issued the new certificates; but the bank had no equity as against the city to the extent of the loans previously made, unless the city's action induced the bank to put itself in a worse position than it already occupied, of which there was no proof. 3. That the city was answerable for the subsequent advances made upon the faith of the new certificate. 4. That the surrender of the first note by the bank and its taking a new note, including both the original and the subsequent loans, did not make the first loan a new one, and the bank ought not to be allowed thereby to escape the consequence of its original negligence. 5. That the city could not escape its liability on account of the loans made by the bank subsequent to the issue of the new certificate, and on account of the subsequent purchase of said certificate by the bank, on the ground that H was the agent of the bank to receive the transfer, there being nothing to connect the bank with the deception practised upon the city. 6. That the bank was entitled to be reimbursed the actual amounts paid by it upon the faith of the new certificate, with interest thereon, from the date such sums were paid respectively, less, however, the interest on the certificate paid to it by the city, prior to the discovery of the forgery. [Citing and applying Brown v. Howard Fire Ins. Co., 42 Md. 384; Hamilton v. Central Ohio R. Co., 44 Md. 551.] Ibid.

6. ENLISTMENT OF MINORS. [Habeas Corpus.]· When False Affidavit of Minor as to Age will Prevent Relief.-A minor who, at the time of his enlistment in the army, made an affidavit that he was twenty-one years of age, will not be discharged on habeas corpus, solely on the ground of his minority and the want of consent of his guardian, on his own petition. In so holding, Dundy, J., said: "There is nothing in the laws of the United States that makes it unlawful for a minor over eighteen years of age to enlist in the army. He is certainly competent to make such a contract under some, though possibly not under all, circumstances. If the natural guardians-that is, the parents-be living, they are entitled to the services and the custody of the minor until he attains his majority. If the natural guardians are dead, and a lawful guardian exists, he is also entitled to the custody of his ward until he attains his majority. Hence it is that the law requires the written consent of parent or guardian to the enlistment of a minor, in order to make it valid. But this limitation on the right of minors to enlist, applies only to those who have a parent living, or who have a lawful guardian at the time of the eniistment. A minor eighteen years old can, undoubtedly, make a valid contract of enlistment, binding on all concerned, if he has neither parent nor guardian at the time of making such contract. When Congress revised the laws, it recognized the right of the parents to the custody, service, and control of their minor children, and the right of guardians to the custody and control of their wards; and if either see proper to exercise such control they cannot be deprived of the right to do so in such cases without they give their written consent for the enlistment of minor or ward. It is possible that this right may be asserted and maintained at any time during the existence of the minority or guardianship, if the party entitled to the custody of the minor or ward makes proper application therefor. But it seems to me that this law was made for the exclusive benefit of parents and guardians, so as to the better enable them to perform the parental

or guardians' duty. This they might not be able to do if the minor or ward owed obedience to another authority. The same reason does not apply to the minor or ward; and, so far as he is concerned, especially in this and similar cases, I can see no good reason for holding that a contract of enlistment, made under such circumstances, must be declared absolutely void as against the party enlisting, though it may be so as against the parents or guardian, if no written consent be given for the enlistment. The guardian does not here seek the custody and control of his ward. It is the ward who comes into court and asks to have declared absolutely null and void his own deliberate act and deed, after he had stood by the same for more than eighteen months. This, I think, cannot be done; more especially when the enlistment was one of the very fairest, and when the recruit swore positively that he was twenty-one years old at the time of enlistment. He was perfectly well advised of what he was doing when he made the oath, as he himself admitted on this hearing. He must not be permitted to take advantage of his own wrong under such circumstances, nor to stultify himself in such an unusual manner."] United States ex rel. v. Gibbon, U. S. Dist. Ct. Nebr., April 8, 1885; 24 Fed Rep. 135.

