ties are to invest and reinvest the personal estate, not required for the payment of the testator's debts and funeral expenses and the expenses of administration and not specially bequeathed, to manage and control the real estate devised to him for that purpose, to collect, receive and disburse the interest and income arising from such real and personal estate, among the objects of the testator's bounty, and finally to pay over and convey to them the estate itself, at the times or upon the happening of the contingencies, designated in the will. We do not think that it was the testator's intention to annex these powers and duties to the office of executor. They were rather in the nature of a personal trust or confidence reposed in the particular person whom he had selected as executor. It will be observed that wherever the testator refers to the executor in connection with these powers and duties, he with a single exception makes use not merely of the word "executor," but styles him " my executor hereinafter named" or "my said executor." These powers and duties relating to the trust being distinct from those to be performed by the executor as such, the disclaimer of the latter by the complainant, Pomroy, did not operate as a disclaimer of the former, which consequently remain to be executed by him as though such disclaimer had not been made. Garner v. Dowling, 11 Heisk. 48, 50; Tainter v. Clark, 13 Met. 220, 227; Clark v. Tainter. 7 Cush. 567, 570; Judson v. Gibbons, 5 Wend. 224, 228; Perkins v. Lewis, 41 Ala. 649, 653; Bolton v. Jacks, 6 Robert. (N. Y.) 166, 167, 228; Dunning v. Ocean Nat. Bank, 61 N. Y. 497, 502; Parsons v. Lyman, 5 Blatchf. C. C. 170, 173; Williams v. Conrad, 30 Barb. S. C. 524, 532; Moody's Lessee v. Fulmer, 3 Grant (Penn.), 18, 30. Pomroy v. Lewis. Opinion by Matteson, J.

SPECIFIC PERFORMANCE-AGREEMENT TO RELEASE CLAIM ON NOTE-ACTION ON NEW NOTE-INJUNCTION. -A., as maker and indorser, was liable to B. upon two notes. A., being unable to continue his business, arranged to carry it on by means of an incorporated company, and agreed with B. to pay one of the notes, to obtain for B. the privilege of subscribing for stock in the incorporated company and to receive from B. a release of B.'s claim on the other note. Subsequently just before the statute of limitations ran against A.'s liability on the notes A. gave to B. a new note for the amount of the two former ones but without prejudice to the agreement above given. B. put the new note in suit and A. filled a bill in equity to enjoin the suit and to obtain specific performance of the agreement. Held on demurrer, that the bill should be sustained. In Reed v. Bank of Newburgh, 1 Paige, 215, the court held that though a defendant in a suit at law, who has a separate demand which he cannot set off there, cannot ordinarily have relief in equity unless the plaintiff is insolvent, yet the case is otherwise if the demand arises out of the matter in controversy, or consists of an agreement so connected with the claim in suit that if duly observed, the claim in suit would have ceased to exist. The case is very closely if not exactly in point. Contracts for the compromise of doubtful claims have often been specifically enforced. Atwood

- 1 Russ. 353; Waterman on Speci. Perf., § 43, and cases cited. It has been held that an agreement between a creditor and a third person for valuable consideration whereby the creditor agreed to compromise his claim against the debtor, would be specifically enforced. Phillips v. Berger, 2 Barb. S. C. 608; also in 8 id. 527. And see Adderley v Dixon, 1 Sim. & Stu. 607. The tendency in this country is to extend the jurisdiction to all cases in which either of the parties is fairly entitled to a more perfect relief than be can get at law. Waterman on Speci. Perf., § 16, notes. Baker v. Hawkins. Opinior by Durfee,

