Imágenes de páginas

into with the intestate: It is provided by statute the sheriff to take the prisoner and “keep him safely (Laws 1859, chap. 302), that a board of assessors should and closely in his custody until he shall have paid the pass upon work of this kind, and report the assess fine," eto. The contempt consisted in neglecting and ment made therefor to the common council, who refusing to pay over to parties entitled to it certain should confirm the same or send it back to the board sums which the surrogate had ordered him, as execof assessment for revision, who should report again, utor, to pay. Held, that the order of commitment when the same proceeding might be had. By Laws was unauthorized and invalid. The act of the respond1861, chap. 308, and 1872, chap. 580, the duties and pow-ent was not a contempt, and could not be punished ers of the common council were devolved upon a as such. Appeal dismissed. Matter of Watson v. Nel"board of revision and correction." Held, that before son. Opinion by Rapallo, J. an action could be maintained against the city for the 2. How decrees of, enforced : final decree : interlocutory work done by intestate, it was necessary that the as- order. - A decree of the nature of that made by the sessment therefor be confirmed according to the stat- | surrogate for the payment of a sum of money generute, and a neglect or refusal of the authorities to act ally, is capable of enforcement by execution against thereon, or improper action thereon, even though for the body, but not by proceedings for contempt. For invalid reasons, would not give a right of action. The non-payment of a sum adjudged by a final decree, remedy of the party aggrieved, in such case, was by | upon which the defendant is liable to imprisonment, certiorari or mandamus to review or compel action. the proper process is an execution against the body in Judgment below affirmed. Tone, Administrator, v. the form prescribed by the court of chancery. For Mayor of New York. Opinion by Earl, J.

non-compliance with an interlocutory order, a precept 2. Construction of contract: effect of statute upon terms of commitment, such as was used in that court under of: estoppel.- The fact that, at the time, the power of 2 R. S. 535, $ 4, or an execution under Laws 1837, chap. the common council to confirm the assessment did not 460, would be proper. exist, did not do away with a necessity for confirma [Decided May 22, 1877.) tion. The contract must be held to require confirma

WILL. tion by competent authority. The fact that the con Construction of: intention of testator: construction firmation of the assessment was an act to be performed sustaining will preferred to one destroying it. - A trust by the agents of the defendant did not estop it from created by a will was for the preservation of the estate, setting up the want of confirmation as a defense. In | and the payment of the net income from the rents and the discharge of duties imposed by the legislature the profits to the widow of testator, with this clause added, boards mentioned were not agents of the city, but in "until all of my living children shall be of full age." dependent public officers. Ib.

Held, that under the rule that if a will, or any clause [Decided June 12, 1877.)

of a will, is susceptible of two interpretations, that SHIPPING.

shall be adopted which will validate the provision and

give effect to the disposition, rather than that which 1. When general owner of chartered ship liable to third

will destroy it (2 Jarm. on Wills, 743, Rule XVI), the party shipping by. — M. & Co. of San Francisco were

meaning of the testator should be construed to be that charterers of a ship of defendant for a voyage from

the widow should be entitled to receive the income of that port to New York, but they had nothing to do

his estate as long as she should live, unless all his liywith the victualing, manning or sailing of the ship,

ing children should, during her life, attain their mabut this was done by defendant, and at his expense.

jority, and in such case the provision was not in conHeld, that the defendant, as general owner, was liable for the safe carriage of a trunk belonging to plaintiff,

flict with the law against perpetuities. Judgment be

low affirmed. Provost v. Provost. Opinion by Allen, J. a third party, received by the master of the ship for

[Decided June 12, 1877. Reported below, 7 Hun, 81.) carriage from San Francisco to New York. Judgment reversed and new trial granted. Robinson v. Chitten

RECENT AMERICAN DECISIONS. den. Opinion by Folger, J. 2. Delivery to charterer: when general owner not lia

SUPREME COURT OF NEW JERSEY. COURT OF ble. – Plaintiff delivered his trunk in San Francisco to

ERRORS AND APPEALS, NEW JERSEY.* the clerk of the charterers, who gave him a receipt. This clerk delivered the trunk to the master of the

BAILMENT. vessel, but there was nothing said or done at the time

Bailee converting goods : trover for conversion : lien to distinguish it, nor was it distinguished from other

for labor on goods.-A bailee, converting goods on goods put on board by the charterers. Held, that

which he has bestowed labor and acquired a lien, may, delivery of the trunk to the consignees of the char

in an action of trover brought by the owner, set up his terer in New York in the same manner that other

lien-claim in reduction of damages. Longstreet v. goods shipped was delivered, would absolve defendant Phile.

