language and conduct of complainant toward his wife. His parsimoniousness is also quite apparent. The language used by complainant to defendant, so far as the record shows, appears to have been without cause or provocation intolerable among decent people — and clearly, under the decisions of this court, constituting extreme cruelty. Whitmore v. Whitmore, 49 Mich. 417; Palmer v. Palmer, 45 id. 150; Briggs v. Briggs, 20 id. 34; Bennett v. Bennett, 24 id. 482; Goodman v. Goodman, 26 id. 417. The defendant, as shown by the testimony, is a sensitive woman of good taste, culture and refinement. To her such language and treatment is the worst kind of cruelty. She endured it until it not only destroyed the comfort and happiness of her home, but threatened her health, and there was no hope of change. No rule of law or equity would compel her to remain longer with the complainant, and by leaving him she did not incur the penalty of giving her guilty husband cause for divorce. The Circuit Court evidently took this view of the case, and I fully agree with Chief Justice Graves in his remarks in the case of Nicholas v. Nicholas, 50 Mich. 162, when he says the appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from, and been favored with all the advantages of that court for judging rightly before overruling the decree made. Warner v. Warner. Opinion by Sherwood, J. [Decided Sept. 23, 1884.] EJECTMENT INJUNCTION— LIMITATIONS-LACHES. -A man agreed with his son that the son should have a certain piece of property by way of advancement from his estate, and the son took possession of it accordingly. The father executed the deed with the avowed purpose of delivering it to the son, but it was lost. The father however recognized the advancement in his will by referring to it. Ejectment was brought for this land by one who without consideration had obtained from another of the testator's children a deed of whatever interest the latter had in the land. Held, that the son who had occupied and improved it could maintain a bill to enjoin the action, and to clear and confirm his title. His possession and continued occupancy were sufficient notice of his claim, and his case was not barred either by the statute of limitations or by laches. Michie v. Ellair. Opinion by Sherwood, J. [Decided Sept. 23, 1884.] MUTUALITY-RAILWAY AGENCY. IN Contracts CONTRACT-WANT OF JURY-PHYSICIAN'S SERVICES cannot arise where there is no mutuality; and certainly not where one person not only had no intention of binding himself, but was not even supposed by the other to be making himself personally liable. A tramp was run over by a locomotive in a railway yard. A surgeon being summoned to help him, telephoned the railway superintendent and asked if he should do so. The superintendent answered "yes." Nothing was said about pay, and in fact the superintendent had no authority to bind the railway company to pay for surgical aid. Held, that there was no contract upon which he was personally liable for it. Whether an agent is personally liable is a question of intention, and not an inference or conclusion drawn by the law (Heald v. Kenworthy, 10 Exch. 739, 743), except in the sense in which the law deduces intention from language and holds parties to the legitimate result of their words and actions. 2 Smith Lead. Cas. 383. We have already commented upon the words and actions relied upon by plaintiff as disclosing a cause of action against the defendant in this case. We have refrained from passing on the question raised by counsel for defendant, that in no case where a contract is made with an agent, which cannot be enforced because of the want of au thority in the agent to make it, can the action against the agent be upon the contract because treating the defendant as principal, and the language used as applied personally to him, there exists no contract liability for which he is responsible. Buck v. Amidon, 4 Daly, 132; Smith v. Watson, 14 Vt. 332; Crane v. Baudouine, 55 N. Y. 256; Boyd v. Sappington, 4 Watts, 247; Williams v. Brickell, 37 Miss. 682; Woods v. Ayres, 39 Mich. 345. The court should have charged the jury, as requested in defendant's first and second requests, to the effect that defendant never promised to pay the plaintiff for the services and medical attendance and nursing sued for, and their verdict should have been for the defendant. Michigan Col. of Medicine v. Charlesworth. Opinion by Champlin, J. [Decided Sept. 23, 1884.] STATUTE OF FRAUDS-REAL ESTATE-ORAL EMPLOYMENT OF AGENT TO PURCHASE-COMPENSATION.