C. J.

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

TAXATION-DRUGGIST-LICENSE TAX.-Where a city of the third class levies license taxes upon various kinds of business and occupations, and in doing so levies an annual license tax of $80, payable quarterly, in installments of $20 each, upon druggists having permits from the probate judge to sell intoxicating liquors, and levies an annual license tax of $5 upon druggists not having such permits, held, that the license tax levied upon druggists having such permits is not illegal or void. We have just decided the case of City of Newton v. Atchison, 31 Kan. 151, which involves many of the questions involved in this case, and under that decision we think it necessarily follows that the ordinance which we are now considering must be held to be valid. Also see the following cases: City of St. Louis v. Bircher, 7 Mo. App. 169; Ould v. City of Richmond, 23 Gratt. (Va.) 464; City of Sacramento v. Crocker, 16 Cal. 119; Mayes v. Irwin, 8 Humph. (Tenn.) 290; City of Burlington v. Putnam Ins. Co., 31 Iowa, 102; American Ex. Co. v. City of St. Joseph, 66 Mo. 675; Van Baalen v. People, 40 Mich. 258; Fretwell v. City of Troy, 18 Kan. 271. Tulloss v. City of Sedan. Opinion by Horton, C. J.

ATTACHMENT-SEIZURE OF SAFE-LIABILITY OF OFFICER. An officer who has seized and taken possession of personal property under an order of attachment directed to him cannot, after the discharge of the attachment proceedings, defend his seizure and possession upon the ground that the sale and transfer to the plaintiff were fraudulent. An officer. under the order of attachment directed to him, seized and took possession of a stock of merchandise in a storeroom, and excluded from the room the owner. In the room there was a safe, which the officer did not

levy upon. Afterward the attachment proceedings were discharged. A day or two subsequent to the seizure by the officer, and while he had full possession of the store-room and all its contents, another person entered therein, with his consent, and levied on the safe under some process against a person not the owner thereof, and carried it away. Held, as the officer had wrongfully deprived the real owner of the possession of his storeroom and safe, and also deprived him from having any care or control thereof, he cannot be released from liability on the ground that the safe was taken out of his possession by some other person. Simpson v. Vors. Opinion by Horton, C. J.

STATUTE -REPEAL BY IMPLICATION. Where a later statute covers the entire subject-matter of a prior act, and embraces new and different provisions, plainly indicating that it was intended as a substitute therefor, it will, without any express declaration to that effect, operate as a repeal of such former act; and, held, that under this rule, chapter 68 of the Laws of 1872, as amended by chapter 39, Laws of 1874, repealed chapter 33, Laws of 1870, as amended by chapter 48, Laws of 1871. The rule is thus stated by Mr. Justice Field, in the case of the United States v. Tynen, 11 Wall. 92: Even where two acts are not in express termis repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." See also the following cases: Davies v. Fairbairn, 3 How. 636; Bartlett v. King, 12 Mass. 537; Commonwealth v. Cooley, 10 Pick. 36; Pierpont v. Crouch, 10 Cal. 315; Sacramento v. Bird, 15 id. 294; Swann v. Buck, 40 Miss. 269; Norris v. Crocker, 13 How. 429; Sedgwick on Stat. and Const. Law, 124. State v. Studt. Opinion *Appearing in 31 Kansas Reports.

by Brewer, J. [See 29 Alb. L. J. 372; 81 N. Y. 211.ED.

CARRIER-DUTY TO SHIPPER-NEGLIGENCE.-Where a shipper of stock has a contract with the railway company for himself to load his stock upon the cars of the company at its stock yards, and a car is furnished him near the shute of the yards for his use, and one of his employees uncouples it from another and pushes it down to the shute for the purpose of loading the stock, the railway company, in the management of its other cars, owes the duty of exercising ordinary care and diligence to the shipper and his employees while they are engaged in loading the car and doing such other work preparatory to loading as is usual and necessary to do. Held, also, that if the company is guilty of ordinary negligence in leaving a car unattended upon the same track with the car to be loaded by the shipper, without having secured the same by brakes or otherwise to prevent it from moving, and the car is moved by a hard or strong wind against the car about to be loaded and upon an employee of the shipper, and the employee is without fault and free from any negligence or wrongful act on his part directly contributing to the injury, the railway company is liable to him for the result of its negligence. Stinson v. Railroad Co., 32 N. Y. 333; Haley v. Railroad Co., 7 Hun, 84; Brown v. Railroad Co., 8 La. 45; Newsou v. Railroad Co., 29 N. Y. 83. See also Nicholson v. Railroad Co., 41 id. 526. Union Pac. R. Co. v. Harwood. Opinion by Horton, C. J.