BREACH OF PROMISE. from liability to plaintiff. Ib.

Promise to marry while wife living, void.-A promise [Decided May 22, 1877. Reported below, 7 Hun, 133.]

of a married man to marry when a divorce should be SURROGATE.

decreed between himself and his wife, in a suit then 1. Commitment for contempt by non-payment by exe- | pending, is contrary to public policy, and void. Noice cutor of money ordered paid by surrogate : how orders v. Brown (Court of Errors and Appeals). of, enforced.- Respondent was committed to jail by a

DEMURRAGE. surrogate, the commitment directing that he be com

Belongs to master only of vessel : when not due.--C. mitted to the common jail of the county of R., there

was master of a vessel, under a charter-party made in to remain, charged with the contempt mentioned in

1864, which contracted for a voyage from Philadelphia said order, until he should have paid the fine therein

to Beaufort. He put A. in charge, who sailed the vesimposed upon him for his misconduct, amounting to the sum of $5,876.58, with interest, and commanded | To appear in 10 Vroom's (89 N. J. Law) Reports.


sel to Beaufort. On arriving at Beaufort, A. was or- the State's treasurer, due to a non-resident debtor, dered, by the party in command, to sail to Charleston. cannot be attached at the suit of a creditor. No other The original charter-party was indorsed “fulfilled”.

property being attached, the writ is quashed. Lodor by said officer, and a new one drawn, with A. as mas v. Baker. ter, for the voyage from Beaufort to Charleston. A claim for demurrage having arisen against the gov What will discharge surety.-A valid agreement to ernment, on this latter voyage, and the same having give time on a promissory note to the principal will been paid by the government, it was held, (1) that the discharge the surety. Thompson v. Bowne. master of the vessel alone, ou the voyage from Beau

USURY. fort to Charleston, had the right to receive this de

Recovery back of money paid usuriously.-Money murrage, and on his death, such right would go to his

paid usuriously may be recovered back. The rule is personal representatives. (2) C. was not the master

not changed by the present usury act. Brown v. Mcon the said voyage. The forcible act of the govern

Intosh. ment utterly destroyed the relationship existing be

WAIVER. tween C., as master, and the owners of the vessel,

Of statutory provisions.- Statutory provisions deand created a new relationship between the gov

signed for the benefit of individuals may be waived. ernment and the owners, to which C. was not a

The statute of limitations may be waived by those party. Hill v. Stetson.

who assent in legal form, and when acted upon, such EVIDENCE.

waiver becomes an estoppel to plead the statute. Proof of partnership: reputation not sufficient.-In Quick v. Corlies, adm'x, etc. an action against persons as partners, mere reputation of partnership is incompetent. The plaintiff cannot SUPREME COURT COMMISSION OF OHIO. SUPREME make out a prima facie case so as to shift the burden

COURT OF OHIO.* of proof by showing reputation simply, and not con

CONSTITUTIONAL LAW. nected with facts evincing that the reputation existed

1. Corporation citizen of State where created.-Uuder by the authority, assent, connivance or negligence of

the clause of the constitution of the United States, the person sought to be charged. Taylor v. Webster.

extending the judicial power of the United States to MASTER AND SERVANT.

