harboring and employing a child contrary to the act of 1876 perhaps justify a writ of habeas corpus. 5. The case of Maples v. Maples, 49 Miss. 393, in so far as it held that the conduct of the grandfather in refusing to permit the mother's agent to take possession of the child, did not amount to a detention, is overruled. Reversed and remanded, with instructions to remand the child to the custody of the mother.- Moore v. Christian.

APPLICATION OF PAYMENTS.- At the request of plaintiff, a feme covert, defendant paid off a debt due by her upon her storehouse, and the husband of plaintiff being indebted to defendant, and desiring to obtain further credit, plaintiff executed to them a deed to the storehouse absolute on its face, but intended to operate as a mortgage to secure her and her husband's debt. Plaintiff and her husband, after they had executed the deed, rented the store house and paid rent to defendant. After some litigation between the parties the conveyance was declared a mortgage and a foreclosure sale decreed. The matters were referred to a commissioner preceding the decree,who applied payments of rent to the husband's debts, leaving the amount due by plaintiff wholly unpaid. From a decree rendered on this basis, the wife appeals, claiming that the payments should have been applied to her debt, because hers being a debt that bound the corpus of the property, while her husband's bound only the income, the former was the most onerous and payments should be applied most beneficially to the debtor. Held, it is a general rule that the application of payment shall be made, in the absence of a specific application by the parties, most beneficially to the debtor. Of the general correctness of this rule there can be no doubt, but this case presents peculiar features. Two debts held by the same party were secured by the same mortgage, one of which bound the corpus, the other the income only. When, therefore, rents came into the hands of the mortgagee he had a right to apply them to the husband's debts, and if no application has been made, then the law will so apply them, because that is the legal effect of the contract between the parties. Affirmed.- Williams v. Schwab.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, January 25, 1879.]

ASSUMPSIT- IMPLIED PROMISE LIABILITY OF HUSBAND For Board oF WIFE AND CHILD LIVING APART FROM HIM AGAINST HIS WILL.--The wife of appellant left home without his consent and against his will, and went to the house of appellee and remained there for some time. She took a child with her, and shortly afterwards a daughter of appellant followed. This suit is prosecuted against appellant to recover for the board and lodging of the wife, babe and daughter. The evidence shows that the wife had no good or sufficient cause to leave her husband. He went several times to the house of appellee to induce her to return, but she refused. Appellee encouraged the wife in remaining away from the house. J., says: "An express promise or circumstances from which a promise can be inferred are indispensably necessary in order to bind the parent for necessaries furnished his infant child by a third person. 3 Scam. 179; 78 Ill. 229. Here the circumstances in proof affirmatively rebut the idea of any such promise. If there was no special promise to pay the board of the wife, then the husband was not responsible (therefor,

BAKER,

unless either she was living separate from him by his consent, or unless his conduct was such as to justify her in leaving his bed and board. As we have already seen, this latter was not the case, and the evidence shows conclusively she was living away from her husband contrary to his often expressed wishes and against his utmost endeavors to secure her return. In any view we can take of this case, we cannot but conclude that the circuit court erred in overruling the motion for a new trial, and in rendering judgment against appellant on the verdict." Reversed. Schmuckle v. Bierman.

NOTE-INDORSER-GUARANTOR

WHAT CONSTI

TUTES AND WHAT ARE THE LIABILITIES OF GUARANTOR OF NOTE.-This was an action against Schnell as guarantor of the payment of a promissory note, as follows: "Chicago, June 28. 1873. Five months after date I promise to pay to Conrad Schnell, or order, dol