CRIMINAL LAW.

RECEIVING STOLEN GOODS-GUILTY KNOWLEDGEEVIDENCE. The prisoner was indicted for receiving stolen goods, knowing them to have been stolen. To prove his guilty knowledge evidence was given that, being asked by the police as to the prices he had given, he said he did not then know, but his wife would make out a list of them, and next day she, in his presence, produced a list, which was received in evidence against him. Held, that it was admissible. If the case had been one in which the wife had made a statement to the police in the absence of the prisoner,even although he had referred them to her, I should have desired very considerable time to reflect before I should have allowed such evidence to be given. But that is not this case, and it is not necessary in this case to determine whether that would have been good evidence or not, and whether if a prisoner refers a witness to any one, that makes every thing the other says evidence against him. That is not the case. And it appears to me that in this case the conviction ought to be upheld upon the ground that the prisoner, being asked as to certain matters, said, "I have not the means of answering, but my wife has, and she shall make out a list which will be an answer to the question;" and next day a policeman went to the house and the wife handed the list over to him-in the presence of the husband-as the statement of the husband. The husband was present, and he allowed the paper to be handed to the police as containing the information he had been asked for. The question is whether it is receivable as evidence against him quantum valeat; and it appears to me that it is so, as a statement authorized by the prisoner to be made and handed over in his presence to the police. According to all rules of evidence the statement was receivable in evidence against the prisoner, and therefore I am of opinion that the conviction ought to be upheld. Cr. Cas. Res. May 10, 1884. Regina v. Mallory. Opinions by Coleridge, C. J., Grove, J. [50 L. T. Rep. (N. S.) 429.]

ELECTION-PUTTING PROSECUTOR TO-DISTINCT OF FENSES CHARGED-DISCRETION OF COURT.-Where, for the purpose of proving the charge made in a single count in a criminal information, evidence is introduced tending to prove several separate and distinct offenses, it is the duty of the court, upon motion of the defendant, to require the prosecutor to elect upon which transaction he will rely for conviction; but the court may exercise some discretion with regard to the definiteness of the election. Therefore on a prosecution for selling intoxicating liquors in violation of law, where evidence was introduced tending to prove several separate and distinct offenses, and where the court, on motion of the defendant, required the State to elect upon which transaction it would rely for conviction, and the State elected to rely upon a sale of whisky made by the defendant to one D.; and the evidence of D. tended to show that several sales of both whisky and beer were made by the defendant to the witness, at the defendant's place of business, in November or December, 1882; and the defendant's place of business was definitely shown by the evidence, but the time of the sales was not any more definitely shown than as above stated; und the defendant moved the court to require the State to make the election more definite and certain; and the court overruled the motion, held, not error. We suppose that upon a criminal trial, where the State has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court, upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction. State v. Schweiter, 27 Kan. 500, 512. Any other rule would often work injustice and hardship to the defendant. But while the prosecutor is required to elect in such cases, he is required to elect only in furtherance of justice; and the rule is never carried to the extent of working injustice. That a court may exercise some discretion in requiring elections to be made in such cases as the present, see the following authorities: State v. Smith, 22 Vt. 75; State v. Croteau, 23 id. 14; State v. Bell, 27 Md. 675; Commonwealth v. O'Connor, 107 Mass. 219. See also other cases cited in the brief of counsel for the State, as follows: Murphy v. State, 9 Lea, 373; State v. Sims, 3 Strobh. 137; State v. Hood, 51 Me. 363; Commonwealth v. Sullivan, 104 Mass. 552; George v. State, 39 Miss. 570; State v. Green, 66 Mo. 632; State v. Tuller, 34 Conn. 280. Sup. Ct. Kan. January, 1884. State v. Crimmins. Opinion by Valentine, J. (31 Kan. 376.) [See 52 Ind. 157; 56 id. 182; 12 N. W. Rep. 313; 19 Alb. L. J. 442.-ED.]

