QUERIES AND ANSWERS.

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.—Ed.]

QUERIES.

25. Deed to G of 200 acres of land, "to have and to hold the said tract of land unto him, the said G, his heirs and assigns forever, in trust for and to the uses, intents and purposes hereinafter mentioned, that is to say, that the said 200 acres of land, and every part and parcel thereof, with all and singular the appurtenances thereunto belonging or in anywise thereunto appertaining in trust, for the use of Jane Davidson, until the said Jane shall arrive to the age of twenty-one years, or for the use of the heirs of her body legally begotten, and in case the said Jane shall die without heir as aforesaid, or before she arrive at the age above stipulated, then the said trust is to continue in the said G, his heirs and assigns for the use and benefit of Hannah (Jane's sister) and the heirs of her body legally begotten, forever." Jane lived to be twenty-one, and died leaving several children. Do her children take any interest in the land under this deed and what? Elizabethtown, Ky.

H.

26. The courts have decided that "no boundary fence can be made of barbed wire, without the consent of the parties owning the adjacent land, and any man who puts a barbed wire fence along the highway, renders himself liable for all injuries resulting to stock passing said highway." Can you refer me to the court, and report of such decision? If not please submit the inquiry to the readers of the JOURNAL. The question is an important one, both to the profession and the public, since such fences have been so extensively built. An answer giving the desired inforination will be greatly appreciated by

A SUBSCRIBER.

RECENT PUBLICATIONS.

CORD ON MARRIED WOMEN.-A Treatise on the Legal and Equitable Rights of Married Women, as well in Respect to their Property and Persons as to their Children. In two volumes. Philadelphia: Kay & Brother. 1885.

This is a very great advance upon the first edition, which was published many years ago. It cites nearly ten times as many cases as that edition, and draws into its discussions many new topics. Many of these topics seem to us not to relate to the subject in hand, and we regret that the author had not employed his space in searching out the law, even more than he has, on many disputed questions relating to the immediate subject of his work. The author's propositions are in general plainly stated, though here and there crude expressions and unscientific work may be detected. No subject presents greater difficulties to the judge or practitioner than the subject of these volumes. The law relating to the property rights and to the contractual disabilities of married women is undergoing rapid changes. We have cut loose from the old rules, and on many questions we do not know where we stand. We have no doubt that this work will be welcomed by the profession. It has been handsomely brought out by its publishers.

JETSAM AND FLOTSAM.

Too BUSY.-Mr. J. W. Donovan writes that he has sold his book, "Tact in Court," to his publishers for $2,500, and that he is going to make no more [books, being too busy.

MR. CONKLING AND HIS LATIN PUN. Roscoe Conkling has not been in court very frequently of late, which in one sense is a pity. For however greatly opinions as to his legal abilities may differ, there is no doubt of his ability to entertain the court, counsel and spectators. He does not confine himself to witticisms in his native tongue, but will even encroach upon the sacred precincts of the ancient languages. I once heard him make a Latin pun, which has not yet, that I am aware of, found its way into print. During the taking of some testimony he had been indulging in several Latin phrases, when in some way one of the counsel was led to remark, "What's sauce for the goose is sauce for the gander;" he added: "The Senator cannot translate that, because he does not know the Latin for sauce." Not know the Latin for sauce!" exclaimed Mr. Conkling; "why, it's mentioned twice in half a line of Virgil-‘gravi jampridem saucia cura.' ”—Gustav Kobbe, in the Albany Law Journal.

A CONTRACT AN ACTOR CAN'T BREAK.-The other day I came in upon a theatrical manager as he was writing the following advertisement: "Wanted - A lawyer who can draw up a contract between a manager and an actor which the latter can't break." When I asked him in what paper he intended to insert it, he said: "It's a gag for the new burlesque I'm going to bring out. You don't suppose I'd advertise for such a contract. Why, it would be money thrown away. There's no such thing as a contract an actor can't break; at least not in this world. I never knew a contract yet that was proof against a case of big head." A case of big head arises when an actor who makes a success in a small part immediately considers himself entitled to all the privileges of a star.-Gustav Kobbe, in the Albany Law Journal.

