ANSWER.-We can not undertake to say what the Supreme Court of Kansas would hold in expounding their own statute on this point. By examining the cases in the note to Greeley v. Scott, ante, p. 363, it will be seen that the decisions on similar statutes are conflicting, past all reconciliation. The case of Kresin v. Maw, 15 Minn. 116, appears to be on all fours with the case put by our correspondent, under a statute substantially similar, and answers his question in the negative. But, then, the Supreme court of Minnesota, have construed homestead laws strictly as being in derogation of the common law, a position in which (we believe) no other court has accorded with them, except that of Louisiana. See Olson v. Nelson, 3 Minn. 53; Ward v. Huhn, 16 Minn. 169; Crilly v. Sheriff, 25 La. Ann. 219, and Guillory v. Deville, 21 La. Ann. 686, in which last case a statute exempting personal property from execution is said to be "in derogation of common right."

In several cases courts have held that detached pieces of land, with land belonging to other owners intervening, are a part of the homestead. Martin v. Hughes, 69 N. C. 293; Williams v. Hall, 33 Tex. 212; Buxton v. Dearborn, 46 N. H 43 (detached meadow). But a contrary interpretation has been placed upon homestead statutes, in the following cases: Bunker v. Locke, 15 Wis. 635 (detached timberland); Walters v. The People, 18 Ill. 194 (detached timber land); Mills v. Grant, 36 Vt. 269 (detached farming land); Adams v. Jenkins, 16 Gray, 146 (detached pasture land); Tourbeville v. Pierson, 31 Ill. 200 (detached farming land).

But this view is open to the striking objection of Mr. Chief Justice Dixon, in Casselman v. Packard, 16 Wis. 117, that the use is nothing, but the form is everything in determining what constitutes a homestead. We have abstained from referring to a more numerous class of cases, which relate to urban homesteads, supposing that the grounds on which these cases rest may be somewhat different, growing out of the various uses to which the detached lots and buildings have been put.

Book Notices.

SEPARATE USE IN PENNSYLVANIA, CONSIDERED WITH RESPECT TO THE RESTRAINT ON ALIENATION. An address delivered before the Law Academy of Philadelphia. By E. COPPEE MITCHELL, Esq. Pamphlet. Price 50 cents. Philadelphia: T. & J. W. Johnson & Co.

This pamphlet will, no doubt, prove valuable to Pennsylvania lawyers, and perhaps to those in other states. In choosing a subject for his lecture, Mr. Coppee followed the example of others who had lectured before the Academy, and chose a technical question; and he has treated in a scholarly manner. It comprises 45 pages, printed in the highest style of the art.

THE LAW OF CLAIMS AGAINST GOVERNMENTS, INCLUDING THE MODE

OF ADJUSTING THEM AND THE PROCEDURE ADOPTED IN THEIR INVESTIGATION. Published by order of the Congress of the United States of America. Washington: Government Printing Office. 1875. 8vo. pp. 432.

The first part of this volume, 24 pages, embraces the report submitted to the last house of representatives by Mr. Lawrence of Ohio, chairman of the house committee on war claims, together with a bill to provide for the adjudication of the claims of aliens. The second part, pp. 24-201, consists of the reports of our diplomatic agents in various foreign countries with regard to the mode of adjudicating claims against the various governments to which they were accredited. These reports were obtained by Mr. Fish, secretary of state, at the request of Mr. Lawrence; and the 177 pages of this part of the volume embraces a vast amount of curious and interesting information. In running over these pages the impression is acquired that although the maxim that a sovereign state can only be sued by its own consent, and in the mode and in the form pointed out by that consent, is probably of universal recognition, yet most of the governments of Europe have, in pursuance of a liberal and enlightened policy, accorded to citizens the right to prosecute suits against the state in the ordinary tribunals; "or," as was said by Nott, J., in Fischera v. The United States, 9 Court of Claims Reports,

"

'the perfected justice of the civil law made the government, in matters of ordinary obligation, subject to the suit of the citizen in the ordinary tribunals of the country."