lars. Value received. F. Willman." In the court below there was judgment for the plaintiff, and defendant appeals to this court. It is contended that appellant was not chargeable as a guarantor. There was upon the back of the note merely the indorsement of the name of appellant, the payee of the note, in blank. SHELDON, J., says: "Appellant's name merely on the back of the note, he being the payee, imported a contract as indorser. All the evidence in the case tending to prove any contract of guaranty was the testimony of O'Neil, etc. If it were admissible by such testimony to vary the contract which the law raises upon the payee's indorsement in blank upon a promissory note, viz.: the contract of an indorser (which is not conceded) this testimony does not have that effect. It shows, to be sure, that Schnell was not the real owner of the note and holder as payee in his own right, but that he was constituted such for the purpose of effecting a security to the planing mill company. But that security was to be one of a particular kind, that of an indorser, not guarantor. The contracts are of different character, that of indorser being the more favorable one for the surety. To turn this indorsement in blank of the payee into a guaranty, upon the evidence appearing here, would be entirely reversing the well known rule that the contract of a surety is to be strictly construed; that to the extent, and in the manner and under the circumstances pointed out in his obligation, he is bound and no further; that he has a right to stand upon the very terms of his contract. 9 Wheat. 680" Reversed.— Schnell v. North Side Planing Mill Co.

Land was conveyed to a manufacturing company in payment for shares of its capital stock, and the company, exceeding its powers, rescinded the contract, reconveyed the property and cancelled the stock, but no actual fraud or unfairness appeared, and no complaint of the transaction was made for sixteen months, during which time the company became insolvent, and the land reconveyed was sold to an innocent purchaser. Held, that a stockholder, having full knowledge of the facts from the beginning, is precluded, in equity, by his laches, from asserting the invalidity of such rescission. Empire Transfer Co. v. Blanchard, 31 O. S. 650, followed. Judgment affirmed. Opinion by OKEY, J.-Sanderson v. Etna Iron & Nail Co.

BOOK NOTICES.

[NEW BOOKS RECEIVED.-Jones on Railroad Securities. Houghton, Osgood & Co., Boston. Desty's Manual of Shipping and Admiralty. Sumner Whitney & Co

San Francisco. Missouri Appeal Reports Vol. 4. F. H. Thomas & Co., St Louis. Maine Reports, Vol. 68. Dresser, McLellan & Co., Portland.]

THE LAW OF PRINCIPAL AND AGENT in Contract and Tort. By WILLIAM EVANS, B. A. Oxon., and of the Inner Temple, Esq., Barrister at Law. Reprinted from the English edition. Chicago: The Chicago Legal News Co. 1879.

This is an American reprint of the latest English work on the Law of Agency. This subject has received but little attention from English authors, no comprehensive treatise having appeared in England until the publication of the book now before us. The works of Paley and Russell were confined exclusively to the law of Principal and Agent as it relates to mercantile transactions. But the former was published over fifty years ago, and the English adjudications on the subject must have been at least doubled since the latter was first offered to the profession. It is not hard to find the reason why, for so long a time, the English authors have not thought it either necessary or profitable to enter upon this field. Nearly forty years ago, Judge Story's Commentaries on Agency were published; they speedily became the English text-book on the subject in that country, and have remained so ever since. Perhaps none of the writings of this great jurist received more praise from the English reviewers, and are so frequently cited in the judgments of the English courts, as this work. Even Mr. Evans speaks of his own book as "less ambitious than the excellent treatise of Mr. Justice Story," and it is not too much to say that at the present day the latter is as frequently consulted by lawyers on the other side of the Atlantic as by ourselves. For, in this country, there is a work which may be said to fairly divide the honors with the older one; we mean, of course, Dr. Wharton's treatise, a book which can not be spoken of except with praise, or consulted except with profit.

Thus it would appear that to offer an English book on Agency to the American practitioner, can only be likened to carrying coals to Pennsylvania, or icebergs to Greenland. An attorney who owns either Story or Wharton will not need this English book at all; and he who has neither would make a strange choice, should he prefer this foreign essay to the splendid works of our own writers. In the present accumulation of judicial decisions, a text-book is valuable beyond the principles it states, according to the number of adjudica. tions which it cites and classifies. Judged by this test, Mr. Evans' book has little to recommend it. It contains about one thousand cases, these being about all the English adjudications on this branch of the law. Now, the seventh edition of Story on Agency contains about twenty-five thousand cases, while Dr. Wharton's work refers to nearly five thousand decisions in the courts of England and America,and he tells us in his preface that in a commentary of this character no adjudication can be safely omitted, and that he has, therefore, introduced into his work all the 'reported American cases. Dr. Wharton makes another statement, to the effect that the ablest exposition of the law of principal and agent, is to be found in the judgments of the American courts. This fact would seem to have rendered the re-publication of the work before us not only unnecessary, but inexcusable. We have spoken of the superiority of the American text-books; we have here testimony 10 the pre-eminence of the American adjudications. The American practitioner will scarcely find it to his advantage to spend his time with an English text-book, when he can find better ones in his own country; and our courts will be but little influenced by the authority

of English cases, when the American judgments on the same topics are both abler and more exhaustive.

