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measure: careful consideration; mature reflection. Deliberately-in the way of deliberation; considerately. Thus we find that there is nothing technical or peculiar in the signification or meaning of the word deliberate. Its true and ordinary import is generally known and understood by the most ordinary mind. It needs no explanation unless the circumstances of the case render it necessary to exclude the effect of unprovoked heat of passion. And if an explanation should be attempted how much more explicit could it be than to say that it means "intentionally, purposely, considerately." The propriety of this definition will be more apparent when we speak of the legal view of the matter.

Intentionally-with intention; by design; of purpose, not casually. Purpose-to determine upon, as some end or object to be accomplished; to intend, to design; to resolve. Purposely-by purpose or design; intentionally; with predetermination. Considerto think seriously, maturely or carefully; to reflect; to deliberate. Considerately-in a considerate manner; deliberately; with due regard to others. Consideration-the act of considering; continuous and careful thought; contemplation; deliberation. And that "therefore if a person forms a design to kill and is conscious of such a purpose, it is deliberate.'' Design-to form a plan or scheme of; to contrive; to project, to lay out in the mind. Conscious (of such purpose)-possessing the faculty or power of knowing one's own thoughts or mental operations. "Design" has reference to something definitely aimed at; "intention" points to the feeling or desires with which a thing is sought; "purpose" has reference to a settled choice or determination for its attainment; "deliberation" describes the action of the mind in weighing, reflecting and considering of the purpose or object in view. I have quoted extensively from Webster's Dictionary to show that the word deliberately is well understood, and that the attempted definition, though unsatisfactory to the learned court, is perfectly in accordance with the true meaning of the word, and that the only way the great lexicographer could explain the meaning of such a word was by using synonymes, or by using the word itself, or some derivative word with a prefix or addition. If the word "considerately' is admitted to be a synonym for the word "'deliberately," then it ought to have been explained, say the court, and with the same propriety the words used to explain it should be defined also. But the court says that "deliberately'' means in a cool state of blood, and if in such a state of blood the defendant formed a design to kill, the act would have been deliberate.

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Deliberately, as an element in murder, does not really mean a cool state of the blood. It relates to the action of the mind and not to the condition of the blood. The expression cool state of the blood" could never be used in explanation of the word "'deliberate" without misleading the ordinary mind, unless that term should be fully explained. It is a term only used in contrast with the term sudden heat, or heat of passion; for a man is said to act in a cool state of the blood no matter what the real fact may be whenever he acts without such provocation as the law regards as sufficient to produce or justify heat of passion, such for instance as personal violence, grevious insult or infringement upon his marital rights. State v. Holmes, 54 Mo. 153; People v. Turley, .50 Cal. 469; 65 Mo. 149; 4 Mo. App. 44. And if he had sufficient time for the blood to cool, whether it had or not, his heat can not avail him. 3 Greenl. Ev. § 147. If the blood must be cool, at what degree of temperature must it be found before the act of killing could be murder in the first degree, and by what means could

the condition of the blood be ascertained in any given case? In all the cases decided in this State, or in other States, no effort has been made to define the word "deliberate' to mean a cool state of the blood, except in a few instances, and then it was followed with an explanation of that term showing that it meant not in a heat of passion engendered by a sufficient legal provocation, and also defining what would be such a provocation. State v. Shoultz, 25 Mo. 128; State v. Nueslein, 25 Mo. 111; .State v. Dunn, 18 Mo. 419. In the few instances in which the Supreme Court of Missouri have attempted to define or express the meaning of the word "deliberately'' it has never before been defined to mean a cool state of blood, except in the case of State v. Curtis, reported 10 Cent. L. J. 370. In Bower v. State, 5 Mo. 364, when this statute was examined and passed upon for the first time in this State, Judge McGirk said: "To place his case, then, in the first degree, the murder must have been wilful, deliberate and premeditated. All three of these things must occur, if indeed they do constitute three distinct ingredients. But I do not perceive how it can be so. I understand deliberate and premeditated are in this case about the same thing. I will therefore drop one of these words and use the other as being sufficient. The killing must be wilful; by this I think the law means the murderer intended to kill. This supposes an actual condition of the mind in regard to the killing when the deed takes place. The other part of the description requires that the killing must have been thought of before the act of killing began to take place." In the same case Edwards, J., said: "By the term 'wilful' it may be understood that the killing was designed and not by accident; by 'deliberate' that it was done after reflecting and weighing the matter well; by 'premeditated' nearly the same thing, but a larger and greater degree of deliberation, or rather a determination beforehand to do the act. And this view is held in Schleuker v. State, 9 Neb. 400."