THE WEAK SISTER.-One of our judges is known among the younger members of the profession as "the weak sister," because he is more frequently reversed than any other judge of his court. The other day I was discussing with a friend of mine, a motion which he was to argue the next morning before "the weak sister." "There's only one disadvantage under which our side will have to labor," he said, "but it's a great disadvantage." "What's that?" I asked. "We're in the right?" And he was beaten.-Gustav Kobbe in the Albany Law Journal.

SHAKSPERE'S REPORTS.-Lord Bramwell recently, in giving judgment in an important Scotch law-suit, took occasion to review briefly the celebrated case of Shylock v. Antonio (Shakspere's Reports), and said: "I am quite certain that I would have decided that case in the way fair Portia did; not, perhaps, upon all the same reasons, but upon some of them. As a matter of fact, Shylock never had the pound of flesh which could be called his-it had never been appropriated to him; and he could only get it by a considerable crime, no less than murder. But if the pound of flesh had been appropriated to him, I should have given the pound of flesh to Shylock."-Ex.

EARL CAIRNS.-Lady Cairn's announcement written on a half-sheet of note paper and affixed to the outer gate of Lindisfarne, which informed the inhabitants of Bournemouth somewhat abruptly that Lord Cairns had "entered into rest at 6-45" on Thursday morning, took everybody by surprise. He had taken horse ex

ercise only three days before, and was walking about the cliffs on Tuesday. His health had for some time caused his friends considerable anxiety and he had been for the past month under the care of Mr.Nankivell, a local homopathic practitioner. On Wednesday, Dr. Kidd was summoned by telegraph, but Lord Cairns was already sinking. The ex-Lord Chancellor will be much missed at Bournemouth. It is somewhat remarkable that both the Conservative and the Liberal Lord Chancellors should have devoted themselves in private so energetically to church work. Like Lord Selborne, Lord Cairns was an indefatigable Sunday-school teacher; regularly, when at Bournemouth, presiding over the Bible class in connection with Holy Trinity Church, the young men crowding to his teaching. He was also a popular president at missionary society and other religious gatherings, and he cordially sympathized with the evangelistic work of his son-in-law, the Hon. and Rev. Neville Sherbrooke. He was also a firm supporter of the Rev. Canon Eliot, Vicar of Holy Trinity, the Evangelical Church of Bournemouth, a place of worship which had, one Sunday during the regime of the late Government, the singular distinction to include four Cabinet Ministers in its congregation. The World (London).

METAPHORICALLY KICKING.-The women of Wyoming are, metaphorically, kicking, and kicking high, against woman suffrage. The right to vote has entailed upon the women the duty of jurors; and many, recently, having been summoned away from their home duties and babies, to sit for days on juries in the mephitic atmosphere of court and jury rooms, are anxious to see themselves deprived of the privilege of voting, which they do not care much about exercising. -Kansas City Journal.

ONLY AN EDITOR.-The daughter of a New York millionaire has applied for a divorce on the ground that her husband basely deceived her. He assured her that he was a coachman, but since marrying him she has discovered that he is only an editor. We didn't suppose there was such a brand of heartless villainy abroad in the land.-Kentucky Yeoman.

JUSTICE WYLIE WISHES TO RETIRE.-A recent press dispatch says "Justice Andrew Wylie, of the Supreme Court of the District of Columbia, called upon the President a few days ago, and informed him that he desired to resign from the bench and go upon the Judiciary retired list at as early a period as might suit the President's convenience to select a successor. It is understood that Mr. Cleveland requested the judge to delay the tender of his resignation until ample opportunity shall have been afforded to find the right man to fill the prospective vacancy. Justice Wylie is now seventy-one years of age, and has entered upon the twenty-third year of service as a member of this court. He is still in vigorous mental and physical condition, but instead of indefinitely remaining on the bench prefers at this time to embrace his privilege of retiring on full pay in order to give attention to his private interests."

A VERY QUEER FELLOW.-Judge Thomas J. Mackey, of South Carol.na, who has been acting as counsel for General Hazen before the court martial, is, says The Philadelphia Record, a very queer fellow. He is an elderly man, but his hair and mustache are still jet black, and his eyes are as piercing as ever. He is a man of excellent ability and good education, with a most remarkable flow of words. He can talk for three hours without stopping for breath. Senator Morgan, of Alabama, is the only other man in Washington who

can do this. Mackey is a man of excellent family, too, and very proud of it. One of his near relatives was the late Dr. Marion Sims, of New York, whose memoirs Judge Mackey is compiling. Unlike most of the Southern 'Judges,' the old gentleman has a right to his title. They make judges out of all sorts of material South as well as North. Mackey was a very good judge, by the way."