-An oral agreement to employ an agent to purchase real property and procure a conveyance thereof, and to pay him one-half the profits for which such property may be resold, as compensation for his services, is not within the statute of frauds. That statute (How. St., § 6181) contemplates a transaction between parties contracting with each other as principals, and this was not such a transaction. In this case the plaintiff, as agent, undertook to perform for the defendant certain services, and the defendant undertook to make a compensation therefor, the amount of which should be contingent on the value of the services. It was assumed in Bunnell v. Taintor's Adm'r, 4 Coun. 568, that such a contract was not within the statute, and there are many express adjudications to the same effect. Trow. bridge v. Wetherbee, 11 Allen, 361; Fiero v. Fiero, 52 Barb. 288; Hess v. Fox, 10 Wend. 436; Bruce v. Hastings, 41 Vt. 380; Bannon v. Bean, 9 Iowa, 395; Harben v. Congdon, 1 Cold. 221; King v. Hanna, 9 B. Mon. 369; Heyn v. Philips, 37 Cal. 529; Lesley v. Rosson, 39 Miss. 368; Benjamin v. Zell, 100 Penn. St. 33. Our attention has been directed to no cases which are opposed to these. The defendant relies upon a number of decisions by this court which are supposed to have some bearing upon the case, but we fail to perceive their relevancy. Every one of them was a case in which an interest in lands was bargained for, and was to be acquired by one of the parties in pursuance of the terms of the contract. Hillebrands v. Nibbelink, 40 Mich. 646, may be taken as an illustration. The al leged verbal contract was that a father would convey to his son a farm in satisfaction of a certain claim; a contract as plainly within the statute as if the land were to be conveyed for an agreed price in money. Carr v. Leavitt. Opinion by Cooley, C. J. [Decided Sept. 23, 1884.] AGENCY-AUTHORITY TO RECEIVE PAYMENT.-Presentation of a bill by a merchant's employee does not warrant the debtor thereon in paying it to him, unless it is within the scope of his employment to receive payment; and his mere statement that he is authorized to receive it is not enough, nor is it enough that the bill is in the merchant's handwriting and on one of his bill heads. Kornemann v. Monaghan, 24 Mich. 36; Grover & Baker Sewing Machine Co. v. Polhemus, 34 id. 247; Reynolds v. Continental Ins. Co., 36 id. 131; McDonough v. Heyman, 38 id. 334. Hirshfield v. Waldron. Opinion by Champlin, J. [See 47 Am. Rep. 518; 26 Eng. Rep. 48.-ED.] [Decided Sept. 23, 1884.] WILL-LEGACY-INTEREST ON.-As a general rule, interest is payable in money, on the ground of delay in paying the principal, and with respect to legacies it is payable on them from the time they are actually due. There is a distinction in this respect between specific and general legacies. Specific legacies are considered as severed from the bulk of the estate by operation of the will from the death of the testator, and appropriated for the benefit of the legatee from that period. Consequently interest is computed on specific legacies from the death of the testator, whether the enjoyment of the principal is postponed by the testator to a future period or not. With respect to general legacies the rule is different. There, for convenience, the law, in the absence of statutory regulation, has prescribed the general rule that where no time of payment is named by the testator, and in the absence of any intention to be inferred from the will itself, such general legacies shall be raised and satisfied out of the testator's personal estate at the expiration of one year next after his death, from which period, if the executor omits to pay the principal, the legatees will be entitled to interest, though actual payment within that time may be impracticable. 2 Roper Leg. 1245. This rule was founded on the principle that the assent of the executor to the legacy was essential before the title of the legatee to the legacy became complete or perfect, for without such assent the legatee had no authority to take possession of his legacy. The assent was required of the executor, because the whole personal property of the testator devolved upon the executor. The civil law fixed for the purpose a year from the testator's death as the time when the testator's assent is presumed, and when the legacy is payable. This rule has quite generally been adopted by the English courts. Wood v. Penoyre, 13 Ves. 326; Barrington v. Tristram, 6 id. 345; Clive v Clive, Kay, 600; Bristow v. Bristow, 5 Beav. 289; Child v. Elsworth, 2 De Gex, M. & G. 679; Gibson v. Bott, 7 Ves. 96; Pearson v. Pearson, 1 Schoales & L. 10. In the American courts in the absence of statutes regulating the subject, legacies are regarded as due and payable at the end