These diplomatic reports consist mostly of memoirs furnished by the courtesy of the various foreign governments in response to a series of questions propounded by our government. Our representative at Constantinople, Mr. Baker, was, however, obliged (as it would seem) to write his own memoir, and a most curious and instructive paper it is. Among other things he tells us that perjury is so common in the Ottoman Empire, that oral testimony goes for little when opposed by documentary proof or the probabilities of common sense. "The saddest exhibition," says he, "which a Turkish

court presents is the taking of oral testimony. As I have before said, testimony as to any conceivable state of the so-called facts of the case can easily be purchased, and is used with the most reckless profusion, even by the parties to a suit who have justice on their side. At the doors of all the courtsparticularly by some irony of Heaven, before the doors of the semi-ecclesiastical court of the sheik-u-Islam-all hours of the day, squat men whose sole business it is to be employed as witnesses in causes about which they know nothing at the outset. The character of these men depends upon the intelligence with which they can receive a lie, and the plausibility with which they can afterwards utter it. To hear the Oriental volubility and vehemence with which they can hurl their opposing lies into one another's teeth, the auditor might readily mistake the testimony for the argument, and the deponent for the advocate; so circumstantial is the statement and so fee-zealous and passionate is the style of its delivery.”

The Duke Decazes, the French minister of foreign affairs, submits answers to each of the questions propounded by Mr. Fish, accompanied by a numerous list of documents. One of these is a copy of a law appropriating 140,000,000 francs to the city of Paris, and the sum of 120,000,000 francs to the invaded departments, as indemnity for the loss and destruction of property in the late war with Germany, and also a law providing for an indemnity to those who have suffered loss from destruction of property for the national defence. From these laws, and the accompanying documents, it would appear that the French assembly has adopted the just and enlightened policy of indemnifying such of its citizens as were so unfortunate as to own property within the invaded territory, from the calamities which the invasion entailed upon them. This was required by the simplest dictates of justice. A calamity for which all the subjects of an empire are equally responsible, but which falls upon a part only, should be borne by a common contribution.

We are perhaps under the greatest obligations to the Italian government in this connection; the elaborate information submitted the minister of foreign affairs of that kingdom embracing seventy-seven closely printed pages. The extract from the report of a committee of the Italian chamber of deputies, appointed to consider the bill presented by the minister of finance, April 1, 1871, in relation to claims for damages caused by acts of war, p. 126, embraces a learned and philosophical essay, which is especially worthy of attention.

The third part, which is entitled "The Law of Claims in the United States, the mode of adjusting Claims against the Government, and the Procedure adopted in their Investigation," is the work of Hon. William Lawrence, member of Congress from Ohio, and chairman of the house committe on war claims. It is an elaborate treatise on the subject indicated by its title, and embraces the following matters: Chapter I. Of War-Rebellion-The Classes of War Claims-General Principles. II. Of Property taken, used, damaged or destroyed in the States proclaimed in Rebellion. Chapter III. Of Damages done by the Enemy. Chapter IV. Property destroyed or damaged in Battle by the Government Forces, or wantonly or unauthorized by its own Troops. Chapter V. Temporary Occupation of, Injuries to, and Destruction of, Property caused by Actual and Necessary Government Military Operations to repel a threatened Attack of, or in advancing to meet an Enemy in Flagrant War. Chapter VI. Property which may be useful to the Enemy seized and destroyed or damaged, to prevent it from falling into their Hands. Chapter VII. Claims in the Departments of the Government. Chapter VIII. The Court of Claims. Chapter IX. The Commissioners of Claims. Chapter X. Mixed Commissions under Treaties. We regret that the time at our disposal has not permitted us to read any considerable portion of this part of the work, and we are hence unable to express any opinion with regard to the conclusions reached by Judge Lawrence upon the various questions discussed by him. We have not failed to perceive, however, that this portion of the volume embodies the results of great research and mature thought. The elaborate notes which crowd in upon the text on every page are a perfect thesaurus of information.

DESTY'S FEDERAL PROCEDURE.—A manual of Practice in the Courts of the United States, embracing the Revised Statutes of the United States relating to Federal Courts and Practice therein, together with the Rules and Orders promulgated by the Supreme Court of the United States, and the latest amendments thereto, with notes referring to decisions of the Federal Courts. By ROBERT DESTY, attorney-at-law. San Francisco: Sumner Whitney & Co. 1875. 1 Vol. 24-mo. pp. 447. Flexible leather covers. Price $4 00. Sold by Soule, Thomas & Wentworth, Saint Louis.

