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Ion District or kew York

, Suly 15, 1956

, 5 Pela

To pay

and then singing it, in church. By proper compres- party claiming under it. The court said: sion the number of our annual reports could be re- this provision of the contract is against public polduced nearly one quarter.

icy and therefore void, is, to my mind, entirely

clear. It amounts to an agreement to give to each NOTES OF CASES.

of the officers of the company who made the con

tract, and to each of their successors who should Johnson v. Donaldson, U. S. Circuit Court, South- maintain it, a valuable consideration for his official

action in that behalf; a consideration of a private Rep. 22, Wallace, J., held that the publication and and personal character, inuring to the officers' prisale of chromos designed from a picture found in a vate benefit and gain, and not to the benefit of the foreign publication do not constitute a breach of company or other stockholders. It is said, however, copyright of similar chromos where such copyright that this feature of the contract may be eliminated, was obtained after the circulation of such foreign and that the remainder may stand and be enforced. publication. The court said: “The sketch in the It is true that the policy of the law is to effectuate foreign publication was public property, which any rather than defeat a contract, and to this end parts person could rightfully reproduce. If the plaintiff or provisions which are comparatively unimportant, had obtained his copyright by appropriating this and which may be severed from the contract withsketch, and recording the description, and comply-out impairing its effect or changing its character, ing with the other formal requisites of the act of will sometimes be suppressed. 2 Pars. on Cont. 505. Congress for obtaining a copyright, he would have But the clause above quoted cannot be set aside as acquired no exclusive right to it, because he would unimportant. It constituted, to say the least, one not have been the author, designer, or proprietor of of the considerations on which the contract was the sketch. Assuming the plaintiff to have been made, and it is well settled that “if the contract be the artist and designer of the picture copyrighted made on several considerations, one of which is illeby him, the defendant was not liable if he did not gal, the whole contract is void, and that whether avail himself, directly or indirectly, of the plaintiff's the illegality be at common law or by statute.?” production. A copyright secures the proprietor " The officers of a railway company are quasi public against the copying, by others, of the original work, officers. Their duties are of a fiduciary character. but does not confer upon him a monopoly in the in- They are, in an important sense, trustees. tellectual conception which it expresses. An artist them individually any thing of value for executing cannot acquire such an exclusive right to the con- a corporate contract is grossly unlawful, and taints ception embodied and expressed in his picture as such contract with inoral turpitude. Vast interests, to preclude others from the exercise of their own in which the public, as well as the immediate parcreative genius or artistic skill, or from availing ties, are deeply concerned, are intrusted to the conthemselves of any part of the general contribution of trol and management of such officials; and in my artistic production. The law of copyright origi- judgment, there are important considerations of nated in the recognition of the right of another to public policy which demand that courts of justice be protected in the manuscript which is the title of shall hold them to a strict account, and shall never his literary property. This protection could not be for a moment recognize as valid a contract obtained arlequate unless he was invested with the exclusive by paying directly or indirectly to such officials any privilege of copying the manuscript, whether for consideration, whether large or small.” sale or for publication. It does not rest upon any theory that the author has an exclusive property in his ideas, or in the words in which he has clothed

In Armstrong v. Kleinhans, Louisville Chancery them. If each of two persons should compose a

Court, 1 Ky. L. Rep. 112, the plaintiff carried on poem identically alike, he who first composed it

the clothing business at No. 150 West Market street,

Louisville, in a leased building with an observatory, would have no priority of title over the other, nor

which was called the “ Tower Palace," and adverwould he acquire priority by first publishing it.

tised his business under that name by signs and The law of copyright would protect each in his own manuscript, but would not prevent either from using Jefferson street, to a building with no tower or ob

publications. Subsequently he removed to West his own." To the same effect, Lucas v. Cooke, 21

servatory, and continued the designation “ Tower Alb. L. J. 364.

