Campbell case, were not intended to express our view of the use by the learned judge of the above quoted language. They were intended to express the feeling which we entertained, not for the Arkansas judge, who though eulogizing certain conduct of the prisoner, did his duty, but for the Ohio judges, who shamefully failed to do theirs.

Concerning the manner in which train robbers have been treated in Missouri, we have not one word to say. From first to last it is a record of humiliation and shame, for which nothing can be said in palliation or apology.

16. When A was fourteen years old.he went to live with B. Soon after B, with consent of A's parents, and in connection with them, by deed duly executed, acknowledged and recorded, adopted A as his heir and devisee, under sec. 599, etc., Revised Statutes of Missouri. A lived with B as one of his family, and worked faithfully for him until he was twenty-one years old. Soon thereafter B died, leaving widow and four children and property worth twenty thousand dollars, which he disposed of by will, giving his widow and children equal parts, but giving A only ten dollars, and providing that he should receive nothing more from his estate. Could A recover anything from B's estate? If so, would it be under the deed of adoption or for value of services? JONES.

Query No. 10 [20 C. L. J. 178]. A sues B in Federal court, and has the marshal attach B's goods. B has other creditors, but the Federal court has not jurisdiction of their claims. What is the proper course for them to pursue in order to subject the excess of B's property to the payment of their claims-garnish the marshal, or does the Federal court, by virtue of its having the property in its custody, have jurisdiction, regardless of amounts or residence?

Answer. A partial answer to the above may be found in the case of Patterson v. Stephenson, 77 Mo. 329, and Bates Co. Nat. Bank v. Owen, 79 Mo. 429, and the authorities therein cited. D. J. HEASTON. Bethany, Mo.

Query No. 4 [20 C. L. J. 79]. A becomes totally insane in 1864, and has so remained ever since. At the time of becoming insane, he had no family except one son, then about fifteen years of age, who remained at home with his father, taking care of him and his estate with the utmost economy and diligence, devoting his whole time and attention in that direction, until the son died in 1882. Before dying the son assigned his supposed claims against his father, for the services rendered as aforesaid, after he became of age, to the party who cared for him in his last sickness. No guardian was ever appointed for the father before the son died. Has the assignee of the son any claim against the father for these services? No express contract for pay ever was, or could have been made between the father and son, because of the total insanity of the father, and the want of a guardian. Cite authorities.

*

Answer. "The relation existing between the parties, as parent and child, step-parent and step-child, brother and sister, and the like, is itself strong negative proof, and raises a presumption that no payment or compensation was to be made beyond that received by claimant at the time, which can only be overcome by clear and unequivocal proof to the contrary." "To establish this * * some arrangement or contract to that effect must be shown." Hall v. Finch, 32 Wis. 286. The allowance of such claim "is pregnant with danger, as well to the right of the creditors as to the other heirs, and cannot, be entitled to countenance from the court, unless accompanied with clear proof of an agreement, distinctly thereby manifesting that the relation which subsisted was not the ordinary one of parent and child, but master and servant." Candor's Appeal, 5 W. & S. 515; Abbott's Trial. The same rule prevails where the parent and child continue to live together after the child becomes of age. Fitch v. Peckham, 16 Vt. 156; * 17 Vt. 556; 5 Dutcher, 117; 33 N. H. 581. The reasons of the rule are stated to be the preservation of the peace of families, the prevention of strife and controversies which might ensue through the fraud of some and the avarice and litigiousness of others, and the prevention of perjury. 32 Wis. supra. The last reasons would seem to be all the stronger in the case of an insane parent. The stepfather of a lunatic, so adjudged on inquisition,.was not allowed to claim as a debtor, for what he had expended, beyond the rents of the lunatic's freehold, in the maintainence of the lunatic, it being considered as an act of bounty on his part as the stepfather of the lunatic. Carter v. Beard, 11 Sim. (Eng. Ch. R.) 7. The son having no valid claim against his father, his assignee could have none.

Denver, Colo.

JAMES H. BROWN.

RECENT PUBLICATIONS.

MYER'S FEDERAL DECISIONS. Vol. 6. Federal Decisions. Cases argued and determined in the Supreme, Circuit and District Courts of the United States. Comprising the opinions of those courts from the time of their organization to the present date, together with extracts from the opinions of the Court of Claims and the Attorneys-General, and the opinions of general importance of the territorial courts. Arranged by William G. Myer, author of an Index to the United States Supreme Court Reports; also Indexes to the Reports of Illinois, Ohio, Iowa, Missouri and Tennessee, a Digest of the Texas Reports, and local works on Pleading and Practice. Vol. VI. Constitution and Laws. St. Louis, Mo.: The Gilbert Book Co. 1885.