7. EMINENT DOMAIN. [Exemplary Damages.] Railway Company Entering upon Land in Bad Faith Liable to Exemplary Damages.-Where a railway corporation does not exercise its statutory right of eminent domain in good faith, punitive damages may be assessed against it. [This was an action of trespass quare clausum fregit by Cornelius Scully against the Pittsburgh, Chartiers, and Youghiogheny Railway Company, for damages for entering on plaintiff's land, destroying stone quarry, etc. On the trial, before Ewing, P. J., the following facts appeared: Plaintiff was the owner of a farm, upon which he operated a stone quarry, distant about two hundred feet from the line of defendant's track. Defendant proposed to buy stone of plaintiff from this quarry, but the parties could not agree upon terms. Thereupon defendant purchased a small piece of land adjoining and immediately in rear of plaintiff's quarry, notified him of its intention to lay a side track or switch through his land for the purpose of taking out stone from its land, and tendered him a bond in $1500 with sureties conditioned for the payment of damages. Plaintiff refusing to accept the bond, after notice, defendant presented the same for filing in the Common Pleas No. 1, of said county. Thereupon plaintiff filed exceptions, and at the same time filed a bill in equity averring that defendant was not about to exercise its statutory powers in good faith, etc., but that the entry was for the purpose of taking plaintiff's stone, etc., and praying for an injunction. The exceptions to the bond and motion for preliminary injunction were argued together and disposed of at the same time. The exceptions as to the amount of the bond were sustained, and it was ordered to be increased to $6,000, otherwise they were dismissed, and the motion for an injunction was refused. Under the bill and answer the parties proceeded to final hearing when the equity cause was argued upon the Master's report and proofs. The Master recommended a decre restraining the defendant in accordance with the prayer of the bill, and the decree was so entered. In the meantime, the defendant had entered on plaintiff's land, and had cut through his

quarry a way sixty feet wide, the cut being about forty feet deep at its highest point, and had removed the stone; appropriating it to its own use. There was circumstantial evidence to show that the real purpose of the entry was the appropriation of this stone. The court ruled that such a case is not different from any other case where a person commits a trespass upon the land of another in wilful disregard of his rights, in which case exemplary damages may be given.] Pittsburgh etc. R. Co. v. Scully, S. C. Pa., Nov. 1884; 16 Weekly Notes of Cases, 213.

8. INSURANCE, LIFE

[Insolvency]—Insured not Obliged to Pay Premiums to Insolvent Company to Keep Policy in Force.-The holder of a policy of life insurance is not bound to pay premiums to the company after it becomes insolvent, in order to keep his policy in force. [In the opinion of the court, Judge Pryor says: "It is alleged that the company had ceased to do business, and if so there was no place at which the premium could have been paid, and with the further allegation of insolvency it would have been-unreasonable to have compelled the insured to pay his money year after year to an insolvent company, that is admitted by the pleadings to have been unable to comply with its contract. If the money had been paid it might have enlarged the assets so as to increase the dividend in a final distribution between those entitled, without resulting in any benefit whatever to the insured. If insolvent the amount of the seventh premium might and probably would have exceeded the amount of the dividend to which the insured would have been entitled under a distribution made by the assignee, and for this reason, if for no other, it would be unjust to require the insured to part with his money in consideration of an undertaking that could never be complied with on the part of the party receiving it. The obligation to comply with the contract of insurance was mutual, the one as much liable as the other, and the insolvency of the company was a sufficient excuse for withholding the payment by the insured. In the case of the People v. Empire Mutual Life Insurance Company, 92 New York, 105, it is said: "The implied contract of an insurance company with its policy holders, is that it will continue to do its business, keep on hand the funds required by law for the security of its patrons, and remain in a condition so long as its contracts continue to perform its obligations, and when it fails to do this it has broken its engagements.' Here the company or the party representing it, is claiming a forfeiture by reason of the non-payment of the premium, and at the same time admitting that if the money had been paid it could not have complied with its contract. Such a defense will not be permitted in a court of equity, and the court below should have overruled the demurrer requiring the defense to make an issue, and upon a failure to do so a judgment should have been rendered for the plaintiffs. The extent of the recovery is a question not presented by the record."] Jones v. Life Asso. of America, Ky. Ct. of App., May 12, 1885; 7 Ky. Law Repr. 1.

9. INTERSTATE EXTRADITION. [Jurisdiction.]—Of Federal Courts Concurrent with State Courts.The Federal and State courts have concurrent jurisdiction in cases of extradition. The judgments of the latter do not conclude the former on this Federal question, but are entitled to great respect, and are strongly advisory. Ingre Roberts, U. S.

