personal property. The condition of the mortgage contained a clause forbidding a sale of the property by the mortgagor without the consent of the mortgagee. The defendants requested the plaintiff to consent to a sale from E to S, subject to the mortgage; the latter agreeing to pay the mortgage to the plaintiff, and the defendants agreeing, on their part, to pay the plaintiff such portion of the mortgage and notes as S should fail to pay. Held, that this agreement of the defendants was a promise to pay the debt of another, and as such was within the statute of frauds. 2. The previous talk of the parties as to what they proposed to agree to in a writing to be drawn up, is not admissible as evidence of the contents of such instrument if lost. Opinion by COLT, J.-Richardson v. Robbins.

ABSTRACT OF DECISIONS OF SUPREME COURT OF MICHIGAN.

BILL TO QUIET TITLE-PENDING ACTION AT LAW DATE OF ACKNOWLEDGMENT AS SHOWING TIME OF DELIVERY CONVEVANCE OF REMAINING INTEREST-PRIOR UNRECORDED DEED.-1. Bill to quiet title to lands, a small part of which complainant had contracted to R & O, who were in possession. Complainant claimed actual possession of the rest. When the bill was filed, ejectment was pending at law by these defendants against R and O. Held, that equity has jurisdiction, although the questions involved are such as may be passed upon in the action at law. It is not matter of course to deny relief in equity, where the decisions at law can not cover the entire controversy. The bill would lie as to all the lands not contracted to R and O, and may properly embrace the rest in the decree prayed for, so as to terminate the entire controversy. Woods v. Monroe, 17 Mich. 238. 2. Complainant claims, under a deed dated June 1, 1834, acknowledged May 25, 1837. Between these dates the grantee died, and there is no direct satisfactory evidence that he had possession of the deed at all. Held, that the presumption that when the date of acknowledgment is subsequent to the date of the deed, the former, rather than the latter, is the date of delivery (Blanchard v. Tyler, 12 Mich. 339; Johnson v. Moore, 28 Id. 3), is liable to be overcome by circumstances inconsistent with the supposed fact. An acknowledgment by the grantor, after the grantee's death, so as to perfect for record his previously delivered deea, is more probable than that the grantee's representation, to save expenses sought to close up an unfinished transaction by having a deed completed to the deceased grantee, which, unless delivered before the death, would be a mere nullity. 3. Defendant claims under a subsequent deed from the same grantor, but which was recorded before that under which complainant claims. Defendant's deed purports "to grant, bargain, sell, release and forever quit claim unto the parties of the second part, and to their heirs forever, all the right, title and interest of, and now remaining in the party of the first part of, in and to all that piece or parcel of land," etc., "known as the Mullett farm;" complainant's prior deed was of a large part of said farm. Held, that defendants' deed did not convey the land in dispute. Where a deed describes land by metes and bounds, or otherwise, and purports to convey it, the grantee, if a purchaser for value, without actual or constructive notice of previous conveyances, is entitled

A RESIDENT, CITIZEN AND TAXPAYER of a city is incompetent to serve as a juror in an action wherein the city is sued for ten thousand dollars damages. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Gibson v. City of Wyandotte. PARTNERSHIP ACCOUNTING. In an action brought by one member of a partnership to have an accounting with his two partners, and to recover a balance due him, where the referee reports that such plaintiff contributed $663.48 to the capital, and the other two partners $370.00, and that certain profits were realized from their business, and that, by the terms of the partnership, the parties were to share equally in the profits thereof: Held, that each member of the firm, on dissolution of the partnership, is entitled to a return of his capital, and, in addition, one-third of the profits. Opinion by HORTON, C. J. Modified. All the justices concurring.-Norman v. Conn.

