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sality of the contract was reasonable. Now, in the former class of cases, those in which the universality was unreasonable, the rule would operate nothing, because that is already covered by the rule that the contract must be reasonable. It would therefore only operate in cases in which the universality of the prohibition was reasonable, that is to say, it would only operate where it ought not to operate. For the existence of such a rule I should require authority. In the next place, this rule is pressed upon me as an artificial rule, an absolute rule, or what has been called by the late Wickens, V. C., a hard and fast line, or a hard and fast rule. Such a rule may always be evaded by a single exception. No exception to a rule of this description can be said to be colorable, because you can only judge whether the exception be colorable or not by the principle of the rule; but if the rule, as suggested in this case, be really an artificial one, without principle, there is no criterion to tell whether the evasion is colorable or not. It appears to me for these reasons that I ought not to hold such a rule to exist unless it be clearly established. Then how stand the authorities upon the point? There are undoubtedly cases in which it has been said that the restraint must not be universal. Such are the cases of Warde v. Byrne, 5 M. & W. 548, and Hinde v. Gray, 1 M. & G. 195, but looking at the judgments in those cases, and reading them with a view to the subject-matter, they appear to me to relate only to cases in which the universality is unreasonable, and more than once in Warde v. Byrne the rule is so explained, although I candidly admit that you may select other passages in the judgment in which the court seems to say that the universality is of itself an objection to the contract. But undoubtedly Wickens, V. C., of whose judgments I can never speak without the highest respect, came to the conclusion that such an artificial rule existed, and so he expressed himself in the case of Allsopp v. Wheatcroft, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59. He says (p. 64) that "there has been a natural inclination of the courts to bring within reasonable limits the doctrine as to these covenants laid down in the earlier cases, but it has generally been considered in the latter as well as in the earlier cases, that a covenant not to carry on a lawful trade, unlimited as to space, is on the face of it void. This seems to have been treated as clear law in Warde v. Byrne, 5 M. & W. 548, and in Hinde v. Gray, 1 M. & G. 195, and in other cases; and the rule, if not obviously just, is at any rate simple, and very convenient. No doubt in the case of The Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 Eq. 345, James, L. J. (then Vice-Chancellor), threw some doubt on the existence of a hard and fast rule which makes a covenant in restraint of trade invalid if unlimited in area." There are earlier cases than the one before James, V. C., which seem to me to be inconsistent with the existence of the supposed hard and fast line. In Whittaker v. Howe, 3 Beav. 383, the case relating to attorneys, it was stipulated that the business should not be carried on in any part of Great Britain for twenty years; and again in Jones v. Lees, 1 H. & N. 189, the covenant was against selling a particular article anywhere in England without the invention of the plaintiff applied to it, and the objection that the covenant was unlimited as to space was taken. "It is objected," said Bramwell, B., "that the restraint extends to all England, but so does the privilege. The cases with respect to the sale of a good-will do not apply, because the trade which is the subject-matter of the sale is local, and therefore a prohibition against carrying it on beyond that locality would be useless." In other words the learned judge explains the inclination of the courts against the universality of a prohibition applying only to cases where the subject-matter of the sale was itself local. That is just the view I take of the earlier cases. Still more important are the observations of James, L.