10.

11.

Dist. Ct., S. D. Georgia, May 5, 1885; 24 Fed. Rep. 132.

[Indictment.]-Sufficiency of Indictment under which Extradition is Claimed.-It seems that the allegation in an indictment under which extradition is claimed that the defendant stole bonds of the Bethlehem Iron Company, without alleging the corporate character of such company, is insufficient; but the safer and better rule is to remit the question to the courts of the State in which the indictment was found. [On this point Spear, J., said: "After careful and anxious consideration of this question the court feels it to be improper, that it should discharge the defendant on this ground, and thinks it in every view safer and the better rule to remit the question of the sufficiency of the indictment to be tried and determined by the courts of the State in which it was found. The settled policy of the government being to facilitate the extradition of fugitives charged with crime, and, in view of the great importance of this policy to the commercial prosperity of the country and the integrity in business transactions between the citizens of several States, it would be a dangerous precedent, and as well in conflict with eminent authority to hold that such matters of technical irregularity must deny the extradition."] Ibid.

[Habeas Corpus.]-Guilt or Innocence not Investigated on Habeas Corpus.-In a case arising on writ of habeas corpus, sued out to determine the legality of an arrest under proceedings for extradition, the court cannot investigate the question as to the guilt or innocence of the defendant. Ibid.

12. - [“Fugitive from Justice"]—Person Going to Another State, Committing Crime and Returning is.-One who goes into a State, and commits a crime, and returns home, is as much a fugitive from justice as though he had committed a crime in the State in which he resided and then fled to some other State. Ibid.

13. MASTER AND SERVANT- [Servant's Wages]Servant Employed by the Month not Entitled to Wages for the Expired Portion of the Month.-A servant engaged by the month who is guilty of misconduct during the currency of a month which warrants his dismissal is not entitled to wages for the expired portion of the month. Ex parte Moss, Supreme Court of Victoria, May 12, 1885; 6 Australian Law Times, 255.

14. NEWSPAPER Libels.—[Privilege.] — Limits of the Right to Comment upon the Character of Candidates for Office.-Press comments in good faith, touching the character of a candidate for a particular office, so far as respects his qualifications for the particular office are privileged; beyond this the privilige of the press in commenting on the private character of a candidate does not extend. A newspaper may truthfully and in good faith point out that a candidate for the office of Mayor of a city, has been guilty of a breach of trust as administrator of a deceased person's estate, without incurring liability in a civil action for a libel. In holding thus, Mr. Commissioner Watts, in an opinion adopted by the Supreme Court of Texas, said: 'It may be asserted as a sound principle, and one supported by authority, that when a person consents to become a candidate for public office conferred by a popular election, he should be con

sidered as putting his character in issue so far as respects his qualification for the office. [Com. v. Clap, 4 Mass., 169; Com. v. Odell, 3 Pittsburg, 449; Rearick v. Wilcox, 10 West. Jur., 681; Odgers on Slander and Libel, Sec. 236.] Whatever pertains to the qualification of the candidate for the office sought is a legitimate subject for discussion and comment, provided such discussion and comment is not extended beyond the prescribed limit; that is, all statements and comments in this respect must be confined to the truth, or what in good faith and upon probable cause is believed to be true, and the matter must be pertinent to the issue, i. e., it must relate to the suitableness or unfitness of the candidate for the office. In our form of government the supreme power is in the people; they create offices and select the officers. Then, in the exercise of this high and important power of selecting their agents to administer for them the offices of government, are the people to be denied the right of discussion and comment respecting the qualification or want of qualification, of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought? Usually it is by such discussion and comment concerning the qualification of opposing candidates that the people obtain the requisite information to enable them intelligently to exercise the elective franchise. Any abridgement of this right of discussion and comment, beyond the limitations heretofore stated, it seems to us, would be extremely unwise. And in this respect the press occupies the same position, and should be included in the same category with the people. Public journals are supported by and are published with a view to the dissemination of useful knowledge among the people, and the comments and discussions of these journals are entitled the same privileges and subject to the same limitations respecting the qualifications and suitableness of candidates for office, as those of the people. Chief Justice Willie, in Belo & Co. v. Wren, (5 Texas Law Review, 153), truly remarked 'that every facility should be allowed for the quick dissemination of useful facts, and the freedom of the press should not be restrained further than is absolutely necessary to protect private character from falsehood and slander.' It is implied by the rule announced by us that the matter published must be such as is justified by the occasion; that is, it must be such as would be appropriate for the electors to consider in making a selection for the office. Ordinarily that would be a question of fact, to be submitted to the jury by appropriate instructions. Then, if the matter published is true, and such as is justified by the occasion, there could be no recovery by the candidate against the publisher. If the matter is not justified by the occasion, then the fact that the person against whom it was directed was at the time a candidate for office, would not exempt the publisher from liability whether the matter published was true or false. And although the matter published might be justified by the occasion, still, if it was false, a right of action would accrue against the publisher to defeat which the burden would be upon him to show that the publication was made in good faith, in the honest belief of its truth, and besides that there were just and reasonable ground for entertaining that belief. While the rule here announced seems to be just to all, we are aware of the fact that it is not in accord with some, and perhaps a majority of the adjudicated cases in this country. In New York com

