prive her of her ordinary reason, and to induce her instinctively to seek safety by an act which, although not such as the jury might believe to be prudent or discreet, was such as the generality of persons would have adopted in the dilemma in which she was placed. Lawrence v. Green, S. C. Cal. Aug. 17, 1886; 11 Pac. Rep. 750.

21.

Railroads-Unsuitable Stopping Places-Trial-Statements by Counsel not in Evidence. In an action for personal injuries sustained on leaving the rear car of a train at a station, evidence that others had previously been directed to take that car, and in alighting from it as the plaintiff did, had been injured, is competent to show negligence in the defendants in not providing a suitable stopping place, and to show want of negligence in the plaintiff. When counsel in argument makes a statement of a material fact not in evidence, against the objection of the other party, he violates the right of a fair trial, and his client assumes the burden of presenting and prov ing his claim that the decision was not affected thereby. Bullard v. Boston, etc. Co. S. C. N. H. July 30, 1886; 5 Atl. Rep. 838.

28.

Injury to Child by Dump Cars Used in Grading Street-Duty of Contractor.-The defendant was employed in grading and improving a public street under a contract with the municipal authorities of a city, and, in the lawful occupation thereof for such purpose, was engaged in transporting earth a considerable distance along the same to make a flll. The cars moved slowly, and were dangerous only to persons attempting to ride upon, or accidentally falling upon, the track in front of the wheels. Held, in respect to the risk of such accidents, that the measure of defendant's duty was reasonable care, and that such duty did not extend to the employment of men specially to keep watch of the approach of children or others to prevent them from invading and riding upon the cars when in actual use, but where, in the use of ordinary care, their presence was discovered, to use due diligence to prevent any injury to them. Emerson v. Peterler, S. C. Minn. Sept. 6, 1886; 29 N. W. Rep. 311.

29. NOVATION-Assignmeut of Future Wages-Acceptance. When the acceptor of an assignment of future wages informs the assignee, after the wages are earned and due, that he will pay them to him, the assignment is completed, and there is a novation of parties and debt. Clough v. Giles, S. C. N. H. July 30, 1886; 5 Atl. Rep. 835.

30. PAYMENT. - Presumption of Payment - Lapse of Time-Note.-In an action upon a promissory note, the jury are authorized to consider, with other circumstances upon the issue of payment, the length of time which has elapsed since the time of the alleged payment, no matter what is alleged in the answer as to the manner of payment. Manning v. Meredith, S. C. Iowa, Oct. 7, 1886; 29 N. W. Rep. 336.

31. PLEADING.-Answer-General Denial-Mechanic's Lien-Foreclosure.-An answer consisting of a general denial of each and every allegation in the petition, places in issue all the allegations contained therein. Donovan v. Fowler, 17 Neb. 247; S.'c., 22 N. W. Rep. 424. In an action to foreclose a mechanic's lien on real estate for material furnished in the construction of a building thereon, an answer consisting of a general denial is a de

nial of the allegations of the sale of the material for the purpose alleged, and of the ownership of the real estate upon which the lien is sought to be established; and the burden of proof is upon the plaintiff to prove all facts necessary to the existence of such lien. Hassett v. Curtis, S. C. Neb., Sept. 29, 1886; 29 N. W. Rep. 295.

32.

General Denial - Negative PregnantAccession and Confusion of Goods Grain Claims of Owners.-A general denial is the same in effect as a specific denial of each of the allegations in the whole or in the part of the pleading so denied, and is a negative pregnant only where a mere specific denial would be. Where, without fraudulent intent, goods of the same nature and value, belonging to different owners, are mixed, if a division can be made of equal value, as in case of a mixture of grains of the same kind, quality and value, then each owner may claim his aliquot part of the whole mass. Stone v. Quaale, S. C. Minn., October 5, 1886; 29 N. W. Rep. 324.