J., in the case of The Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. R., 9 Eq. 345, where he undoubtedly came to the conclusion that no such rule was laid down as has been insisted on before me. Having referred to the cases he says (p. 353): "I do not read the cases as having laid down that unrebuttable presumption which was insisted upon with so much power by Mr. Cohen. All the cases, when they come to be examined, seem to establish this principle, that all restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties in dealing legally with some subject-matter of contract." I have, therefore, upon the authorities, to choose between the two sets of cases; those which recognize and those which refuse to recognize this supposed rule, and for the reason I have already mentioned, I have no hesitation in saying that I adhere to those authorities which refuse to recognize this rule, and I consider that the cases in which an unlimited prohibition has been spoken of as void, relate only to cases where such a prohibition has been unreasonable. It follows, therefore, from what I have said that in my judgment the plaintiffs have established their right upon the contract to have an injunction, the terms of which I will mention hereafter. It appears to me that no sufficient evidence has been given to induce me to award substantial damages to the plaintiffs in this case, and I therefore award them the sum of 18., and no more. Before parting with this part of the case it is desirable to refer to two other points noticed by Mr. Cookson, because they were fully argued by him, and as to one of them the argument was renewed in the reply. He has insisted that even if the contract of the letter of the 9th October, 1869, was void by the law of England as against public policy, yet inasmuch as that contract was made in France it must be good here; and accordingly he has proved that the law of France knows no such principle as that by which unreasonable contracts in restraint of trade are held to be void in this country. It appears to me to be plain, on general principles, that this court will not enforce a contract against the public policy of this country, wherever it may be made. It appears to me almost absurd to suppose that the courts should enforce here what they consider to be against public policy, simply because the contract happens to have been made somewhere else. In the next place he urged that although the policy of this country promoted trade amongst its native subjects, there was no such policy in favor of the trade by foreign merchants, and the defendant, being a foreign merchant, he said he was exempt from the leaning of the English law in favor of trade. It appears to me that that view cannot be substantiated, and that an elementary point may be met by a citation from an elementary book, and I will, therefore, only refer to a passage in Mr. Justice Blackstone's Commentaries, in which he deals with the mode in which the English law has regarded trade by foreign merchants. He says (vol. 1, p. 230): "The law of England, as a commercial country, pays very particular regard to foreign merchants in innumerable instances;" and then he goes on to refer to the decision of Magna Charta in favor of foreign merchants. I hold, therefore, that neither of those two arguments on the part of the plaintiffs can succeed, and I only refer to them because they have been fully argued at the bar. I next approach the question of the judgment obtained by the plaintiffs in the Tribunal of Commerce at Epernay on the 6th November, 1878. That judgment, according to the evidence before me, was obtained without any notice to the defendant. He knew nothing of the pendency of the proceedings until they had matured into a judgment. It is not shown before me that according to the law of France the defendant has had any opportunity, or that there is any power in him to set aside that judgment. The

question was put to the French advocate who gave evidence, and he seemed to know nothing of any such provision in the law as seems to have been proved in some other cases. Further than that, it has been shown by him that this judgment is void, according to the French law, if it was not executed within six months, or if the utmost efforts to execute it were not taken. It has not been shown to me that such efforts have been taken, or that execution has been had upon this judgment. That is the state of facts with regard to this judgment. Now arises the question of how far the defendant is bound by it, and the law upon this point I think I may conveniently take from the case of Schibsby v. Westenholz, 24 L. T. Rep. (N. S.); L. Rep., 6 Q. B. 155, which has been so much cited and discussed in the course of this case. In that case the court considered that the true principle on which foreign judgments are enforced by courts of this country, and they say, referring to the case of Goddard v. Gray (p. 159): "We think that, for the reasons there given, the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Baron Parke in Russell v. Smyth, 9 M. & W. 810, 819, and again repeated by him in Williams v. Jones, 13 M. & W. 628, 633, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and consequently that any thing which negatives that duty, or forms a legal excuse for not performing it, is a defense to the action." What are the circumstances which have been held to impose upon the defendant the duty of obeying the decision of a foreign court? Having regard to this case, and to the subsequent case of Copin v. Adamson, 31 L. T. Rep. (N. S.) 242; L. Rep., 9 Eq. 345, they may, I think, be stated as these. The courts of this country consider the defendant bound where the defendant is a subject of a country in which the foreign judgment has been obtained; where the defendant was resident in the country when the action began; where the de fendant in his character of plaintiff has selected the forum in which he is afterward sued by the other plaintiff; where the defendant has voluntarily appeared, and where he has contracted to submit himself to the forum in which the judgment was obtained; and possibly, if the case of Becquet v. M'Carthy, 2 B. & Ad. 951, be right, another condition must be added, where the defendant has real estate within the jurisdiction in respect of which the cause of action arose whilst he was within the jurisdiction. Now, none of these cases include the present case. In the present case the contract was made between the plaintiffs, or one of the plaintiffs, a French subject, and the defendant, a Swiss subject, at the time the contract was made domiciled in Switzerland, but resident in England, he having been for some two years established as the English correspondent or representative of the plaintiffs' firm. He made the contract during a short stay at Epernay, on his return home from a visit to his mother in Switzerland. At the time of making the contract there was no intention on his part, or so far as I can gather, on the part of the plaintiffs, that the defendant should take up his residence in France, and it does not appear to me that either party contemplated the performance of the contract in France, although, the terms of it being universal, it might be observed or broken anywhere. In that state of circumstances, can I find any thing which makes it reasonable to say that the defendant ought to be bound by the decision of the foreign court? I am at a loss to find any circumstance which renders it reasonable, and therefore it appears to me that the defendant is at liberty to say that he is not in any way bound by the judgment so obtained against him in the foreign court, and without notice to him, and to which he has in no