The title of this exceedingly convenient and useful little manual, fairly indicates its contents. It contains between its unpretending covers, in small type, but clearly printed and easily read, as much matter as an ordinary octavo volume, and can easily be carried in a lawyer's pocket. It contains an

unusually exhaustive index of 73 pages. We regard it as an admirable "hit," and have no doubt that every judge, clerk and practitioner of the federal courts will want one.

REMINISCENCes of Alfred KELLEY. BY ALFRED YAPLE. Cincinnati, Ohio Robert Clarke & Co. Print. 1875. Pamphlet, 8-vo. pp. 26. Price 25 cents.

Mr. Kelly was for many years employed in public life in Ohio. His services to that state were of great importance; and these reminiscences" will prove grateful reading to his numerous friends.

Recent Reports.

He

ment of land which had been partitioned among the heirs prior to the suit in which judgment was rendered, was void and passed no title. On re hearing, it was held that in such cases the executor might do whatever was necessary to effect a full and complete settlement of the estate, the same as if charged by the will with the administration, subject to the control of the court. may sell property for the payment of the debts of the estate, but it is doubtful if he can sell to effect a partition. He may determine when to surrender the estate to the heirs, and upon such surrender it ceases to be assets in his hands, and passes to the devisees, subject to the debts. Upon a judgment against the executor, subsequent to such delivery or surrender, the estate so surrendered is not subject to execution thereunder.

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE

TERRELL & WALKER. Vol. 40. Austin: Democratic Statesman Book and Job Office. 1875.

The volume before us presents a very creditable appearance, with one or two exceptions. It is a trifle too short to match its fellows, and is not thick enough to be quite free from the objection so common to modern volumes of reports, viz.: that the material is made the most of in order to multiply volumes. The type is new and clear, the page wide, the binding fair, and the arrangement generally good, but the paper is not of good quality. The index is well-arranged with cross-references. Of the eighty cases reported, thirty-two are state cases, but present no points of novel or unusual importance. The syllabi lack the convenience of head-lines in black type, to indicate the substance of the decision, and there is no table of cases cited.

Evidence - Testimony of Notary-Of Sheriff-Depositions Burden of Proof.-King v. Russell, p. 125. The testimony of a notary as to the acknowledgment of a deed before him, to which he had omitted to affix his seal, is competent to prove the execution of a deed, but not to affect the validity of its record as notice from such record to other parties. A sheriff may be called to prove that a recital in his return was made by inad vertence or mistake, but not to vary the return, in the absence of fraud or mistake. Either party may use depositions when the interrogatories have been crossed. The burden of proof is changed only after a fraudulent purpose is shown affirmatively.

which sum I hold subject to his order," was held to be, in effect, a letter of credit, and not negotiable, being a special contract. The exclusion of evidence that the depositor had withdrawn his deposit was error.

Homestead-Widow's Lien.-Harrison v. Oberthier, p 385. The probate court has the power to set aside the homestead of two hundred acres out of a larger tract owned by an estate, even before the purchase money therefor has been paid. Such order will protect the family, even against the holder of the vendor's lien, until it has been set aside in a direct proceeding for that purpose, with all the parties interested before the court. The proper order in such a proceeding would be to sell the excess over the allotted homestead, and afterwards, so much of the homestead as would pay the pur

chase money.

Deed from Father to Minor Child not Recorded-Destruction

of such Deed does not divest Title.-Thomas v. Groesbeck, p. 530. The failure to record, and subsequent destruction, by the father, of a deed made and delivered by him to his infant daughter, do not divest her of title in the land conveyed; nor does a subsequent deed by the father to a vendee, with notice, pass any title against the minor. Such deed conveyed the half interest of the father in the community property, and such interest, together with the interest of such minor in the mother's half, should have been recov ered in a suit by the minor against the vendee. The minor will not be concluded by the fact that the father invested part of the purchase money received

of the vendee for her benefit and in her name.