controversies between citizens of different States, a Master not liable to servant for negligence of fellow corporation, in respect to the jurisdiction of the Fedservant.-A master is not liable to a servant for the eral courts, is regarded as a citizen of the State where negligence of a fellow-servant, while the two are en it was created. Baltimore und Ohio R. R. Co. v. Cary gaged in the same common employment, unless for (Commission). negligence in the selection of the servant in fault, or 2. Foreign railroad corporation.-A foreign railroad in retaining him after notice of his incompetency. A corporation, by merely leasing, possessing aud operatfellow-servant is any one who serves and is controlled ing in this State the property of a domestic railroad by the same master; common employment is service corporation, does not thereby become an Ohio corpoof such kind that, in the exercise of ordinary sagacity, ration, nor such citizen of the State. Ib. all who engage in it may be able to foresee, when ac 3. Act requiring corporation to waive citizenship utt cepting it, that through the negligence of fellow-ser constitutional.-The proviso of the 24th section of the vants, it may probably expose them to injury. McAn act for the creation and regulation of incorporated drews v. Burns, adm'x (Court of Errors and Appeals). companies in Ohio, as amended March 19, 1869 (66 Ohio

L, 32), so far as it provides that the leasing, purchasing MUNICIPAL CORPORATION.

or operating a railroad in this State by a railroad comInvalid ordinance, by: what is such ordinance.-The

pany of another State shall be regarded as a waiver of board of aldermen of Jersey City, acting under the

the right of such foreign company to remove cases charter of 1871 (Pamph. L., 1871, p. 1094), passed the

brought against it in the State courts to those of the following ordinance: “Section 1. No person or per United States, is repugnant to the constitution ana sons shall drive, or cause to be driven, any drove or

laws of the United States, and is, therefore, ineffectdroves of horned cattle (except milch cows), through

ive as a statutory waiver of the right of such removany of the streets, avenues, eto., in Jersey City. Sec

al. Ib. tion 2. That any person, etc., that shall violate the

4. Removal of cause.-When a corporation of another provisions of this ordinance, shall, for every such

State, not being a citizen of Ohio, is sued by a citioffense, forfeit and pay the sum not exceeding $50." zen of the State, in the State court, it is entitled to Section 24, pl. 5, of the charter, authorized the board

have the case, under the 12th section of the judiciary to pass ordinances to regulate and control the driving act of Congress of 1789, removed from the State court of cattle, etc., through the streets, etc., of the city. | to a United States court. Ib. Held, (1) That the ordinance in question is not bad for

CONTRACT. uncertainty in the penalty. (2) That it is bad for

1. Ilegal contract: lottery.- A contract for the sale vagueness and uncertainty in the thing forbiddden. (3) That if the effect of it is effectually to prohibit,

of lands which are to constitute prizes in a lottery etc., it is void, for the additional reason that the board

scheme or “gift enterprise," to be set on foot by the had, by their charter, no authority to make such an

vendee, and which are to be paid for in part by tickets in ordinance. McConvill v. Mayor of Jersey City ; Snow

such lottery, is against public policy, and contrary to den v. Same.

the provisions of a penal statute, and, therefore, wholly STATE.

illegal. The law will not aid a party to such contract, Suit against : attaching money in State treasurer's

either in its enforcement whilst executory, or in its hands.-A State cannot be sued in its own courts with-| From advance sheets of volumes 28 and 29 Ohio State out its consent, and, therefore, money in the hands of | Reports.

rescission when executed. Hooker v. De Palos (Com affected by subsequent changes in the title to the mission).

property. Douglass v. City of Cincinnati. 2. Part performance: revocation. When such con

RAILROAD. tract has been partially performed by both parties, so Damages for ejection from car for refusal to pay illethat the evil purpose of the contract has been in part gal fare.-In an action by a passenger against a raileffected by the co-operation of both parties, as where

road company for being wrongfully ejected from the the vendor has withdrawn the land from market, and cars by the conductor, it appeared that the rates of for some months subjected it to the control of the

fare fixed by the company, and which by its estabvendee for the purposes of the lottery, and the vendee lished rules it was made the duty of the conductor to has paid part of the purchase-money, and has, with demand, were higher than those allowed by law. The the aid of the vendor, set the enterprise on foot, and plaintiff tendered what he claimed to be, and what issued and sold a number of lottery tickets, then, as was ultimately held to be, the legal rates, and, upon to such part performance, the condition of the par refusal to pay more, was ejected from the cars, but ties is the same as though the contract had been fully without any rudeness or unnecessary violence. It also executed. The parties are in pari delicto, and the law