Palace.” After his removal the owner of the first In Western Union Telegraph Company v. Union premises himself carried on the carpet business Pucific Railroad Company, U. S. Circuit Court, Dis- there, under the name of “ Tower Palace Carpet trict of Kansas, June 30, 1880, it was held by Mc-Store.” Later he rented the premises to defendCrary, C. J., and Foster, D. J., that a provision in ants, who carried on the clothing business, under a contract between a telegraph company and a rail- the designation, “ Tower Palace.” The plaintiff road company, to the effect that the telegraph com- filed a bill to restrain defendants from the use of pany will transmit the family, private and social that designation, but the bill was dismissed. The messages of the executive officers of the railroad court said: “Plaintiffs insist that the house is not company free, is against public policy, and immoral, a palace nor the observatory a tower. But while and taints the entire contract, so that a court of this is true, we are compelled to speak with entire equity will not enforce it, or grant any relief to a accuracy, and although the plaintiff has proved by

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an architect that the 'tower' is not a tower, but | husband of all ownership and control; for surely, has been called a 'chicken-coop,' yet I think it is while the duty of the husband to furnish his wife too much to expect of men that in naming a con- with necessary and suitable clothing is continued, spicuous building they shall not be allowed to use it was not intended to deprive him of the right to the language of compliment. And it seems to me control and preserve it. Nor does it make any difthat a fine house may be called a palace, and that ference, where a wife purchases her apparel with pin the ornament on a high building like this may be money, given to her by her husband to be expended called a 'tower;' and that 'tower-palace' is not in according to her will and pleasure. Of such propthe language of compliment a too exaggerated erty, the possession of the wife is the possession of name for this particular structure.

The newspaper,

the husband. It has been held, however, by the in describing the plaintiff's opening, called particu- Supreme Court of Indiana, that a statute similar to lar attention to this tower, setting forth its com- ours operates as to clothing of the wife acquired mand of all the territory adjacent to Louis ville. It otherwise than from the husband, or through his is to be observed that the sign on the tower was means, so as to invest her with a separate estate simply " Tower Palace,' and not Tower Palace Cloth- therein. Stevens v. State, 44 Ind. 469. See, also, 17 ing House, and it is further proved that the iron Ala. 415; Hawkins v. Providence & Worcester Railslab at the front door has the words - Tower Palace' road Co., 119 Mass. 596; S. C., 20 Am. Rep. 353; 51 cast in it. I think this name was suggested and Il. 162; 1 Am. L. Reg. 434. And we are inclined adopted as appropriate to this particular building, to think that there are good grounds for the distincand was given to the building itself, and that it tion. Where the wife's clothing is furnished by the does not matter who first called it ‘Tower Palace.” husband, in discharge of his marital duty toward “What is true of the name of an article must be her, the statute does not divest him of the property equally true of the name of a building. It would contrary to his intentions; while on the other hand, be unjust to its owner to limit him as to his tenants, where the property is otherwise acquired by the or to prevent him from taking a proper advantage wife, the statute simply prevents a title vesting in of its notoriety. No new tenant has any right to him by virtue of his marital relation. Under the deceive the public into thinking the building is still statute, the 'gift,' which is declared to be the sepaoccupied by a former tenant. But in so far as the rate property of the wife, is a voluntary one, as all public are deceived by the fact that the name of the gifts must be, and does not embrace necessaries building continues to be used, such misleading can- which a husband is under a legal duty to furnish not be avoided, any more than a belief that the first his wife." Under our statute a married woman can firm that manufactured Paraffine Oil' or Essence sue in her own name for injury to her paraphernalia; of Anchovies' will continue to exclusively supply Rawson v. Penn. Railroad Co., 48 N. Y. 212; S. C., the market with these articles. To make this even 8 Am. Rep. 543; but in the absence of proof of a plainer, suppose a house built of red granite calied gift to her, the husband can sue. Curtis v. Delaware, by its first tenant Red-Granite House, or of brown etc., Railroad Co., 74 N. Y. 116; S. C., 30 Am. Rep. stone so named Brown-Stone Palace, could such a 271. In State v. Pitts, 12 S. C. 180, it was held, tenant move away his business and sign to a brick that while a married woman may acquire title to house or a frame house and prevent all other ten- articles of apparel by gift from her husband, yet ants from calling the houses by their appropriate her mere use and enjoyment of such articles purnames ? I am not willing to put this case solely on chased by her husband does not give her title the ground that the name “Tower Palace' was ap

thereto as her separate property; and on an indict-
propriate or descriptive of this building. I am in- ment for stealing such articles, laying them as the
clined to think that whatever name had been given property of the husband, the question of title is for
must adhere to it.” See“ Antiquarian Book-Store" the jury.
case, Choynski v. Cohen, 39 Cal. 501; 2 Am. Rep.
476; “No. 10 South Water street” case, Glen & Hall

Manufacturing Co. v. Hall, 61 N. Y. 226; 19 Am. PERSONAL EVIDENCE OF HIS
Rep. 278.