C. A. C.

Judgment Lien -History of Stay Laws.-Black v. Epperson, p. 163. By the acts of Feb. 14, 1860, and Nov. 9, 1866, the vitality of all judgments of the district court was extended for ten years between executions. The judgment of the supreme court, April 28, 1859, against the plaintiff in error and sureties on the bond, fixed a lien upon the lands in the county belonging to the plaintiff in error and his sureties; the issuance of executions in June, 1859, Feb. 2, 1860, Sept. 6, 1860, returned Feb. 4, 1861, preserved the lien until the war; the war and the stay law of Dec. 7, 1861, renewed and extended in December, 1863, enforced by military orders in 1865, protracted by the convention of 1866, modified and renewed by the legislature of 1866, and continued in practical effect until Feb. 24, 1868 (when the stay law was declared unconstitutional), excused acts of diligence, and during that term, such judgment lien was preserved. In this case, the case of Scogin v. Perry, 32 Tex 21, is limited in effect, and a very valuable history of the stay laws is preserved.

Deed from Father to Son-Estoppel.-Collins v. Box, p. 190. The acceptance by a son of a deed made to him by the father, which purports to convey title from the father to the son, and the assertion of ownership by the latter under such deed, does not estop the son from asserting title to the same land by inheritance from his mother, unless the deed from the father was made in lieu of the son's interest in his mother's estate.

Widow's Allowance.-Leaverton v. Leaverton, p. 218. An order granting an allowance for the support of the widow and children is a judgment, and can not be impeached in answer to a petition to compel its payment. Nor is such allowance subject to the demands of creditors, and the administrator can not offset against it an indebtedness of the widow to the estate.

Executor-Judgment against-Power to sell Real Estate-Par,tition-Rights of Creditors.-McDonough v. Cross, p. 251. A judgment against an executor who is empowered to administer without control of the courts, binds only such assets as are in his hands, and a sale under such judg

United States.

[Prepared expressly for this journal, by HENRY A. CHANEY, Esq., of Detroit, Mich.]

Taxation of Railroad Company-Construction of State Statutes Exemption from Taxation.-Erie Railway Co. v. Pennsylvania, opinion by Hunt, J, 1..A state can tax a railroad company's gross receipts. Reading R. R. Co. v. Pennsylvania, 15 Wall. 296. 2. The construction of a state statute by the supreme court of the state, is conclusive upon the Supreme Court of the United States, if it involves no question under the federal laws or constitution; this is so, even though the correctness of such construction is doubted, or though a similar statute from another state has been differently construed. Randall v. Brigham, 7 Wall. 630; Williams v. Kirtland, 13 Wall. 306; Blossburg R. R. Co. v. Tioga R. R. Co., 20 Wall. 137. 3. A railroad company is to be held as doing business in a state, when a section of its road, used in its traffic, lies within the state. 4. The amount of a tax which a state may impose upon a railroad company is in the discretion of the state,and the Supreme Court of the United States will not look into it. Minot v. R. R. Co., 18 Wall. 206. 5. A state may make a valid contract that a corporation, or its property within its territory, shall be exempt from taxation, or shall be subject to a limited and specified taxation. New Jersey v. Wilson, 7 Cranch. 164; Gordon v. Appeal Tax Court, 3 How. 133: Acheson v. Huddleson, 12 How. 293; Bank v. Kroop, 16 How. 369; Dodge v. Woolsey, 18 How. 331; Bank v. Skelly, 1 Black. 436; McGee v. Marthias, 4 Wall. 143; Hoffman v. Quincy, 4 Wall. 535; House of Friendless v Rouse, 8 Wall. 430; Washington University v. Rouse, 8 Wall. 439; Wilmington R. R. v. Reid, 13 Wall.

244.

264; Tomlinson v. Branch, 15 Wall. 460; Humphrey v. Pegues, 16 Wall. But the covenant or enactment, must distinctly express that there shall be no other or further liability to taxation. A state can not strip itself of this most essential power by doubtful words. 6. Where laws permitting a railroad company to take lands and build a road, make no other provision with regard to taxation than by specifying subjects of taxation, and requiring reports and details from the company as to its business (from which it may be inferred that future taxation is looked to), they can not be held to intimate

bought the receipts upon condition the purchaser accepted them, could not be urged against the tender. It was enough that they would have been ab solutely his had he accepted them. 5. Where a tender is not made to dis charge a debt, but in performance of a contract to deliver property to a purchaser in compliance with the terms of an agreement, and it is refused, it is not necessary to keep the tender good, but the party tendering may declare the contract at an end, and the seller may dispose of it afterwards as he chooses.

