verbal agree ment, and as such could not have the effect to fasten ing a trust upon the real estate devised to the defendants. A trust which affects land must be in writing. Tyler v. Tyler, 126 Ill. 525. Under "our statute of frauds, all trusts shall be created or evidenced by writing, except resulting trusts, or else they are void." Hovey v. Holcomb, 11 Ill. 660.

CRIMINAL LAW

CREDIBILITY OF WITNESS. -The Supreme Court of Nebraska, in Argabright v. State, 69 N. W. Rep. 102, decides that the jury are the sole judges of the credibility of witnesses, and it is error for a trial court, in a criminal case, to single out a particular witness for the defense by name, and give to the jury a cautionary instruction, which applies directly to his testimony, the rule of "Falsus in uno, falsus in omnibus." The court said in part:

The instruction attacked is as follows: "If the jury believe from the evidence, that the witnesses, Lewis Morris, Hilton Stanley, and Perry Walz have willfully sworn falsely on this trial as to any matter or thing material to the issue in the case, then the jury are at liberty to disregard their entire testimony, except in so far as it has been corroborated by other credible evidence, or by facts and circumstances proved on the trial." It is contended that this portion of the charge of the court is erroneous, in that it singles out certain individuals of the witnesses, and directs especial attention to them and their testimony, respectively; that such action of the trial court was well calculated to induce a belief or an impression in the minds of the jury, or in the mind of any one or more of them, of the court's disbelief of the testimony of the witness or witnesses specifically named, or, at least, that the court viewed it with suspicion, and felt inclined to discredit it. One of the governing principles of the question involved is that it is for the jury, and not the court, to pass upon the credibility of wit nesses, and to determine the weight to be accorded their testimony (Hedman v. Anderson, 6 Neb. 392; Heldt v. State, 20 Neb. 492, 30 N. W. Rep. 626; State v. Cushing, 29 Mo. 215; Shellabarger v. Nafus, 15 Kan. 547; State v. Stout, 31 Mo. 406), and extending this doctrine, and applying it to an instruction, on the maxim, "Falsus in uno, falsus in omnibus." "The credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury." Schuek v. Hagar, 24 Minn. 339. "It is er ror to single out a particular witness, and to direct such a cautionary instruction, although couched in proper terms, against his testimony. The reason is that such a course tends to convey to the minds of the jury the impression that the testimony of the particular witness is disbelieved by the judge, and is to be disregarded-a question which it is their province to determine, and not his." 2 Thomp. Trials, p. 1772,