33. PRACTICE.-Trial-Findings-Equitable Point -Issue-Witness-Cross-Examination-Question not Responsive-Ejectment-Instructions to Jury -Bad Instruction.-A defendant cannot complain that the court made no finding upon an equitable point involved in the cause, when, by his own neglect to meet such point in his answer, no issue thereon has been raised. A question put in crossexamination as to a "side-line monument," not mentioned in the examination in chief, to a witness examined upon a certain map in evidence, is not responsive to such examination in chief. In an action to recover possession of a mine, an instruction informing the jury, as a matter of law, that the mere fact that the locators did not place a monument at a certain corner of the claim they intended to locate would be fatal to the plaintiff's right of recovery, when, according to all facts in evidence, the location was distinctly marked, so that its boundaries could be distinctly traced, would be in contravention of the statute, and would invade the province of the jury. Anderson v. Black, S. C. Cal., July 27, 1886; 11 Pac. Rep. 700.

34. SALE. Warranty-Quality of Wheat Appeal -Instructions-Exceptions.-Evidence considered as justifying a ruling by the jury, that certain wheat sold as "genuine Saskatchewan Fife wheat" was not warranted to be pure, or absolutely free from other seeds, and that there was no breach of warranty, although there were some impurities. Instructions to a jury not excepted to will not be reviewed. Shatto v. Abernethy, S. C. Minn., Oct. 1, 1886; 29 N. W. Rep. 325.

35. SUNDAY.-Signing Note on Sunday- Delivery on Monday-Alteration of Instruments - NoteSubstituting New Payee's Name-Ratification of Alteration-Requesting Extension after Knowledge of Alteration.—A promissory note becomes a contract at the time of its delivery, and a note signed on Sunday, but not delivered until Monday, is not subject to the objection that it is a Sunday contract. The alteration of a promissory note by erasing the name of the original payee, and inserting another name, without the knowledge of one of the two makers of the note, is a material alteration, and the maker, who is ignorant of the alteration, will not be bound by the note unless he sub

sequently ratifies the alteration. Requesting and obtaining an extension of time for the payment of a promissory note which has been materially altered by substituting the name of a new payee in place of the original name, after knowledge of such alteration, is such a ratification of the alteration as will bind the maker requesting the extension. Bell v. Mahin, S. C. Iowa, Oct. 5, 1886; 29 N. W. Rep. 331.

36. VENDOR AND VENDEE.- Assumpsit for Pur

37.

chase Money - Sale of Equitable Interest.- A., holding a bond for a deed of certain real estate from B., in whom was the legal title, to secure a certain sum of money, sold his equitable interest to C., who paid a part of the consideration. C. subsequently paid B. the amount due him, and took a transfer of the legal title from B. to himself. In an action brought by A. against C.: Held, that A. could maintain assumpsit to recover the balance of the purchase price, less the amount paid B. in discharge of the incumbrance. Bartlett v. Baker, S. J. Ct. Me., Sept. 23, 1886; 5 Atl. Rep. 847.

Deferred Payment-Unpaid Matnred Notes-Judgment for Total Amount of Lien and Sale of Land-Upon default being made in the payment of such of several notes given in a land purchase as are then due, personal judgment may be had against the maker for the amount of the matured notes, but not judgment for the amount of all the notes, and a sale of the entire property to satisfy the vendor's lien. Leopold v. Furber, Ky. Ct. App., Sept. 11, 1886; 1 S. W. Rep. 404.

38. WATERS AND WATER-COURSES.-Dam-Complaint--Description of Land Damaged by Overflow of Dum. In a suit for damages for overflowing land, and to have the dam which caused the overflow lowered, a description in the complaint of the land on a part of which the damage is claimed, is sufficient which locates it by government subdivisions as a 100-acre tract, "except eleven acres heretofore conveyed to the Milwaukee, Lake Shore & Western Railway Company for a right of way and depot grounds;" and the description of the land overflowed, as 44 acres on the easterly half of plaintiff's farm, is sufficiently definite. Lake v. Loysen. S. C. Wis. Sept. 21, 1886; 29, N. W. 214.

39.