In Pratt v. State, 35 Ohio St. 514, it was held that NE of the most interesting questions in the law,
necessary and suitable clothing furnished by a hus- and one of frequent recent occurrence is,

how band to his wife, or purchased by her with money far can a person accused of crime be compelled to or means given to her by her husband for that pur- furnish personal evidence of his identity with the pose, does not become her separate property within perpetrator, and thus to make evidence against himthe meaning of the statute concerning the rights self? It will be useful to group and review the deand liabilities of married women. The court said: cisions pro "Notwithstanding the very comprehensive terms To commence with the most recent. In State v. of this statute, a majority of the court are of the Ah Chuey, 14 Nev. 79, on a question of personal opinion that they do not embrace the wearing ap- identity, in a trial for murder, a witness testified parel of his wife, furnished by the husband, or pur- that the defendant had certain tattoo marks on his chased by her with money or means given to her by person. The court compelled the witness, against the husband for that purpose. As to such property, his objection, to expose his person to the jury. It was not intended by the statute to deprive the | Held, no error. This was held by two judges, the

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and con.

third dissenting in a very learned and able opinion, on a prisoner's face with the wards of a key with to wbich we shall advert. The prevailing opinion which he was struck at the time of the commission is elaborate, and likens the exposure in this case to of the offense; and ask: “If an officer arresting compelling a prisoner to remove a veil or mask. one charged with an offense had no right to make The distinction however is, that there the prisoner the prisoner show the contents of his pocket, how tries to conceal evidence which is ordinarily visible, could the broken knife, or the fragment of paper and from which the jury have a right to draw a corresponding with the wadding, have been found ? conclusion, and the removal simply restores that If when a prisoner is arrested for passing counterevidence. The prisoner has no more right to hide feit money, the contents of his pockets are sacred his face than to secrete his whole person. The from search, how can it ever appear whether or not court also liken the ruling to the searching a pris- he has on his person a large number of similar bills, oner and finding false keys or stolen property upon which, if proved, is certainly evidence of the scihim. The sufficient answer to that is, that such enter ? If an officer sees à pistol projecting from things are not part of his person, but are circum- the pocket of a prisoner arrested for a. fresh murstances by which he has surrounded himself. When der, may he not take out the pistol against the pristhese circumstances are disclosed, it is not the man oner's consent, to see whether it appears to have who is compelled to give evidence against himself, been recently discharged ?" They then instance a but the circumstances by which he has environed veil and a mask. This is fairly the substance of the himself. The conclusion of the court is “that no opinion, and we have already sufficiently commented evidence of physical facts can, upon any established on this line of argument. principle of law, or upon any substantial reason, be In State v. Garrett, 71 N. C. 85; S. C., 17 Am. held to come within the letter or spirit of the Con- Rep. 1, at a coroner's inquest, upon the body of a stitution.” This decision cited with approval the person found dead, it was proved that defendant North Carolina decisions and distinguished the had said that deceased was accidently burned to Tennessee case which we shall allude to.

death, and that defendant had burned her own In Walker v. State, 7 Tex. Ct. App. 245, on the hand in trying to put the fire out. Defendant being trial of an indictment for murder, the prosecution then in custody on suspicion of having murdered were allowed to prove that the examining magistrate the deceased, was ordered by the coroner to show had compelled the prisoner to make his footprints her hand, which she did, and it appeared uninjured. in an ash-heap, and that they corresponded with Held, that evidence of such fact was admissible footprints found at the scene of the crime. Held, upon the trial of defendant for the murder. This no error. Counsel acutely argued that “if this must be classed with the mask and veil as an inprisoner can be compelled to make an impression stance of an attempt to conceal evidence ordinarily with his foot in order to see if it is similar to the visible. The jury of course have a right to scrutiimpression made by the foot of the person who nize patent facts, such as stature, shape, complexion, committed the crime, then if he were charged with hair, features, scars, loss or peculiarity of members, forgery he could be compelled to take a pen, and etc. These are public matters, which the public write, in order to see if his handwriting was similar cannot be prevented from viewing, and which the to that of the party who had committed the for- prisoner knows are liable to comment and comparigery.(This he may now by statute be compelled Of these, witnesses who observed them may to do in England.) This decision is founded on speak, or the jury may look at them in court. So State v. Graham, infra, and Stokes v. State, infra, is if witnesses have observed the patent characteristics distinguished on the ground that there “ the pris- of gait and voice, they may testify to them, or the oner was asked in the presence of the jury to make jury may observe the prisoner's gait as he naturally evidence against himself”. a perfectly futile dis- and voluntarily walks, or his voice as he voluntarily tinction, as we shall see. The worst of this decision speaks. But will it be contended, that on a quesis that it permits secondary evidence of incompe- tion of resemblance of gait, the court can compel tent evidence-evidence of an experiment out of the isoner to get up and walk, or that on a quescourt, which, if tried in court, might not have been tion of voice, they can compel him to speak ? conclusive against the prisoner.