In State v. Phillips, 24 Mo. 407, speaking of murder in the first degree, Scott, J.. says: "If the intention to kill exists with circumstances which show a cool depravity of heart, or a mind fully conscious of its views and designs, it is a case of murder in the first degree. I do not understand the case of State v. Weiners, 66 Mo. 13, cited in the principal case, to hold that deliberate means a cool state of the blood. In that case the learned judge who delivered the opinion of the court says: "Deliberate does not mean brooded over, considered, reflected upon for a week, a day, or an hour, but it means an intent to kill, executed by the party not under the influence of ¡a violent passion suddenly aroused, amounting to a temporary dethronement of reason, but in the furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful pur pose. Nothing is said about a cool state of the blood, but an intent to kill when the reason is not temporarily dethroned, is said to be the meaning of the word "deliberately."

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It is said that all intentional homicides committed with premeditation, but without deliberation, must be murder in the second degree." And it might be said that all intentional homicides committed with deliberation but without premeditation would be also murder in the second degree. But we will have some difficulty in finding a case of premeditation without deliberation, or vice versa. In Weiners' Case the learned judge seems to realize this fact, as did Judges McGirk and Edwards, and although he says that deliberation and premeditation are not synonymous words, and a homicide may be premeditated without being deliberately committed, because both words are

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used in the statute, yet he confesses his inability to differentiate between the two words. "It is no easy matter," he says; to draw the line of distinction between premeditation and deliberation. It is more easily conceived than expressed. Instances are more satisfactory than definitions." How shadowy must be the distinction when a man experienced in thinking and gifted in language is unable to point it out? Let us consult Webster's Dictionary again. Premeditate— v. t., to think on and resolve in the mind beforehand; to contrive and design previously, as to premeditate theft or robbery. The v. i.-to think, consider or revolve in the mind beforehand; to deliberate, to exercise by previous thought or meditation. Premeditation-the act of meditating beforchand; previous deliberation. Previous contrivance or design formed, as the premeditation of a crime.

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Now let us see how these words have been regarded from a legal standpoint: "Premeditation a design formed to commit a crime, or to do some other thing before it is done. Premeditation differs essentially from will which constitutes the crime, because it supposes besides an actual will a deliberation and a continued persistence which indicates more perversity." 2 Bouv. Law Dic. 370. See also Abbott's Law Dic. premeditation. "It must be noticed that in the eye of the law premeditation has no defined limits, and if a design be but the conception of a moment, it is as deliberate, so far as judicial examination is concerned, as if it were the plan of years. If the party killing had time to think and did intend to kill for a moment, it is a deliberate, wilful and premeditated killing constituting murder in the first degree." 2 Whart. Cr. L. § 1113. "It is true as said by a wise judge the act (law) says the killing must be wilful, deliberate and premeditated. But every intentional act is, of course, a wilful one, and deliberation and premeditation simply mean that the act was done with reflection and conceived beforehand. No specific length of time is required for such deliberation. It would be a most difficult task for human wit to furnish any safe standard in this particular. Every case must stand on its own circumstances. The law, reason and common sense unite in declaring that an apparently instantaneous act may be accompanied with such circumstances as to leave no doubt of its being the result of premeditation." Id. § 1114. In State v. Pike, 49 N. H. 399, it is said that the words "deliberate and premeditated 'killing,' used in the statute, obviously mean something more than the expression 'malice aforethought' construed in its legal signification; they import an intent to take the life of the deceased." "To constitute murder in the first degree the unlawful killing must be accompanied with a deliberate and clear intent to take life--an intent which is the result

