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THE LAW OF INHERITANCE IN CONGO,-The new "What-is-it" in Congo-empire, kingdom, republic or private corporation-is attracting such attention, that the law of descent which prevails among the natives of that country will be read with curiosity. It is said that children are considered the property of the wife's relatives, the father having little or no control over them. The line of inheritance is from uncle to nephew. Thus,

a man's real property and slaves go to the oldest son of his oldest sister, or to the next of kin on such a line. The wise nephew will, therefore, leave his father's house and go to live with his uncle. Moreover, knowing that the nephew is to inherit his goods, while his own children belong to his wife's clan, a man cares more for his nephew than for his own children.

"LATE WITH."-The question whether a person quitting the employment of a commercial house and engaging in the same kind of business elsewhere has a right to advertise himself as "lately with" such house and thereby attract to himself some of its custom, came up the other day before Judge Westbrook, of the Supreme Court of New York. There was no allegation of fraud, but nevertheless the learned judge held that the defendant had no right to make such use of the name of his former employer. He is reported to have said: "Nothing is more completely the property of a man than his name. No person can use it without the owner's consent. The use of the plaintiff's name to make conspicuous the rival business and name of defendant is a clear violation of the property rights of the plaintiff." The New York Herald volunteers the following criticism on this decision which seems hard to answer: "Judge Westbrook does not cite any authority or precedent in support of this view. He reaches his conclusion by reasoning. We think the conclusion wrong and the reasoning unsound. When a person has been for a long or a considerable time in the service of a business house or firm widely and favorably known, that fact raises a presumption of his capability to carry on the same business for himself. It is a fact which, in the absence of fraud or unfair dealing, he has

a right to announce to the public. In music or art it would seem ridiculous to deny to a person the right truthfully to represent himself or herself as the pupil of a well known teacher or artist. The principle is the same in business. This view of the law has been taken by our Court of Appeals. A firm of dentists dissolved partnership. One continued business in the same place, the other opened another office. The Court of Appeals held that the former had no right to represent himself as successor to the late firm, since such was not the fact. 'But,' said the court, 'he may lawfully describe himself as formerly or late of that firm. He would thus state simply a fact belonging to his own life, as much so as if he were to give the time or place of his birth, the name of his father or instructor or the college from which he graduated. All this might be done in good faith.'"'

A NOVEL OBJECTION IN THE MIKADO CASE. -The New York Herald quotes under the above heading our objections upon the above case,1 and says "our legal contemporary is positively lacking in a sense of the humorous. It fails to see the difference between a wicked libel, and a wholesome, good-natured satire, which would make the Mikado himself smile, as well as 'his son and the lords and ladies of his court.' There are some close legal questions in the Mikado case, but the point raised by the Central Law Journal is not one of them." If for "The Mikado of Japan" the playwright had substituted "The Proprietor of the New York Herald" and represented that well known gentleman in a mock heroic character, outlandishly dressed, parading the stage and acting the part of a clown and a buffoon, possibly the opinion of the Herald would be different about the play being "a wholesome, good-natured satire." We doubt whether it would make Mr. Bennett "smile," although it might please some of his editors and reporters, and possibly tickle the fancy of the printer's devil.

KANSAS LAW JOURNAL.-The index to volume one of the Kansas Law Journal has come

1 Ante, 123.

to hand. It will be perceived on running down its titles that a very considerable variety of legal matter has been published in its columns during the past six months. The Kansas Law Journal is an excellent publication of its class, and deserves the support of the legal profession in Kansas. Its editorial matter is well considered and well written.

NOTES OF RECENT DECISIONS.