ments and discussions relating to public officers and candidates for official positions are placed upon the same footing as comments and discussions concerning the private character of other persons. The tendency in the English courts is more liberal in protecting the freedom of the press, and the holding there is in accord with the conclusions an nounced in this opinion and which we believe to be well founded in reason, and not merely in accord with the spirit of constitutional liberty and free republican institutions."] Express Printing Co. v. Copeland, S. C. Tex., June 30, 1885; 5 Tex. Law Rev. 387.

15. PARTITION-[ Conversion]-Sum Charged upon Land in Partition Regarded as Personalty.-The sum charged upon land in proceedings in partition is to be regarded as personalty, and if the person in whose favor the charge is made dies before the same is paid the party or parties entitled by law to his personalty may recover the amount of the charge. [Herman, P. J., whose opinion the Supreme Court adopt, examined: Ferree v. Com., 8 Serg. & R. 312; Walters' Estate, 2 Whart. 247; Beyer v. Reesor, 5 Watts & S. 501; Hays' Appeal, 2 P. F. Smith, 449; Grider v. McClay, 11 Serg. & R. 224; Dyer v. Cornell, 4 Barr, 363; Spangler's Appeal, 12 Harris, 424; Large's Appeal, 4 P.F. Smith, 383; Sayers' Appeal, 29 P. F. Smith, 429; Kann's Estate, 19 P. F. Smith, 219; Gutshall v. Goodyear, 16 Weekly Notes of Cases, 106; Nissley v. Heisey, 28 P. F. Smith, 419.] Barley v. Zeigler, S. C. Pa., May 6, 1885; 16 Weekly Notes of Cases, 218.

CORRESPONDENCE.

COLLECTING DEBTS BY POSTING.

To the Editor of the Central Law Journal:

In your issue of July 10, you call upon any of your readers to give an answer to the inquiry of the attorney of the United States Merchants' Protective and Collection Association, of Covington, Ky. If you will refer back to 16 Cent. L. J., 97, under head of libel, you will find an English decision in point; and in 17 Cent. L. J., 499, under head of libel, you will find the question expressly decided by the United States Circuit Court, District Missouri, in Trussell v. Scarlett. Both these cases are in conflict with your view of the law, governing this matter, Trussell v. Scarlett decides: "When a mercantile agency makes a communication to one of its subscribers who has an interest in knowing it,concerning the financial condition of another person, and when such communication is made in good faith, and under circumstances of reasonable caution as to its being confidential, it is a protected privileged communication, and an action for libel cannot be founded upon it, even though the information given thereby was not true in fact, and though the words themselves are libelous."