appeared that the plaintiff, at the time he took passage, will aid neither of them in enforcing further perform• knew the established rates, and expected to be ejected ance, or in undoing what has been unlawfully done. from the cars, intending to bring an action for such Hence, under such circumstances, the vendee cannot ejection, in order to test the right of the company to maintain an action to recover from the vendor the charge the established rates. Held, that the plaintiff money paid on the contract. Ib.

was only entitled to compensatory damages, and that CRIMINAL EVIDENCE.

it was competent for the company, for the purpose of Homicide: opinion as to danger to life.-In a crim

mitigating damages, or preventing the recovery of

exemplary damages, to give in evidence subsequent ipal prosecution where the defendant seeks to justify,

declarations of the plaintiff, tending to prove that his on the ground of self-defense, it is not competent to

object in taking passage on the cars was to make give in evidence the opinion of a wituess as to the ex

money by bringing suits against the company for deistence of danger to life, or of great bodily harm, or

manding or receiving their established rates of fare. that such danger might have been reasonably appre

Cincinnati, Ham. and Dayton R. R. Co. v. Cole.
hended by the defendant. The State of Ohio v. Isaac

RECENT ENGLISH DECISIONS. 1. Executor continuing business of deceased: liability

CASES RELATING TO WILLS. of estate.- Where the executor of an estate, who is not authorized to do so, takes the personal assets of his

Executor according to the tenor.- A testatrix aptestator, and uses them in carrying on the former pointed the executors to her will as follows: “I aptrade and business of the testator for a series of years,

point my said sister my executrix, only requesting for the purpose of making money to be used in paying

that my nephews, F. P. and J. A. B., will kindly act the debts and supporting the family of the testator,

for or with this dear sister." Held, that F. P. and J. consisting of a widow and minor children, and also for

| A. B. were executors according to the tenor. Prob. the purpose of keeping up the business for the minor Div. and Adm. Div., Feb. 27, 1877. In the Goods of sons when they should be old enough to take charge

Brown, 36 L. T. Rep. (N. S.) 519. of it, and in so doing, pays off all the debts of the tes

Identity : illegitimate child described as legitimate: ator. Held, that the general assets of the testator in settlement between trustee and cestui que trust: when the hands of an administrator de bonis non, is not lia trustee chargeable with fraud.-A legatee in a will was ble for money borrowed by the executor for, and used

described as “J. E., the son of S. E., by M. J., or M., in carrying on such trade and business, though the or E., his wife." There being no doubt as to the idenexecutor acted in good faith. Lucht, adm'r, v. Behrens

tity of the person intended, the question, whether he (Commission).

was the son born in lawful wedlock or not, was utterly 2. Estate not subject to liabilities incurred in prosecu immaterial, for he was the person designated as the tion of business by excecutor.-The general estate, real legatee. If on the footing of a supposed illegitimacy and personal, of the testator, not embarked in such the title of the cestui que trust to the legacy is disbusiness, cannot be subjected to the liabilities in puted and denied by the trustee, and the former is curred in its prosecution in the absence of clear and thereby induced to accept from the trustee a smaller explicit authority conferred by the will, even though

sum than that to which he is entitled under the will, the executor acted in good faith. When by the will and by deed to release the trustee from the payment all the estate, real and personal, is devised subject of the legacy, equity will not permit such a transaconly to the payment of debts, the devisees, as well as

tion to stand. Even without any evidence of fraud, the creditors, have an interest in the estate, that can

such a transaction is null and void. A trustee who, not be defeated or incumbered by debts contracted

on untenable grounds, withholds trust money from his by the executor, not authorized by the will. Ib.

cestui que trust may commit what in equity may be

considered a fraud, without being chargeable with MUNICIPAL CORPORATION.