This volume bears the certificate of approval of Pro

fessor William G. Hammond, Dean of the St. Louis Law School. Dr. Hammond is a very learned man; was a member of the commission of 1873 which revised the laws of Iowa; is author of a Digest of Iowa Reports, and editor of the second edition of Lieber's Hermeneutics. He is, therefore, quite well qualified for the task of making a critical examination of a literary performance. His mind is essentially critical, and those who know him feel assured that he would not make such a certificate without a thorough examination.

Mr. Myer is building for himself, through the preparation of this work, a high reputation as a bookmaker. The plan of this work, which consists of collecting and reporting anew the leading Federal decisions, arranged according to subjects, and digesting under each sub-title those decisions of less importance, is a novel one; but when it is seen how very convenient such a grouping of decisions is, the wonder is that no one attempted it before.

This volume relates to the subject of Constitutional. Law, though it does not complete the subject. We had occasion, on the day this review was written, to look into the subject of "Due Process of Law" in reference to the Fourteenth Amendment. The cases were all here, grouped under the sub-title, "Due Process of Law," the leading decisions reported in full, those of less importance digested merely. Without the aid of this volume, we should have been compelled to ransack our library of Federal Reports, by the aid of a Digest and then to take down volume after volume, in order to make a search for what we were endeavoring to find. We found all the decisions grouped in this one volume in the space of twenty-four pages. Our experience in this one search will be the experience of every lawyer, and judge in his every-day work, who provides himself with this admirable edition of the decisions of the Federal Courts. We venture the prediction that the reports of the States must be republished in this way, grouped according to topics; and we trust that the enterprising publishers and their able and experienced editor will, when they get through their present task, apply the same method to the Reports of some of the States. By pursuing this method, all questions as to infringement of copyright, may generally be avoided; for the opinions are not, as a general rule, the subjects of copyright, and the work of the original reporters would not be copied even to the extent of following their plan of arrangement.

JETSAM AND FLOTSAM.

FACT AND LAW.-Glance a moment, at the men of mark, in court and nation, and be convinced that the corner stone of law practice rests on the contest over facts more than over law points in daily practice. Think out a list of acquaintances or celebrated men like Brady, Voorhees, Tremain, Matthews, Dougherty, Curtis, Beach or Carpenter, and you will be satisfied that one who works in the lower courts for victory, on the merits-or the facts, instead of making every court one of last resort, is always in the true line of success. Glance again at the dry, technical lawyers of your acquaintance-men called profound-deep, exhaustive reasoners, (sometimes called so from the very obscurity of their reasoning;) and how many do you know who ever attained eminence in practice that hated juries and the drudgery of preparing facts for trial? In a somewhat extended reading of eminent men,-especially those who have contended for promotion in the courts of our own country during the last third of a century, said an eminent advocate recently, "I have

found a few who reached their ambition, but men like Field, Marshall, Crittenden, Choate, Evarts, O'Connor, Campbell, Burr, Benjamin, Seward, Ryan, Davis, Dickinson and Lincoln with a regiment more unnamed, have all won their circuit cases on the facts rather than the law. It is a little singular that in the East, far more is left to the trial judge, and less and less wrangles over law points are yearly indulged in, but more and more directness in the line of evidence. At a swift glance this seems to discourage law study until after the first contest. This is by no means correct. The true theory is (if one may be pardoned for compiling and presenting such a theory), is to be so clear on the law, that you are confident of your positions before trial, and if the judge fails to agree with it, be prepared to go to the courts of last resort for vindication. With this theory, once matured, fifteen out of twenty cases will be earlier won on the merits as they surely will be finally, and the sooner the better. That I am sustained in this position by some of the most eminent counsel, I could verify by their letters, but on questions of fact we must often accept ones word as authority. To those who spurn this view of practice I say keep on, trial will teach you by experience, one could name ten out of twelve who have succeeded best as stated. J. W. DONOVAN.