***

REMARKS.-We never expressed any view of the law contrary to the above-named decisions. We deserve censure, however, for asking information of our readers, when we might have known that full information upon almost every disputed question in the law can be found in the files of this journal. We have received another letter from the correspondent of the abovenamed Association who first wrote to us. But we think it unnecessary to print it, or to pursue the subject further. The letter of the attorney of the Association which we printed last week vindicates it from

the aspersion which its former circular seemed to cast upon it, that of a mere collecting agent's scheme to collect doubtful or bad debts by publishing the names of alleged debtors in a list of dishonorable merchants. Of course, it is the privilege of merchants to associate for the purpose of protecting themselves against fraudulent debtors, and so long as they are careful to keep within the limits indicated in the above and the previous letter on this subject, there is nothing wrong in it, either in law or in morals.-[ED. C. L. J.

QUERIES AND ANSWERS.

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters o the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

6. I am trying to find out, from the derivation of the two names, whether Miller can be regarded as idem sonans with Millen. I have a case depending upon the question. JOHANNES FACTOTUM.

JETSAM AND FLOTSAM.

TO BEGIN PRACTICE.-An Oregon attorney wrote to J. W. Donovan, of Detroit, as to what State would be best to begin practice in, and received this reply: 1. Begin law in any State or city with a sense of eternal rectitude: advise every client as you would an own brother. Be in dead earnest about it. 2. Consider how completely you hold your client's interest in your hands, and how much depends on your honest judgment. Use wise discretion. 3. The law is not a mere scramble for bread money, for we are charged with the safety of property and the progress of society. Live for some object. 4. Life is a little journey, where we all hurry and many are injured and impatient, while we are called to set them right under trying conditions. Do so bravely. 5. The world will measure us by the way we do our duty, as it measures the reaper, the racer, the railway and the telephone. We must do something useful, real, and of benefit, that shall better our race, and by it we shall be known to have lived once and to have made the world better by it.

A LEGAL PUZZLE.-A learned correspondent from Flemingsbury, Ky., writes as follows: "In our last court one William Cox was tried for burglary, found guilty and sentenced to the penitentiary for four years. He is now in the penitentiary, serving out his time. Before he committed the crime of burglary it is supposed that he murdered his wife. Provided an indictment is found against him, can he be taken out of the penitentiary before his time is out and tried for murder, or will he have to serve out his time, and then be tried? The lawyers at our bar disagree. If you think the question of any interest, answer it through the JOURNAL. I have tried to look it up for my own information, but have been unable to find anything in point." This question must certainly be one which is capable of being settled by authority, and we would thank any of our learned readers to tell us how it has been settled. We should say, on principle, that he ought to be tried and, if convicted, hanged for the murder and then allowed to serve out the residue of his term for the burglary. P. S. That portion of his sentence for the burglary which would be unexpired at the time of his being hanged for the murder, might be remitted on the ground of good behavior.

NUISANCE IN HIGHWAY.-Right of Traveller to look at the Stars if he likes.-The practice of laying carpets or pieces of matting in front of houses in which entertainments are being given, has come under judicial notice in three recent cases tried before Lord Chief Justice Coleridge in London. In De Tyron v. Waring, the latest of the three suits, the defendant, having an entertainment at his house in Grosvenor Square, had spread a matting across the sidewalk for the benefit of his guests. The plaintiff while passing by tripped in the matting and fell down. He alleged injuries, sued for damages and obtained a verdict for $300. The following colloquy which took place between the Chief Justice and his counsel for the defendant sums up the law on the subject:

Lord COLERIDGE-If a person puts anything across the pavement and a person stumbles over it, the owner is liable for the consequences. The passenger is not bound to look for mats on the highway. He may look at the stars if he likes.

Mr. MCINTRYE-He may run his head against a lamp-post.

Lord COLERIDGE-The lamp-post is rightfully there, but any one who has a mat or carpet spread over the pavement must take care of it.

Mr. MCINTYRE-The passenger may be guilty of contributory negligence.

Lord COLERIDGE-Possibly, but he is not bound to look for mats on the pavement, and his not looking for them is no evidence of negligence. Probably there was light enough for him to see the mat if he looked for it, but he was not bound to look for it. He may look at the stars if he pleases-if he can see them.Montreal Legal News.