We do not wish to be understood as intimating an opinion that English law books should not be re-published in this country. We are very far from advising this; for to English writers the profession in this country is indebted for many recent works of great value. But in the cases we speak of-the examples are too numerous to particularize-an attempt has always been made to show the exact value of the English decisions in the United States,and to this end a number of our own writers have engaged in the labor of editing and annotating the English treatises, and have thus made their works of much value here. Had the publishers of this reprint waited until this had been done to it, it might have possessed some worth, though in the country of Story and Wharton it could scarcely have become very popular. Should any one have desired Mr. Evans' work in its original form, he could easily have obtained the English edition. He might have had to pay a higher price, but, even then, he would not have been without value for his money, for, we venture to say, he would have obtained better paper and clearer print than the American reprint furnishes.

A GENERAL DIGEST of the English and American Cases upon the Law of Corporations for the ten years from July, 1868, to July, 1878, with Acts of Congress: being a Supplement to Abbott's Digest of Corporations. By BENJAMIN VAUGHAN ABBOTT. New York: Baker, Voorhis & Co. 1879.

This volume completes the digest of the law of corporations from the earliest cases to the present day. It is ten years since the first volume appeared, and it may be safely said that during that time no branch of jurisprudence has undergone such changes and development as has the law on this subject. On many of the topics of this digest, such as bonds, municipal corporations, express companies, telegraph companies, ultra vires, &c., the adjudications during the past decade far outrank, both in number and variety, all the previous decisions on the subjects. A work of this character requires no praise from us; it speaks for itself. It is an essential book for every lawyer's library, containing, as it does, all the English and American cases on the subject of corporations from 1868 to 1878. Of how well the labor of digesting the cases is done the name of Mr. Abbott is a sufficient guaranty. It is a work of the greatest value to the whole American bar.

NOTES.

WILLIAM FELL GILES, late judge of the United States District Court of Maryland, died last Friday. He was born in that State in April, 1807, studied law in Baltimore, and was called to the bar in 1829. In 1837 and 1839 he was elected to the State legislature. He was elected to the 29th Congress as a Democrat. He served from December 1, 1845, to March 3, 1847, and declined a renomination. On retiring from Congress he resumed the practice of his profession. In 1853 he was appointed by President Pierce as Judge of the United States District Court for the District of Maryland. This position he continued to occupy until a few weeks since, when, on account of his infirmities, he resigned. George Goldthwaite, who was born in Boston in December, 1809, and removing to Alabama was admitted to the bar in 1826, died at Montgomery on the 17th inst. He was for a time on the bench of the Circuit Court of Alabama, and for some years was Chief Justice of the Supreme Court of the State. From 1870 to 1877 he was a Senator of the United States.-In Maud

v. Maud, decided on the 18th inst., a petition for the rehearing of a cause decided by the late Supreme Court Commission of Ohio was presented to the Supreme Court of that State, which court ruled that it had no power to rehear a cause decided by the former body, on the ground that it had been erroneously determined.

We present to our readers, this week, the opinion of the St. Louis Court of Appeals in the matter of Frank J. Bowman, which affirms the judgment of the circuit court disbarring him for professional misconduct. The opinion is able and exhaustive. Its great length. and the interest with which it will be read by the bar in this and other States, have compelled the addition of eight extra pages to our present issue.