--Rights of Mine Operators-Riparian Rights--Pollution of Stream through Natural Use and Development of Coal Property -- The Doctrine of Fletcher v. Rylands, L. R. 1 Ex. 280, Considered-- Sanderson v. The Pennsylvania Coal Company, 5 Norris, 401 Overruled.-Every man has the right to the natural use and enjoyment of his own property, and if, whilst lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria; for the rightful use of one's own land may cause damage to another without any legal wrong. The right to mine coal is not a nuisance in itself, it is a right incident to the ownership of coal property, and when exercised in the ordinary manner, and with due care, the owner cannot be held liable in damages for permitting the natural flow of mine water over his own land into a water course by of which the natural drainage of the country means is effected. The removal of water from the workings being essential to the business of mining, its dis

charge into the natural water course and the consequent pollution of that stream is damnum absque injuria to lower riparian owners. A fortiori is this the case where the water flowing naturally from the tunnels is sufficient to cause the pollution, independently of the water pumped from the lower levels of the mines. That a case might arise in which such pollution by its injurious effects upon the general health would amount to a public nuisance of which the public interest, as involved in the general health and well being of the community, would require the abatement, is not denied. But no such question is involved in the present case. The doctrine of Fletcher v. Rylands (L. R. 1 Ex. 280) is subject to many exceptions in England, and has not been generally accepted in this country. That rule, moreover, is inapplicable to the present case. In this case defendants brought nothing upon their land, and the pollution complained of, was the result of natural, and not of artificial causes. Pennsylvania, etc. Co. v. Sanderson, S. C. Penn., Oct. 4, 1886; 18 Weekly Notes of Cases 181.

40. WAYS.--Land-Owners not Assessable When not Specially Benefitted--Act Unconstitutional.--The change of a turnpike to a common, free public road confers no special benefit upon the land-owner, and the statutory provision authorizing the assessment of the price of the turnpike upon the land-owners is unconstitutioual and void. State v. Essex Public Road Board, N. J. Ct. Errors and Appeals, July 1, 1886; 5, Atl. Rep. 784.

41.

42.

--Public Highway-- Dedication--Animus Dedicandi--Trial--Findings of Court--Issue Made Immaterial by Findings - Damages Damnum Absque Injuria.-Dedication of a public highway by the owner of the soil to the use of the public is never to be presumed without evidence of an unequivocal intention to dedicate on the part of the owner. The findings of facts by the trial court must be responsive to and cover all the material issues; but a material issue may become immaterial, so as to require no findings, by reason of findings upon other issues. No damage can be recovered for the consequences of a lawful act properly performed. If an injury is sustained, it is damnum absque injuria. Quinn v. Anderson, S. C. Cal., Aug. 26, 1886; 11 Pac. Rep. 746.

-Townships--Road Money-Apportionment.--At the regular spring election Matawan township voted $700 for their highways. Notice was posted, and on March 13th the township committee met, and apportioned to each overseer the share of money to be used by each. On March 17th part of the township voted to become an incorporated borough, and, in pursuance of the statute, elected, on April 7th, street commissioners, who have charge of the streets and highways. The collector of the township not having paid over to the overseers the amount apportioned by the township committee, and refusing to pay it to the commissioners of the borough, a writ of mandamus was asked to compel him to. Held that, as the inhabitants of the borough were voters who elected the township committee that made apportionment, they were actors therein, and the writ must be refused. Board of Comrs of Matawan v. Horner, S. C. N. J., Sept. 20, 1886.

43. WILL.-Probate.--In an action to set aside the probate of a will, on the ground of undue influence expressed by one of the legatees, a statement made

out of court by such legatee, tending to show that he had used undue influence on the testator, and inconsistent with his testimony in court, is admissible both as an admission of a fact in issue by a party to the controversy, and also to affect his credibility as a witness. An objection, based merely on the order of proof, that evidence of such statement was admitted before the evidence sought to be contradicted by it had been given, is untenable. Saunders' Appeal, S. C. Conn., Aug. 1886; 2. N. Eng. Rep. 753.

44. WITNESS.--Refreshing Memory-Private CashBook Memoranda-Partnership-DissolutionAccommodation Note Acconnting · Bill in Equity.-A witness may refer to and read the items in his private cash-book as memoranda of payments made at the time of the transaction, to refresh his recollection. When on the dissolution of a firm, one of the partners, by agreement, is to wind up its affairs, and account to the others on the basis of their sharing equally in the assets, or equally assuming any deficit, and he, for the purpose of convenience only, takes up an accommodation note of the firm by giving his own note therefor, which he is afterwrrds obliged to pay, the others will be liable for their proportional share of it. When, on the dissolution of a firm, it is agreed that there shall be an accounting after the claims are collected and the debts are paid, a billin equity is an appropriate proceeding therefor. Converse v. Hobbs, S. C. N. H, July 20, 1886; 5 Atl. Rep. 832.