way submitted; the result of which is that I hold that this judgment is not capable of being enforced in this country, and that the whole of the relief sought by the plaintiffs in the present case in respect of that judgment fails. Having regard to the large extent to which the plaintiffs have failed, I think that the reasonable mode of dealing with the costs will be to award no costs, but to let each party bear his own costs. There will therefore be judgment for the plaintiffs to the extent of an injunction restraining the defendant from carrying on business as an importer of champagne for the period of ten years from the 1st March, 1877, and from in any other manner acting in contravention of that contract, with one shilling damages and no costs. And I dismiss the action so far as it seeks to enforce the judgment.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JURISDICTION OF SUITS ΤΟ WHICH NATIONAL BANKS ARE PARTIES.—(1) The Federal courts have jurisdiction over all suits by and against National banks, irrespective of the subject-matter. U. S. R. S., § 629; First Nat. Bank of Omaha v. County of Douglas, 3 Dill. 298; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383-395; Kennedy v. Gibson et al., 8 Wall. 498; Osborn v. United States Bank, 9 Wheat. 738. (2) Joining merely nominal or personal parties has no effect either to confer or exclude the jurisdiction; but trustees, executors, and the like are not formal parties, within the meaning of the rule, where in fact interested in the litigation. Accordingly, where two or three persons, claiming a certain fund which was in the custody of a National bank, brought their bill in equity against the bank and a third claimant, and the bank exhibited its cross-bill, praying that the parties might interplead, this was held to confer jurisdiction, although but for such cross-bill the jurisdiction was doubted. Browne v. Strode, 5 Crauch, 303; Wormley v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. 467; McNutt v. Bland, 2 id. 9; Knapp v. Railroad Co., 20 Wall. 117. Circ. Ct., Colorado, 1880. Foss v. First National Bank of Denver. Opinion by McCrary, J.

MARITIME LAW ORDER OF LIENS.-A claim for damages caused by a collision occurring during the voyage is entitled to preference over a bottomry loan made upon the same voyage, prior to the happening of such collision. In The Almi, 1 Week. R. 118, it is said: "The creditor in damage has no option, no caution to exercise; the creditor on mortgage or bottomry has. He may consider all possible risks, and give credit or not as he may think most advisable for his interest. He has an alternative; the creditor in damage has not." The preference of a creditor in damage over a lender on bottomry has been considered by some to rest upon the general rule of the admiralty, that maritime liens are paid in the inverse order of their inception. The American, 6 Reporter, 277. But it seems that the reason of the general rule fails when the demand competing with a bottomry arises out of a collision, for one cannot conceive it possible to say that a prior lender on bottomry has derived any benefit from a subsequent collision. The value of the lender's security cannot be enhanced by a subsequent collision, nor could such a collision in any way tend to preserve the lender's security for him, but the contrary. Dist. E. D., New York, June 26, 1880. Force v. Ship Pride of the Ocean. Opinion by Benedict, J. RECEIVERS

- BOTTOMRY BOND-COLLISION

ACTIONS AGAINST CONSTITUTIONAL

LAW JURY TRIAL.