ASSIGNMENT- ASSETS OVER LIABILITIES -COMPOUNDING THE INDEBTEDNESS.-Where an assignment is made by a firm whose liabilities are $596.41, and whose assets are $614.18, to an assignee in trust for the creditors, which contains the following special clause, viz.: The assignee shall take possession of the property transferred to him, sell and dispose of the same with all reasonable diligence, either at public or private sale, for the best prices that can be obtained therefor, and to convert the same into money, unless the indebtedness of the firm can be paid or settled otherwise by amicable arrangement between the creditors of the firm, etc., * and out of the proceeds * Held,

of such sale, if any be made, etc., that the assignment is void. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Keevil et al. v. Donaldson.

PARTIES

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ADOPTING OTHERS' CONTRACTS. — 1. Where the old firm of A & B sold out to the new firm of B & C, and B & C executed to them in consideration of $200 an agreement to pay their debt for wheat to one 0: Held, O could adopt such written agreement as to his own, although he was not originally a party to it, and could maintain action thereon against B & C to recover $176 due him for wheat delivered before its execution to A & B. Anthony v. Herman, 14 Kas. 494: K. P. Rly Co. v. Hopkins, 18 Kas. 494. 2. In an action by O against B & C to recover on such an agreement, O thereby adopts the same as his own, and the court commits no material error in refusing to compel O on cross-examination to answer whether there was an agreement between him and A of the old firm of A & B, that he should sue B & C and make his money, if he could, and A would pay half of the attorney's fee. Opinion by HORTON, C. J. Affirmed. All the justices concurring.-Floyd et al. v. Ort.

CONDITIONAL SALE OF CHATTEL- RIGHT OF REMOVAL.-1. Where A making a conditional sale of a chattel to B, stipulates in the contract that the title shall remain in A until payment of the price, that upon non-payment possession shall be restored to him, and that it shall not be removed from a given place, finds that without his knowledge or consent B has sold the chattel to C, who has removed it many miles from the said place, he may, before the expiration of the time for payment, recover the possession in an action of replevin. 2. Where A in such case states to G that he is the owner, and that it was not to be removed from the specified place, and C replies that he has bought it from B, that he would keep it, and would not give it up; Held, that this was sufficient demand, if demand were necessary before action. Opinion by BREWER, J. Reversed. All the justices concurring.-Hall v. Draper.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

30. A. IS AN EXECUTOR OF A WILL, and also the trustee of an express trust raised by the will. By the terms of the will A is required to set apart from the funds of his testator's estate a specified sum and hold it in trust for a certain period of time. A settles up the estate, and makes a final settlement of his accounts, but utterly fails to set apart this sum required by the will. He is insolvent and a non-resident of this state. The legatee under the will or cestui que trust (if the trust had been established), is also a non-resident of this state. In an action in the United States Circuit Court to set aside A's final settlement and discharge his accounts, are the sureties on his bond proper parties defendant, and will the residence of his sureties within this state give the United States Circuit Court for this district jurisdiction of the case, or will the action have to be brought in the United States Circuit Court for the state in which A resides? Does the case of Hoak v. Payne, 7 Wall. 425, cover the above point fully?

BOOK NOTICE.

E. H.

CASES ARGUED AND DETERMINED in the St. Louis Court of Appeals, of the State of Missouri. Reported by A. MOORE BERRY, official reporter. St. Louis, Soule, Thomas & Wenthworth. 1878.

The St. Louis Court of Appeals has earned a reputation for its judgments which is possessed by no other court not of final result in the country, and by but few even of the highest courts. It had been in existence for some time before any provision was made for reporting its decisions in an official and permanent form, and, during that time, when any of its opinions were given to the profession at large, it was through the columns of this JOURNAL. We have rarely printed in full an opinion of this court which has not been copied into every law journal in the land from Massachusetts to California. The number of novel and interesting questions of law which have come before the St. Louis Court of Appeals since its organization, would appear more than remarkable were it not remembered that it sits in judgment on the litigation of a metrop

olis-that before it come cases from three populous counties, and from a city the fourth in population on the continent.