EVIDENCE. [COMPETENCY OF WITNESSES.] -STENOGRAPHER'S TRANSCRIPT OF TESTIMONY OF DUMB WITNESS TAKEN DOWN BY INTERPRETING HIS SIGNS, ADMISSIBLE.-In Quinn v. Halbert, the Supreme Court of Vermont decided (Mr. Justice Taft dissenting) that the fact that a person was dumb and was obliged to communicate his thoughts by signs, did not render him incompetent as a witness. That cause having been remanded for another trial,

and the witness concerning whom this ruling was made, having in the meantime died, the question came up on the subsequent trial and on a subsequent appeal therefrom, whether the stenographer's notes of the testimony of the witness as given on the former trial, and taken down by the stenographer by interpreting his signs, were competent evidence. The court held that they were competent evidence under a statute of that State, Mr. Justice Taft saying: "While there is force in the suggestions of the defendant's counsel, we think that § 816 of the R. L. makes it evidence, although the stenographer described in words, signs made by the witness. What his testimony was upon the former trial could have been shown by witnesses who heard it. See cases cited in Roberts' Digest, 285. And the signs made by the witness are no doubt as well described by the stenographer, in his transcript, as they would have been by witnesses on the stand. I take this occasion to note the dissent which I expressed in consultation at the former hearing, from the conclusion of the court, that Quinn was a competent witness. The fact appeared that he was not, and could not have been cross-examined. Thus the defendant was deprived of one of the two great tests of the truth of

2 55 Vt. 224.

3 Quinn's Admrs v. Halbert, 57 Vt. 178 (Adv. Sheets.)

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a witness, viz. : a cross-examination. should, therefore, have excluded his whole testimony, but the court held otherwise, and the statute makes a transcript made by the stenographer evidence. The defendant was not entitled to a compliance with his request that the manner of its reproduction materially lessened the weight to be given his testimony. It would have been proper for the court to have told the jury that it should have been considered by them in determining that question. How much it lessened its weight was a question for them, not for the court."

NEGLIGENCE. [RAILWAY COMPANY-PROHIBITED RATE OF SPEED.]-WHETHER RUNNING AT PROHIBITED RATE OF SPEED IS TO BE DEEMED THE PROXIMATE CAUSE OF AN INJURY CAUSED BY THE ENGINE BECOMING DERAILED. -This question was presented in a somewhat curious phase in the case of Mahan v. Union

Depot, etc. Transfer Co., before the Supreme Court of Minnesota. The railway was laid upon the street of a city. An engine, with a car attached, while running at a rate of speed prohibited by an ordinance of the city, quit the track, running into a house abutting the street, and injured the plaintiff, who was therein. It was urged on behalf of the railway company that the ordinance had no application to such a case, but that it was intended for the protection of persons or property within the street. The court did not accede to this view. Dickenson, J., said: "The obvious dangers arising from running locomotives and trains of cars rapidly through a populous city are too manifold to warrant so limited an application by the court of the prohibitory law. We see no reason for limiting the effect of the unqualified terms of the ordinance by declaring that the dangers contemplated when the ordinance was enacted did not include that arising from the vicinity of buildings to the railroad, and the consequent exposure of such buildings and their inmates to injury from any accident throwing trains from the tracks. It has even been considered that the danger to buildings from fire thrown out by engines in rapid motion was one of the mischiefs which a statute lim

4 24 N. W. Rep. 293.

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iting the speed of trains through cities and villages was designed to prevent. The ordinance unquestionably imposed the duty of limiting the speed of trains to the rate prescribed. The breach of that duty was evidence of negligence. The plaintiff was rightfully in the place where the injury occurred. Although she was in that place by the defendant's license, she is not to be deemed as having assumed the risk of injury from such acts of negligence as might be committed by them. They were responsible, if they failed to exercise ordinary care, for the natural and proximate consequences of their negligence." What the court really seems to have decided was, that it was properly left to the jury to say whether the negligence of the defendant, in running its engine and car at a prohibited rate of speed, was the proximate cause of the injury which the plaintiff received.

tions of the answer or defense are fairly supported, as in this case, by the affidavits of the defendant and other persons, as against like affidavits on behalf of plaintiff, it cannot ordinarily be said that the falsity of the answer is clear and indisputable. For a court to assume to say this, unless in very extraordinary circumstances, such as do not exist here, would, in effect, be to try the controversy between the parties upon affidavits, and to deprive the defendant of his right to a regular trial by jury or otherwise, with all its manifest advantages. Obviously this will not do.9 But, as it seems to us to appear by the record to have been what the trial court did do in the present action, the order striking out the answer, and for judgment for plaintiff, is reversed, and the case remanded for further proceedings."