FORGERY-BILL OF EXCHANGE—“ CURRENT FUNDS" -UNSTAMPED, NO DEFENSE.-An instrument, described as a bill of exchange in an indictment for forgery, was in the following form: "Staunton, Va., September 4, 1882. Augusta National Bank, pay to J. Edwin Laird or bearer the sum of seventy-five dollars ($75), current funds." Held, that the words current funds" as used in the paper meant nothing more nor less than "current money," and so construed, the instrument was negotiable. That in the absence of proof showing the law of the State of Virginia, where the instrument was drawn, to be different from that of Maryland, the character of the instrument was settled by the case of Hawthorn v. State, 56 Md. 530, which holds that a check drawn on a bank is a bill of exchange. That the fact that the check or instrument described in the indictment was unstamped constituted no ground of defense. One cannot, it is true, be convicted of the forgery of a paper absolutely invalid upon its face, and which could not operate to the prejudice of another.

But it has never been held that an unstamped instrument is per se valid. On the contrary, the decisions are all the other way, and on two grounds, first, the stamp laws were intended as revenue laws, and to render the contract invalid or inadmissible in evidence, it must appear by affirmative proof that the omission to stamp it was not the fraudulent intent to evade the law; and secondly, upon application to the proper officer the stamp may be affixed upon the payment of the penalty, or without payment if the omission to stamp it was by reason of accident, mistake or inadvertence, etc. 14 United States Statutes at Large, ch. 184, § 158; Campbell v. Wilcox, 10 Wall. 420; Black v. Woodrow and Richardson, 39 Md. 195. Cup. Ct. Maryland. October, 1883. Laird v. State. Opinion by Robinson, J. (61 Md. 310.)

NEW BOOKS AND NEW EDITIONS.

DE CONJECTURIS ULTIMARUM VOLUNTATUM. Dissertatio pro gradu doctoris in jure civili. A Wolseley P. Emerton. Oxonii, MDCCCLXXXIV.

This treatise, bearing the same title as Mantica's "De conjecturis ultimarum voluntatum," has been sent to us by the publisher. It was composed in the Latin tongue, in deference to a request of the proper University authority of Oxford, as a test of the author's fitness for the degree of D. C. L. To our readers the treatise promises a two-fold interest: it bears upon an obscure branch of testamentary law, and it evinces the scholarship which is now expected of candidates for the higher ranks of English university

honors.

The interpretation and construction of testamentary dispositions are arrived at through certain rigid canons, peculiar to a particular jurisprudence. This writer's endeavor has been to collate and compare the doctrines of the Roman and English systems of interpretation, and particularly those portions which relate to conjectures or presumptions of law. The main dispute of the schools relates to the basis of interpretation: Shall this be the literal meaning of the words, or the intention of the testator? "li qui scriptum defendunt his locis plerumque omnibus, majore autem parte semper usi sunt. Primum loco communi nihil eos qui judicent nisi id quod scriptum sit spectare oportere; et hoc eo magis si legitimum scriptum proferetur, id est aut testamentum ipsum aut ex testamento aliquid. In hoc ita commorari solent quasi nihil præterea descendum sit, et quasi contradici nihil possit.

"Postea facti aut intentionis cum ipso scripto; quid scriptum sit, quid factum, quid juratus judex; quem locum multis modis variare gaudent. Si aliud sensisse testator aliud scripsisse dicutur. Non oportere de ejus voluntate nos argumentari, qui ne id facere possemus indicium nobis reliquerit suæ voluntatus; multa incommoda consequi, si instituatur ut a spripto recedatur nam et eos qui aliquid scribant non existamaturos id quod scripserint ratum futurum; et eos qui judicent, certum, quod sequantur, nihil habituros si semel a scripto recedere consueverint." (p. 11.)