JOHN K. PORTER.-The New York Tribune man who writes the "Notes about Town," came across John K.Porter the other evening, and thus writes about him: "In the Fifth Avenue hotel the other evening I met exJudge John K. Porter, looking much grayer but not nearly so old and careworn as he looked during the Guiteau trial, nor any older, I thought, than when he appeared in the Tilton-Beecher suit eight years ago. I remarked his improved appearance, and he explained it by saying that since the trial of the assassin of President Garfield he had retired from his profession and was resting, living in the summer at his place on Schroon Lake, in the spring and fall at Waterford, near Saratoga Springs, and in the winter at the Fifth Avenue hotel, three pleasant resorts in their seasons. It has been the peculiar experience of Judge Porter to be engaged in many suits which occupied a great deal of time in their trials and involved many new and complex questions of law. He was in the Beecher case for six months; his health broke down under the strain. The Guiteau trial lasted several weeks. He was referee in the famous Navarro suit against the city, the hearing of testimony in which occupied nearly a year, and the various appeals in which took up quite ten years. The judge was in excellent humor over the decision of the highest court in the Navarro case. The General Term overruled his decision as referee, and the Court of Appeals reversed the General Term ruling.

THE DEFENSE IN THE TILTON-BEECHER CASE.— The Tribune writer talked with Judge Porter about the Beecher case. "I asked him what he thought the most dramatic incident in that extraordinary trial. "The taking the oath by Mr. Beecher," he replied. Without intending to compliment the judge I said that his own sudden and unexpected denunciation of Moulton as a false witness and false friend was the finest instance of crushing invective I had ever heard. That led to the curious revelation that in the first consultations of Mr. Beecher's counsel, Mr. Evarts, the senior counsel, favored an amiable policy in defense, taking the ground that all the persons concerned misunderstood each other. But Judge Porter held that there was a conspiracy to blackmail, and that Tilton must be put on his defense, and the defense of Mr. Beecher finally assumed the shape of a vigorous attack on the complainant and his principal witness."

The Central Law Journal.

ST. LOUIS, MARCH 27, 1885.

CURRENT EVENTS.

A SUBSTITUTE FOR HANGING.-Some of our readers may remember the story of the Irishman who stood up to receive his sentence to be hanged. The judge pronounced it with the usual solemnity, having first donned the black cap, and when he wound up with the usual words, "then and there to be hanged by the neck until you are dead, dead, dead,” Pat cried out, "Och! hang me around the waist, for me neck is very ticklish." Gov. Hill of New York, in his recent message, makes the following suggestion:

"The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner. I commend this suggestion to the consideration of the legislature."

The New York Tribune seconds this suggestion with some judicious observations, which it concludes thus:

"In effect no death which is not instantaneous in its extinction of consciousness, can be declared painless, and therefore only an instantaneous form of extinction ought to be accepted as fulfilling the purpose of the law and of society. There is no reason to doubt the ability of modern science to devise a mode of swift and really painless execution. Electricity would certainly furnish the means; and it is unquestionably a duty on the part of the legislature to take Governor Hill's suggestion on this head into consideration, for there should not be permitted the existence of a doubt as to whether condemned criminals suffer needlessly in paying the final penalty."

The Tribune man is certainly mistaken in the idea that all forms of asphyxiation are in their first stages acutely painful. We have known men who have been both drowned and hanged, and resuscitated after they had lost consciousness. The man who had been drowned experienced little pain in the first struggles, and none afterwards, though he experienced great pain in the resuscitation. The man who had been hanged experienced slight pain in the first rangulation; not enough to induce him to Vol. 20-No. 13.

raise his hands and untie the knot, which he could easily have done, for he was simply trying a foolish experiment upon himself. The physical pain which attends death is a great bugbear. It does not exist. If it does exist, the fact of its existence is not a good argument against executing criminals by hanging. The object of the law may be to inflict a certain degree of pain, and to make the mode of execution disgusting, and hence to be dreaded. We are, however, an advocate of abolishing this mode of execution, and, as the best possible substitute, and the cheapest which could be devised, we suggest drowning. Put the criminal in a cage, and

sink him in a vat of water.