A reporter's work is not in these days what it used to be. He is not required to sit through the arguments of counsel and record them; to listen to the delivery of judgments from the bench and take them down as best he can; to reconcile the statements of the opposing advocates, and the queries and interjections of the judges, and from the whole evolve an accurate and intelligible report. The old reporters had to keep their eyes open. "We come, my lord," said Mr. Preston, in an argument one day before Lord Lyndhurst, "to the important case of Elliott v. Merryman, on which conveyancers have at all times relied as very material to the law affecting the case now before the courts, which is in Barnardiston's reports." "Barnardiston, Mr. Preston," exclaimed the chancellor. "I fear that is a book of no great authority. I recollect in my younger days it was said of Barnardiston that he was accustomed to slumber over his note book, and the wags in the rear took the opportunity of scribbling nonsense in it." How closely the old judges scrutinized what pretended to be the record of the judgments of their predecesors, may be seen from this conversation. But it may be said that Barnardiston's was an exceptional case; and so it was. Criticisms and complaints from the bench concerning the reporters and the reports were seldom heard, for occasions seldom offered themselves. The two Veseys, Beaven, Crompton, Welsby and Hurlstone, made a name in their department hardly less distinguished than the judges whom they reported, and by the profession the work of the reporter was regarded as only second to the labors of the judge. In this country, the same may be said of such distinguished reporters as Pickering, Gray and Sumner.

But the times have changed. Singularly enough, with the increasing labors of the judges, the result of an increase of population, and, consequently, an increase of litigation, two-thirds of what was formerly the work of the reporter has been shifted from him and transferred to the bench. A judge must prepare his opinion in writing, as he wishes it to appear in print-in some states he must likewise prepare a syllabus to each opinion he writes. It will be thus seen that what is left for a reporter to do under the present system is not onerous. All that he is called upon to perform, and which, if done properly, the profession will have nothing to complain of, is to make his syllabi clear and comprehensive, his index accurate and systematic, and the cases themselves intelligible. We can not but think that it will be the conclusion of the profession of this city and state that the first reporter of the St. Louis Court of Appeals has thus far performed even these easy duties in a manner which is very far from satisfactory.

To make a complete report the reporter should be careful to supply, by an examination of the record, any facts in the case which the judge may have omitted from the opinion. It is also of very great importance to the profession that the arguments of counsel should be presented. This may be done either briefly or elaborately as the nature of the argument, and the importance of the case may suggest. Generally, it will be sufficient to indicate at no great length the points made by counsel and the authorities cited, in order that the reader may understand the arguments relied on by each side, and their relative prominence in the consideration of the case. But Mr. Berry, we had almost said has neglected this feature altogether. Perhaps it would have been better if he had done so, or if the opinions which appear in this volume had gone straight from the hands of the judges to those of the publisher. We would then have been spared the disappointment which every reader of this and the former

volumes must feel when he turns over their leaves and finds that he has paid for such pages as-to take a few out of many-pages 23, 24, 300, 301, 302, 593, 594 and 595, of the first, or 96, 97, 282, 283, 353, 384 and 433 of the second volume.

It has been part of our duty for some time to critically examine the legal publications of the country, and to indicate to the best of our ability and for the benefit of those who must buy law books, what we considered to be the merits and demerits of particular publications on the law of the land. In this position it has been our privilege to see many able works and many poor ones. Yet we do not recollect ever having seen a single page in any of them so absolutely worthless for the object which they pretend to serve as the pages we have just referred to. And pages quite as bad as those we have cited are to be found in every part of both volumes. The way it is done is as follows: The name of the counsel for the appellant is given, and then without more there follows a string of authorities extending over one or two pages; then the name of appellee's counsel, and again a string of authorities. No idea is given as to what question the authorities decide, or were cited to affect. There may have been a dozen diffferent points argued; it is all the same to the reporter. All the same to him, it appears, if the first two or three should be found on investigation to sustain a question of practice, the next half dozen a question of evidence, and the rest every subject that a lawyer can name from a question of criminal law to a point in constitutional law. But Mr. Berry probably understood that no one would ever attempt to find out what this jumble of cases which precede the opinions of Judges Gantt, Lewis and Bakewell in these two volumes of reports really refer to. They resemble, when one comes first to look into them and next at them, the panic which sometimes seizes an army and throws into one struggling mass, cavalry, artillery and infantry, generals, privates and camp-followers. But might we not well assume that our simile is unnecessary, and that what we are criticising is really the result of the panic which took hold of the reporter when he entered upon a work which these volumes sufficiently show he so little understood?