RAILROAD PASSES.-The railroads are now giving passes quite liberally. Two of them yesterday gave all their stockholders a pass on their dividends-good for six months. Boston Advertiser.

THE EFFECT OF CUMULATIVE PENALTIES.-The cumulative penalties prescribed by the "Habitual Criminals' Act" of Illinois for the punishment of criminals convicted twice or oftener, are said to be causing the professional malefactors infinite disgust, and they are generally leaving the State. The twenty year incarceration is a little too too.-Louisville Courier-Journal.

OLD FASHIONED BOOKS AND FEES.-The sale of Charles O'Conor's library only realized $7,000 or $8,000. Probably the books cost five times the amount. But they were old-fashioned. There are new fashions in law, it seems, as in spring bonnets. By-the-by, I hear that the largest fee Charles O'Conor ever received was his last. It was paid him by Referee Ruggles, on the partition and sale of the Jumel estate, and amounted to a clean cash $100,000. It came out of Nelson Chase's one-half of that estate. The other one-half of that estate goes to the French heirs, who were represented by Marquis de Chambrun and the late Levi S. Chat field.-Ex-Senator Creamer in the Citizen.

FLOTSAM.

Blow from the cloud land, fanning gales,
And fill the slow and tardy sails,
That from a far-off, mystic sea,
Shall bring my ship safe home to me.

Shine fair, O sunny summer skies,
And let no hindering storm arise!
Lest through the angry breakers' roar
She drift upon some unknown shore.
Beyond the dim horizon's line,
No flutter of her white sails shine,
Or swell to catch the passing breeze,
Slow sailing through those misty seas.
So all the many years have gone,
And never has my ship come home;
Perchance her treasure's richest store
Lies buried on an alien shore.

For me, lone watcher on the strand,
She then may never come to land,
But torn by wind, and wave, and storm,
Can gain no sheltering harbor's bourne.

Mayhap some day unto my feet,
The waves may bring a relic sweet
Of all there might have been for me,
Had but my ship come home from sea.

-Raleigh News and Observer.

ST. LOUIS, MAY 8, 1885.

CURRENT EVENTS.

ANOTHER LAW LIBRARY FOR SALE.-The heartless shout of the auctioneer of "Going, going, gone!" at the sale of Charles O'Conor's library has scarcely died away, and now the library of another eminent lawyer goes to sale, but this time not at auction. The library of the late James Bethune, Q. C., of Toronto, has been catalogued by Messrs. Carswell & Co., of that city, and is offered for sale as second-hand books at prices annexed. It is a large and various collection in which we notice a very great number of American publications. It is the collection of a practitioner who died in his forties, a period when, in an English sense, a man is still young. He fell a victim to that scourge of the northern summers, typhoid fever, at a time when it seemed there were at least thirty | years of professional labor, usefulness and honor before him. It can scarcely be doubted that, had he lived, the highest judicial positions in Canada would have been open to him.

CODIFICATION OF THE COMMON LAW.-A valuable contribution to this disputed subject comes to us in the form of a pamphlet embodying a series of papers read before the Bar Association of Tennessee, at its meeting last year, by J. A. Cartwright, W. O. Vertrees and J. M. Dickinson, of Nashville, and John L. T. Sneed, of Memphis. These papers are short, scholarly and readable. Mr. Cartwright takes ground in favor of codification, which he declares to be the natural and inevitable result of progression in all legal systems. Mr. Vertrees argues powerfully against such an attempt, and goes so far as to assert that the code of Justinian was an absolute failure. The code of Frederick, in his opinion, proves only that codification may be useful for obtaining political or dynastic objects; but it has no tendency to show that it is an improvement of the law. Judge Sneed, whom our readers will recognize as Vol. 20-No. 19.