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STRIKING

PLEADING. [STRIKING OUT.] OUT A SHAM ANSWER.-The question, under what circumstances a court is at liberty, in pursuance of a power conferred by statute, to strike out the entire answer of the defendant as a sham, was again considered by the Supreme Court of Minnesota in the case of Jewell v. Wright, and the conclusion was reached that this cannot be done, except where the falsity of the answer is so clear and indisputable that it is to be regarded as "a mere pretense, set up in bad faith without color of fact.8 Under this rule, the court, for obvious reasons, had no difficulty in holding that the court below erred in striking out the answer as a sham, because the plaintiff produced affidavits tending to show that it was false, while the defendant produced counter affidavits tending to show that it was true. Berry, J., said: "When the allega

5 Martin v. Western Union R. Co., 23 Wis. 437.

6 Faber v. St. Paul, M. & M. R. Co., 29 Minn. 465; s. C., 13 N. W. Rep. 902; Toledo, W. & W. R. Co. v. O'Connor, 77 Ill. 391; Lane v. Atlantic Works, 111 Mass. 136; Crowley v. Burlington, C. R. & N. R. Co., 20 N. W. Rep. 467, (Iowa).

7 24 N. W. Rep. 299.

8 Morton v. Jackson, 2 Minn. 221, (Gil. 180;) Barker v. Foster, 29 Minn. 166; s. c. 12 N. W. Rep. 460; C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267; s. C., 17 N. W. Rep. 388; Kiefer v. Thomass, 6 Abb. Pr. (N. S.) 42.

JURISDICTION.

[ATTACHMENT.]-JURISDIC

TION IN ATTACHMENT CASES AS AFFECTED BY THE PARTICULARITY OF Statement in THE AFFIDAVIT or PETITION.-In Paul v. Smith,10 the Court of Appeals of Kentucky had occasion to consider what particularity of statement in a petition for an attachment is necessary to support the jurisdiction of the court where the cause proceeds to judgment without personal service or appearance, but by publication merely, so that the judgment will be deemed valid when collaterally assailed. The ground of the attachment, as given by the statute, was: "That he or they have voluntarily left the county of his or their residence; have been absent therefrom for thirty days, and during said period of time have been, and continued voluntarily within the so-called Confederate States, or their military lines." The grounds of attachment, in the petitions in different suits upon which the judgment and subsequent sale depended, were stated respectively thus: "Said F. H. Paul has voluntarily left the county of his residence; has been absent therefrom for thirty days, and during said period of time has been and continued voluntarily within the so-called Confederate States or their military lines." "Said F. H. Paul has voluntar

9 Barker v. Foster, supra; Bliss, Code Pl. § 422. 10 6 Ky. L. J. 531.

11 Myer's Supp. Ky. Code, p. 38.

ily left Henry county and State aforesaid, the county of his residence; has been absent therefrom for thirty days; and during that period of time has been and continued in the so-called Confederate States or their military lines." The objections to these statements were that in the first one it was not alleged that the defendant, F. H. Paul, was, when he left the county of his residence, a resident of Kentucky; while in the second one the word "voluntarily," as used in the statute, was omitted from the statement relating to the defendant having remained within the Confederate States or their military lines. A majority of the court, nevertheless, held that the judgment was valid. Holt, J., wrote the opinion of the court; Pryor, J., did not sit; and Hines, C. J., dissented. It is not surprising that in their opposing opinions the learned judges were able to array authorities on both sides of this question.12

12 Holt, J., in the opinion of the court, cited: Cooper v. Reynolds, 10 Wall. 308; Allen v. Brown, 4 Met. (Ky.) 34; Bailey v. Beadles, 7 Bush. 383; Thomas v. Mahone, 9 Bush. 111; Burchett v. Burchett, 5 Ky. L. Repr. 314.

LIMITATIONS OF ACTIONS FOR CONVERSION.

There are few subjects more important or more obscure than this in the range of law pertaining to the effect of lapse of time in barring claims. The statute of limitations begins to run, in an action of trover, it is established, from the time of the conversion; 1 for it is then that the cause of action accrues. It therefore becomes of the utmost consequence to determine what acts constitute a conversion, and this of itself opens a wide field of inquiry, and involves the practitioner in many difficulties.