ACCESS TO THE COURTS.-An incident occurred before Mr. Justice Stephen which elicited from the learned judge an emphatic expression of opinion in favor of the rights of counsel to have free access to the courts of justice, and as the subject is one which has been matter of increasing complaint for some time past, it is to be hoped his lordship's opinion will be attended with beneficial results. When the present courts were first opened, it was looked upon by the legal profession as matter for congratulation that galleries were provided for the use of the public. This distinction which the architect had in view has, however, been lost sight of, and not only is it matter of daily occurrence to admit the public into the seats constructed for counsel, but the passages as well are allowed to be crowded, so that entrance on the part of those engaged in business is attended with difficulty, and instances have even occurred where barristers in robes have been refused admission altogether on the plea that the court is full. It was an incident of this nature which occurred on the 25th inst., when Mr. Willis, Q. C., who was engaged in the case before the court, found great difficulty in making his way to his seat. Mr. Justice Stephen at once ordered the passage to be cleared, and this being done, his lordship said: I wish to express my opinion that members of the bar in their robes have a right to enter the courts, whether they are engaged in the case or not. It is a right which they have always enjoyed, and I shall see that it is enforced in every court where I sit.-Sir Hardinge Giffard, on the part of the bar, thanked his lordship for these remarks. The difficulty of access to members of the bar, he had reason to know, had been much complained of. Mr. Justice Stephen said barristers attended the courts in the exercise of their profession, and the courts should be open to them as a matter of right. There was a time in his recollection when accommodation on the same principle was provided for students.-Law Journal (London).

ST. LOUIS, AUGUST 14, 1885.

ABRAHAM CLARK FREEMAN.

Abraham Clark Freeman, the author of the well known treatises on "Judgment," "Executions," and "Co-Tenancy and Partition," which bear his name, and for the past six years editor of the "American Decisions," though long recognized by the legal profession as one of its ablest writers, is still a comparatively young man. He was born May 15, 1843, near Warsaw, Hancock county, Illinois, and obtained his education principally in the common schools of that county. In 1860, at the early age of seventeen, he began teaching a district school in his native county and continued in that occupation until January 1861, when he went to St. Louis, Mo., and entered Bryant & Stratton's college, from which he was graduated April 10, 1861. Returning to his home in Warsaw, he, a few days after his graduation, started with his father, O. S. Freeman, "across the plains" to California. Arriving in California in September 1861, Mr. Freeman, the elder, settled at Elk Grove, near Sacramento. Ten days afterwards young Freeman, with characteristic energy, began teaching a district school in San Joaquin county, and continued that employment for nearly a year. He had no taste, however, for the business of teaching Vol. 21-No. 7.

taste for the pursuit in which he was engaged, led him finally to abandon it. He then went to work on his father's farm where he remained for another year. In the meantime he began to study for the legal profession, and in the intervals of rest to prepare himself to enter a law office, read Hume's and Macauley's Histories of England, and Blackstone's Commentaries. In September 1863 he entered the office of Hon. M. M. Estee, author of "Estee's Pleadings," as a student of the law, and in July following was admitted to the bar by the Supreme Court of the State. He did not at once enter upon the regular practice of his profession, but served as deputy district attorney for the county under Hon. M. M. Estee and Hon. James C. Goods, until March 1870. He then entered into regular practice at Sacramento, and since that time has continued in it without intermission, sometimes in partnership with others, and sometimes alone. He is now the senior partner in the firm of Freeman, Johnson & Bates, having offices in Sacramento and San Francisco, and enjoying a very extensive practice.

Mr. Freeman was married September 6, 1867, to Miss Josephine B. Foulks, of Sacramento.

The treatise on the "Law of Judgments," which appeared in January, 1873, was Mr, Freeman's first published work. It introduced him at once to the bench and bar of the whole country as one of the ablest lawwriters of the day, and took its place as the standard text-book in that branch of the law. It has already passed through three editions, each successive edition being carefully revised by the author. The work was followed in 1874 by "Freeman on Co-Tenancy and Partition," and in 1876 by "Freeman on Executions," and in 1877 by a monograph on "Void Legislative, Executive and Judicial Sales," all of which were received with distinguished favor by the legal profession. In 1879, Mr. Freeman, fortunately for the success of the enterprise, was selected by the publishers as editor of the American Decisions upon the death of Mr. John Proffatt, the former editor of the series. Mr. Freeman accepted the arduous post with great reluctance, but having accepted it, he performed