Sale-When Complete so as to pass the Title-Destruction be fore Delivery.-Seckel v. Scott, opinion by McAllister, J. [66 Ill. 106.] I. As between vendor and vendee, the title to personal property passes without any delivery whenever the sale is completed; and an agreement to sell an article by weight, when the article is identified or separated from other like articles, and the price is agreed upon between the parties, will be a complete sale, if the parties intended it as such, although the article has not been weighed. Whether a sale is complete so as to pass the title, is a question of fact for the jury. 2. Where the defendants sold the plaintiffs their entire lot of butter at fourteen cents per pound, the terms of the sale being that, imme diately upon the closing of the bargain, the buyers were to take at the store of the sellers and pay for 100 firkins, and pay as earnest money $2 for each of the remaining firkins, which they were to take at the sellers' store and pay the balance of the price within thirty days; and where they took and paid for at the time 125, and soon after 16, making in all 141 firkins, and paid the earnest money on the remaining 109 firkins, and before these last were taken it was destroyed by the Chicago fire without fault on the part of the sellers: Held, in an action by the purchasers to recover damages for the non-delivery of the remainder thus destroyed, the declaration showing a completed sale, that the accidental destruction was a complete defence to the action.

Fraud in Obtaining the Execution of a Contract-Misrepresentation to Agent-Negligence.-May v. Magee, opinion by Thornton, J. [66 Ill. 112.] 1. Where the plaintiffs, in making a settlement of differences with the defendant through the agent of the latter, who was unacquainted with the real facts, the defendant being absent from the state, misrepresented material facts, and claimed pay for services which had been paid them, and thereby induced the defendant's agent to execute an agreement that defendant should pay them money not due them, held, that the fraud and misrepresentation of plaintiffs, whereby they induced the agent to make the contract, presented a good defence to an action on the same. 2. In such a case, as the agent of the defendant did not have a knowledge of the facts, he was not guilty of negligence in relying upon the representations of the plaintiffs. He was not bound to wait and write to his principal, and await his reply, to ascertain whether the representations were true or not, but had a right to rely upon them as honestly and truthfully made.

Homicide-Drunkenness as affecting Crime-Evidence.- Rafferty v. People, opinion by Sheldon, J. [66 Ill. 118.] It is a well-settled rule of the common law, recognized in our criminal code, that voluntary drunkenness is no excuse for crime; and when, without intoxication, the law would impute to the act a criminal intent, as in the case of wanton killing without provocation, drunkenness is not available to disprove such intent. 2. As under our statute it belongs to the jury to fix the punishment for murder, which may be either death by hanging, or imprisonment in the penitentiary for life, or for a term not less than fourteen years, it is competent to prove, on the trial, that the accused was intoxicated at the time of the homicide, as showing his condition, and in that respect, it constituting a part of the res geste, to enable the jury intelligently to graduate the punishment. But proof of intoxication an hour or so before the commission of the homicide is not admissible.

THE WEEKLY REPORTER.*

Property in Stalls and Boxes in a Theater-Continuing Trespass-reach of Covenant for quiet Enjoyment-Nominal Damages in Lieu of Injunction-21 and 22 Vict. c. 27.-Leader v. Moody, before Sir George Jessel, Master of the Rolls. [23 W. R. 606.] A. was the sub-lessee of stalls and boxes in Her Majesty's Theater, Haymarket. The leases under which he held, gave him free admission to the stalls and boxes at all performances except balls and masquerades, and reserved to the lessor access for the purpose of painting and repairing. The lessor covenanted with A. for quiet enjoyment. A.'s lessor was himself the lessee of the whole of the theater for a long term of years, and was under a covenant with the freeholder, not to convert the theater to any but theatrical purposes. The theater was burned down and a new one erected in its place, and A.'s lessor then let or agreed to let the whole of the building to persons other than A., for the purpose of holding religious meetings, and these persons took possession of the theater and boarded over the site of A.'s stalls, and took down the partition between the boxes which had been constructed on the *Edward J. Milliken, 12 Cook's Court, Carey St. London, W. C., England.

sites of those originally leased to A. Upon motion to restrain A.'s lessor and the persons in possession of the theater, from interfering with A.'s right, held, that there was an in fringement of A.'s right, by the lessor and the persons in possession of the theater; but the theater not being ready to be used as a theater, and the persons in possession undertaking not to renew their engagement with A.'s lessor (which was a short one), no injunction was granted, but A. was awarded a shilling damage and the costs of the suit.

