Imágenes de páginas

an alteration of the record as will cause it to state un the court. In the case at bar, the father of infants, truly the events of the tri.l. The cases of Jarvis v. who was living, was born in Rhode Island, removed to Sewall, 40 Barb. 419, and others, do not go to that ex New York in 1858, where he engaged in business and tent. They only show that record evidence, imper was married. His wife died in 1873, leaving the infectly proved on the trial, may be exhibited upon the fants, two in number, the fruit of the marriage. The argument before the appellate tribunal, and this for father, in 1875, becoming suddenly insane, was taken the reason that it would be idle to send a cause back by his brother, who resided in that State, to Rhodo for a new trial upon an exception no longer tenable, Island, and placed in an asylum there. Ho recovered and for the same reason a record not put in evidence his reason and was discharged from the asylum. In upon the trial may in some cases be presented for the 1877, upon a recurrence of the malady, he was again first time to an appellate court. Order in part reversed placed in the asylum, where he has since remained. and in part allirined. Carter, appellant, v. Beckwith. He never returned to New York after leaving in 1875. Opinion by Danforth, J.

The infants were taken to Rhode Island in 1875 and [Decided Sept. 21, 1880.]

remained there until 1878, when one of them was

secretly taken from a school sho was attending, by a ATTACHMENT — MOTION TO VACATE UNDER CODE, son-in-law of their maternal grandfather, and brought SECTION 682, IN TIME AFTER LEVY UNDER EXECUTION to the grandfather's house in New York, where sho IN ACTION. - Plaintiff obtained an attachment against has since resided. The evidence strongly tended to property of defendants, Oct. 20th. On Oct. 22d he show that she was brought into this State for the purperfected judgment in the action and issued execu pose of having her within the jurisdiction of the courts tion, under which the sheriff levied upon defendants' here in order to the institution of proceedings for property. Subsequent to plaintiff's attachment an guardianship. Neither infant had property in this attachment against defendants' property was issued to State. Held, that the Supreme Court had no jurisdicW. On the 28th Oct. W. moved to vacate plaintiff's tion to appoint a guardian for the infants upon the attachment. The question was whether, under the petition of the maternal grandfather. Order of Geneprovision of Code, section 682, that the subsequent ral Term modified so as to reverse the order of Special lienor may move to vacate a prior attachment “before Term appointing a guardian. In matter of guardianthe actual application of the attached property or the ship of Ilubbard infants. Opinion by Andrews, J proceeds thereof to the payment of a judgment re [Decided Sept. 21, 1880.] covered in the action," the motion was nade in time, the attaclic property having been levied upon under

VOLUNTARY ASSOCIATION-DISSOLUTION OF-COURTS an execution. Held, that the motion was made in WILL NOT INTERFERE AS TO, WHERE RULES OF ASSOCIAtime. A mere levy under an execution is not such TION PROVIDE REMEDY - NOT PARTNERSHIP. -- Upon actual application as to bar such a motion. While a an application by certain members of a voluntary assolevy upon sufficient property has often been held to be

ciation instituted for moral, benevolent and social payment of the debt, and to extinguish the judgment, objects, for a dissolution and closing up of the samo it is only constructirely so, and with reference to the by a distribution of the funds belonging to it, the equitable rights of others and tho judgment may court say that in view of the purposes for which such nevertheless not be in fact paid. The section referred societies are organized they should not be dissolved for to means an actual and real application of the property slight causes, and if at all, only when it is entirely or its proceeds as distinguished from a constructive apparent that the organization has ceased to answer the one. While the property remains before it has been ends of its existence and no other mode of relief is actually transferred to the plaintiff, or in case of a

attainable. That there was in such a society strife and sale, before its proceeds have gone to him, it is possible

bickerings among the members and hostile feelings for the court to control and determine the liens upon

engendered, and contention as to the management of a it, fixing their order. The evil at which the provision

fund belonging to the society, no resort having been was aimed does not exist where there is merely a levy,

made to the methods provided by tho rules of the sociunder which neither the property nor its proceeds have

ety to settle the difficulties, held, not to be a sufficient actually passed to the creditor. Order granting mo ground to authorize the interference of the court. tion aflirmed. Woodmansee v. Rogers. Opinion by

When members claimed to have been chargeable with Finch, J.