THE REFORMATION OF THE FEDERAL JUDICIARY.-No. 13 of the Supreme Court Reporter,1 devoted, as our readers are aware, to the exclusive publication of the decisions of the Supreme Court of the United States, contains sixty-four pages, most of which are taken up with cases of patents for inventions. There is one admiralty case, relating to a collision of vessels; one case of a claim against the government, appealed from the Court of Claims, and one or two cases involving applications of general principles of law. This is not an unfair sample of many numbers of of the same periodical. The docket of the Supreme Court of the United States is now about four years in arrear. By reason of this fact, an appeal or writ of error to that court involves a substantial denial of justice. Does not a statement of these facts convey a strong suggestion as to what is needed in the way of a reform of the Federal judiciary? The Federal court of last resort, though composed of nine justices, is unable to perform its work. By reason of being overworked, the learned and able judges are unable to devote the amount of time and attention to the decision of important questions which the public interests demand. Does not the remedy lie in the creation of one or more additional courts of appeal, and in a division of the subjects of jurisdiction? Take the subject of patent law. The American people are a race of inventors. No one can open a volume of Federal reports

1 St. Paul: West Publishing Co.

without being struck with the great number of cases relating to the subject of patents for inventions. It is well known that the practice of this department of law, when its principles and details are mastered, is highly lucrative. Why not, then, have a separate court of appeal for patent cases to sit at the national capital, or possibly, to alternate its sittings at two or three important points? A bench of five judges could easily dispose of all litigation relating to patents for inventions and copyrights. Then, what earthly propriety is there in a system which allows all cases in admiralty to be appealed to the national court of last resort, without any reference to the amount involved, and without any reference to the question whether the matter to be decided is a matter of law or a matter of fact? Why not have another court of appeal for admiralty and commercial cases? This would leave the Supreme Court of the United States in possession of all the jurisdiction which appropriately belongs to it. It would still have the limited original jurisdiction committed to it by the Constitution. It would have appellate jurisdiction of all questions involving the interpretation of the Constitution of the United States, of all questions involving conflicts between the Federal and State judicatories or authorities, and of all cases in which jurisdiction had not been specially confided to the other appellate courts. Is not the principle of a division of labor, and a division of subjects, now so usefully practiced in England, the proper solution of our difficulty?

NOTES OF RECENT DECISIONS.

TRUSTEE-BREACH OF TRUST-RIGHT TO INDEMNITY FROM CESTUI QUE TRUST-MARRIED WOMAN. In a case of Sawyer v. Sawyer, before the Court of Appeal on the 14th of February, a question arose as to the liability of a married woman to make good out of her separate property the loss occasioned by a breach of trust to which she had consented. The action was brought on behalf of infant children, entitled in remainder under the trusts of a marriage settlement, for the purpose of compelling the trustees to make good breaches of trust in respect of the trust funds. By the settle-.

ment, property of the wife was settled in trust for her for life, for her separate use, without any restraint on alienation, with remainder to the husband for life, with remainder to the children of the marriage; and the trustees were authorized, with the consent in writing of the husband and wife during their joint lives, to vary the investments of the trust funds. Between 1872 and 1875 portions of the trust funds were sold by the trustees, and the proceeds were, with the consent of the wife, advanced to the husband. He never repaid the advances, and was adjudicated bankrupt in 1877. Upon the occasion of each of these advances the husband and wife signed promissory notes by which they severally and jointly promised to pay on demand the sum of stock, from the sale of which the sums advanced had arisen, to the trustees, for value received. In 1879 the court declared that the trustees were jointly and severally liable to replace the sums which had been thus sold out and lost. When the action came on for hearing upon further consideration, the trustees claimed to be entitled to retain the income of part of the trust funds to which the wife was entitled for her life for the purpose of recouping the amount which they had been compelled to make good, on the ground that she had been a consenting party to the breach of trust. Chitty, J., held that the trustees had no such right of retainer, and the decision was affirmed by the Court of Appeal (BAGGALLAY, BOWEN, and FRY, L.JJ.). FRY, L.J., who delivered the judgment of the court said that, having regard to the consent given by the wife to the sale of the stock, and to the payment of the proceeds to her husband, and to the promissory notes given by her to the trustees as such, and further to the fact that she, as cestui que trust, was entitled to receive moneys from the same trustees to whom she had become indebted, their lordships were of opinion that if, instead of being a married woman, she had been a man of full years, there would have existed a right of retainer against her life interest to make good her debt, which might have been enforced either by her children, as cestui que trusts in remainder, or by the trustees. Did the fact that she was a married woman make any, and, if so, what, difference in her liability? The primary duty of the trustees was the protection of the fund, which they did not protect; and before a trustee could