We have not obtained the opinion of the members of the bar as to the manner in which these volumes have been compiled. Ours is an independent criticism which is uninfluenced save by a regard for the wants as well as the rights of the profession. We shall be surprised, however, if their judgment does not coincide with the conclusion we have been forced to, after an examination of the two first volumes of these reportsthat they are not what the profession of this state and more especially the bar of this city had reason and the right to expect. Personally we have this slight interest in the subject and no more-that in observing that of almost every case which has appeared in the columns of this journal the reporter has appropriated our syllabi without permission and without credit, we find that we have helped to edit these volumes, and therefore feel somewhat responsible for their shortcomings.

The second volume contains 641 pages. The cases therein included were decided between April 10 and July 31, 1876-over 100 in all. The book is handsomely printed on excellent paper and well bound, and in all other respects except those we have spoken of and which we cannot help regarding as radical, is a credit to the court and the publishers.

NOTES.

Ex-Judge Murray Hoffman died at Flushing, N. Y., on the 7th instant, at the age of eighty-five years. He was a grauate of Columbia College, studied law and

was admitted to the bar in 1812. He was assistant Vice-Chancellor from 1839 till 1843, and Justice of the Supreme Court of New York from 1853 to 1861. He is more widely known, however, as an author of law books. His principal works are "Office and Duties of Masters in Chancery," published in 1842; a "Treatise on the Practice of the Court of Chancery," a work in three volumes, published in 1840-43; an important work called a "Treatise on the Corporation of New York as Owners of Property, and Compilation of the Laws Relating to the City of New York "; and “ ViceChancery Reports," which appeared in 1839-40.

IN the matter of legislation, the past week has more to record than usual. Two bills have been passed by the New York assembly and senate-in each case almost unanimously-which deserve to be noticed as being, in the one case, an attempt to surmount a constitutional provision which works much injustice, and in the other to make a radical change in one of the best established rules of the common law. The first bill "To protect the rights of citizens of this state holding claims against other states," provides that citizens of that state holding claims against other states-like repudiated bonds-may assign them to the state and have the Attorney-General bring a suit for their payment in the United States Supreme Court; all the expenses of such suits to be borne by the holder of the claim. The second bill to which we refer is an act in relation to devises, and provides that no person having a husband, wife, child or parent shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, missionary or social society or corporation, or to any eleemosynary society or corporation whatever, in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts, and the lawful expenses of administration. And such devise or bequest shall only be valid to the extent of such one-half and no more; and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.

AMONG the oflices which pertain to the English bar, and whose existence are forgotten until they happen to fall vacant by the death of their occupants, and the appointment of others to fill the vacancy gives them for a time an unaccustomed prominence, are those of Postman and Tubman to the Exchequer Division of the High Court of Justice. The other day the office of Postman falling vacant, and a Mr. Anstie being nominated to the position, the Solicitors' Journal takes occasion to remark that the origin of these almost unheard of offices appears to be difficult to trace. Within the Exchequer Court the gentlemen who hold these positions have, according to Price, pre-audience, the one of the Attorney the other of the Solicitor-General, in all ordinary business. In 1840, in the case of R. v. Bishop of Exeter, 7 M. & W. 188, the Postman claimed precedence of the Attorney-General; but upon the Attorney-General's stating that it was the Queen's business in which he moved, the court decided that he was entitled to be heard before the Postman. The Postman and Tubman are said to be so named from the places they occupy in the court, the Postman having his "post" on the left extremity of the first row of the outer bar (the right of the bench), and the Tubman being seated in a box or "tub" on the right extremity. They are always mem'bers of the outer bar, and are nominated by the Lord Chief Baron by word of mouth in open court, but have no rank or privilege beyond its precincts. 9 Foss's Judges, 110. Among the names of former holders of the offices are those of Chief Justice Jervis, Lord Penzance,Justices Thesiger, Crompton, Willes' and Lush.