of the year from the death of the testator. But in those States where statutes or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a year from granting letters testamentary, and the interest should be computed from that time. Jones v. Ward, 10 Yerg. 161; Stephenson v. Axson, 1 Bailey Eq. 274; Huston's Appeal, 9 Watts, 473; Graybill v. Warren, 4 Ga. 528; Beal v. Crafton, 5 id. 301; Bradner v. Faulkner, 12 N. Y. 472; Cooke v. Meeker, 36 id. 15. In this State the time within which the debts and legacies are to be paid is usually limited by the probate court, in the first instance, to one year from granting letters testamentary. Such would undoubtedly be the time when the legacy would be payable if the estate had been closed in the ordinary course of administration. Wheeler v. Hathaway. Opinion by Champlin, J. [See 30 Am. Rep. 315; 58 How. Pr. 71.-ED.] [Decided Sept. 23, 1884.] CORRESPONDENCE. CITIZENSHIP OF CHILDREN OF ALIENS BORN IN THE UNITED STATES. Editor of the Albany Law Journal: Is it not possible that Mr. George O'Doherty has been a little hasty in his attack upon the undersigned in your issue of the 6th inst.? In my communication, which appeared in the JOURNAL, November 22d, I cited and referred to so much only of the opinions of Mr. Justice Field and Mr. Justice Miller in respect to the construction of the phrase • subject to its jurisdiction " in the first section of the fourteenth amendment to the Constitution, as seemed pertinent and appropriate in the connection referred to, viz., the question of citizenship as the result of birth within a given territory. "Persons born on a public vessel of a foreign country" are ruled by the same principle, as to national character, that applies to the children of foreign ambassadors and ministers, to wit, the principle of extraterritoriality, while the exclusion of "persons who, though born or naturalized in the United States, have renounced their allegiance to our government," stands upon independent grounds, and is wholly aside of the point under discussion. If the limitation announced by Mr. Justice Field in the United States Circuit Court of the Ninth Circuit had been less narrow than stated, the court would have been obliged to hold that Look Tin Sing was not a citizen of the United States. It seems to the undersigned, aside from judicial sanction, that the children of aliens born in the United States are, to use the language of Judge Cooley in another connection, "subject to the jurisdiction of the United States only in a much qualified sense; " until they take some steps submitting themselves to the jurisdiction. Nowadays among the majority of States, citizenship is derived from personal, and not from local origin. And it should not seem unreasonable to expect that that construction would be favored by the courts which would reconcile rather than antagonize the almost contemporaneous provisions of the fourteenth amendment and the act of Congress of April 9, 1866, in respect to citizenship by birth. It may be that the words of Mr. Justice Miller in the Slaughter House case are susceptible of a construction different from that attributed to them by the undersigned. But if so, many of your readers will doubtless sympathize with me, in preferring to receive such announcement from the distinguished jurist rather than from Mr. George O'Doherty. The legislation of the United States declared that children of American parentage born abroad are citizens of the United States. Is it consistent to hold, at the same time, that children of aliens born in this country are ipso facto citizens of the United States? In modern days, and among civilized States, citizenship, as dependent upon birth, has been held to be de. rived from political rather than from territorial sources. Construing the first section of the fourteenth amendment, the Supreme Court of the United States say, in the case of Elk v. Wilkins, decided at this term, and in the words of Mr. Justice Gray, announcing the decision of a majority of the court: "This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degrea to the jurisdiction of the United States, but com. pletely subject to their political jurisdiction, and ow ing them direct and immediate allegiance." Permit me to say in conclusion that I have no other interest or concern in this discussion, except such as every member of the profession must feel who desires to learn what the law actually is. Yours very truly, ALEX. PORTER MORSE. WASHINGTON, D. C., Dec. 17, 1884. NEW BOOKS AND NEW EDITIONS. AMERICAN STATESMEN. A Series of Biographies of Men conspicuous in the Political History of the United States. Edited by John