Tennessee, takes very conservative views of the subject-so conservative that many young men might pronounce them "old fogy" views. He says: "In my judgment, one of the greatest evils under the sun is the rapid accumulation of books of reports which contain no new doctrine. Just think of it. A hundred years ago there was not a book of reports on this side of the sea. Ninety years ago there were only two. And yet that was confessedly the Augustan age of great American lawyers. Now, there are between three and four thousand, and they are accumulating in this country at the rate of about a hundred every year. It was found that there were not geese enough in all the world to supply the judiciary with quills to write opinions with, and an ingenious artisan at Sheffield invented steel pens and scattered them broadcast over the world, mainly to meet the demands of the cacoethes scribendi, which, like an epidemic, had smitten the common law and equity courts of England and Amer ica." He even takes the position that courts ought to deliver their opinions ore tenus, and not in writing. It is singular that one who has had experience as a judge of an appellate court should take such a position. It is our deliberate judgment that the statutes of those States which require the appellate judges to deliver written opinions in every case, are founded in the very highest wisdom. The habit, as we have often remarked, is a necessary check upon hasty and perfunctory work by the judges. Mr. Dickinson, on the other hand, advocates codification. "My conclusion" says he, "is, that the greater portion of our laws may be reduced by codification to a homogeneous, scientific system, not only making the law easy of access, but purging the obsolete, reconciling many conflicts, and making a reliable guide for the decision of a large portion of questions that now must be solved by the most laborious investigation. That the system could be made complete, and that when the work was done it could be said to contain the whole body of the common law, I do not contend; but certainly a great stride can be made in that direction with manifest benefits. The codification would not build a Chinese wall about the law that would shut out all progress.

AMERICAN BUILDING ASSOCIATION NEWS.We receive from time to time a monthly publication, issued at Chicago, bearing the above name. It is well edited and worthy of the patronage of those interested in this kind of investment. Building associations have been in former times mere cloaks for usurious contracts, and, as such, the courts have treated their schemes. But, properly managed, as they now seem to be in most of the large cities, and as we believe them to be in St. Louis, they afford a safe means of investment at a reasonable rate of interest upon real estate security, to those having money to invest; and they enable well-to-do people to acquire homes by appropriating a portion of each month's income in paying for them-the mortgage bearing a reasonable rate of interest. They are thus beneficial alike to the lender, and to the borrower. Their loans are more advantageous than ordinary real estate loans, because they are more flexible. A person desiring to sell his house, upon which there is a building association loan, may generally pay off the loan in a lump, if the purchaser so desires; and consequently, when a cash purchaser comes along, the fact that the house is in a building association furnishes no obstacle to a bargain; whereas, it would be an obstacle if it were encumbered by an ordinary real estate mortgage.

INJUNCTIONS IN GOVERNMENTAL MATTERS.Some months ago, reading various newspaper accounts of a municipal imbroglio in the City of New York in which writs of injunction played a conspicuous part, we ventured to express the opinion that it was an abuse of the jurisdiction exercised by courts of equity by means of a writ of injunction, to use it for the purpose of controlling the acts of the of ficers of corporations in public or governmental matters.1 The case to which we particularly referred has lately come before the Supreme Court of New York for decision, in general term, and that court, according to newspaper report, takes much the same view of the question which we took, Judge Ingraham, in his opinion, saying: "To hold that the judicial body could inquire into the mo

120 C. L. J. 22.

tives of the executive in the exercise of the power conferred on him, and control him in the exercise of such power, would be to transfer the power from the executive, in whom it is vested, to the judicial body."

NOTES OF RECENT DECISIONS.

HUSBAND CONFESSING JUDGMENT IN FAVOR CF WIFE.-In Bronson v. Maxwell, the Supreme Court of Pennsylvania rule that, where a husband is honestly indebted to his wife and to other persons, he may lawfully confess a judgment in her favor, the effect of which will be to secure her in preference to his other creditors. In giving the opinion of the court, Mercur, J., states the doctrine thus: 'A married woman may loan money to her I usband, and take security for its payment either at the time of making the loan, or subsequently, as any other creditor may do. If the validity of the debt from the husband to the wife be questioned by a creditor of the former, it should be proved satisfactorily by clear evidence. Hence the learned judge said to the jury, when a wife claims to hold property against the creditors of her husband, the burden of proof is on her to show affirmatively, by clear and satisfactory evidence, that she did not acquire it from him or by her own labor or earnings. When a husband is honestly indebted to his wife and to other persons, he may lawfully confess a judgment in her favor, the effect of which will be to secure her in preference to his other creditors.3 An execution thereon may issue against him without his consent in the name of his wife.1 For an honest purpose, and to secure or pay a just debt due by him to his wife, he may make a valid sale or transfer of his real estate to her, with like effect as to any other of his creditors. Such conveyances, however, should be carefully scrutinized, and the indebtedness be clearly established."