- (1) Property in the hands of a receiver is in custodia legis. His possession is the pos

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that the amount of the rent to be paid annually for the next five years should be six per cent on the appraised value of the premises, to be ascertained by appraisers, one to be selected by each party, and they to select another, in case they could not agree, it was held that the contract was not within the statute of frauds as to the rent to be paid for the second five years. Brown v. Bellows, 4 Pick. 179. (2) Where the parties to a lease provide for rent to be paid yearly, at six per cent on the appraised value of the demised premises, to be ascertained by the selection of property-holders, this is not a submission to arbitration, and no notice to the parties is necessary before making the appraisement, unless the lease so requires, and the finding of the appraisers, when selected, will be conclusive upon the parties, except for fraud. The cases on this subject are not harmonious. Peters v. Newkirk, 6 Cow. 103, and McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 463, rule that notice is required. But see Elmendorf v. Harris, 5 Wend. 521. The New York rule is not adopted in Illinois. McAuley v. Carter, 22 Ill. 53; Korf v. Lull, 70 id. 420. See, also, Leeds v. Burrows, 12 East, 1; Lee v. Hemmingway, 3 Nev. & M. 860; Collins v. Collins, 26 Beav. Ch. 306; Garred v. Macey, 10 Mo. 161; Currey v. Lackey, 35 id. 389; Garr v. Gomez, 9 Wend. 649; Mason v. Bridge, 14 Me. 468; Oakes v. Moore, 24 id. 214; Rochester v. Whitehouse, 15 N. H. 468. Norton v. Gale. Opinion by Schofield, J. Dickey, J., dissented.

session of the court appointing him. No suit can be brought against him to disturb his possession, or to charge him with liability for an act done in the performance of his duties as such receiver without the consent of such court. Any one instituting such a suit without leave may be enjoined or attached for contempt. The proper proceeding is to apply to the court appointing the receiver by petition, setting forth therein the grounds of complaint. Thereupon the court will direct a trial by a jury, reference to a master, or such other mode of proceeding as in its discretion it may deem best. (2) The right of trial by jury in such a proceeding against a receiver, on a cominonlaw cause of action, is not an absolute right, but the granting or withholding thereof lies within the sound discretion of the court. Such a proceeding is not a "suit at law" within the provision of the Constitution guaranteeing the right of trial by jury. In this case upon application of bondholders of the Indianapolis, Cincinnati & La Fayette Railroad, in a suit to foreclose their security, a receiver was appointed to operate the road. During such operation a train ran over a Mrs. Cork. A petition was filed in the foreclosure proceeding by her husband, as administrator, to recover damages for her death. Held, that petitioner was not entitled to a trial by jury. Jones' R. Sec., §S 502-3; Story's Eq. Jur., §§ 831, 833; Ship v. Harwood, 3 Alk. Kerr. Rec. 168; Wiswall v. Sampson, 14 How. 65; Davis v. Gray, 16 Wall. 203, 218; Thompson v. Scott, 4 Dill. 508. Circ., S. D. Ohio, July, 1880. Kennedy v. Indianapolis, Cincinnati & La Fayette Railroad Co., NORTH CAROLINA SUPREME COURT ABIn re Cork. Opinion by Baxter, C. J.

ILLINOIS SUPREME COURT ABSTRACT.

JUNE, 1880.*

WOMAN-IM

ACKNOWLEDGMENT — BY MARRIED PEACHMENT OF.-The certificate of acknowledgment by an officer authorized to make the same, to a deed or other instrument affecting or relating to the title to land, can only be impeached and shown to have been made in fraud, or as a forgery, by clear and entirely satisfactory evidence. Mere suspicion, loose and unsatisfactory evidence, or inconclusive evidence, will not suffice. But where the clear and decided preponderance of the evidence shows that a married woman refused to execute a note and deed of trust upon her land, when urged to do so by her husband, and positively refused to acknowledge the deed of trust, and the proof showed that the signature was not in her handwriting, but that the deed was executed by a mark, when she could write, it was held, that a decree setting aside the trust deed and enjoining an action of ejectment brought by the purchaser against her was proper. Myers v. Parks. Opinion by Walker, C. J.