The lesson of this case cannot fail to be interesting and instructive to the bar. It will be remembered that in the early part of last year, Mr. Bowman, after a trial by a special jury which occupied a month, was found guilty on fourteen charges of misdemeanor and deceit as an attorney. The point and substance of the charges on which he was convicted may be briefly stated. The first three charges relate to his conduct in acting as attorney for both sides in a controversy between the St. Louis Life Insurance Company and the Insurance Department of Missouri in the matter of a release of certam securities valued at $400,000, held by the Insurance Department, and which were wanted by the company. It appeared in evidence that the firm of Hill & Bowman had, upon solicitation of the department, given an opinion which was adverse to the desired release; that afterwards Mr. Bowman returned to the city and, after counseling and advising with Mr. Hill, his partner, he induced and procured another opinion in the firm name, which he carried and personally delivered to the department. This latter opinion, to a certain extent, nullified the former opinion, and thereby removed an insuperable objection to the release. It was filed in the department as a justification by the superintendent for consenting to the release. Now it was proved at the trial that Mr. Bowman received from the St. Louis Life Insurance Company the sum of $900 for his services in this very matter of release, and that sometime afterward he exacted from the company a further remuneration of $2,500, the payment of which was concealed in a voucher purporting to be for other services. It was also proved that Mr. Hill did not know that Mr. Bowman was in the secret service of the insurance company when the opinions of Hill & Bowman were solicited and given. Thus are we furnished with the revolting exhibition of a firm of attorneys acting openly and publicly as the attorneys of the Insurance Department, counseling and advising with each other and with the department in that behalf, while at the same time and in respect to the same matter of controversy, one of the partners, without the knowledge of the other, was in the secret service of the opposite party, greedily exacting and receiving the fees and rewards which only treason to his profession could command.

Four of the charges relate to the conduct of Mr. Bowman in the commencement and prosecution of three law suits, in two of which he was attorney of the Insurance Department, plaintiff, and in the other attorney of the receivers of the St. Louis Mutual Life Insurance Company. Two of these suits were against the Columbia Life Insurance Company, the other against the St. Louis Mutual Life Insurance Company. As attorney of plaintiff in these cases, Mr. Bowman received large and remunerative fees from his clients. It was proved at the trial that, while he was conducting these suits, he was in the secret service of the Life Association of America as its attorney upon an actual

payment of fees amounting to $7,000; that the Life Association of America owned eight-tenths of the stock of the Columbia Life Insurance Company; that the latter company had derived all its assets indirectly from the St. Louis Mutual Life Insurance Company; that the Life Association of America controlled the policy and business of the Columbia and was in a posi tion to dictate and control the defence in all these three cases; that it was to every practical purpose the defendant in these cases, which facts were all well known to Mr. Bowman. In one of the four charges Mr. Bowman was convicted of entering into an agree ment with the officers of the Columbia Life Insurance Company to conduct one of the three suits according to its wishes, and to dismiss the same when requested so to do. In this matter we are furnished with the exhibition of an attorney for plaintiff instituting a suit for the plaintiff and secretly agreeing with the defendant to conduct it according to his wishes and dismiss it at his request.

On five of the charges, Mr. Bowman was convicted of entering into the secret employment of the Pacific Mutual Life Insurance Company with the view and purpose of procuring a transfer of all the assets of the Life Association of America to the Pacific Mutual, an enterprise which would necessarily result in wrecking the former company. From the Pacific Mutual he received a retainer of $3,500 with the promise of as much more in the event of success. It must be remembered that at the same time he was the attorney of the Life Association of America in all its business, upon a paid retainer or salary of $7,000. It seems to us that on these charges, of which he was found guilty, Mr. Bowman reached the bottom of his professional degradation-if there is any bottom to it.

On two other charges, Mr. Bowman was convicted of receiving from the defendant a small fee of $350 to consent to the submission of a case in the supreme court on briefs without oral argument, he representing the plaintiff. The benefit of this concession to the defendant lay in the fact that such consent advanced the case about two years on the docket of the court. The Bar Association probably threw this charge in with the rest, for the purpose of showing that when a person once gets into the habit of taking what he ought not to receive, he will not hesitate to take small things when he cannot get large ones.