Those who favor a liberal construction maintain, on the other hand, that the testators themselves expected their intention to triumph over their words. It may be confessed, without detracting from the merits of his general position, that Mr. Emerton's reasons for the more liberal course are not placed on the strongest foundations. They should have been stated with more fullness and precision to have been equal to his better style of reasoning.

Mr. Emerton, differing from most English lawyers, adheres to the most liberal rules of construction, but he disputes the idea that English jurisprudence, in this respect and others, owes little to the Romans, and he cites a few well-known instances to the contrary: "Quod tamen quam longe a vero abhorreat, ex iis judicari potest quæ in foro nostro quotidie versantur: videmus enim (ut omittam alia) legatorum fere jus omne, donationum tum mortis causa, tum propter nuptias, necnon magna ex parte id quod de Societatibus hodie tenetur, ex Romanorum scriptis apertissime venisse." (p. 17.)

The author next traces the history of interpretation in England, and accounts for the divergence of the English and the Roman rules. This part of his treatise is likely to prove both useful and lasting, as any rational account of English interpretation is preferable to the chaos of results stated by the practical treatise writers. We know how the prevailing philosophy affected Roman law, and it is most interesting to perceive critical attention directed to the influence of the realist school of logic on the Tudor period of English law.

Mr. Emerton's illustrations from the Pandects are a leading feature of his essay. The Romans never have been surpassed in the application of principles to complex states of fact. In no other respect did they attain such perfection, or are they so worthy of our earnest imitation. This truth, now universally conceded, is at the root of the classical revival in England. Mr. Emerton's treatise, as well as Dr. Walker's recently published selections from the Digest, already familiar to us, may assist in awakening a like interest in this country, where Roman law is too much neglected. Certainly when we reflect that hundreds of years ago lawyers of great practical skill and profound scholarship solved many of the juridical problems we are now engaged in, it seems curious that we should deliberately overlook their solutions. This induces us to say with Mr. Emerton: "Sed meos amicos,

* *

in quibus est studium, in Latium mitto, id est ad Romanos ire jubeo, ut ea a fontibus potius hauriant quam rivulos consectentur."

Of the style of Mr. Emerton's paper it would be unbecoming in us to speak; he is so heavily weighted by the vehicle of his expression. His words are always happily chosen, and if his construction is not that with which most of us are the more familiar, it is doubtless because Americans usually end their familiarity with the Latin tongue where the post-classical period begins. The moderns nearly always avoid the ablative absolute construction, preferring other modifiers of the predicate, aud they rarely use the oratio obliqua, a legitimate mode of transferring other people's sentences without quotation marks. One fault, peculiar to most modern writers of Latin, is observable in Mr. Emerton, the conversion of well-known English, or other European names, into university Latin. Why not William Blackstone instead of "Gulielmum de Nigro Lapide," and Lord Mansfield instead of "De Agrohominis Comite," on the 18th page of this treatise? But this is a matter of taste, purely. We do not pretend to a criticism of Mr. Emerton's Latinity. His learned treatise is worthy of both emulation and praise.

Now that he has published this outline, it is evident that Mr. Emerton's preparation is adequate to a fuller exposition of the subject, and we venture to hope that his next literary effort will be in such a direction, but in the vulgar tongue, so much more familiar to us all, and so much better adapted to a more accurate treatment of the English phase of the subject.