T. Morse, jr. Houghton, Miflin & Co., New York. t 1 1 The publishers announce in their advertisement that "the object of this series is not merely to give a number of unconnected narratives of men in American political life, but to produce books which shall, when taken together, indicate the lines of political thought and development in American history-books embodying in compact form the result of extensive study of the many and diverse influences which have combined to shape the political history of our country." The series thus far numbers eleven volumes, as follows: John Quincy Adams, John Adams, Thomas Jefferson, by John T. Morse, Jr.; Alexander Hamilton, Daniel Webster, by Henry Cabot Lodge; John C. Calhoun, by H. von Holst; Andrew Jackson, by W. G. Sumner; John Randolph, by Henry Adams; James Monroe, by Daniel C. Gilman; Albert Gallatin, by another v. Mary Busch.-Motion to revive action granted without costs-Cyrus H. McCormick, respondent, v. Pennsylvania Central R. Co., appellant. Ordered, that a calendar be made for a term of this court to be held at the Capitol, in the city of Albany, on Monday, the 19th day of January, 1885, on which shall be placed only those cases in which the returns and notices of argument, with proof of service, shall have been filed with the clerk of this court on or before Wednesday, the 31st day of December, 1884. NOTES. John Austin Stevens, James Madison, by Synder AMAN named Corset has tried to kill himself by Gay. Marshall, by A. B. Magruder. Clay, by Carl Schurz; and Van Buren, by William Dorsheimer, are announced as in preparation. The selection of subjects thus far is judicious; indeed, almost inevitable, unless perhaps the biography of Gallatin might have been spared, and it is a little doubtful whether Randolph was a "statesman." In respect to the treatment we can speak with almost unqualified praise. These are by no means biographies in the hackneyed sense, but rather studies by competent scholars and critics of the career of these distinguished men, written with a great deal of insight and impartiality. The reader will find these the first American biographies not tinged by heroworship. We have been most forcibly struck by the calmness of their style and the severity of their judgments. This is particularly noticeable in Mr. Lodge's sketches of Webster and Hamilton. A friendly warmth and exaggeration might well be pardoned in respect to these two brilliant men, but Mr. Lodge is not for a moment betrayed from the coolness of the judge into the panegyric of the advocate. He deals most honestly with Webster's great faults, and has the courage to rate his legal acquirements at their true worth. The sketches of Randolph and Jackson are among the most readable and vigorous. Nearly all American statesmen have been lawyers. There are still a great many contingent statesmen in the ranks of the lawyers. To all lawyers the biographies of statesmen are of the greatest value and interest, and we do not know of any other source of information about these great men at once so concise, so trustworthy and so entertaining as the present series. Nearly all of the series have passed more than one edition, some of them as many as six or seven. They deserve this marked success, and we cordially recommend them to the legal profession. The books are handsomely printed, and are of convenient size-16 mo. COURT OF APPEALS DECISIONS. HE following decisions were handed down Friday, Dec. 19, 1884: THEMA Judgments affirmed with costs-Charles F. Nichols, respondent, v. Weed Sewing Machine Co., appellant; Thomas Eames, appellant, v. City of Brooklyn, respondent; John Food, appellant, v. James Dooley, respondent; Victory Webb, etc., Manufacturing Co., appellant, v. John B. Foord and another, respondents; Same v. H. W. Beecher; William H. Popham, respondent, v. Twenty-third Street R. Co., appellant; Union Dime Savings Institution, respondent, v. Thomas L. Sanford, appellant.-Motion to put on preferred calendar denied with costs-Carl F. W. Busch and cutting his throat. That certainly is the appropriate way for a man of that name to kill himself.Example of French wit brought out by the new di vorce law: Husband and wife present themselves before the divorce court. "What do you want, madame?" "Divorce from that wretch." "And you, sir?" "Divorce from that vixen." "The decree is refused; there is no incompatibility of temper. You both seem to be perfectly agreed. Call the next case." -Where the money had gone: "As I was coming home from the lawyer's to-day I noticed the most beautiful sealskin sacque. It cost only $300." "Why did'nt you buy it, my dear?" "I was just coming away from the lawyer's," I said. "Ob!"