It seems that Mr. Bowman insisted in the appellate court that there was nothing at all wrong in these prac tices of which he had been convicted, and complained that the trial court erred in refusing to instruct the jury to acquit him if they were satisfied that he did not know that he was doing wrong. This attitude of the accused is satisfactorily disposed of in the appel late court, which reaches the conclusion that if in truth he did not know any better, he deserved disharment for such moral stupidity. But aside from this, such a defence deserves hardly more notice than would be taken of the excuse of a thief that he had always believed that stealing was no crime.

The facts of this case disclose two very significant truths: they show that the relation of an attorney to his client is so important and influential that the slight est hesitation in his allegiance is a matter of such advantage to his adversary that it will command almost any price, in suits where large amounts are in dispute. The first fruits of treason and defection are rich and bounteous beyond those which common honesty usually affords. If it were not for the second crop which sooner or later is sure to blossom in dishonor, there would seem to be no encouragement to a life of rectitude. Mr. Bowman has reaped a golden harvest from his corruption and disloyalty. He has at last re ceived a second crop of bitter fruits, in the verdict of his countrymen which stamps him with dishonor and professional death.

SAINT LOUIS, APRIL 4, 1879.

CURRENT TOPICS.

Our attention has been called to an error of some importance which occurred in an article on "Paid up Shares," published in this JOURNAL on February 21, 1879. The writer of that article, referring to a late case in the United States Circuit Court for the Eastern District of Missouri, cited it as holding "presumably out of deference to the English cases which were cited to it, that bonus shares issued as having been paid up to the extent of 60 cents on the dollar, no payment in fact having been made, are in an action by creditors against the holders of them, to be deemed to have been paid up to that extent." The mistake made by the writer of the article was one of fact. The shares in question were not "bonus " shares, but were "paid-up" shares. This was one of the findings of the court, and the criticism just cited was therefore without reason. The Federal courts of this circuit recognize to the fullest extent the doctrine that unpaid stock is a trust fund for the benefit of creditors.

IN Knox v. Great Western Quicksilver Mining Co, recently decided in the Circuit Court of the United States for the District of California, which was an action for damages for the infringement of a patent, defendant used in its mine a furnace, on which complainant claimed a royalty. The royalty established by complainant was $6.00 on every furnace of twenty tons capacity. The defendant continued the infringement, and caused to be constructed and used, in different parts of its mine, a number of furnaces of like description to that of complainant Exceptions were taken to the masters report in favor of the complainant. The court held that in a suit in equity for the infringement of a patent by use of the patented article the complainant is entitled to recover the profits which result to the infringer by use of the Vol. 8-No.14.

not limited in his recovery to the amount claimed as royalty for the use of the patented article. SAWYER, J., observed: "But it is urged that the evidence does not show that the defendant made any profit, and that the master erred in finding as profits the difference in the cost of reduction of the ores between the infringing furnace and other furnaces open to the public use, when it does not appear that the amount of profits, or indeed any profits, resulted from working the mine. The Supreme Court answered this objection by saying, in substance, that it is not the profits of the business as a business that is to be considered, but the advantage derived to the infringer in the diminished cost, etc., of carrying on the business by the use of the invention. It is true, that the Supreme Court have repeatedly held that the accounting should be continued down to the time of the commencement of the use by the infringer; but the learned judge, in this case, seems to have extended the limits of that doctrine beyond those heretofore arrived at by the Supreme Court. Cawood's Case, 4 Otto, 710; Burdell v. Denig, 2 Otto, 720; Cownig v. Rumsey, 4 Fisher, 277; Mowrey v Whitney, 14 Wall. 651; Packet Co. Sickles, 5 Wall. 580; 19 Wall 617; 4 Saw. 282.

IN Vest v. Michie, 7 Rep. 281, the Court of Appeals of Virginia, in applying the rule that to charge a subsequent purchaser with actual notice of an unrecorded prior conveyance, the proof must be clear and strong, so as to raise the presumption of bad faith, held that such notice can not be inferred from the mere fact that the subsequent purchaser was a subscribing witness to the prior deed. ANDERSON, J., said: "Whilst it is held that the fact of notice may be inferred from circumstances, as well as proved by direct evidence, the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the imputation of mala fides. Prof. Minor, in his admirable work, says the effect of the notice which will charge a subse quent purchaser for valuable consideration, and exclude him from the protection of the registry law, is to attach to the subsequent purchaser the guilt of fraud. It is, therefore,