a violation of the rules of an association have not been [Decided Sept. 21, 1880.]

called upon to answer under such rules, the power of

the association, to remedy tho evils complained of, beGUARDIANSHIP-COURT MUST IIAVE JURISDICTION | ing amplo and complete, the complaining members are - WHAT DOES NOT CONSTITUTE JURISDICTION-INFANT not in a position to seek the interposition of a court of SURREPTITIOUSLY BROUGHT INTO STATE. — The Su equity. Carlen v. Drury, 1 Ves. & B. 151; White v. preme Court has authority to appoint guardians of in Browuell, 6 Abb. (N. S.) 162. Courts should not, as a fants, but only whero the persons or property of such general rule, interfero with the contentions and quarinfants are within its jurisdiction. The jurisdiction rels of voluntary associations so long as the governdoes not depend upon the legal domicile of the infants. ment is fairly and honestly administered, and those It is sufficient if the infant is a resident within the who havo grievances should be required, in the first jurisdiction of the court where the proceedings are instance, to resort to tho remedies for redress provided taken. This was determined by the House of Lords by their rules and regulations. In such a case the in Johnstone v. Beattie, 10 ('l. & Fim. 43, in which case I complainants are not entitled to relief on the ground it was held that the English Court of Chancery had that the members of the society are partners, for they power to appoint guardians for an infant, who was a are not partners; uo partnership exists under such resident in England, notwithstanding she had no prop circumstances. 3 Kent's Com. 23; In re St. James erty there and her domicile was in Scotland. So on Club, 13 Eng. L. & Eq. 589; McMahon v. Rauhr, 47 N. the other haud property gives jurisdiction to appoint Y. 67. When such a society, for its own use, leases a guardian thereof, although the infant in whose behalf real property, which it fits up, and sub-lets what it the application for guardianship is made is out of the does not require, and thus accumulates a fund, not jurisdiction and a resident abroad. Logan v. unreasonable for the uses of the society, tho members Jacob, 193; Stephens v. James, 1 M. & K. 6:27; Salles v. / are not partners as to such fund. Order affirmed. Savignon, 6 Ves. 572. But if the infant is not within Lafond et al., appellants, v. Deems et al. Opinion by the jurisdiction or domiciled there and has no prop- | Miller, J. erty therein, there is no basis for the interposition of' [Decided Sept. 21, 1880.]

UNITED STATES CIRCUIT AND DISTRICT 307; Foster v. Mansfield, 3 Metc. 412; Doe v. Knight, COURT ABSTRACT.*.

5 Barn. & Cres. 632 (671); Hedge v. Drew, 12 Pick. 141.

District, Minnesota, Feb., 1880. Circ., Minnesota, HUSBAND AND WIFE – VALID MORTGAGE BY WIFE

June, 1880. Herring v. Richards. Opinions by NelRENDERED INVALID BY FORGERY OF NOTE IT WAS

son, D. J., and McCrary, C. J. GIVEN TO SECURE - JURISDICTION. — (1) The accommodation note of an individual partner, secured by a RHODE ISLAND SUPREME COURT ABmortgage upon the wife's separate property, and made

STRACT. for the benefit of the firm, is utterly void in the hands of an innocent indorsee, as against the wife of the CONSTITUTIONAL LAW - TAXATION — ASSESSMENT maker, where the name of the wife was forged, prior FOR STREET SEWER ACCORDING TO FRONTAGE AND to indorsement, 's the joint maker of such note, by | AREA VALID. - (1) A statute authorized the city the payee and managing partner of the firm. The l of Providence to build sewers, and make

of Providence to build sewers, and make assessments mortgage given to secure the note, although duly exe to pay for them at the rate of sixty cents for each cuted by the husband and wife, is rendered void by

front foot of abutting estates upon a street, and one sucb forgery. (2) In such case a Federal court could

cent for each square foot of abutting estates, between not assume jurisdiction of a suit by the assignee upon such street and a line not exceeding 150 feet distant the mortgage alone, when the assignor and the mort from and parallel with such street; provided that where gagor are both citizens of the same State. Sheldon v. any estate is situated between two streets the area Sell, 8 How. 441. Circuit, Iowa, June 23, 1880. Mers upon which such assessment is made shall not extend man v. Werges. Opinion by Love, D. J.