a

A correspondent writes us: "One object I had in writing was to say how interested I have been in the perusal of some "Odds and Ends" and " Legal Romance," in numbers of July 19, and September 6, of your journal. I hope I may not be deemed hypercritical in remarking that your correspondent in the former seems to intimate that Sir John Kerslake is still living, "and may perhaps be still seen at the Temple Church," etc., whereas Sir John has been dead some two or three years. Again, the writer of "A Legal Romance," etc., says that Mr. Kennedy, who so gallantly won Mrs. Swinfen's case by indomitable pluch, perseverance and industry pitted against an array of legal talent on the other side, supported by judicial leanings and the class sympathy of county influences, was disbarred and died of a broken heart, etc. That Mr. K. died broken hearted and ruined is quite true, but that he was disbarred is incorrect. In deference to the expressed judicial opinion that he had been guilty of a breach of professional etiquette in entering into a contract with his client for a contingent fee, the Benchers of his Inn of Court thought it right to mark their disapproval of such an act by discommoning or discommuning him for six months; i. e. forbidding him to dine in the Hall or to use the library of the Inn during that period, publicity of such censure being posted on the screens of such respective buildings. In one word

send

ing him to Coventry. This is however something far short of being disbarred, and I can personally testify that some six or seven years after the infliction of this somewhat impotent and craven sentence Mr. Kennedy was still practicing at the bar, as I was about that period associated with him as junior counsel in a case on the Oxford Circuit, where he was specially retained for the occasion. Mr. Kennedy was one of the best Greek scholars in England first of his year, I believe, in the Classical Tripos at Cambridge, and besides carrying off other prizes, he was elected a Fellow of Trinity College of that University, and never to my knowledge did any thing to 'disgrace' himself, as hinted by your correspondent, though I am well aware of the alleged 'unsavory statements' referred to, which even though fairly attributed to him, savor rather of Mr. Kennedy's bad taste and the ebullitions of irritation than of criminality or breach of confidence. At all events I desire to rescue the memory of a deceased friend from the imputation which a disbarral implies."

NOTES OF CASES.

N State v. Burnham, 56 Vermont, 445, it is held

* * *

match is

not a defense to an indictment for a breach of the peace, and that evidence is inadmissible to prove that such matches are common and harmless. The court said: "We have to consider this case as presented by the exceptions. It is true, as contended by the respondent's counsel, that sparring or boxing with gloves manufactured for that purpose, as conducted and engaged in ordinary athletic sports, is not unlawful, nor a breach of the peace. It may be that such sports, properly conducted, are both healthful and promotive of physical vigor and development, and should be encouraged. But such pugilistic exercise may be abused and carried beyond the limits of heathful and lawful exercise and sport. It may be so conducted as to create a breach of the peace. It may even degenerate into a prize fight. Many of the circumstances detailed in the exceptions, the agreement to engage in the match, giving notice, having seconds, a referee, rules, a ring, etc., are not inconsistent with lawful sport, nor yet with a breach of the peace. Neither is the fact that slight injuries were inflicted upon the contestants determinative of the character of the engagement. The only question reserved was whether the consent of the combatants would prevent their acts from being a breach of the peace. Clearly, such consent would not necessarily give character to their acts and prevent their becoming a breach of the peace. The conductquarreling, challenging, assaulting, tumultuous and offensive carriage, etc., which the statute declares to be a breach of the peace is capable of being consented to by all the parties guilty of it. Consent therefore was not at all determinative of whether the respondent and Bloxham were guilty of a breach of the peace by their acts and conduct on the occasion complained of. The court were correct in instructing the jury that their consent to engage in such acts and conduct was not determinative of the quality of the same in regard to guilt or innocence. Their acts and conduct might have all the elements of a breach of the peace notwithstanding such consent. Neither was the respondent entitled to have admitted the offered evidence to show that such matches were common and harmless amusements, innocent and proper exercises, practiced in the universities and colleges in this country. Such evidence was not at all determinative of, nor helpful in determining, the character and quality of the contest between the respondent and Bloxham, as conducted by them on the occasion complained of. Nor was there error in not giving the huge boxing gloves to the jury to examine. Probably if it had allowed the jury to make such examination it would not have been error. Whether it would or would not order such examination was largely in the discretion of the County