personal fraud. A legacy was given on an express Street improvements : abutting property, what is. trust in 1807; it was not paid to the original legatee. What constitutes abutting property liable under the He became insolvent, released the legacy, and died. municipal code to be assessed for the improvement of His only child came of age in 1849. Litigation on a street, is to be determined by the situation of the matters connected with the legacy, but not upon a property at the time of the passage of the ordinance direct claim to it, was going on in 1865. A. took an directing the improvement, and prescribing the mode assignment of the legacy, and also became the adminof making the assessment; and such liability is not listrator of the original legatee's estate, and the as


signee under his insolvency; in 1872 he filed a bill to from sharing with her next of kin, but had not exenforce payment of the legacy with interest. He was cluded the widow of his son, A. was entitled to share held entitled to the assistance of a court of equity in with her husband's next of kin. Ch. Div., April 13, respect of it. Thompson v. Eastwood, L. R., 2 App. | 1877. Re Collins' Trusts, 36 L. T. Rep. (N. S.) 437. Cas. H. L. (I.) 215.

Power: exclusive or non-exclusive power.-A testaLimitations, statute of : when it does not apply: trix, after giving a life estate to a daughter in a cerpress trust: allowance of interest.–The statute of lim tain fund, gave her a power to appoint the fund, "to itations does not apply to an express trust for a legacy, and among the testatrix's) other children or their yet where the beneficiary or his representative has al issue in such parts, shares and proportions, manner lowed a very long time to elapse without attempting and form as her said daughter * * * should, by to enforce the trust, equity will, when enforcing it, deed or will, appoint. Held (affirming the decision of apply as to interest on the legacy, the principle of the Jessel, M. R.), that this was an exclusive power and statute. A will, in 1807, began thus: “I hereby ap was well exercised by an appointment to one only of point my after-named executor, Charles E., my young. its objects to the exclusion of the rest. Garthwaite v. est brother, to be trustee for the following legacies." Robinson, 2 Sim. 43, disapproved of, and Stohoorthy v. Several were then named, and the will went on, “ Con Sancroft, 10 L. T. Rep. (N. S.) 223; 10 Jur. (N. S.) 262, sidering that money will be more essential to my dear considered by the court below. Ct. App., April 23, brother, Samuel E., than a distant possession of land, 1877. Re Veale's Trusts, 36 L. T. Rep. (N. 8.) 634. I bequeath to Samuel E. during his natural life the in Residuary clause: revocation by subsequent roill: interest of £3,000, and after his death, to his eldest son, complete disposal of property: residue.- Where a tesJames E., by his last wife, Margaret J., or M., or E., tator dies leaving two wills, in the latter of which till he attains twenty-one, and then to obtain the there is no express revocation of the earlier, and in principal. I order that my youngest brother, Charles which part of the property is not disposed of, the E., shall be liable to all my lawful debts of every de court will decree probate of the latter will, as being scription, and pay them as soon as he can, and also made in complete substitution for the earlier, and as pay my legacies when regularly due, and all expenses, being an expression of all the testamentary disposietc.; and to enable him to do all this, I bequeath, un tions which the testator at the time of death intended. conditionally, to him all my estates and landed prop In considering cases of this description the whole of erty, with all emoluments belonging to them, in the the circumstances of the case and the various disposicounty of Armagh; I also bequeath to him, the said tions in the two wills must be taken into account in Charles, all my estates, eto., with all their emolu order to judge whether the latter document shows on ments, in the county of Louth, or elsewhere," eto. the face of it a revocation by implication of the earHeld, that the will constituted an express trust, so as lier will. Prob. Div. and Adm. Div., Jan. 11, 1877. to prevent the statute of limitations applying to it. Dempsey v. Lawson, 36 L. T. Rep. (N. S.) 515; S. C., L. Payment of the legacy with interest was therefore R., 2 P. D. 98. directed. But, there having been no proceedings | Tenant in tail: common recovery: express trust: stattaken until 1872, with the direct purpose of enforcing | ute of limitations.-Testator, by a will made in 1779, payment of the legacy (though other proceedings devised freeholds unto his son A, and the heirs of his connected with the will had been going on), and the body, "upon special trust and confidence" that, in estates having passed into the hands of the representa case he should leave no issue of his body, he would tives of the original trustee, the interest on the legacy not do or suffer any act in law or otherwise to prevent was, in the discretion of the House, directed to be the several following limitations of the estates from calculated only from six years before the filing of the taking effect. And the testator devised (in case his bill. The word “unconditionally," as used in this son should die leaving no issue of his body) the said will, did not mean without any condition annexed to freeholds to trustees in trust (subject to certain prior the payment of the legacies, but that the trustee was limitations) for B (the plaintiff's grandfather) for life, made absolute owner of the fee simple for the pur with remainder to his eldest son (the plaintiff's father) pose of doing what the testator had ordered. Thomp in tail. A died, leaving no issue. The statement of son v. Eastwood, L. R., 2 App. Cas. H. L. (I.) 215. claim alleged that, upon the death of B in 1852, the