to more than one-half tho distance between such MARITIME LAW - CONTRACT FOR REPAIR OF VESSEL

streets; and that where any estate is situated at the - JURISDICTION- PRACTICE - LIEN. - A contract for corner of two streets, that portion of such estate asthe repair of a domestic vessel is a maritime contract. sessed for a sewer in one of such streets shall not be The Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 liable to be assessed upon its area for the cost of conid. 554; Hoole v. Kermit, 59 id. 551-556; The General structing a sewer in the other of such streets, but only Smith, 4 Wheat. 438. A suit to enforce a maritime

for its frontage upon such street. Held, that this coutract is within the exclusive iurisdiction of the statuto as applied to the compact part of the city was admiralty, "saving to suitors in all cases the right of a

not unconstitutional under a provision of the Constitucommon-law remedy, where the common law is com

tion that “the burdens of the Stato ought to be fairly petent to give it.” U.S. Stat. 77, S 9; Vose v. Cock

distributed.” In Debois v. Barker, 4 R. I., a statute croft, 44 N. Y. 415. The reservation of the act of

making abutting estates liable for curbstones set in Congress relates to well-kuown forms of actions and front, was held valid. In other States it has been reremedies, distinguished alike from those prosecuted in

peatedly decided that statutes authorizing assessments rem in courts of admiralty, and from those that are

for sewers or other street improvements on the abutpeculiar to courts of equity. A statutory remedy in ting lots according to their frontage, and without the nature of a bill in equity to foreclose a mortgage, | regard to value or benefit received, are constitutional for the enforcement of a common-law lien founded and valid. Such assessments under statutes, or city upon a maritime contract, is not within the reservation | ordivances authorized by statute, have been decided of the act of Congress limiting the admiralty jurisdic or recognized to be valid in Pennsylvania. Magee v. tion. Alien is not a collateral contract; it is a right

Commonwealth, 46 Penn. St. 358; Stroud v. City of in, or claim against, some interest in the subject of the Philadelphia, 61 id. 255; In re Washington Av., 69 id.

tract created bý the law as an incident of the con- | 352, 361; in Indiana: Palmer v. Stumph, 29 Ind. 329; tract itself. See The Belfast, 7 Wall. 624; Hine v. in Vermont: Allen v. Drew, 44 Vt. 174; in Ohio: Trevor, 4 id. 555. District, S. D. New York, July 2, Ernst v. Kunkle, 5 Ohio St. 520; Upington v. Oviatt, 1880. Town of Pelham v. Schooner Woolsey. Opinion | 24 id. 520; in Kansas: Parker v. Challiss, 9 Kans. 155; by Choate, D. J.

in Michigan: Motz v. City of Detroit, 18 Mich. 495; in

New Jersey: State v. Fuller, 34 N. J. Law, 227; in FRAUDULENT CONVEYANCE - WHEN VOLUNTARY TO

Missouri : City of St. Louis v. Clemens, 49 Mo. 522; CHILD, NOT – PRESUMPTION OF ACCEPTANCE OF DEED.

and in California: Emery v. San Francisco Gas Co., -(1) A voluntary conveyance from a parent to his children, by way of settlement, while solvent and free

28 Cal. 345; Chambers v. Satterlee, 40 id. 497, 514; from debt, and not disproportionate to his means, will

People v. Lynch, 51 id. 15. In Missouri, an assessbe sustained, as against subsequent creditors, in the

ment for a street improvement on abutting lots, absence of fraud. Ellison v. Ellison, 8 Wheat. 239;

according to their area, has been held valid. City of Reade v. Livingston, 3 Johns. Ch. 481. There is no

St. Louis v. (Eters, 36 Mo. 456. And assessments presumption of constructive fraud by such settlement,

according to acreage, for the construction of levees, as there might be if debts existed and the debtor im

have been held to be valid in both Missouri and Mispaired the rights of creditors. Kehr v. Smith, 20 Wall.

sissippi. See, also, Selby v. Levee Commissioners, 14 31, 35. The rule may be summed up that the gift, con

La. Ann. 434. In Michigan, however, assessments for veyance, and settlement will bo upheld “if it be rea

street improvements according to area, not limited to sonable, not disproportionate to the husband's means,

abutting lots, havo been held to be too clearly unequal taking into view his debts and situation, and clear of

to be sustained. Tho rule of assessment by frontage any intent, actual or constructive, to defraud credit

is unfair when extended to farm lands. Seeley v. City ors." Subsequent contributions of money, for the

of Pittsburgh, 82 Penn. St. 360; Kaiser v. Weise, 85 id. purpose of paying off incumbrances and improving