Query 45. [22 Cent. L. J. 479.]-In city of the 4th class, organized under charter granted to such cities by Revised Statutes of 1879 of Missouri, in case of a tie in vote for Mayor, have Board of Aldermen, under § 4937, Rev. Stat. of Mo., the power to contest the election by casting out votes which are proven to be illegal? Have they the power to go behind the return of the judges of the election and decide on the illegality of votes? S. W.

Answer. The law is invalid, and the Board of Aldermen cannot institute nor pass on any contest of election. Const. Mo. Art. 8, § 9; State, ex rel. v. John, 81 Mo. 13. R. B.

LEADING CASES IN THE COMMON LAW, With Notes, (Third Edition). By Walter Shirley Shirley, M. P., Barrister-at-Law, of the Inner Temple, and the North-Eastern Circuit; Author of "A sketch of the Criminal Law," "An Elementary Treatise on Magisterial Law," etc. London: Stevens and Sons, 119 Chancery Lane, Law Publishers and Booksellers, 1886.

This is an admirable collection of leading cases and we are not surprised, after an examination of it, that it has been received in England with phenomenal favor, and has so soon reached its third edition. The cases, which are much more numerous than is usual in such collections, are very well selected and include almost every conceivable phase of the common law, and appended to each case is a note in which the principle established is very carefully and thoroughly brought down to date.

Mr Shirly takes in the whole range of the common law (excluding, however, cases which relate to title and tenure of land), and, in point of time, the work extends from such as Twyne's Case, the Six Carpenters' Case, Semayne's Case, down to the latest modern deliverance on the subjects of negligence and contributory negligence. The statement of facts of each principal case and of the doctrine which it embodies is clear and remarkably brief, and the note sets forth, with much precision, the application or modifications of the doctrine to be found in subsequent cases.

The work of Mr. Shirley is especially designed and adapted to the use of law students, and will undoubtedly be found very serviceable to them, but is hardly, if at all, less valuable to the practitioner who will find in it clear and concise statements of the law bearing upon a great variety of subjects, and fully fortified by ample citations of authorities,

There are three appendices, which are quite useful to the English reader, and in a less degree to the American. In the first (A) will be found the more important sections of the principal statutes referred to in the work. The second (B) contains short abstracts of equity and conveyancing leading cases. The third (C) is a list of the principal legal maxims.

In the preface is an apology which is certainly unique and, we think, utterly superfluous. Mr. Shirley says: "The tone of flippancy and jocularity, modified to some extent in the second edition has been almost discarded in this." We are light-minded enough to lament the excisions. If Mr. Shirley is able to infuse anything of fun or "jocularity" into so dry a bundle of sticks as a collection of leading common law cases, we say: May he live long and prosper. "Dost think that because thou art virtuons there shall be no more cakes and ale?" And because thou art learned, shall there be no more

"Quips and cranks and wanton wiles, Nods and becks and wreathed smiles." Mr. Shirley's style, notwithstanding his merciless exclusion of wit and humor, is neither stilted nor severe, and, taken altogether, we think his book is worthy of very high commendation.

AMERICAN CRIMINAL REPORTS. A series designed to contain the latest and most important criminal cases determined in the Federal and State Courts in the United States, as well as selected cases important to American lawyers from the English, Irish, Scotch and Canadian Law Reports, with notes and references, by John Gibbons, LL.D., of the Chicago Bar. Vol. V. Chicago: Callaghan & Co., Law Book Publishers. 1886.

This is manifestly a valuable series for the use of lawyers engaged in the practice of criminal courts. The volume before us is well arranged, the cases judiciously selected, and the annotations learned and pertinent. Appended to the volume is a succinct account of the latest sensational criminal case that of the Chicago anarchists, Spies and others, which is suffieiently full up to the rendition of the verdict. As the case will be revised by the Supreme Court, such questions of law as are involved in it, will doubtless appear in a future volume.

It is almost superfluous to say that, like all the books issued by Messrs. Callaghan & Co., the volume before us is, in every respect, typographically perfect.

JETSAM AND FLOTSAM.