Lost will : copy: evidence.-Declaration of a de plaintiff's father became entitled, as tenant in tail, to ceased person, who has been in possession of property the possession of the property. The defendant declaiming a limited interest therein under a particular | murred, on the ground that the alleged trust conwill, are admissible to prove the fact that such will tained in the will did not operate to prevent A from had a legal existence, and also that certain persons suffering a recovery; that the recovery suffered by A were named executors therein. And where a copy of was valid to defeat the estates limited over in case A such will, the original not being forthcoming, is found should die leaving no issue of his body; and “on in the possession or among the papers of the legal ad other grounds sufficient in law to sustain this demurviser of one of such executors, it is evidence of the rer. Held, first, that the right to suffer a recovery contents of such will, and may be admitted as such. was a necessary incident to a legal estate tail, not in Sly v. Sly and Dredge, L. R., 2 P. D. 91.

the least interfered with by the expression of “trust Next of kin according to statute: exclusion of widow: | | and confidence" that the tenant in tail would not do intention.—Testator bequeathed a fund in trust for his | so, and that the recovery, when suffered, defeated the daughter for life, with remainder to her next of kin limitations over contained in the will; and, secondly according to the statute, but in exclusion of any hus (assuming the limitations over to have taken effect), band. He also bequeathed a fund in trust for his son that, as on the plaintiff's own statement his title acfor life, with remainder to his next of kin according crued more than twenty years ago, the statute of limto the statute. The son died, leaving a widow, A., itations was an absolute bar to his claim, and, as the and brothers and sisters. Held, that as the testator | demurrer stated "some ground of law," the defense of had expressly exoluded the husband of his daughter ! the statute was properly raised upon this demurrer.

Ch. Div., June 6, 1877. Dawkins v. Lord Penrhyn, 36


Uncertainty of description : alternative appointment. -A testator bequeathed by his will all his property to

THE NEW CODE. his three sisters, or to such one or other of them that

To the Editor of the Albany Law Journal: survived him, and appointed “either one of my three

SIR– I have been disposed to give the New Code a sisters my sole executrix." Two of the three sisters

fair trial and to pass judgment upon it only after the predeceased the testator, and the court refused the

light of experience should have been cast upon it. It appointment of executrix to the surviving sister, or

has become necessary for me to commence to familprobate to her of the will, on the ground that the ap

iarize myself with its provisions in preparatiou for pointment "either one of my three sisters," was void

practice under it after the first of next September. for uncertainty. Prob. Div. and Adm. Div., Feb. 6,

After a partial reading I am convinced that it is not 1877. In the Goods of Blackwell, 36 L. T. Rep. (N. S.)

necessary to wait for a single day's practice before 413.

feeling justified in condemning certain parts. Par

ticularly do I wish to call your attention to the provisBOOK NOTICE.

ions relating to the service of a summons by publication. All the provisions of the existing Code, requir

ing proof that the party sought to be served cannot KANSAS REPORTS, VOL. XVII.

be found within the State or served within the State, Reports of Cases Argued and Determined in the Supreme are entirely left out of the New Code. It is only nec