The foregoing are the only cases holding this In State v. Graham, 74 N. C. 646; S. C., 21 Am. doctrine. On the other hand is Stokes v. State, 5 Rep. 493, an officer, who had arrested a person Baxt. 619; S. C., 30 Am. Rep. 72. On an accusacharged with larceny, compelled him to put his tion of murder, it being claimed that certain footfoot in a track found near where the larceny was prints were those of the prisoner, the prosecuting committed, and testified as to the result of the com- attorney brought a pan of mud into court, and parison. Held, no error. The court say, “no placed it in front of the jury, and having proved that hopes or fears of the prisoner could produce the the mud in the pan was about as soft as that where resemblance of his track to that found in the corn- the tracks were found, called on the prisoner to put field.” They instance the case of a fragment of a his foot in the mud in the pan. On objection, the knife-blade found sticking in a window, and its cor- court instructed the prisoner that it was optional with respondence with the blade of a knife found in a him whether he would comply. The prisoner reprisoner's pocket; the similar case of gun-wadding fused, and the court instructed the jury that his found in a wound, and evidently torn from paper in refusal was not to be taken against him. The prisa prisoner's pocket; the correspondence of marks oner being convicted, held, that he was entitled to a

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new trial.

It is impossible to distinguish this case. truth, and the result would have verified the stateIf the court had considered the evidence competent, ment. Suppose, instead of the hand and bust of a it would have compelled the prisoner to “make woman, he had written upon his breast, in India tracks,” or instructed the jury that his refusal ink, the words, 'I am Ah Chuey,' why could those might be considered against him. The court said: words be shown with more propriety than the words “In the presence of the jury the prisoner is asked in the diary, and could they not have been shown to make evidence against himself.” That is exactly if was proper to compel him to exhibit the mark ?" what he was asked to do in the tattoo case, and “Had the identifying mark been upon some portion what he was compelled to do in the Graham case. of the body not concealed, and had the jury seen It is immaterial whether he is compelled to do it it by reason of the defendant's presence in court, I out of court or in court. The distinction drawn by do not say that they could not have acted upon the the court in the Walker case against the Stokes case, fact so observed. What I say is, that whether the would apply just as well to the Graham case. mark is concealed or not, the court cannot compel

In People v. J/cCoy, 45 How. Pr. 216, an indict- a defendant, for the purpose of identification, or ment of a woman for murder of an illegitimate any other, the tendency of which is to criminate, to child at birth, the coroner had directed two physi- exhibit himself or any part of himself before the cians to go to the jail and examine her private parts jury as a link in the chain of evidence.” 6. Had to determine whether she had recently been deliv- the district attorney asked the defendant whether ered of a child. She objected to the examination, he had on his right forearm the tattoo mark debut being threatened with force, yielded, and the scribed, and had the court, against the defendant's examination was had. Their evidence was offered consent, compelled him to answer that he had such on the trial, and ruled out. The court said the pro- a mark, there can be no doubt that such action ceeding was in violation of the spirit and meaning would have been a grave error,

Could the court, of the Constitution, which declares that “no per- at the trial, in the presence of the jury, by other son shall be compelled in any criminal case to be a and forcible means, accomplish indirectly what it witness against himself.” “They might as well could not do by direct means ?” have sworn the prisoner, and compelled her, by

Neither Wharton nor Bishop expresses any opinion threats, to testify that she had been pregnant and on this question, but it seems to us that on princihad been delivered of a child, as to have compelled ple a prisoner cannot be compelled to say any thing, her, by threats, to allow them to look into her per- nor do any thing, nor submit to any act addressed son, with the aid of a speculum, to ascertain whether to his actual person, which may tend to criminate she had been pregnant and been recently delivered him, of a child." “Has this court the right to compel

LIABILITY OF SHERIFFS BEFORE RETURV the prisoner now to submit to an examination of her

DAY OF EXECUTION, private parts and breasts, by physicians, and then have them testify that from such examination they are of the opinion she is not a virgin, and has had A fieri facias issues from the fall term of a Superior