never to be presumed but must be proved, and proved clearly. A mere suspicion of notice, even though it be a strong suspicion, will not suffice. 2 Min. Inst. 887 (2d ed.), and cases cited. The proof relied on in this case is, that the appellant was a subscribing witness to the deed of trust under circumstances which, it is contended, show that he was apprised of the existence and contents of the deed of trust. Sugden says the better opinion is that being a witness to the execution of a deed will not of itself be notice; for a witness in practice is not a witness to the contents of the deed. 2 Sugd. 1060. I am of opinion that the proof which is necessary to establish the fact of notice to the subsequent purchaser, all the authorities agree, must be so strong and clear as to affect his conscience, and to justify the imputation to him of mala fides." Compare Trustees of Union College v. Wheeler, 61 N. Y, 88; 59 Barb. 585, s. c., 5 Lans. 160; Weiss v. Brennan, 41 N. Y. s. c. (J. & S.) 177; Brown v. Volkening, 64 N. Y. 76; Raynor v. Timerson, 54 N. Y. 639; Staples v. Fenton,

5 Hun. 172.

PATENT RIGHTS AND STATE RIGHTS.-II. Now for the other side of the case to that shown in the last number.

In ex parte Robinson, 2 Biss. 309, a State “act to regulate the sale of patent rights" in Indiana required patentees, before selling their right in any county, to file a copy of the patent with the county clerk, and to make oath that it was genuine and had never been annulled. Robinson had been arrested for offering to sell a license under his patent, without first complying with this act. On application for a writ of habeas corpus to the U. S. Circuit Court, the prisoner was discharged, that court (Justice David Davis) holding the act void as an interference with the rights of patentees under the laws of the United States. In Helm v. Nat. Bk., 43 Ind. 167, 13 Am. Rep.; Holida v. Hunt, 70 Ill. 109, 22 Am. Rep.; Woolen v. Banker (U. S. Cir. Ct., Ohio), 22 Am. Rep. 69, 5 Reporter 259; Crittenden v. White (Minn.) 9 Ch. L. N. 112, and Cranv. Smith (Mich.) 5 Cent. L. J. 386, various State "acts to regulate the sale of patent rights," were declared void. The acts in question imposed a heavy fine or imprison

son

ment, or both, upon any one who should, in payment or part payment, take a promissory note in selling his patent or any interest in it without writing on the face of such note the words "given for a patent right." And all such notes were, by the insertion of these words, charged with all equities so as to be liable in the hands of all subsequent purchasers, whether for value or not, to all defenses that the original promisor might have against the original promisee. In other words, these acts, while leaving such notes assignable, deprived them of their negotiable character. In the above cases, these acts were declared to interfere with and impair the patentee's rights.

In Haskell v. Jones (Penn.), 5 Rep. 467, the court, Sharswood, J., says of a like act: "If it makes void such notes in which the

words 'given for a patent right' are not written, there would be great reason for the contention that the act is void. No State can so interfere with the right of a patentee secured to him by the acts of Congress to sell and assign his patent." But in that case the court was of opinion that the act had no such effect and was not such an interference. See, however, 6 Cent. L. J. 372-3.

Can these apparently conflicting authorities be reconciled? I think so, and without difficulty, by simply attending to the real nature of the right vested in the patentee by the grant of a patent.

A patent right is an incorporeal franchise, and "consists altogether in the right to exclude every one from making, using or vending the thing patented without the permission of the patentee. This is all he obtains by his patent.” Bloomer v. McQuewan, 14 How. 549. "The inventor had at all times the right to enjoy the fruits of his own ingenuity in every lawful form. But before the statute he had not the power of preventing others from participating in that enjoyment to the same extent. . The end of the statute was to hold forth as an inducement to the inventor the exclusive use of his invention for a limited period. The sole operation of the statute is to enable him to prevent others from using the products of his labors except with his consent. But his own right of using is not enlarged or affected." Jordan v. Overseers, 4 Ohio 309. "By the general laws of the land, State as well as national, the plaintiff has the right to sell