of deliberate premeditation. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation, no matter how rapidly these acts of the mind succeed each other, or how quickly they may be followed by the act of killing." People v. Sanchey, 24 Cal. 30. Nor is it necessary that there should be any appreciable space of time between the formation of the intention to kill on the part of the slayer and the act of killing. People v. Cotta, 49 Cal. 167; People v. Doyer, 48 Cal. 85: 24 Cal. 30; 17 Cal. 389; State v. Turner, Wright (Ohio) 30; 3 Kas. 450. Nor that the deliberate, premeditated intention to kill should be formed and matured before the occasion; if it was fully formed at the time of the act it is sufficient. Herrin v. State, 33 Tex. 638. A resolve implies deliberation. 25 Cal. 361.

Let us turn our attention to the State whence came the law under consideration. "Deliberately and premeditatedly' mean the intent to take life with a

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full and conscious knowledge of the purpose to do so." Jones v. Com., 75 Pa. St. 403. "It is true that such is the swiftness of human thought, no time is so short," said a learned judge, in which a wicked man may not form a design to kill, and frame the means of executing his purpose, yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards and the jury must find the actual intent; that is to say, the fully formed purpose to kill with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design." Com. v. Drum, 8 P. F. Smith (Pa.) 16, 17. "When the killing is ascertained to be intentional, the next inquiry is whether it was wilful, deliberate and premeditated. As to the first, every intentional act is necessarily a wilful one. The one implies the other. Deliberation and premeditation mean that the act was done with reflectionwas conceived beforehand. No precise time is fixed by law or common sense for this deliberation. man has time to deliberate and think for a minute, as well as for an hour or a day, it is sufficient. If a particular time for deliberation or premeditation should be required, at what period ought it to be fixed? No practical answer can be given to the question.' "Com. v. Green, 1 Ashmead, 296; 17 Cal.389. In Green v. Com., 83 Pa. St. 76, the court say: "He who takes the life of another with a deadly weapon and with a manifest design thus to use it upon him, with sufficient time to deliberate and form a conscious purpose of killing, and without sufficient reason or cause of extenuation, is guilty of murder in the first degree. But it is for the jury to determine from the evidence whether the act was the result of a deliberate and premeditated purpose to kill. The time may be short, yet a jury may find that the fully conscious purpose to kill existed, yet on the other hand, by reason of the shortness of the time and the presence of great rage produced on the instant and in a moment of impetuous temper, a blow is given, a jury may be convinced that it was not the result of a fully formed purpose to kill, but of a rash and hasty impulse, with scarcely a consciousness of any purpose, except to do bodily harm to the object of his wrath. And although pre

meditation is necessary under the act, still the intention remains the true criterion of the crime, and the intention can only be collected from the prisoner's words and actions." Lanahan v. Com., 84 Pa. St. 80. The doctrine, as shown by the extracts we have taken from the Pennsylvania cases, was held immediately after the passage of the act of 1794, and it has continued to be the doctrine of the courts of that State down to the present hour, and the Supreme Court of Missouri have uniformly declared the same views respecting the construction and meaning of the statute, after quoting with approval the decisions of the Pennsylvania courts. See Bower v. State, 5 Mo. 364; State v. Dunn, 18 Mo. 419; State v. Philiips, 24 Mo. 475; State v. Shoultz, 25 Mo. 128; Green v. State, 13 Mo. 482; State v. Starr, 38 Mo. 270; State v. Holme, 54 Mo. 153; State v. Foster, 61 Mo. 549; State v. Underwood, 57 Mo. 49; State v. Hudson, 59 Mo. 135; State v. Lane. 64 Mo. 318.