What Constitutes Conversion.-It may be said that any illegal act of dominion over the property of another, which amounts to the assertion of a title therein, and is, in defiance of the real owner's title, is a conversion, whether the person knew of the

1 Montague v. Sandwich, 7 Mod. 99; Horsefield v. Cast, Add (Pa.) 152; Outhouse v. Outhouse, 13 Hun. 180; Fishwick v. Seawall, 4 Har. & J. (Md.) 393. 2 Wood Lim. p. 381 § 183.

3 Beckley v. Howard, 2 Brev. (S. C.) 94; Webber v. Davis, 44 Me. 147.

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Date of Actual Conversion. Where an actual conversion is shown to have been made, although not known to the owner, the statute runs from the date of the conversion, unless the defendant has fraudulently concealed the fact, or been guilty of fraud to prevent the owner from obtaining knowledge of it within the statutory period; 9 in which case such fraudulent concealment will defeat the operation of the statute, except from the time when the facts were or ought to have been discovered.10 Thus, under the general proposition that the statute runs from the date of the actual conversion, it has been held that the statute began to run from the sale under execution of a United States certificate previously levied upon, and for which an action of trover was brought.1 11 But if there had been a demand upon the officer for the certificate before the sale, the statute would have run from the time of demand and refusal, 12 because a refusal to de

4 Harris v. Saunders, 2 Strobh. (S. C.) 370. 5 Hare v. Pearson, 4 Ired. (N. C.) 76.

6 Hare v. Pearson, 4 Ired. (N. C.) 76; see Wood Lim. ut supra.

7 Andrews v. Shattuck, 32 Barb. 396; Irish v. Cloyes, 8 Vt. 30.

8 Wood Lim. p. 382 § 183; But compare Houston etc. R. Co. v. Adams, 49 Tex. 748; s. c. 30 Am. Rep. 116; Arnold v. Scott, 2 Mo. 13; s. c. 22 Am. Dec. 433, and note on p. 435.

9 Short v. McCarthy, 3 Barn. & C. 626; Granger v. George, 5 id. 149; Brown v. Howard, 2 B. & B. 78; Deuch v. Walker, 14 Mass. 499; McWills v. Browne, 15 id. 82; Ashmead v. Kellogg, 23 Conn. 70: Harris v. Saunders, 2 Strobh. (S. C.) 370; Jordan v. Thornton, 7 Ga. 517; Smith v. Newby, 13 Miss. 159; Johnson v. White, 21 id. 584; Ward v. Dulaney, 23 id. 410. Compare Ang. Lim. p. 325, § 304.

10 Clarke v. Reeder, 1 Speers (S. C.) 398; Simons v. Fox, 12 Rich. (S. C.) L. 392; Fears v. Sykes, 35 Miss. 633. So it would doubtless be held in all States where fraud is regarded as sufficient to suspend the statute in any case: Wood Lim. § 183 p. 382, note 2. Action held barred because allegations of complaint show conversion rather than deceit: Doyle v. Callaghan, (Cal.) 6 West Coast Rep. 779. Ignorance of whereabouts of subject of conversion no cause for prolongation of period: Dee v. Hyland, (Utah) 2 West Coast Rep. 469. 11 Horsefield v. Cast, Add. (Pa.) 152.

12 See Compton v. Chandless, 4 Esp. 20.

liver up property which the defendant has no right to keep on demand amount to a conversion. 13

Demand and Refusal.-The doctrine upon this subject is that whenever the goods of one man have lawfully come into the hands of another, the owner, or persons entitled to the possession of the goods, should go himself, or send some one with a proper authority to demand and receive them; 14 and if the holder of the goods then refuses to deliver them up, or permit them to be removed, there will be evidence of a conversion. 15 When the original taking is wrongful, however, a right of action accrues immediately without demand, and of course the statute begins to run from that time; 16 nor is a demand necessary where there has been an actual conversion.17 But when goods are rightfully obtained, and there has been no actual conversion, a demand is necessary before an action can be brought,18 and in such a case the statute begins to run from the time of demand. 19