-Graphic. -The 56th Vermont Reports is an interesting and well edited volume. We found thirteen cases in it which we deemed of enough general importance and interest to go into the American Reports. This is a large number. Mr. Palmer, the reporter, is doing his work well, and the court is fully up to the high New England standard of ability. BALLADE OF THE GENERAL TERM. Baylies' Trial Practice' 460 Bishop on Insolvent Debtors 459 Blackstone, Cooley's third edition of 40 Boone on Mortgages... 460 Bradwell, vol. 14.. 320 Burnap's Patents, Trade-marks, etc.. 380 CURRENT TOPICS-Continued. Page. Adams-Coleridge libel suit; Solicitors' Journal on 461 Allison, Mr. Andrew, on the rise and probable de- anecdotes reported of Judge Drummond denied by him.. 139 anecdotes of Judge Grover, Judge Hall, Chief Justice ....... 204 "Anglo-American law, some leading principles 101 81 101 annoyance in court by continued hammering or 302 .... Church on Habeas Corpus.. 379 De Conjecturis Ultimarum Voluntatum, Wolseley P. Emerton.. 240 association for reform and codification of law of 321 Preble's Patent Case Index 379 American, meeting of, at Saratoga; address by 161 161 Spear on Extradition 460 Taylor on Corporations. 379 Terry's Anglo-American Law. of New York State, prize of $250 to be awarded 142 Tucker on Wills... 460 his fees... CALIFORNIA Supreme Court Abstract (see Recent Barrister (Eng.), inability of, to compel payment of Barristers and attorneys, separation of; ludicrous 1 Beach, William A., death and character of. 1 "Bench and Bar of Chicago, The," biographical 122 62 26 bicycle may be necessary for an infant.... 362 62 Bosworth, Judge, fitting commemoration of his 121 280 Correction in case of Merchants' Bank v. Schulen- Bradley, Mr Justice, address before University of Correction of point made in article on presumption 1 of; survivorship 120 Donatio Causa Mortis.. 480 Bramwell, Lord Chief Justice, on cutting off the 302 Exemption from execution 340 Fowler's, Mr., papers 80 Kind words for the journal. 400 Campbell, John A., address by, before Alabama Bar 341 Law of judgment debts 499 Superseding judgment for mandamus... 340 Chaney, Mr., of Michigan, most concise head notes Choate, Rufus, Neilson's memories of. "Chatterbox," English series, reprint of; suit in re- 261 281 404 .... citations generally made by judges in New York, 261 321 162 221 62 "Citizen in relation to State, The," paper by Mr. 161 VOL. 30. civil service examination; Washington unable to pass 162 502 102 241 Code should not be a digest; proper code mere English Law Magazine and Review on unofficial code of civil procedure; evidence; pamphlet by "The evils of," toast responded to at American 101 142 101 381 Henry, Judge, remarks on disadvantages of contin- 241 report of committee of New York Bar Associa- extract from Gov. Hoadley's address on; incident of common law pleading.. Kentucky Bar Association, action of, on resignation of; insufficient compensation... index, best form of, is reproduction of head-notes 381 construction of an, merely reproducing state- international copyright and doctrine of trade-mark, 141 indictment of newspapers for mistaken opinion on 421 infant, bicycle may be necessary for 362 281 interviewing, poem on 41 Jackson, Chief Justice, of Georgia, "fiue writing" by, 301 their Latin and their grammar 2 three in Mignonette" case, no difficulty in pro- (Eng.) keeping up with business of courts, Law of county courts in England and Wales hereafter citing cases largely from their own States, in New 261 401 "eternal vigilance;' correspondence by R. D. Mc- judicial ignorance, Canadian Law Times on; beating jury in modern corporate life, the, Mr. Edwin Young on.. evidence, part four of Code of Civil Procedure, David execution, stay of, pending appeal, refusal of, by expert testimony of artists as to obscenity of pho- Federal Supreme Court, proposal to relieve, by cut- 81, 82 ment of. fees, inability of English barrister to compel pay- 181 81 lawyer's morals, reference to paper on, by Theodore, collection of his speeches, arguments and papers, exceptions to Mr. Theodore Bacon's reported as English criticism of his eloquence.. 342 "fine writing" by judges.... 301 Folger, Charles James, obituary and personal esti- 201 Judge, effect of poem De Massa ob de Sheep- fol on........ 342 financial success of; American Law Record on... 382 "lawyers, too many; Times on...... "leading cases simplified," John D. Lawson, work on, 21 earnings of; Philadelphia Kennedy, Mr., not disbarred as asserted in "Legal Karslake, Sir John, still living.. kissing, amusing cases; not legal" consideration;" |