A learned writer, in an article discussing the degrees of murder (6 Cent. L. J. 264), and speaking of the first degree, says "I have found no clearer statement of the true doctrine than that of Judge Agnew in Com. v. Drum, 58 Pa. St. 9, where he says; 'In this case we have to deal only with that kind of murder in the first degree described as wilful, deliberate and premeditated. Many cases have been decided un

der this clause, in all of which it has been held that the intention to kill is the essence of the offense. Therefore, if an intention to kill exists it is wilful. If this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate; and if sufficient time be afforded to enable the mind fully to frame the design to kill and select the instrument, or to frame the plan to carry this design into execution, it is premeditated.' See State v. Holme, 54 Mo. 162; State v. Lane, 64 Mo. 319. "The law fixes upon no length of time as necessary to form the intention to kill, but leaves its existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in evidence." Id. The question is, was the act of killing deliberate and premeditated? Whether it was or not is a question of fact for the jury. The question is not how long it requires to deliberate and premeditate, but was the act a deliberate and premeditated act." Id. See instructions two, three, four and five in principal case.

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We do not insist that any one of the statutory words 'wilful, deliberate and premeditated' could with propriety be omitted from the instructions to the jury, for although they are used to intensify the action of the mind they express shades of difference in meaning which might have some bearing upon the particular facts in a given case, although one of the words" deliberate or premeditated" might, and probably would, be sufficient to express the condition of mind essential to murder in the first degree in a large majority of cases. In a few cases deliberately" or some of the statutory words were entirely omitted in the instructions as to the first degree of murder, and to this exception was properly taken by the Supreme Court. Such was the fact in State v. Mitchell, 69 Mo. 191; State v. Kring, 64 Mo. 591; 64 Mo. 319; State v. Melton, 67 Mo. 594. It is a rule, however, that the very words of a statute describing an offense need not be used in an indictment, that words of similar import will suffice, and we see no good reason why this rule should not apply to the instructions. See ante, State v. Curtis.

ABSTRACTS OF RECENT DECISIONS.

ENGLISH, IRISH AND CANADIAN CASES.

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"PARTY-WALL-MEANING OF TERM - REMEDY OF OWNER EXCLUDED FROM USE OF PARTY-WALL. -1. The term "party wall" may be used in any one of four different senses, but the most ordinary meaning is a wall which belongs to the proprietors on both sides as tenants in common. 2. Where the proprietors on both sides of a wall held under the same predecessor in title, under instruments, each of which contained a declaration that certain walls should be and remain party walls: Held, that such walls must be treated as party walls in the most ordinary sense. 3. If one of the tenants in common of such a wall uses it so as to exclude the other from using it, the remedy of the latter is to remove the obstacle to his use of the wall. Watson v. Gray. English High Court, Chy. Div., 28 W. R. 438.

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vendor, may, on the discovery of the fraud, retain the chattel and bring an action to recover any damages he has sustained by reason of the fraud, does not apply to the purchase of shares or stocks in a partnership or company. H was induced by the misrepresentation of the directors to purchase shares in an unlimited company. The company afterwards became insolyent, and H was placed upon the list of contributors, and compelled to pay calls in respect of his shares. After the winding-up had commenced he brought an action against the company for damages in respect of the price paid for the shares and the amount of the calls. Held (affirming the judgment of the court below), that the action was not maintainable. Western Bank of Scotland v. Addie, L. R. 1 H. of L. Sc. 145, followed.-Houldsworth v. Glasgow Bank. English House of Lords, 42 L. T. (N. S.) 195.

COPYRIGHT- EFFECT OF LICENSE TO MAKE EXGRAVING OF OIL PAINTING.-1. The owner of an oil painting called "Going to Work," and of the copyright therein, for valuable consideration gave to the plaintiff a license in the following words: "I assign to you for the purpose of producing an engraving of one size the copyright of the picture enti

tled 'Going to Work.'" The plaintiff caused himself to be registered at Stationers' Hall as the proprietor of the copyright in the painting. Held, that the effect of the assignment, as regarded the plaintiff, after the preparation of an engraving and the registration of it, was that the plaintiff became the owner of the copyright in the engraving, and that the owner of the painting retained the copyright therein, each being at liberty to copy, and publish copies of that which was his own property. 2. Under the circumstances aforesaid, the defendant, not hav ing seen the painting or engraving, printed and published a chromo-lithograph very similar in design to the oil painting and engraving, but the main design of which he took from a photograph, as to which there was no extrinsic evidence of the origin of its design, or whether it was an imitation of the oil painting or engraving. Held, that even if it had been proved that the idea or design of the photograph had been taken from the oil painting the copying of such photograph was no infringement of the copyright in the engraving, and that the plaintiff's action to restrain the publication of the lithograph failed.- Lucas v. Cook. English High Court, Chy. Div. 42 L. T. (N. S.) 180.