366. (2) The statute did not require notice to be given the property, will not reuder such conveyance void.

of the assessment, nor did it provide for an appeal. (2) In the absence of direct testimony the acceptance

Held, not to render it invalid. Clapp v. City of Hartof the grant will be presumed, after the expiration of

ford, 35 Conn. 66; Stuart v. Palmer, 17 N. Y. Sup. four years, ivhere the grantees held, owned, controlled

23; McMilken v. City of Cincinnati, 4 Ohio St. 394; and managed the property from the time of the con

Allen v. City of Charlestown, 111 Mass. 123; McMillen veyance, and the only occupancy had been by their

v. Anderson, 5 Otto, 37; Davidson v. New Orleans, 6 tenants, and for their sole and exclusive use. Harrison

id. 97. (3) The statute provided for assessment for a v. Trustees, etc., 12 Mass. 456; Hatch y. Hatch, 9 id.

sewer already constructed. Held, that there being no

provision in the Rhode Island Constitution inhibiting * Appearing in 3d Federal Reporter

| retrospective legislation as such, the statute was not invalid on that ground. Howell v. City of Buffalo, 37 that he intended to sign a note for $65 and that he was N. Y. 267; Matter of Van Antwerp, 1 T. & C. (N. Y.) | induced to sign it on the pretense that the note sued 423; Butler v. City of Toledo, 5 Ohio St. 225. Cleveland | upon was drawn only for $65, and that he was unable v. Tripp. Opinion by Durfee, C. J.

to read English, it appearing that he depended upon [Decided June 18, 1880.]

the one to whom he gave the note for information as INSOLVENCY — RIGHTS OF CREDITOR SECURED BY

to its contents. The case differs from a case where a LIEN.- In Rhode Island a creditor who has a claim

person is induced by fraud to sign a negotiable note, secured by a lien is entitled to a dividend from the

when he supposed that he was executing an instruvoluntary assignee of his debtor only on such residue

ment of a different character. The defendant in this of his claim as may remain unpaid after he has ex

case intended to execute a negotiable note. In Whithausted the property subject to his lien. In Pennsyl

ney v. Snyder, 2 Lans. (N. Y.) 477, the court say that vania a creditor who has received a part of his debt

where a person intends to execute a negotiable note from the sale of property upon which he had a lien is

“he is bound to know that he is furnishing the means entitled to a pro rata dividend on the whole amount of

whereby third parties may be deceived, and innocently his claim out of the general assets of the debtor in tho

led to part with their property upon the strength of hands of an assignee to an amount sufficient to pay the his signature, in ignorance of the true state of ficts." residue of his debt in full. Shunk & Freedley's Ap

A sharp distinction is made between such a case and peal, 2 Penn. St. 309; Morris v. Olwine, 22 id. 441;

one where the maker supposed that he was executing Keim's Appeal, 27 id. 42; Brough's Estate, 71 id. 460;

| an instrument not a note. A different doctrine seems Graefl's Appeal, 79 id. 146; Miller's Estate, 82 id. 113.

| to have been held in Griffiths v. Kellogg, 39 Wis. 290, In New York and Iowa, on the contrary, such a cred

which the court does not appove. Iowa Supreme Court, itor is entitled to a dividend upon the residue only of

June 22, 1880. Fayette County Savings Bank v. Steffes. his debt after exhausting the property subject to his

Opinion by Adams, C. J. lien. Strong v. Skinner, 4 Barb. 546; Besley v. Law-L USURY-- AS DEFENSE IN EQUITABLE ACTION.- Whenrence, 11 Pai. 581; Midgeley v. Slocomb, 32 How. Pr. ever the parties to an usurious loan are obliged to re423; Dickson v. Chorn, 6 Iowa, 19; Wurtz v. Hart, 13 sort to a court of equity for relief for the foreclosure id. 515. The court prefers the doctrine of the New of securities, or for their redemption, they are forced York and Iowa cases. It accords with the well-estab to submit to an equitable adjustment of the debt, lished rule in equity, that when one creditor has a lien which is held to be the payment or the loan, with lawupon two funds, and another a lien upon only one of ful interest. All payments of interest in excess of them, the former will be compelled to exhaust the this are held to be under duress, and not voluntary fund upon which he has an exclusive lien, and will be payments of interest, and are applied in liquidation of permitted to resort to the other for the deficiency the principal. Tiffany v. Boatman's Institution, 18 only. Petition of Knowles. Opinion by Matteson, J. | Wall. 375, 385; Wheelock v. Lee, 64 N. Y. 242, 245; [Decided July 3, 1880.]