Court, returnable to the ensuing spring term of a child ? It is not possible that this court has that

the same. In a week after its issuance, the sheriff colright; and it is too clear to admit of argument that lects the money thereunder. Is the execution plaintiff evidence thus obtained would be inadmissible entitled to that money upon demand, and does the against the prisoner."

sheriff expose himself to an action by refusing to pay

it over? This is a question upon which there seems to Leonard, J., dissenting in the tattoo case, said

be a dearth of adjudication. Does the money as soon among other things: “I think the framers of the

as it goes into the hands of the sheriff become the Constitution, and the people who adopted it, in- money of the plaintiff? Greenleaf, in the second roltended, that at criminal trials, the accused, if such

ume of his Law of Evidence (Redfield's edition), p. 315, should be his wish, should not only have the right $ 587, says that, “ the money, in this case, as soon as it

comes into the officer's hands, is money had and receired to close his mouth, but that he might fold his arms

to the creditor's use." On the other hand, the North as well, and refuse to be witness against himself in

Carolina court, iu State v. Lea, 8 Ired. 94, hold that "a any sense or to any extent, by furnishing or giving sheriff cannot apply to the satisfaction of an execution evidence against himself, whether testimony under against a person, money which he received on an execuoath or affirmation, or confessions or admissions

tion in favor of that person," for the reason, that "until without either, or proofs of a physical nature.” “If

it be paid over to the party, it is not his gooils." For the

purposes of the present discussion, it is not necessary witness Rhoades bad testified that he knew the de

to attempt a reconciliation of these apparent contradiofendant was Ah Chuey, because he was a good Eng- tions, as the question here is, not whether the inoney lish writer, and had for years kept a diary; that he is the plaintiff's before it is paid over, but whether he wrote in it every day, and signed his name 'Ah

has a right to have it paid over as soon as it is collected.

Upon principle it would seem that the creditor has the Chuey,' to each entry; that he saw the book a few

right to demand the money. The general rule is undeminutes before coming into court; that defendant niable, that the principal who constitutes one his colthen had had the book on his person, would any one lecting agent has a right to demand of his agent at any say that the court, without error, could have com- time such moneys as he may have in hand, less the pelled him to show the book to the jury? And yet agent's expenses, charges and commissions. That the why not, on principle, if he could be compelled to

sheriff is in contemplation of law the agent of the ex

ecution creditor is obvious from the fact that an inexhibit a private, harmless mark, for the same pur

junction to restrain proceedings under the execution pose ? The object would have been to ascertain the is directed to the creditor, and it is irregular to direct




such injunction to the sheriff. In Jarman v. Saunders. In 2 Greenl. Ev., $ 587, p. 515, it is said that “where 64 N. C. 367, Rodman, J., says: “It has been so fre- the precept does not otherwise direct him, he (the quently held that an injunction should not be prayed sheriff] is bound to pay it over to the creditor on the against the sheriff, who is only the agent of the plaintiff, return day of the process 'under which it was levied, that if the sheriff had not appeared, we should have without any demand, and earlier if demanded; upon been bound to allow him his costs.” Mr. Freeman, in failure of which an action lies." Freeman says in his his learned note to McDonald v. Neilson, 14 Am. Deo. work on Executions, $ 448, p. 740, that “the liability 431, says: “The plaintiff is the person most interested of officers before the return day has not been discussed in the writ of execution; and generally the sheriff with much frequency. The rule in force in Massachushould heed his instructions, and permit him to have setts is, that where money has been collected before substantial control of the writ.

All the the return day, the officer is at onco liable to the plaintdirections of the plaintiff not characterized by fraud, iff if the latter demands payment; but that in the oppression, or undue vigor must be obeyed.” He cites absence of such demand, no liability arises until after among other authorities, Tucker v. Bradley, 15 Conn. the return day.” A careful scrutiny of the Massa46; Rogers v. McDearmid, 7 N. H. 506; Richardson v. chusetts cases referred to in the note to this paragraph Bartley, 2 B. Mour. 328. Indeed, the opinion of the discloses no reason why the doctrine there announced learned writer of the most thorough and exbaustive should be treated as of local application. It is true treatise on Executions now extant is, in itself, highly that one of the cases, Rogers v. Sumner, 16 Pick, 387, respectable authority.