UNITED STATES SUPREME COURT.

October Term, 1879.

CONSTITUTIONAL LAW-FEDERAL TAX ON CIRCU. LATING NOTES OF MUNICIPALITIES.-The provision of sec. 3413 of the United States Revised Statutes, that every national banking association, State bank or banker, or association, shall pay a tax of ten per centum on the amount of notes of any town, city, or municipal corporation paid out by them," is constitutional even where its effect is to tax an instrumentality of a State. The tax thus laid on is not on the obligation, but on its use in a particular way. As against the United States a State municipality has no right to put its notes in circulation as money. It may execute its obligations, but can not, against the will of Congress, make them money. The tax is on the notes paid out, that is, made use of as a circulating medium. Such a use is against the policy of the United States. Therefore the banker who helps to keep up the use by paying them out, that is, employ

ing them as the equivalent of money in discharging his obligations, is taxed for what he does. The taxation was no doubt intended to destroy the use, but that Congress has the power to do. Veazie Bank v. Fenno, 8 Wall. 539.-Merchant's National Bank v. United States. In error to the United States Circuit Court for the Eastern District of Alabama. Opinion by Mr. Chief Justice WAITE. Judgment affirmed. BANKS AND BANKING DEPOSIT MADE WHEN CHECK HANDED IN USAGE. On the after-. noon of February 23d, B executed to the plaintiff for the benefit of C an agreement to guarantee and make good to said bank any sum or sums which might hereafter be held against C to an amount not exceeding $50,000, and notiee of such indebtedness was waived; it was likewise to apply only to future indebtedness. Before its execution on the same day a check for $10,000, drawn by C, on the bank, was presented by the payee, who was a depositor, and received by the bank. The pass-book of the depositor was not presented at the time. Evidence was given by the bank to show that there existed a usage in the place where the bank was located and it existed in the bank and was known to its customers, by which checks left in the bank in the morning by depositors were held until after close of the bank, subject to be returned in the afternoon if found, upon balancing the accounts, not to be good. Evidence was given to contradict the existence of such usage, and also that the depositor of the check had no knowledge or understanding in regard to said check except that it was received on deposit and as a deposit when it was left with the bank. Held, that if the check was handed in and received as a deposit the defendant was not liable for the amount on his guarantee, and it was for the jury to say whether it was a consummated deposit and the usage shown would not affect the matter if not known to the depositor. When a check on itself is offered to a bank as a deposit, the bank has the option to accept or reject it or to receive it upon such conditions as may be agreed upon. If it be rejected there is no room for any doubt or question between the parties. If on the other hand, the check is offered as a deposit and received as a deposit, there being no fraud, and the check genuine, the parties are no less bound and concluded than in the former case. Neither can disavow or repudiate what has been done. The case is simply one of an executed contract. There are the requisite parties, the requisite consideration and the requisite concurrence and assent of the minds of those concerned. It was well said by an eminent chief justice: "If there has ever been a doubt on this point, there should be none hereafter." Oddie v. Nat. City Bank of New York, 45 N. Y. 742. A general usage may be proved in proper cases to remove ambiguities and uncertainties in a contract or to annex incidents, but it can not destroy, contradict or modify what is otherwise manifest. Where the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing. Usage can not make a contract where there is none, nor prevent the effect of the settled rules of law. Barnard v. Kellogg, 10 Wall. 390; Bliven v. New Eng. Screw Co., 23 How. 433; Collender v. Dinsmore, 55 N. Y. 208; Adams v. Morse, 51 Me. 499; Thompson v. Riggs, 5 Wall. 674; Dykers v. Allen, 7 Hill, 497.-First National Bank of Cincinnati v. Burkhardt. In error to the United States Circuit Court for the Southern District of Ohio. Opinion by Mr. Justice SWAYNE. Judgment affirmed.