SAINT LOUIS, MAY 31, 1878.

CURRENT TOPICS.

The Illinois statute as to nuncupative wills, more particularly the words "in the last sickness" of the deceased, was construed in Harrington v. Stees, 82 Ill. 50, where it was insisted by the appellant that such a will to be valid must have been made in extremis, or when the testator has been overtaken by a sudden and violent sickness, and has not time or opportunity to make a written will. Such was the opinion of Chancellor Kent in the case of Prince v. Hazelton, 20 Johns. 501. The Supreme Court of Illinois, however, adopted the rule laid down in Johnson v. Glasscock, 2 Ala. (N. S.) 242, where Prince v. Hazelton and the authorities relied upon by Chancellor Kent were fully considered, that if a person, in the sickness of which he subsequently dies, impressed with the probability of an approaching death, deliberately makes his will in conformity to the statute, it will not be invalid, because, in point of fact, he had time and opportunity to reduce it to writing. The court, in an opinion from which BREESE, J., dissented, say: "This rule seems to go as far as the statute permits the courts to go. At common law it was not essential to the validity of a nuncupative will that the testator should have been ill at all. The statute is, in this regard, a limitation of the common law powers. words in the time of the last sickness' had no technical signification at the time of. the passage of the statute. The words must be taken in their ordinary signification. It is a reasonable and necessary implication that it must also appear that the testator at the time of making the will supposed that his then sickness would prove his last sickness-in other words that he should be impressed with the probability that he would never recover."

The

Firth v. The Bowling Iron Works Co., 26 W. R. 553, recently decided by the Common Pleas Division of the English High Court of Justice, presents a novel question in the law of negligence. The lessees of a colliery were bound by their lease to fence their works for the benVol. 6-No. 22.

man

V.

up certain wire fences which had been erected by a former occupier, but, owing to rust and decay, pieces of the wire, from time to time, fell upon the land of the plaintiff, who held under a lease from the defendant's lessor, and one of her cows was killed by swallowing one of these pieces while grazing. The court held that the defendants were liable for the loss of the cow, as they were aware of the nature of the fence, and the damage was the natural consequence thereof. The cases relied on by the court in their decision were those of HindThe Northeastern R. R., 6 Cent. L. J. 367, and Humphreys v. Cousins, L. R. 2 C. P. D. 239. In the latter case, the plaintiff and defendant were adjacent occupants. A drain which commenced in the premises of the defendant, and then passed under and received the drainage of several other houses, turned back under the defendant's house and thence under the cellar of the plaintiff's house, and ultimately into a public sewer. The part of the return drain which passed through the defendant's premises being decayed, the sewage escaped, and caused damage by flowing into plaintiff's cellar. The court held that the defendant was liable for the damage, for the reason that it was his duty to keep the sewage, which he was bound to receive, from passing from his own premises to the plaintiff's premises, otherwise than along the old accustomed channel, and that this duty was independent of negligence on his part, and independent of his knowledge or ignorance of the existence of the drain. A contrary ruling may be found in Wilson v. Newberry, L. R. 7 Q. B.31. In this case, the declaration averred that the defendant was possessed of yew trees, the clippings of which he knew to be poisonous, and that it was the duty of the defendant to prevent the clippings from being placed on land not occupied by him; that the defendant took so little care of the clippings that the same were placed upon land not occupied by him, whereby the plaintiff's horses were poisoned. Upon these facts the court held that the action would not lie. MELLOR, J., said: "The case of Fletcher v. Rylands, L. R. 3 H. L. 330, has no analogy to this case. The foundation of the doctrine there laid down is derived from an old case in Salkeld, Tennent v. Goldwin, in which it was determined that it was the duty of a man to

keep his own filth on his own land. If a person brings on his land things which have a tendency to escape and to do mischief, he must take care that they do not get on his neighbor's land. This is a very different proposition from that which has been contended for on behalf of the plaintiff; it is that where a person has yew trees growing on his land which are clipped by some means, he must prevent the clippings from escaping on to his neighbor's land, and from being placed there by a stranger."