Local Board of Health-By-Laws under 21 and 22 Vict. c 98, s. 34.-Hall, Appellant v. Nixon, Respondent, Court of Queen's Bench [23 W. R. 613.] By 21 and 22 Vict. c. 98, s. 34, SS. 53 and 72 of 11 and 12 Vict. c 63, are repealed, and in lieu thereof it is enacted as follows: Every local board may make by-laws with respect to the following matters: I. With respect to the level, width, and construction of new streets, and the provisions for the sewerage thereof. 2. With respect to the structure of walls of new buildings, for securing stability and the prevention of fires. 3. With respect to the sufficiency of the space about buildings to secure free circulation of air, and with respect to the ventilating of buildings. 4. With respect to the drainage of buildings, to water-closets, privies, ash-pits, and cesspools, in connection with buildings, and to the closing of buildings or parts of buildings unfit for human habitation, and the prohibition of their use for such habitation. By virtue of these provisions, a local board of health made by-laws-" 6th. Every person intending to erect any new building, shall give fourteen days' notice to be delivered to the board's surveyor, or left at his house with detailed plans and sections, and persons who shall erect any new building without delivering such notice and plans and sections, or without having the plans approved by the board, shall be liable to a penalty of forty shillings." The 36th bye law enabled the board to cause to be altered or pulled down any building commenced or done in contravention of the by-laws. Held, that the 6th by-law was within the 34th section, and was reasonable, and therefore valid.

Will-Construction-"Children."-Dorin v. Dorin, House of Lords, before Cairns, C., and Lords Hatherly, O'Hagan and Selborne. [23 W. R. 570.] To cause the word "children," in a devise to extend to illegitimate children, it is not sufficient that the context and surrounding circumstances are consistent with an intention on the part of the testator to provide for illegitimate children. The context or the surrounding circumstances must be inconsistent with the construction of the word children, in its primary legal sense, in order to induce the court to depart from that construction. A testator married a woman by whom he had previously had two children. The day after the marriage he made his will, bequeathing all his real and personal property to his wife for life, with power to appoint "amongst our children" by will at her death, and directing that if she did intestate the property should be divided “equally between my children by her." No children were born to the testator after the marriage. Evidence was given that he had always treated the two illegitimate children as his own, and had consented, in accordance with the requirements of the church of Rome, to their being baptized in his name. Held (reversing the decision of Malins, V. C.), that the two illegitimate children took no benefit under the will.

Conveyance of Land-Reservation of Mines-Surface owner's right to Support-Effect of Compensation Clause-Injunction. —Aspden v. Seddon, before the Lords Justices of Appeals. [23 W. R. 580.] In 1861, S. conveyed to the plaintiff's predecessors in title, a plot of ground, for the express purpose that they should erect a cotton mill thereon. The conveyance contained a reservation to S. of all mines and minerals, with liberty for S. and his lessees, to get and work the same for his or their benefit, but without entering upon the surface of the said premises or any part thereof, so that compensation in money be made by him or them, for all damage that shall be done to the said erections on the said plot by the exercise of any of the said excepted liberties or in consequence thereof." S. subsequently granted to the defendants the right to get the minerals under this plot, and certain lands adjacent thereto, as well as the surface of such adjacent lands. The defendants thereupon proceeded to get the minerals under these lands, by means of mines that had been partially worked, prior to 1861. In 1874 the surface of this plot of ground began to subside, thereby causing considerable injury to a cotton manufactory that had been erected thereon, and which was then in the possession of the plaintiff. Held, that the wording of the reservation clause, in the conveyance of 1861, which is set out above, showed that it was the intention of the parties to that deed that the mineral owner should be at liberty, on making compensation, to take away the whole of the minerals, notwithstanding he might thereby let down the surface or any buildings thereon. Order of the Master of the Rolls affirmed. The Caledonian Railway Company v. Sprot, 4 W. R. 659, 2 Macq. Sc. Ap. 449, distinguished.

Principal and Agent-Setting aside Contract-Surreptition Dealing between one Principal and the Agent of the