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BITRATION, WHEN UNNECESSARY. (1) The statute of frauds will be satisfied by such a statement in a written contract as ascertains the price to be paid, although it mentions no specific sum, as for instance, if to pay a price to be settled by arbitration, or upon the valuation of appraisers to be selected by the parties. Where a lease of lots, executed by both parties, fixed the annual rent for the first five years, and then provided

* To appear in 95 Illinois Reports.

STRACT.

JANUARY TERM, 1880.*

ARBITRATION -WHEN UMPIRE APPOINTED. It matters not at what time during the progress of an arbitration the umpire is appointed. It is within the discretion of the arbitrators to appoint him before or after their disagreement. Where a submission to the award of two persons authorized the appointment of an umpire by them, if they disagree, it was held they might choose an umpire before they entered upon the inquiry. Bates v. Cooke, 17 E. C. L. 407. The award is either the award of the umpire or the award of the arbitrators. Take it either way, and it is good. If the appointment of the umpire by the arbitrators is proper at the time he is chosen, then it is his umpirage, and their joining with him will not vitiate; for a mere stranger may join in an award or umpirage without invalidating the proceeding. But if on the other hand the arbitrators have no right to choose an umpire before disagreement, then it would be their award, and the fact of the umpire's joining in it would not vitiate it. In the case of Soulsby v. Hodgson, 3 Burr. 1474, there was a submission to arbitrators with power to choose an umpire, if they could not agree in a certain time. They failed to agree within the limited time, but chose an umpire. The umpire accordingly made an award and the arbitrators joined in it. The court were clear that this was the umpirage of the umpire alone, and held he was at liberty to take what advice or opinion or assessors he pleased. And again, in Beck v. Sargent, 4 Taunt. 232, which was a case where there was a submission to arbitrators to make an award, and if they could not agree within a limited time, then to appoint an umpire. They did not agree within the time, but chose an umpire and then joined with him in his umpirage. Mansfield, C. J., said, what the arbitrators did in making the award was nothing, and the award in law is the award of the umpire alone; it was nothing more than if mere strangers had joined in the award, and could not vitiate. And Heath, J., who sat in the same case, said, it has been decided in very old cases that the circumstance of another joining with

* Appearing in 82 North Carolina Reports.

the arbitrators in making an award does not vitiate. Stevens v. Brown. Opinion by Ashe, J.

Kenloch's case, Fost. 22; Ferrars' case, Raym. 84; Rex v. Hayes, 2 Ld. Raym. 1521; King v. Scalbert, 2 Leach's Cas. 706; King v. Stevenson, id. 618; Meadow's case, Fost. 76; Conway v. Queen, 7 Irish L. R. 140; Winsor v. Queen, L. R., 1 Q. B. 289; State v.

CONSTITUTIONAL LAW-TAX ON DOGS. A statute empowering town authorities to require the payment of a tax on dogs is constitutional. It is not an ad valorem but a specific tax for the privilege of keep-Jones, 6 Halst. 290; Reg. v. Woodfall, 5 Burr. 2661;

Arundell's case, 6 Rep. 14a; Campbell v. Queen, 11 Ad. & El. (N. S.) 835; Gray v. Queen, 11 Cl. & Fin. 490. New Jersey Court of Errors and Appeals, November Term, 1879. Smith v. State of New Jersey. Opiniou by Beasley, C. J.