JURIES IN THE FEDERAL COURTS.-In Brewer v. Jacobs, in the United States Circuit

2 42 Leg. Int. 82.

3 Wingerd v. Fallon, 14 Norris, 184. 4 Rose v. Latshaw, 9 Norris, 507. 5 22 Fed. Rep. 217, 245.

Court for the Western District of Tennessee, Mr. District Judge Hammond, in passing upon a motion for a new trial in an action for malicious prosecution, considered at much length and in a very learned and painstaking way the subject of the impannelling and challenging of jurors in actions in the courts of the United States. He ruled the following propositions: "The objection that one of the jury was not of lawful age, and was not a freeholder or householder, comes too late after verdict, in Tennessee practice, which the federal court follows, unless something more is shown vitiating the verdict than that the juror was so disqualified. And if one appear who is not summoned to serve as a juror, in place of one drawn from the box, it is doubtful if the objection be good after verdict. The practice of the federal court is to examine each juror as he is called, touching his statutory qualifications, upon his oath, and if he answers satisfactorily, to accept him for the term. But in effect the jury is tendered to the parties in each case as it is successively called for trial, and they must then challenge for cause that a juror is too young, or otherwise similarly disqualified, or the objection will not be entertained after verdict, although the defect was wholly unknown to the parties at the time the jury was sworn." He cited a number of authorities to show the disfavor with which courts look upon objections to the competency of jurors after verdict, and quoted with approval the following rule laid down in a recent work: "The rule is very well settled that, after a verdict, these formalities will not be permitted to affect the result, although they did not sooner come to the knowledge of the party complaining, unless positive injury can be shown to have accrued therefrom.” 7

ACTION TO RECOVER ILLEGAL CHARGES OF COMMON CARRIER.-In the case of West Vir

6 McClure v. State, 1 Yerg. 206; Gillespie v. State, 8 Yerg. 507: Ward v. State, 1 Humph. 253; Calhoun v. State, 4 Humph. 447; Hines v. State, 8 Humph. 598; Bloodworth v. State, 6 Baxt. 614; Draper v. State, 4 Baxt. 253; Howerton v. State, Meigs, 262; Troxdale v. State, 9 Humph. 411; Brakefield v. State, 1 Sneed, 215; Aylett v. Stellam, Style, 100; Loveday's Case, Id. 129; Cotton v. Daintry, Vent. 29.

7 Thomp. & M. Jur. § 295, and cases cited in nota.

ginia Transportation Co. v. Sweeser, decided by the Supreme Conrt of Appeals of West Virginia, at Wheeling, on March 21, (opinion by Green, J.,) the court rule the two following propositions: 1. If a person be engaged in buying oil in an oil region and shipping over a railroad from the oil region, and there is no other outlet for this oil except by transporting it over this railroad, and under these circumstances he agrees to pay to the railroad company more than its legal rates of charge for the freight of such oil, and does make such payments from time to time in order that he may get his oil transported to market in the only manner in which he could transport it, through such payments are made after each shipment of oil has been made and the oil delivered, such person must be considered as making such payments not voluntarily but by compulsion, and he has a right of action for money had and received to his use, to recover back the excess of freight so paid by him over the amount which the railroad company had a lawful right to charge, or to offset this excess against the railroad company's charge if it brings an action of assumpsit against such shipper. 2. In such action to recover back such excess of payments made beyond the legal rate of charges there is no necessity for the plaintiff to prove that he demanded the repayment of such excess by the railroad company before instituting such suit.

COUNTER CLAIMS IN ACTIONS EX DELICTO.

Under the practice which prevailed before the adoption of the code, a counter-claim, whether arising on contract or based upon another tort, could not be pleaded in actions ex delicto. The codes of the various States, however, now permit the use of a counterclaim, under certain circumstances, in actions for tort.1

The right to plead a counter-claim in actions ex delicto is founded on the following clause incorporated in all our codes, viz.; "A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the cause of action."

1 Chambert v. Cagney, 41 How. 127.