was a suit to recover a statutory penalty for failure to It is difficult to imagine any reason why this agent pay over money beforo the return day of the execu(the sheriff) appointed by law, should be less amenable tion, but the penalty only was the creature of statute, to his principal (the execution creditor), than an agent the right which was involved was left as if the enactvoluntarily selected by him. It has been suggested ment had never been. In this case (Rogers v. Sumner) that as the fi. fa. directs the officer to “have the the court say: “It is objected that the actions were money" at the ensuing term of the court, he must re- prematurely brought, having been commenced before tain it until then, so as to be able to respond to the the return day of the execution. But where the party exigency of the writ. To harmonize the adjudications, is injured by the officer's misfeasance, he is not obliged however, it is not unfair or unreasonable to resort to to wait until that day. Here the officer had the money construction, and to give the terms of the precept tho in his hands, the goods having been sold under mesne effect of a command to have the money by the next process, and it must be considered as having been apterm of court. The vacation between the terms is, | plied to these executions. In many cases the officer is probably, deemed a sufficient time for raising the able very early to obtain the money due upon an exemoney, and that time, but no more, is allowed the cution, and the question is whether he shall pay it over officer. For the officer's convenience, the interval be- immediately to the creditor, or retain it in his own tween the terms of court is allowed him for raising hands until the return day. It may be questionable the money, but if he raises it sooner, no good reason whether he is bound to pay it sooner without demand, appears why he should be compelled to withhold it but upon a demand being made, we think it is his duty from the party entitled to it until the return term. to pay it over.” This question has received some con

Reason and good conscience would seem to dictate a sideration in New York. Armstrong v. Garrow, 6 Cow. course analogous to that pursued in the settlement of 465, was assumpsit against a sheriff for the amount of estates by executors and administrators. The North a note taken by him in satisfaction of an execution Carolina statute allows them two years to settle, upon (ca. sa.) in favor of the plaintiff against a third party. the supposition that many estates which are compli- Suit was brought against the sheriff before the return cated cannot be settled in less time, but this was in- day of the execution and sustained by the court, Savage, tended as an indulgence to them, and where there are C. J., delivering himself as follows: “The general no debts due from the estate and no complications, principle is not denied that this action lies in all cases equity will compel an immediate settlement with the where any one has received the money of another and legatees or distributees. Turnage v. Turnage, 7 Ired. refuses to pay it over. I can see no reason why an 127. It is clear that in North Carolina the sheriff is officer who has collected money on an execution, and not obliged to keep the money until the return day. refuses to pay it to the owner, should not be liable as for In Whitehead v. Hellen, 74 N. C. 679, the court uses money had and received. The sheriff has received the this language: “If an execution be satisfied soon after money for the plaintiff's use; and having refused to the adjournment of the court from which it issued, pay it, is rightfully prosecuted.” One other considerawhy should the sheriff be compelled to retain the tion is suggested. When the sheriff collects the money money in his own hands until the term to which the on an execution, the judgment and execution are satexecution is returnable? Would it not be better isfied and the creditor can no longer have recourse on for all concerned that he should pay the money, either the execution defendant. Henry v. Rich, 64 N. C. 379; into office or to the party entitled thereto?” The re- Hunt v. Breading, 12 Serg. & Rawle, 37. Interest on turu term “is the limit beyond which he may not the judgment debt then stops, and if the sheriff can delay, but there is no good reason why he should delay | rightfully retain the money until the return term, the so long, if no useful purpose is to be served thereby. plaintiff is in a worse condition by getting judgment If the sheriff delays to pay the money to the party than he was before; for if the sheriff had not collected, entitled when there is "no good reason for doing so, interest would have continued to run against the judgis he not in default? This is the strongest expression meut debtor. Such an anomaly and such a hardship on the subject to be found in the North Carolina Re- is not in keeping with the spirit of the law. ports. In Patten v. Munn, 13 Ind. 444, Pearson, J.,

HUGH F. MURRAY. says: “ It may be that if he" (the sheriff acting under a fi. fa.) “had received the money, he was bound to

RATIFICATION BY PEOPLE OF CONSTITUpay it over to the plaintiff on demand," but this was

TIONAL AMENDMENTS. merely obiter. While there may be some difference of opinion as to whether the money collected by execu

INDIANA SUPREME COURT, JUNE 17, 1880. tion belongs to the creditor as soon as it comes into the officer's hands, it appears to be held with great confi- MATTER OF INDIANA CONSTITUTIONAL AMENDMENTS. dence, by several text writers, and courts of high The Constitution of Indiana provides, in reference to the authority, that the plaintiff in the execution can entitle adoption of amendments thereto, among other things, himself to it by demanding the money of the sheriff. that "it shall be the duty of the General Assembly to

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