SUPREME COURT OF OHIO.

April, 1880.

COMMON CARRIER-LIABILITY FOR "BAGGAGE’ -INSTRUCTIONS.-1. Where a verdict for the plaintiff may have been rendered upon either of two causes of action, but does not appear upon which, a refusal to give a proper instruction on behalf of the defendant, as to either cause of action, will entitle him to a new trial. 2. The implied undertaking of a carrier to insure the safety of baggage, does not extend to the contents of a trunk, consisting of samples of merchandise, which the passenger, a traveling salesman, carries to facilitate his business in making sales. But the carrier by taking the property into his charge and putting it into his warehouse for safe keeping assumes the relation to it of an ordinary bailee, and he is bound to take such care of the property as a man of ordinary prudence would of his own under like circumstances. Judgment reversed for refusing a charge as requested as to the second cause of action; also on the ground that the verdict is not warranted by the evidence. Opin. ion by WHITE, J.-Pennsylvania Co. v. Miller.

ASSESSMENT-SEPARATE LOT MODE OF ESTIMATING COST.-1. The appropriation of land for the opening of a street by a municipal corporation through a parcel of land which stands upon the tax duplicate as a single lot or parcel, severs the same into two lots or parcels, for the purpose of assessment, though it remains on the general tax duplicate as an entirety for purposes of taxation. 2. Where the same is assessed as two lots, and the assessments thus made are certified to the auditor of the county for collection, by order of the council, it is error to add the assessments made on each side of the street together and charge the same upon the whole lot as if no severance had been made. 8. The making of a street improvement required the construction of a stone and brick culvert, as well as earthwork. Each class of work was let and done separately by different contractors, the culvert being first completed, accepted and paid for. In making up the amount of the assessment to pay for both classes of work, it was error to include the cost of repairs of said culvert made after it was accepted. 4. So it is error to add to the cost of an improvement an estimated percentage to pay for collecting an assessment based thereon. 5. Where an assessment is per foot front, and is based upon an estimate of the cost, and a certain number of feet frontage, and the cost of the works falls below such estimate, the court in reducing such assessment to the actual cost, and in fixing the cost per foot front, should not deduct from the frontage actually assessable when the improvement was ordered, any part thereof subsequently appropriated by the municipal corporation for streets. Judgment reversed and cause remanded. Opinion by JOHNSON, J.-Spangler v. City of Cleveland.

SUPREME COURT OF GEORGIA.

April Term, 1880.

NUISANCE-BLACKSMITH SHOP.-Though a blacksmith shop may not be a nuisance per se, yet the discretion of the chancellor enjoining the erection will not be controlled where the affidavits submitted as to whether the shop, under the circumstances of this particular case, would constitute a nuisance, preponderated, in his opinion, in favor of complainant. Judgment affirmed.- Whitaker v. Hudson.

ARSON-EVIDENCE-PUNISHMENT.-1. Arson can seldom be established by positive testimony. The character of the offense makes it necessarily dependent for conviction upon confessions and corroborating circumstances. The force to be given to the corroboration must be left to an upright and intelligent jury. 2. Whether the outhouse burned be in a city, town or village, or not, does not affect the legal character of the offense. It affects the punishment only. Hence the court properly refused to exclude the testimony because the indictment failed to allege that the outhouse was not in a city, town or village. Judgment affirmed.-Smith v. State.

FIERI FACIAS - DESCRIPTION - PLACE OF SALE WHERE NO COURT HOUSE.-1. An entry on a fi. fa. in these words: "I have levied this fi. fa. on the house and lot formerly owned by J D W, and now occupied by H M (and other property similarly identified) all situate in Cedartown, in Polk county, as the property of C W L, non-resident, the same having been originally attached," contains a sufficient description of the property; and the fi. fa. with such an entry on it will not be rejected from evidence because of uncertainty of description. 2. The court house of Polk county was burned: no other had been built, and no place permanently rented for court purposes. By special arrangement court was held twice a year in a school house, but at other times it was used for private purposes. The clerk's office was in a rented room at another place. On sale day the sheriff went to the site of the burned court house, and the sun being hot adjourned the sale to a grove near by and in full view. The sale was well attended, and the property brought full price: Held, that the sale was not void, and one who paid full price, and whose money was applied to the execution against defendant in a fi. fa. obtained a good title. Judgment affirmed.-Longworthy v. Featherstone.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

April, 1880.