Court of the State of Kansas. By W.C. Webb, Reporter. essary to show that the action comes within the proVol. XVII. Containing cases decided at the July Term, 1876, and January Term, 1877. Topeka, Kansas: Geo. W.

visions of section 438. For instance take the fourth Martin, Kansas Publishing House, 1877.

subdivision. The summons may be served by publi

cation, “where the defendant is a resident of the State THESE reports are published with commendable

and the complaint demands judgment annulling a marI promptness, and the work of the reporter upon them is as well done as is that of his cotemporaries

riage, or for a divorce, or a separation." Is not this a

provision that a summons may be served by publicawho exercise greater moderation in issuing their vol

tion in the very case of all others where it should be ves. In the present volume the cases are chiefly of local value, less than a dozen cases of general interest

personally served? Is it not correct practice to serve

by publication in an action for a divorce upon a deappearing. Among those of the latter kind, we notice

fendant who may be resident in the same village or the following: Powers v. Clarkson, p. 218. It is here

city as the plaintiff's attorney and every day seen by held that wild grass growing on wild, uuoccupied, uncultivated land is a part of the realty, and an at

him? And after final judgment the defendant cannot

be let in to defend. Vide section 445. tempted transfer of such grass by parol agreement, is

I have turned upside down and 'read crosswise the roid under the statute of frauds. Kansas Pacific Railway v. Mihlman, p. 224. When A enters upon the

above sections and all their context, and I can make

nothing else out of it. It may be that my different land of B and digs a ditch thereon, it is a completed

editions of the new law are all unauthorized and none trespass, and the cause of action for all injuries result

of them correct. If my reading and construction are ing therefrom, commences to run at the time of the

correct, and I see no escape from the conclusions I trespass. And the fact that A does not re-enter B's land

have drawn, will it not be well to refrain from critiand fill up the ditch does not make him a continuing

cism upon the loose legislation of other States upon wrong-doer and liable to repeated actions as long as

the subject of divorce? Is there another State whose the ditch remains unfilled. Kansas Pacific Railway

laws expressly provide that a decree of divorce can Co. v. Reynolds, p. 251. Where, in order to procure

be had without personal notice to a defendant who is the carrying by a railway of goods at the regular rate,

actually and notoriously present in the State, to the a shipper who is given the alternative of having his

full knowledge of the plaintiff, his attorneys, and, goods, which have been accepted for carriage, unloaded

perbaps, the presiding judge of the court? In these or signing an agreement which attempts to limit the

days of reform is it not possible that there may be liability of the company as to such goods, held that

some virtue in being

AN OLD Fogy. the agreement is without consideration and void.

TROY, July 20, 1877. State v. Winner, p. 298. In a criminal prosecution, and even in murder in the first decree, the corpus delicti may be proved by circumstantial evidence. Moon

NOTES. light v. Bond, p. 351. It was here held that the fact that a candidate for an elective office paid money to a ABOUT a year ago Dr. H. B. Wilbur made a report third person for the purpose of furnishing spirituous

A to the State Board of Charities on the manageliquors for voters generally, with the intent to facili- ment of the insane in Great Britain. The edition tate his election, was not ground for ousting him from then published having been exhausted without supthe office to which he was elected. Britchett v. Mitchell, | plying the demand for the report, a second edition bas p. 355. The plea of usury is a personal privilege, and been issued which contains additional matter of inif the debtor declines to avail himself of it, no stranger terest upon the subject therein treated. The present to the transaction can. Accordingly a second mort edition contains an introduction, in which the author gagee cannot plead usury in a prior mortgage, either replies to criticisms made on bis report; the report to defeat or postpone its lien. Glass v. Alt, p. 444. A itself, and an appendix, wherein matters incidentally note given for intoxicating liquors sold in violation of mentioned in the report are more fully treated. The the laws of Kansas is void in the hands of the person pamphlet is worthy the attention of all interested in making such sale. This volume contains a fair index, the subject of insanity and the treatment of the ina table of cases cited, and is well printed and bound. sane.

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