claim the benefit of any charge or right of retainer against the interest of a married woman in the trust fund it appeared to their lordships to be reasonable that he should show that the charge or right of retainer was created by her with a full knowledge of all the circumstances. It was probable that in the case of a man of full years the court would presume him so to be acting, but in the case of a feme covert their lordships did not think that this presumption existed in favor of the trustee, whose primary duty was to protect the fund for her benefit. His lordship referred to Ryder v. Bickerton,2 and Mara v. Manning, in which Sir Edward Sugden said, "I hope that the court may feel itself at liberty to treat a woman entitled for her separate use in possession as sui juris, so as to bind her interest where she prevails upon her trustee to commit a breach of trust. But this could only be where the wife really acted for herself." All the cases in which the separate estate of a married woman had been held to be affected by a breach of trust were, so far as their lordships were aware, cases in which she had been an actual actor in the transaction herself; such as Crosby v. Church, Clive v. Carew, and Pemberton v. M'Gill. In no case, so far as they knew, had her separate estate been charged on the mere ground of her having acquiesced in, or approved of, the breach of trust. The trustees in the present case had, in their lordships' opinion, failed to show that the wife was fully informed of the state of the case, or that she really acted for herself.-Solicitor's Journal.

5

STOCKHOLDERS-REMEDY IN EQUITY AGAINST CORPORATION REFUSING TO TRANSFER SHARES. -It is ruled by the Supreme Court Commission of Ohio, in the case of Iron Railroad Co. v. Fink, that if an installment of stock in a railroad company remain unpaid by the original subscriber, an assignee of the stock, who is willing to comply with the corporate regulations respecting the issue of

23 Sw. 80n., 1 Eden, 149n.

$2 Jo. & Lat., 311.

43 Beav., 485.

51 J. & H., 199.

62 Dr. & Sm., 266.

7 13 Weekly Law Bulletin (Cinn.), 91.

stock certificates and the transfer of stock, may, upon making a proper tender of the unpaid installment, with the interest thereon, maintain an action in equity, against the corporation, to compel it to issue to him a stock certificate. We are glad that this decision has been rendered, because the authorities on the question whether a court of equity will compel a corporation to admit a transferee of its shares to membership are in a very unsatisfactory state. The old idea has been that the transferee of shares in a private corporation has an adequate remedy at law in such a case, in the form of an action against the corporation for damages for a conversion of the shares. But as the transferee of shares may be so unreasonable as to prefer to keep the shares, rather than get their market value at the end of an action at law, we find that such persons have frequently cast about to see whether a mandamus cannot be had to establish them in their rights as members of the corporation. But, though the books teem with decisions where the writ of mandamus has been awarded to restore a person who has been ousted of his franchise in a public corporation, yet the courts have generally denied this remedy in the case of private joint stock corporations; and they have sometimes put it on the ground that the writ of mandamus issues only to enforce rights of a public nature. Now, the jurisdiction of courts of equity, it is well known, does not, except in two or three isolated instances, extend at all to matters of a public nature. That jurisdiction rests fundamentally upon the idea of protecting rights in private property; and hence it should seem logically to follow that the very reason which induces courts of law to refuse relief in such

8

8 Ang. & Ames Corp. (11th ed.), 425; Lowell Transfer of Stock, § 233. See the following cases: Rex v. Bank of England, Doug. 524; Rex v. London Assurance Co., 5 B. & A. 899; Kimball v. Union Water Co., 44 Cal. 173; American Asylum v. Phoenix Bank, 4 Conn. 172; Towns v. Nichols, 73 Me. 515; Murray v. Stevens, 110 Mass. 95; Baker v. Marshall, 15 Minn. 177; State v. Rombauer, 46 Mo. 155; State v. Guerrero, 12 Nev. 105; State v. Warren Foundry, 3 Vroom, 439; Shipley v. Mechanic's Bank, 10 Johns. 484; Ex parte Fireman's Ins. Co., 6 Hill, 243; Durham v. Monumental Mining Co., 9 Or. 41; Birmingham Ins. Co. v. Commonwealth, 92 Pa. St. 72; Wilkinson v. Providence Bank, 3 R. I. 22; Cooper v. Dismal Swamp Canal Co., 2 Murph. 195; Rex v. Worcester Canal Co., 1 Man. & R. 529; Rex v. Liverpool and Manchester R. Co., 21 L. J. (Q. B.) 284; Crawford v. Provincial Ins. Co., 8 U. C. C. P. 263; People v. Crockett, 9 Cal. 112; Green Mt. Turnp. Co. v. Bulla, 45 Ind. 1.4