TRADE-MARKS-WORDS IN COMMON USE-FRAUD. -Whether words in common use as designating a vast region of country and its products, as "East Indian,'' can be appropriated by any one as his exclusive trade-mark, separately from his own or some other name in which he has a peculiar right, quære. Canal Co. v. Clark, 13 Wall. 311; Taylor v. Carpenter, 3 Story, 458, and 2 Sandf. Ch. 603; Gilman v. Hunnewell, 122 Mass. 139, 148. But when a plaintiff has adopted and used such words to denote and to indicate to the public that his medicines were used in the East Indies, and that the formula for them was obtained there, to maintain a bill in equity to restrain the defendants from infringing upon the rights claimed by the plaintiffs to the use of the words, would be to lend the aid of this court to a scheme to defraud the public. Pidding v. How, 8 Sim. 477; Perry v. Tunfit, 8 Beav. 66, 76; Leather Cloth Co. v. American Leather Cloth Co., 4 DeJ. J. & S. 147, and 11 H. L. Cas. 523, 532, 542, 548; Palmer v. Harris, 60 Pa. St. 156. Opinion by GRAY, C. J.-Connell v. Reed.

CONTRACT-DEFECTIVE PERFORMANCE-INSTRUCTIONS.-The plaintiff contracted in writing with the defendant to build a sea wall. No special stipulation was made in regard to the foundation, and it was apparently assumed by both parties that the natural foundation would be sufficient without the driving of

piles or any special precaution or extraordinary support of any kind. The jury were instructed that the plaintiff had a right to build upon such lines as the defendant or his agents marked out, and that if he built the wall upon a foundation which he knew or had reason to believe was defective without disclosing its condition to the defendant or his agent, and the walls proved defective from that cause, he was not entitled to recover. Held, that the instructions were all that could reasonably and fairly be asked for by the defendant. Opinion by AMES, J.-Burke v. Burbank.

QUERIES AND ANSWERS.

[*** The attention of subscribers is directed to this department, as a means of mutual benefit. „Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

32. The herd law of Kansas when put in force provides that "any person injured in property by the running at large of any cattle shall have a lien without regard to fences upon the cattle so running at large for the full amount of all damages committed by said cattle upon the property of said person." Suppose that A wrongfully drives and holds his cattle upon the property of B? Has B a lien upon A's cattle under the herd law? Are A's cattle "running at large" within the meaning of the herd law?

L.

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34. A came to Canada with his father from England in 1825, but not liking Canada came to the United States intending to make it his home, and in 1838 took out his first papers. In 1840 he visited his father's family in Canada, and while on this visit married the daughter of a British subject, bought a piece of land which he cultivated to the time of his death in 1849. He considered his stay in Canada only temporary, and intended returning to the United States. B was the only issue of the marriage, and was born in Canada in 1843, B came to the United States in 1854 with his mother, and she married a naturalized citizen of the United States in 1856. If B is not a citizen through his father, is he not through his moth. er's second marriage, he being under twenty-one years of age at time of this marriage? Waverly, Neb.

ANSWERS.

H. D. K.

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27. [10 Cent. L. J. 338.] The 5th and 6th amendments to the Constitution of the United States were not designed as limits upon the State governments in reference to their own citizens, but exclusively as restrictions upon Federal power. Barrow v. City of Baltimore. 7 Pet. 243; Smith v. Maryland, 18 How. 75; Twitch ell v. Com,. 7 Wall. 321; Edwards v. Elliott, 21 Id. 557; Per son v. Yewdall, 5 Otto, 294; Cooley Const. Lim. 3d ed. 19. Atlanta, Ga. HOKE SMITH. [Thos. I. Chappell, Columbus, Ga., sends a similar answer to this query.-ED. CENT. L. J.]

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