FORGERY -INTENT TO DEFRAUD PERSON NAMED MUST BE PROVED-EVIDENCE-FLIGHT NOT EVIDENCE

ing a dog within the town, and if not paid by the owner, the dog may be treated as a nuisance and killed. Property in dogs is recognized by the law and protected against wanton and needless injury, and a civil action for damages may be maintained by the owner. Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, 10 Ired. 259. Yet they are not the subject of larceny. State v. Holder, 81 N. C. 527. The question as to the right to impose a special tax upon dogs is discussed in Blair v. Ferchand, 10 Mass. 136. Gray, J., says: "These statutes have been administered by the courts according to the fair construction of their terms and without a doubt of their constitutionality." Again speaking of an enactment which required the owner of a dog to put a collar about its neck, to be constantly worn with the name and residence of the owner marked thereon, and authorized any person to kill a dog without such collar, when it had been decided that no action would lie for such killing, he adds: "Simi-gery has been defined by law writers as "a false maklar statutes have been held in other States to be reasonable and constitutional regulations of police." Hurd v. Chesley, 55 N. H. 21. Mowery v. Town of Salisbury.cepted meanings of the word "forge," is to falsely make, Opinion by Smith, C. J.

EQUITABLE ACTION TO RELIEVE FROM USURIOUS CONTRACT. The decisions are numerous and uniform in this State, as elsewhere, that a debtor seeking the aid of a court will be relieved of the usurious element in his debt, only upon his payment of what is really due. "If indeed the borrower," says Ruffin, C. J., "asks for assistance from equity, it may be refused unless he deal equitably by paying the principal money loaned and legal interest." Ballinger v. Edwards, 4 Ired. Eq. 449; Beard v. Bingham, 76 N. C. 285. Purnell v. Vaughan. Opinion by Smith, C. J.

REMOVAL OF CAUSE DISTINCTION OF COLOR.-In an action brought to annul a deed, etc., the defendants applied by petition for a stay of proceedings in the Superior Court in order that the cause might be removed to the Circuit Court of the United States, alleging that the plaintiffs were white persons in whose favor a great partiality existed in that locality, etc., and that the defendants were colored persons against whom there was existing a great prejudice, etc. Held, that the defendants were not entitled to the removal. The act (Rev. Stat. of the U. S., § 641) applies only to cases

when the laws or judicial practices of a State recognize distinctions on account of color, race, etc., and not to cases of mere local prejudice for which the case may be removed to another county. State v. Dunlap, 65 N. C. 491; Capehart v. Stewart, 80 id. 101; Slaughter House cases, 16 Wall. 36; Strauder v. West Virginia, 21 Alb. L. J. 309. Fitzgerald v. Allman. Opinion by Smith, C. J.

CRIMINAL LAW.

FORMER JUDGMENT — WHAT IS NOT SO AS TO BAR NEW TRIAL.-If a judgment in a criminal case is reversed on error, in consequence of an error committed by the trial judge in charging the jury, the first trial will not be a bar to a retrial on the same indictment. The modern English doctrine seems to be that nothing but an existing judgment, either of conviction or acquittal, so that a plea of autrefois convict or autrefois acquit can be pleaded, will have that effect. The Constitution of this State goes no further than to forbid the retrial of a person who has been acquitted. See Vaux's case, 4 Rep. 44; Reg. v. Houston, 2 Craw. & D. 310; Doc. & Stu. C. 52; Rex v. Keite, 1 Ld. Raym. 138;

OF GUILT. — (1) It is necessary to prove, on the trial of one indicted for forgery, an intent to defraud the person named in the indictment as intended to be defrauded. This intent may be clearly shown by uttering the forged instrument, and if not passed, circumstantial evidence. Evidence of statements or admissions in reference to the note for the forgery of which the person accused is being tried are admissible, but what he has said of another note said to have been forged is not admissible to prove the charge on which he is being tried. Regina v. Cooke, 8 C. & P. 582. For

ing; a making malo animo of any written instrument for the purpose of fraud and deceit." One of the ac

without any regard to the intent. But the statute requires an intent to defraud to be shown, and the mere making and possession do not necessarily prove an intent to defraud. Rex v. Shukard, Russ. & Ry. 200. That is clearly shown when the forged instrument is uttered, or it may be inferred from circumstances. But mere making and possession is evidence, it is true, but it cannot be said, as a legal proposition, that it proves a fraudulent intent. (2) Flight is not evidence of guilt. It is only evidence tending to prove guilt. And an instruction to the jury is erroneous that states that if flight was proved, it must be satisfactorily ex

plained consistently with the innocence of the accused. Illinois Sup. Ct., May 18, 1880. Fox v. People of Illinois. Opinion by Walker, C. J.