"Why do you refuse to answer the question, madam?" asked a lawyer of a lady witness, scenting a favorable disclosure.

"Because my answer ought not to be heard by any honorable person," replied the witness.

"Well, then, madam," said the counsel, "whisper it in the ear of the judge."

MOTHERS-IN-LAW.-Mothers-in-law are no doubt a nuisance, and some abuse of them is to be naturally expected from all right-minded sons-in-law. One Seymour has, however, now learnt that, although it may be quite safe to call his mother-in-law "a vicious nasty old cat" to her face, it is not advisable to tell her so on a post-card. Many other dreadful things did the defendant write about his mother-in-law. Evidently his feelings to her could not have been friendly. Hearing that she had kissed his child in the street, he had the youngster stripped, ducked in water, and cleansed from the pollution of her kiss. The luxury of abusing a mother-in-law in this way cost, however, £100, and probably the defendant will now expend less on postcards.-Gibson's Law Notes, Eng.

Served him right! Who takes care of baby when papa and mamma go to the picnic? Who lets in dear Thomas when he comes home from the lodge, anywhere between midnight and day, too indisposed to be able to fit his latch-key in the key-hole? And who next morning holds his poor head when it is splitting because of the oysters he had eaten at the lodge supper?

And how mean! To attack her with a postal card, "for all the world to see." A man who will send a postal card to a woman, "save in the way of kindness" -we forget the rest of the quotation, but feel safe in saying "is fit for treason, stratagems and spoils."

AN INSANE ADVOCATF.-Appended to the Fortyninth Annual Report of the Managers of the State Lunatic Asylum at Utica, for the year 1885, is a paper on insanity, in which the author gives the following case interesting to lawyers: "A lawyer telegraphed me from Syracuse that he would be at the asylum at a certain hour. I was absent in the city when the telegram came, and when he called, being told this, he left. Two days afterwards I got a telegram from him at Albany, saying that he would call again at a given hour, and requested me to have Governor Seymour and Judge Denio to meet him. He came at the appointed hour, and said to me: 'I called yesterday to consult you because I have for some time past felt so strangely that I thought I might be out of my mind, but I have just been to Albany and argued an important case before the Court of Appeals, and feel satisfied

that I do not need advice.' I saw from his manner and speech that he was very insane, and said to him, 'You seem to be very insane now.' He said, 'Well, perhaps I am excited. I have been at times irrational, I know, but for the most part I am rational.' Soon afterwards he was brought to the asylum,and declared himself to be President of the United States, and finally said that he was the Ruler of the Universe. Judge Grover, of the Court of Appeals, said to me that he had heard his 'argument,' which was partly a Fourth of July oration, and partly an attack on the courts, and that he was an insane man."-Albany Law Journal.

A NICE POINT OF LAW.-In 1878 a Mexican soldier deserted from Nuevo Laredo, while the company were at the river bank, and swam to this side. The guards and officers fired at him until he had reached the middle of the river, when all ceased but one, a captain named Rafael Pinal, who continued, and finally, after the deserter had reached this side, the captain shot him. He dropped dead in his tracks. The captain never crossed to this side and consequently was not arrested. To-day Deputy Sheriff Yglesias saw him on the streets of the city and forthwith arrested him, and he is now lodged in jail. A nice point of law is embodied in this case, as the murderer was in Mexico when he committed the deed, although the victim was in the United States.-[Laredo, Tex., Oct. 5, special to Globe-Democrat.]

The following will was filed in the register's office for registration, which we give verbatim: 13 Civil Deestrict Oct 1 | 886

a Will Made By Henry Lewis to his wife and 3 Children and 1 Grand Son Wife An Lewis oldest Son Samuel Lewis daughter Emer Lewis youngest Son Henry Lewis Grand Son Jonney Gilliland i do Will all that i persess to these four pursons

Cows 9 calfs 9 Horseses 3 one Gray Mare an one Bay horse Pony one Soil Pony

THE LAW AS SHE IS WRIT.-We were shown this morning by Constable Robinson, of this city, a unique and decidedly original legal document prepared by a landlord of this city, who believes "in every man being his own lawyer." It is a "Notice to Leave Premi. ses" served on one of his tenants, and prepared by filling out the usual blank forms. The rara avis is before us, and we submit a copy, thinking it may interest your readers. The words italicized are those filled in. "NOTICE TO LEAVE PREMISES.