Retention as Affecting Title.-Upon the important question how far the title to personal property is affected by its retention by a person until the statute has barred an action for its recovery, it may be said that within the jurisdiction where the statute has run upon the claim, there seems to be no doubt but that the effect of the statute is to transfer the legal title to the person in possession, so that he may maintain an action even against the former owner for any interference therewith;20 and this doctrine applies to buildings left on leased premises by the tenant for more than

18 Reade v. Markle, 3 Johns. (N. Y.) 520; Montague v. Sandwich, 7 Mod. 99.

14 Thorogood v. Robinson, 6 Q. B. 772.

15 Thorogood v. Robinson, 6 Q. B. 772; and see Baldwin v. Cole, 6 Mod. 212: Wilton v. Girdlestone, B. & Ald. 847.

16 Woodbury v. Long, 8 Pick. 543; Farrington v. Payne, 15 Johns. 431; Davis v. Webb, 1 McCord (S. C.)

213.

17 Jewett v. Partridge, 12 Me. 243; Darrell v. Mosher, 8 Johns. 445; Tompkins v. Hale, 3 Wend. 406; Hines v. McKinney, 3 Mo. 382.

18 Wood Lim. § 183 p. 381, note 1.

19 Baldwin v. Cole, 6 Mod. 212; Montague v. Sandwich, 7 id. 99; Thorogood v. Robinson, 6 Q. B. 772.

20 Vandever v. Vandever, 3 Met. (Ky.) 137; Devine v. Bullock, id. 418; Ewell v. Tedwell, 20 Ark. 136; Cockfield v. Hudson, 1 Brev. (S. C.) 311; Howell v. Hair, 15 Ala. 194; Bohanon v. Chapman, 17 id. 696; McArthur v. Carver, 32 id. 75; Clarke v. Slaughter, 34 Miss. 65; Winham v. Cochran, 9 Tex. 123, 143; Mercein v Burton, 17 id. 206.

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six years after his term has expired." But in order to defeat the title of the true owner to the property, the possession must be adverse, as in the case of lands; 22 and it must be continuous, without tacking. Furthermore, if the property is held as bailee under a contract, or otherwise, in recognition of the owner's title, the statute does not begin to run against the owner until the person so holding the property has done some decisive act evincing a determination to deny the owner's title.24 Thus, where bonds were pledged to a person as security for a loan, and held by him for several years, it was held that the statute did not begin to run against the owner until he had repaid the loan and demanded the bonds, and there had been a refusal or neglect of the pledgee to return them.25 In such a case, although an action of trover for the conversion may be barred, a remedy may still be available, at the option of the owner, upon the implied contract to return the property on payment of the loan.

Choice of Remedies. Indeed there are cases where the injured party may bring trespass or trover, or may waive both, and bring assumpsit for the proceeds of the property where it has been converted into money; 27 in which case the tort-feasor cannot allege his own wrong so as to bring time back to the day of the tort. 28 And when a party has his election between trover and assumpsit, the fact that one remedy is barred will not defeat the other, if the statute has not run upon that. 29 Thus, where the maker of a note which was outlawed, asked to see it, and being shown it by the holder destroyed it, it was held that trover lay for the note, and that the measure of damages was the face of the note with interest, notwithstanding that the statute might have been successfully in

21 Preston v. Briggs, 16 Vt. 124. 22 Baker v. Chase, 55 N. H. 61.

23 Beadle v. Hunter, 3 Strobh. (S. C.) 31; Wells v. Ragland, 1 Swan 501; Maffatt v. Buchanan, 11 Humph. 361; Hobbs v. Bullard, 5 Sneed 395.

24 Wood Lim. p. p. 383 § 183; compare Ang. Lim. p. 324, § 304.

25 Roberts v. Berdell, 61 Barb. 37; 'Jones v. Jones, 18 Ala. 248.

26 Kirkham v. Phillips, 7 Heisk. 222. 27 Wood Lim. p. 362 § 177.

28 Lamb v. Clark, 5 Pick. 193.

29 Ivery v. Owens, 28 Ala. 641.

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