Beach v. Fulton Bank, 3 Wend. 573, 585. U. S. Dis

trict Court, S. D. New York, July 24, 1880. Matter of FINANCIAL LAW.

Hoole. Opinion by Choate, D. J.


CRIMINAL LAW. OF ANTECEDENT DEBT SHUTS OUT EQUITIES. – Mere possession of a negotiable instrument produced in evi

ABORTION - BY ADMINISTERING A DRUG — NAME OF dence by the indorsee or assignee when no indorse

DRUG NEED NOT BE STATED — WOMAN ON WHOM COMment is necessary, imports prima facie that he acquired

MITTED NOT AN ACCOMPLICE. — (1) Under a statute it bona fide for full value in the usual course of busi

making it an indictable offense to administer to a ness before maturity, and without notice of any cir

pregnant female, with her consent, any drug or medi. cumstance impeaching its validity, and that he, as the

cine calculated to produce an abortion, for the purpose of owner, is entitled to recover against the maker, not

effecting that result, held, that it need only be charged withstanding there might be a good defense to the

and proven, that a drug or medicine, calculated to proinstrument against the payee. To let in a defense by

duce that effect, was administered; the name of the the maker against the assignee, the maker must first

drug or medicine need not be stated, nor need it be deprove that there was fraud or illegality iu the inception

scribed as noxious. State v. Vawter, 7 Blackf, (Ind.) 592; of the instrument or show circumstances which raise

Rex v. Phillips, 3 Campb. 73. Neither is it necessary to a strong suspicion of fraud or illegality. When this is

specify the kind, quality or quantity of the medicine. done it will devolve upon the holder to show that he

State v. Van Houten, 37 Mo. 357. (2) The woman upon " acquired the instrument bona fide for value in the

whom an abortion is attempted is not an accomplice in usual course of business, while current, and under

the commission of the offense. Thero has been some circumstances which create no presumption that he

contrariety of opinion and decision in the courts upon knew the facts wbich impeach its validity." Daniel

this subject. The rule that she does not stand legally on Neg. Inst., 35 812-815. That it was taken for the l in the situation of an accomplice, but should rather be purpose of liquidating antecedent indebtedness is in

regarded as the victim than the perpetrator of the the usual course of business and the one taking it is a

crime, is one which commends itself to one's sense of purchaser for value. It is certainly so to the common

justice and right, and there is certainly nothing in our understanding. And the court believes it has been

law of accomplices which should be held to contrauniversally so held when the antecedent debt is re

vene it. The doctrine that she is not an accomplice in leased, paid, novated or discharged by tho transfer or

the strict legal acceptation has been held in England. assignment. 2 Daniel on Neg. Inst., ch. 39, $ 1; Hare

Rex v. Hargrove, 5 C. & P. 170; Rex v. Boges, 1 B. & & Wallace's notes to Lead. Cas. in Eq. 103 et seq.; Gre

S. 311. This has been followed and adopted in New naux y. Wheeler, 6 Tex. 5.26; Planters' Bank v. Evans,

York. Dunn v. People, 29 N. Y. 523. In Common37 id. 592. Ayers v. Dupree, 27 id. 99, does not conflict

wealth v. Wood, 11 Gray (Mass.), 85, the court say: with this. Texas Supreme Court, March 19, 1880.