To Mr. John Handlen:

You are hereby notified to leave the following prem. ises, now occupied by you, to-wit: That you have not payed Your Rent According to Contract, so you must leave within 3 days after date by the law of Franklin Cty, and all the appurtenances thereto belonging and rented within three days from the date hereof: And that upon your failure to do so I shall have recourse to legal measures to obtain possession of the same Dated at March 6th this Being the day of Judgment 1886.

L. S. (In German.)"

It is unnecessary to state that the startling announcement at the close had the desired effect of making the tenant in every instance "git." While the landlord's name in bristling German letters must have appalled and terrified him in the highest degree, We give the notice verbatim et literatim.-[Columbus, Ohio, correspondence Ohio Law Bulletin..

ST. LOUIS, NOVEMBER 5, 1886.

CURRENT EVENTS.

PRISONERS AS WITNESSES.-An interesting and instructive article on this subject by Hon. Mr. Justice Stephen, appears in the Nineteenth Century for October. It is of the greater value because it is the result of the observations of an eminent judge upon the operation of the law in cases actually tried in his own court It may, however, be remarked that the law authorizing prisoners to testify in their own behalf is, in England, of recent origin and partial operation. The Criminal Law Amendment Act passed in 1885 authorized prisoners to testify in their own favor in cases of sexual crime, there having been an epidemic of crime of that character, and of false accusations of such crime, and, under this act, nearly or quite all the cases bearing upon the subject, have been tried.

Mr. Justice Stephen treats the subject very fairly and judicially, sets out the arguments on both sides, and arrives at the conclusion, which, however, he announces at the beginning of the article, that "the examination of prisoners as witnesses, or at least their competency, is favorable in the highest degree to the administration of justice." In the course of his article, however, if we may say so without presumption, we think he "admits himself out of court." He says that "the evidence of a deeply interested witness

is of no value if the circumstances are such that he cannot be contradicted." He adds, with regard to offenses committed at night: "When you say I was committing burglary or night-poaching, I was, in fact, at home and asleep in bed, and both my wife and I are prepared to swear to it, now that the law has opened our mouths.' This sort of evidence, also, he admits, is of no value.

Evidence that, in the nature of things, cannot be believed is of no value, and evidence which is of no value should not be given or received. The law does not compel a vain thing, nor should it require or permit it. If evidence as to circumstances upon which the prisoner cannot be contradicted is of no valVol. 23.-No. 19.

he can be contradicted, that is, if he shall be contradicted by disinterested and reputable witnesses. It appears, therefore, that the only evidence which a prisoner can give, which is not necessarily worthless, is evidence on points on which he might be, but is not, contradicted by credible testimony. This rule, it will be observed, limits the usefulness of the prisoner to himself, as witness, to very narrow bounds, and even within that contracted sphere, he has to encounter the strong suspicion necessarily attaching to his deep. personal interest in the matter, and the odium and distrust which pertains to his position as a man accused of grave crime.

The common law presumes every man innocent until he shall be proved guilty. It says to the accuser: "You charge this immaculate citizen with murder, you must prove his guilt beyond a reasonable doubt, or we will discharge him." Public opinion takes a different view, and so (except theoretically) does the jury. When a grand jury has returned an indictment "a true bill" an ineffaceable stigma is fixed upon the character of the average defendant, and the legal presumption of his innocence, however theoreti'cally strong, become practically as weak as the seven green withs with which Delilah bound Samson.

We do not know that we can better express our views on this branch of the subject than we did in a former article: "Besides this the average defendant in criminal cases is 'unaccustomed to public speaking,' and by no means in the habit of arranging his ideas in logical sequence or expressing them in apt terms. Under the literally and metaphorically 'trying' circumstances of a trial for a felony, it would not be remarkable that he should lose his head' and say things that could easily be construed into a confession of guilt. That sort of thing has often happened. Many a man has tied a rope around his neck with his tongue. Fluttered and frightened, agitated by the novel circumstances under which he is placed, awed by the solemnity of the proceeding, and anxious beyond measure as to the grave consequences of an error, it is not remarkable that in every point of view, he does himself much more harm

122 Cent. Law Journal, 314.