RECENT ENGLISH DECISIONS.

CONFLICT OF LAW-DOMICILE-FOREIGN DIVORCE. -Two domiciled English subjects married in England, and subsequently the husband went to the United States and resided in the State of Kansas. He during the time of such residence wrote letters to his wife

expressing his intention to return to England and live. After a year's residence in Kansas he presented a petition to the courts of that State for and obtained a divorce on the ground of his wife's desertion. He then married again. The wife had received no notice of the petition. Held, that his domicile at the time of the divorce was English, and consequently that the American divorce was invalid, and that he had committed bigamy. Quære, whether the domicile of the wife follows the domicile of the husband so as to compel her to become subject to the jurisdiction of the tribunals of any country in which the husband may choose to acquire a domicile. Probate Div., May 11, 1880. Briggs v. Briggs. Opinion by Hannen, Pres., 42 L. T. Rep. (N. S.) 662.

INTEREST ON MORTGAGE AFTER DUE NOT AT CONTRACT BUT AT USUAL RATE.- - By an indenture of mortgage reciting an agreement for a loan of ten per cent, the mortgagor covenanted for payment of the principal at the expiration of twelve months, and for the payment of interest in the mean time at the rate of ten per cent per annum; but there was no covenant as to payment of interest in the event of the principal or

any portion of it remaining unpaid after the day named for payment. The principal was not paid at the expiration of twelve months, but interest at ten per cent was paid for several years. After the death of the mortgagor a judgment was given for the administration of his estate, and the mortgagee proved as a creditor for the principal and interest. Held, that interest was recoverable only as damages, and ought to be limited to five per cent (the usual commercial value of money), that being the amount which a jury would be recommended to give in an action at law for nonpayment of money on a day certain. Ct. of Appeal, March 10, 1880. Goodchap v. Roberts. Opinion by Jessel, M. R., 42 L. T. Rep. (N. S.) 666.

MARITIME LAW-AVERAGE.- Where a vessel has put into port to repair an injury occasioned by a general average sacrifice, the expenses of warehousing and reloading goods necessarily unloaded for the purpose of repairing the injury, and expenses incurred for pilotage and other charges on the vessel leaving the port, are the subject of general average. The practice of British average adjusters for the last seventy years dissented from. Judgment of the Queen's Bench Division affirmed. Court referred to Plummer v. Wildman, 3 M. & S. 482; Power v. Whitmore, 4 id. 141; Hallett v. Wigram, 9 C. B. 580, 607; Abb. Ship. (8th ed.) 478; Benecke Mar. Ins. 191; Stev. Av. 22; Bailey's Av. 119; Hall v. Janson, 4 E. & B. 24; The Copenhagen, 1 C. Rob. 289; Lowndes' Gen. Av. (3d ed.) 107; Job v. Langton, 7 E. & B. 779; Walthew v. Marojani, L. Rep., 5 Ex. 116. Ct. of Appeals, March 24, 1880. Atwood v. Sellar. Opinion by Thesiger, L. J., 42 L. T. Rep. (N. S.) 644.