“We think the court rightly instructed the jury that Blum v. Loggins. Opinion by Moore, C. J.

the woman was not, under the statute, technically an - DEFENSE THAT MAKER WAS INDUCED TO SIGN accomplice, for she could not have been indicted with BY FRAUD -- WHEN UNAVAILABLE. — In an action by him for the offense. Nor do we believe she could be an innocent indorsee for value, upon a promissory indicted for the offense under our statute, and this note for $195, held, that the maker could not set up 1 liability to indictment is a fair test of determining the legal relationship of the party to the case and the per warrant is issued. It has been so held in the case of petrator. But though not strictly an accomplice, Queen v. Brooks, 1 Denis. 217. This was an indictinasmuch as she is, in a moral point of view, impli ment upon 9 Geo. IV, ch. 69. By the fourth section of cated in the transaction, it would be proper for the the statute it was declared: “The prosecution for jury to consider that circumstance in its bearing upon erery offense punishable by indictment, by virtue of her credibility." Texas Court of Appeals, June 19, 1880. that act, shall be commenced within twelve calendar Watson v. State of Texas. Opinion by White, P. J. months after the commission of the offense." The CONSTITUTIONAL LAW – FORMER CONVICTION — AS

offeuse was committed December 4, 1845. The inforSAULT AND MANSLAUGHTER.— The defendant commit

mation before justices and warrant were on December ted a violent assault upon one Morton, March 3d, 1879,

19, 1815. Brooks was apprehended September 5, 1816, . and on the fourth day of March was prosecuted before

and Gibson, October 21, 1816. The indictment was the municipal court of Lewiston, and convicted of

preferred April 5, 1847. The question was reserved for assault and battery. On tho twenty-third day of

the opinion of the judges whether the prosecution was March said Morton died of the injuries inflicted by

commenced in time. They all concurred in holding the defendant, and the defendant was thereupon in

that the prosecution was commenced within twelve dicted for manslaughter, and when arraigned pleaded

calendar months after the commission of the offense. the former conviction of assault and battery in bar.

To the same effect see 1 East's P. C. 186; Rex y. WalIIeld, that the plea was no bar to the indictment. The

lace, R & R. C. C. 369; and Rex v. Phillips, Russ. & Ry. general rule is that if the first indictment were such as

369. U.S. Cir. Court, N. D. Georgia, July, 1880. Stale the prisoner might have been convicted upon by proof

of Georgia v. Post. Opinion by Woods, C. J. of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be

OBITUARY. a bar to the second. 4 Bla. Com. 336; Rex v. Vandercomb, :2 Leach's C. C.708; Stark. Cr. Pl. 355 (1st Am. ed);

LORD CHIEF BARON KELLY. Commonwealth v. Roby, 12 Pick. 496; 1 Chit. Cr. Law,

TN the recent death of Sir Fitzroy Kelly, Lord Chief 453. This general rule is, however, subject to this ex

I Baron of the Exchequer, the English bench loses its ception. When, after the first prosecution, a new fact

oldest judge. He was born in 1796. He had neither a supervenes, for which the defendant is responsible,

public school nor a university education. He had held which changes the character of the offense, and to

the offices of Solicitor-General and Attorney-General gether with the facts existing at the time constitutes a

and had sat in Parliament. He began his legal career new and distinct crime, an acquittal or conviction of

as a special pleader, and was all his life famous as a the first offense is not a bar to an indictment for the other distinct crime. Case of Nicholas, Foster's Cr. L.

critic of pleadings, but was heartily in favor of con

solidation and codification. He brought in a bill in 64; Burns v. People, 1 Park. C. C. 183; Commonwealth

Parliament to abolish capital punishment in all cases v. Evans, 101 Mass. 25; State v. Hattabough, Cent. L.

except treason and murder. When at the bar his earnJ., Aug., 1979, 87 (S. C. Indiana). While the defend

ings amouuted to £25,000 annually, an income exceeded ant under the Maino statute may be convicted on the indictment of assault and battery, on failure of proof

by none of his contemporaries except Lord Selbourne.

The Times says: “As a judge, the Lord Chief Baron that death resulted from the injuries inflicted, still he

showed the soundness for legal knowledge for which may protect himself from being twice in jeopardy for

his career was a guaranty. His courtesy to those who that offense by pleading in bar the former conviction

appeared before him was unexceptionable. But he of the crime of assault and battery embraced in the indictment and not guilty of manslaughter, and then

was a very slow judge, who asked numberless quesif convicted of manslaughter he shall have judgment

tions about comparatively unimportant dates and

facts; and while the matter of his decisions was seltherefor. If acquitted of manslaughter he shall have

dom impeached, his Division got through less work the benefit of his plea in bar as to assault and battery. 2 Hale's P. C. 255, 392; Arch, Cr. Pl. 352; Common

than any other, and was less popular than any with

suitors. He had some difficulty in hearing counsel, wealth v. Curtis, 11 Pick. 133; Stark. Cr. Pl. 370. Maine Supreme Judicial Court, January, 1880. State of

and more in making himself heard. His defects as a Maine v. Litllefield. Opinion by Libbey, J.