In Eason v. State, 17 Am. Law Reg. 313, the Supreme Court of Tennessee ruled that the finding by one jury in a murder case of "guilty with mitigating circumstances," where the court disregards the finding and sentences the prisoner to the extreme penalty, does not bind a different jury in a subsequent trial, which may, on the contrary, find a verdict of "guilty" without mitigation. The recommendation of the jury, the court said, is not a part of the judgment, but is merely a matter of discretion which they may exercise

or not.

Even when such a finding is presented to the court, it is not binding but may be disregarded, as was done by the court below in the case at bar on the first trial. To the report of this case, one of the editors has added an interesting note from which we learn that this question received considerable attention in a recent Massachusetts case of considerable notoriety. Jesse Harding Pomeroy, a boy fourteen years old, was convicted of murder of a child four years old, on the 22d of April, 1874. The jury returned with their verdict of guilty, this paper, signed by all the jurors: "The jury recommend that the sentence be commuted to imprisonment for life on account of his youth." A general verdict of guilty was entered, and the defendant alleged exceptions to other rulings at the trial, but not to this, which on argument to the full court were subsequently overruled (117 Mass. 143) and the defendant sentenced to death. Application was then made to the governor and council for a pardon. A certified copy of the record of the conviction and sentence was transmitted to the governor, and the original return of the jury, given above, with another paper also returned at the same time, giving the grounds of the verdict. The

justices of the court were then inquired of by the governor and council whether "the papers so transmitted were a part of the judicial proceedings in said case, or of the record thereof, and what is their legal relation thereto." To which they unanimously answered; "A memorandum of the ground of the verdict, or of a recommendation to mercy, presented by the jury to the judges, cannot affect the manner of returning, recording or affirming the verdict, or the form of the sentence; and, in law, forms no part of the judicial proceedings in the case, or of the record thereof, and has no legal relation to the judicial proceedings or record." See opinion of the Justices, 120 Mass. 600 (1876). In the Park-Lane Murder case, Ann. Reg. 1872, p. 209, the defendant was convicted of murder, but "strongly recommended to mercy on the ground that there was no premeditation in the act." But Baron CHANNELL said, "it would be his duty to send the recommendation to mercy to the proper quarter, but at present all he had to do was to pass upon her the sentence of the law," and she was sentenced to death in the usual form. A similar course was taken in The People v. Lee, 17 Cal. 76 (1860). The defendant was convicted of murder in the first degree, with a recommendation to mercy. court directed the verdict to be entered without the recommendation, which on appeal was sustained, the court saying: "The recommendation was addressed solely to the court, and constituted no part of the verdict." See also State v. O'Brien, 22 La. Ann. 27 (1870); State v. Bradley, 6 Id. 560 (1851). So in The State v. Potter, 15 Kans. 303 (1875), the verdict as returned was "guilty of murder in the second degree," and with it these words, "and we recommend his punishment to be the least amount allowed by law." The court declined to receive the verdict in that form, and handed the jury another blank, which was duly signed and returned by them without those words. This was held no error.

The

ACTIONS for breach of promise of marriage, though allowed by the Code Napoleon provided special damage be proved, are rare in France. In one case, the defense was that the plaintiff had deceived the defendant about her age. She at first represented herself to be twenty-three, but afterwards owned to be twentysix. Though disappointed, he had made up his mind to put up with this difference; but he had found out by the register that she was in reality thirty-two, and that was a figure he could not accept. The court pronounced a verdict for the defendant.