STATUTE OF LIMITATIONS-NOTE PAYABLE THREE

title, commits an injury to land situated in a foreign State, jurisdiction should be, and has heretofore been, rightfully refused. But if, on the other hand, the case is one of which the courts should, ought, may, or can take cognizance, and no real difficulty or objection exists in the particular case, and no principle of law is violated or any constitutional provision broken downin other words, if the doctrine under consideration is founded and depends solely and principally for its support upon the common-law rules of venue, with all their technicalities and formal distinctions, it falls with the abrogation of those rules and is no longer sustainable, unless it can be placed upon a foundation of solid and substantial reasons. I agree, therefore, with Mr. Cowles that the Code only applies to actions of which the courts can take jurisdiction. The question then is, whether the courts of this State should, ought, may, or can take cognizance in any case of an action for injuries to land situated in a foreign State. If a rich man should come over from Jersey City to New York, and in a careless and negligent manner set fire to and destroy Mr. Cowles' house, he concedes it would be a hardship, indeed, but not so great by any means if the courts of New Jersey should, contrary to the law sanctioned by the wisdom of ages, compel the rich man to pay for the damages. If the injury was willfully done, the person who committed it could be extradited to this State and a civil action might also be maintained against him here. But where the injury was negligently committed, Mr. Cowles would be without remedy, unless the party should be sued in this State. I do not presume to say, that jurisdiction of actions of trespass to land should in every case be entertained, but I do say that, upon principle and reason (assuming my own reason to be the standard) if not upon authority, jurisdiction can be entertained without any real difficulty where the defendant cannot set up an apparent title either in himself or in a third party. I leave it to the courts to determine in each case as it arises whether the action should be sustained or dismissed. But that there are some cases in which jurisdiction may be entertained, seems clear beyond all doubt. Though it has been repeatedly held for many years that jurisdiction of such cases could not be taken, that is no reason why the courts should not hold the other way. Where the reason of the rule ceases, the rule itself should cease to prevail, for the reason is, as it is said, the life of the law. The princi

MONTHS AFTER DEMAND. - - Payment of a promissory note "payable three months after demand" was sought to be enforced by its holder. The note was indorsed with payment of two installments of interest, but no interest has since been paid during a period of upward of twenty years. Held, that payment of interest was not evidence that a demand for payment of the principal had been made so as to make time run against the holder of the note under the Statute of Limitations, and that the fact that more than twenty years had elapsed without payment was not a fact from which the court could presume satisfaction of the note in the absence of any demand having been made. Chan. Div., March 23, 1880. Brown v. Ruther-ple of stare decisis is a good one and must be respected ford. Opinion by Hall, V. C., 42 L. T. Rep. (N. S.) and upheld, but it is subject to exceptions, qualifica

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CORRESPONDENCE.

ACTION FOR INJURY TO LAND IN ANOTHER STATE. To the Editor of the Albany Law Journal:

As your correspondent, Mr. Cowles, seems to misunderstand the scope and meaning of my article, in which I endeavored to show that the common-law rule, that the venue of an action for injuries to land situated in a foreign State cannot be laid in any county in this State, has been abrogated by the Code, I avail myself of the opportunity of defining my position and making myself more clearly understood.

If the case is one of which, upon principles of general jurisprudence, upon grounds of public policy, or for sound and substantial reasons, the courts of this State should not, ought not, or cannot take cognizance, then I admit that the doctrine in question is not abrogated, since the Code does not confer, or purport to coufer jurisdiction in such cases, but merely regulates and prescribes the place of trial of actions of which the courts can or may take cognizance. If there is any inherent difficulty in or objection to awarding damages against a person, who, without a shadow or color of

tions and limitations. It cannot be invoked for the protection of a person, who, without color of right or authority, commits an injury to property situated in another State or country. Notwithstanding the principle of stare decisis, great innovations have been made upon the common law by the courts, as well as by the Legislature. The fallacy that judges do not make law, but only declare it as it previously existed, has long since been exposed. Austin speaks of the "childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges.' Where the introduction of a new rule would interfere with interests and expectations which have grown out of established ones, it is clearly incumbent on the judge stare decisis, since it is not in his power to indemnify the injured parties. But it is much to be regretted that judges of capacity, experience and weight have not seized every opportunity of introducing a new rule (a rule beneficial for the future), whenever its introduction would have no such effect. This is the reproach I should be inclined to make against Lord Eldon," and Kenyon.

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Mr. Cowles says that the rule in question is approved or sanctioned by Lord Mansfield and Chief Justice

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