judge, indeed, were largely physical defects, due to

the infirmities of age. His mind remained clear and GRAND JURY- IRREGULARITY IN DRAWING JUROR

his determination unshaken almost to the very end, DOES NOT VITIATE ACTS OF JURY — STATUTORY CON

and one of his acts a day or two before his death was STRUCTIOX. - The provisions of the second section

to write a long letter of advice to a learned colleague." of the act of Congress of June 30, 1879, prescribing the

He was a bounteous dispenser of hospitality, very fond mode in which jurors in the Federal courts shall be

of society, a great converser, a warm friend and a bitter drawn is mandatory; with this qualification, however,

enemy. It is possible that with him the title of Lord that an honest intention to conform to the statute and

(hief Baron may perish, for under the new judicature carry out its provisions in good faith is all that is re

act the Queen has power, by recommendation of a quired. Where a grand jury was drawn under the

council of judges, to abolish the title on the post beprovisions of this act, and the name of one of the

coming vacant. The Solicitors' Journal says: “In rejurors who assisted in finding the indictment was not

spect to longevity, Sir Fitzroy Kelly kept up the traput into the box by any competent authority, nor

ditions of his office. Only nine appointments of Chief drawn from it, and there was no imputation that such

Baron have been made during the last ninety years. name appeared in the venire through bad faith, held,

Sir William Alexander was appointed at the age of to be a mere irregularity, which would not vitiate the

sixty-three, resigned at seventy, and died at eightyaction of the grand jury. U. S. Cir. Ct., S. D. Ohio,

one. Lord Lyndhurst, who occupied the post in the May, 1880. United States v. Ambrose. Opinion by

interval between his first and second Chancellorships, Swayne, C. J.

attained the age of ninety-two. Lord Abinger was PRACTICE – WIIEN CRIMINAL PROSECUTION COM appointed at sixty-five and died at seventy-five. Sir MENCES - REMOVAL OF CAUSE. -- A criminal prosecu Frederick Pollock was appointed at sixty-one, retion is commenced, within the meaning of section 643 signed at eighty-three and died at eighty-seven; and of the Federal Revised Statutes, relating to the re-Sir Fitzroy Kelly was appointed at seventy and died moval of such prosecution from a State to a Federal at eighty-four. The title of Chief Baron appears to court, as soon as a warrant has been issued. Generally have been first used during the reign of Edward II. a criminal prosecution is commenced as soon as the | Walter de Norwich was appointed a Baron of the Ex

shequer in 1311, and received a fresh patent in the fol- inal Offense" (Etendue du pouvoir Judiciare quant aux owing year on the death of Roger de Scotre, the then délits criminels), and “Legal Effects of a Criminal senior baron, and in the patent granted to his successor he is described as 'nunc Capitalis Baro.' He retired where such Sentence is pronounced " (Effets d'une from the court during his tenure of the office of Treas sentence criminelle hors des limites territoriales où elle urer of the Exchequer, but returned to the bench in a été prononcée). The subjects “ Consular Jurisdic1317, and was then distinctly appointed as “Capitalis tion in Christian and non-Christian Countries" and Baro.'"

“ Extradition," are most thoroughly discussed by the

commentator, with an unusual wealth of citations, and NEW BOOKS AND NEW EDITIONS. with learned textual references to recent State papers,

adjudications and authorities. SEYMOUR'S CARRIERS OF PASSENGERS.

This volume possesses the merit of a most excellent

“table des matières," referring to the theme of each The Law of Carriers of Passengers, illustrated by Leading paragraph, which is also noted in the margins of the Cases and Notes. By Seymour D. Thompson. St. Louis :

pages- a practice not only conducive to clearness of F. H. Thomas & Co., 1880. Pp. Ixiv, 619.

style, but of great assistance to the reader. The typoTHIS work is designed on the same plan as the same graphical work is excellent. 1 author's recent work on Negligence, of which we As America, both before and since its independence have spoken very highly, and which more intimate of European domination, has done so much toward a acquaintance leads us to value more and more highly practical building up of the modern law of nations, it every day. The present volume contains 49 leading seems particularly fit that American authors should Cases. The division of subjects is as follows: the obli enter the domain of public law. It is a pardonable gation to receive and carry; when the relation of car- 1 source of gratification that another American now folrier and passenger subsists; the obligation to carry lows so ably in the footsteps of Wheaton. according to advertisement or contract; the obligation to furnish safe and convenient stations and approaches;

CORRESPONDENCE. liability for negligence; contributory negligence; imputed negligence; police duties; regulations of carriers; liability for assaults by his servants; contracts lim

RELEASE OF DowER. iting his liability for personal injuries; use of another's Editor of the Albany Law Journal: means of transportation - liability for consequential

If your correspondent, “F. L. M.," will turn to the injuries; liability for damage by fault of connecting case of Gillilan v. Swift, 14 Hun, 574, he will find that lines; street railway companies; carriers by water;

his question concerning the omission of the usual liability in respect to baggage; remedies, procedure,

words, “dower and right of dower,” has been directly and damages. The details of the execution are simi

answered by the courts of this State. While your anlar to those in the work on Negligence, and the work

swer, without reference to this case, is right in its reis marked by the same excellencies of selection, anno

sult, it seems to me, in one respect, to fall short of tation and general editing. We may well economize

your usual accuracy of statement. The deed does not, space and time by saying that we regard these works

it seems to me, “carry the interest of the wife in the of Mr. Thompson as among the most conscientiously

premises," as you suggest, but it rather estops her from and intelligently executed, the most interesting, and

asserting an interest. The difference may be purely the most useful practical law books ever issued from

theoretical, but it nevertheless exists. the American press. The volume, like its predeces

I am, sir, faithfully yours, sors, is admirably printed.


NEW YORK, Oct. 11, 1880.
Commentaire sur les Eléments du Droit International et Editor of the Albany Law Journal:

sur l'histoire des Progrès du Droit des Gens de Henry As a confirmation of your answer to the query of Wheaton, par William Beach Lawrence. Tome quat- | “F. L. M.," page 298, vol. 22, see Elmendorff v. Lockrième. Liepzig, F. A. Brockhaus, 1880.

wood, 57 N. Y. 322.

H. E. MORSE. This edition of Mr. Lawrence's commentary on CLAYTON, Jefferson Co., N. Y., Oct. 11, 1880. Wheaton must be well received by a distinguished circle of the legal profession — those who devote them- | [We think our theory is the right one. It is diffiselves to the study of public law. Wheaton's con-cult to conceive of a deed that shall estop a married tributions to the law of nations are destined to a woman, in the absence of fraud on her part, unless permanent place amidst the best of the text on that

it effectually conveys her interest, and if it conveys subject. “The Elements of International Law" and “The History of the Law of Nations” are deservedly

her interest there is no need of resorting to the famous; and Mr. Lawrence's commentaries - written theory of estoppel. Our first correspondent will in the "diplomatic language "- must add to this wide find that the reference of our second correspondent celebrity,

strongly confirms our view.-ED. ALB. L. J.] Few departments of modern scientific thought have advanced more rapidly than the law of nations; and

CORRECT SOLUTION OF "MIDSUMMER'S" PROBLEM. this progress needs to be constantly noted and to have attention directed to it. Mr. Lawrence's work is, in this Editor of the Albany Law Journal : respect, a most valuable addition to Wheaton, but Since “Midsummer's" problem has provoked so it is also, in many other respects, a valuable addition. much antagonism and contradiction, I desire to keep

The present volume of the commentaries is concerned with the second part of Wheaton's " Absolute Inter if not "capable of mathematical demonstration," national Rights of States," known as “The Rights of

would probably be as satisfactory to all parties as any, Civil and Criminal Legislation," and particularly with

and is certainly as practicable, viz. : 1st, payment of the subdirision, “ Consular Jurisdiction” (Juridiction

costs; and, 2d, residue to the attorneys. I disclaimi Consulaire), “Independence of the State as to its Judi all novelty.

Yours truly, cial Power" (Indépendance de l'Etat quant au pouvoir

ONE OF THEM. judiciaire), “Extent of the Judicial Power over Crim-! CINCINNATI, Oct. 5, 1880.

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