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debt asserted. Love v. Fairfield, 13 Mo. 300. And after ant was present in person when the application was heard, such an assignment has been, in fact made without the or when the change was awarded. 2. Whether threats consent of the debtor, it is still competent for the original made by the deceased against the defendant, prior to the claimant to make a compromise of the whole claim. Ken. homicide, are properly admissible in evidence, can not be dall v. United States, 7 Wall. 110. In this case the claim determined by any general rule, but necessarily depends was a judgment. Opinion by SHERWOOD, C. J.-Burnett v. upon the circumstances of each case. In cases of doubt, Crandall.

for the purpose of showing that deceased made the attack, MARRIED WOMAN'S LAND-SEPARATE ESTATE.-A con

and, if so, with what motive, his prior declarations, even if

uncommunicated to the defendant, are clearly admissible; veyance to a trustee for the sole and separate use of a mar.

but prior threats are not admissible, where it is proved ried woman and her children, to the exclusion of the hus.

that defendant sought the encounter. Where the homicide band, during her natural life, and, upon her death, to her

occurred under circumstances which leave it doubtful children in fee, with power in her to sell and convey

whether the killing was done maliciously, or done from a through her trustee, and re-invest proceeds of sale in other

well-grounded apprehension of danger, evidence that the lands, subject to like limitations, gives the married woman

deceased wus of a turbulent, violent and desperate charac. a separate estate, chargeable in equity with the payment

ter is admissible on the question whether defendant had of a note executed by her. Metropolitan Bank v. Taylor,

reasonable cause to apprehend great personal danger; but 53 Mo. 444: Nat. Bank v. Robidoux, 57 Mo. 446; Metropoli

this proof should not extend to particular acts, nor to the tan Bank v. Taylor, 62 Mo. 338. The court declines to ex.

letting in of the opinions of witnesses as to what he would press any opinion as to how far the reversionary (or pres.

have been likely to do in given circumstances, but must be: ent) interest of the children could be affected by judgment

confined to his general character and reputation. It is and sale. Opinion by Hough, J.-Burnley v. Thomas.

error to instruct a jury that, "if they believe that any wit. UNITED STATES REVENUE LAW-SEC. 10.--The sure nesses swore falsely, or were mistaken, they are at liberty to ties on the bond of a United States deputy collector, con disregard the whole or any part of the testimony of such ditioned for the faithful performance of duty, etc., in a witnesses."-State r. Elkins. division constituted of Jackson county, are not discharged from liability thereon by the fact that, after the execution of the bond. this division was sub-divided into two divi. ABSTRACT OF DECISIONS OF SUPREME. sions, numbered one and eleven. One mode of collecting

COURT OF ILLINOIS. the revenue is by a sale of stamps, and the sale of the stamp is a collection. As the deputy had no power to collect taxes assessed outside of the limits of his division, the

January Term, 1877. securities on his bond can not be held for the value of stamps sold by him to persons doing business, and residing

[Filed at Ottawa, Jan. 31, 1877). beyond the limits of his division, although the sales may have been actually made within the limits of his division. Hon. BENJAMIN R. SHELDON, Chief Justice. Opinion by NAPTON, J.-Schuster r. Foster et al.



ALFRED M. CRAIG, PAID.-A bought land of B, paid part of the purchase.

Associate Justices.

JOHN SCHOLFIELD, money, gave his notes for the balance, and received a bond

JOHN M. SCOTT, for title. B transferred the notes to C, and A subsequent

T. LYLE DICKEY, ly paid them off in full in C's hands. B never made any conveyance to A, nor was any demanded. Subsequently A ACTION FOR INJURIES RESULTING IN DEATH-CONTRIBwrote to B to "sell his farm for him at $10 per acre, or as UTORY NEGLIGENCE-JURY NOT CONFIXED TO ONE ACTmuch more as he could get." B sold the land to his son for CROSSING RAILROAD TRACK-RULE WHEN BOTH PARTIES $10 per acre, received the purchase-money in cash, and, ARE GUILTY OF NEGLIGENCE-WHAT CONSTITUTES WAX.. being still the holder of the legal title, conveyed it to his son TON NEGLIGENCE.-1. An instruction which in effect ex by deed of general warranty. The son had full notice of cludes from the consideration of the jury any negligence of all the facts, and had seen the letter of A, requesting B to the deceased, except the fact of his being a trespasser upon

him. B failed to pay over the purchase-money to the track of the defendant's railroad, in an action by his A, who then brought suit against B and the son, to obtain personal representative to recover damages for his death judgment for the same, and have it declared and enforced by being struck by an engine, where the proof tends to as a lien on the land. Held, that A's direction to B to sell show negligence on his part in other respects, is erroneous, his land authorized B to make a valid contract of sale, but as being calculated to mislead. 2. If the conduct of onenot to receive the purchase-money, nor to convey the land; 1 killed while walking upon a railroad track amounts to gross. and that B's son, having acquired the title without A's con.

negligence, no recovery can be had of the company, unless sent, and with notice of all of the facts, took it subject to it was guilty of willful or criminal negligence. 3. In deterA's hen for the purchase.money. Opinion by HOUGH, J. mining whether a person killed while traveling upon a railStewart t. Wood et al.

road track was guilty of negligence contributing materially VARIANCE BETWEEN PETITION AND EVIDEXCE-WHEN

to the injury, and the degree of such negligence, as como OR TO EXCLUDE WITNESS FROM THE COURT-ROOM pared with that of the company, the court, in its instruc. COUNTS AT LAW AND IN EQUITY IN SAME PETITION-SEP.

tions, should not confine the jury to the consideration of ARATE VERDICTS - OPINION EVIDENCE ON QUESTION OF

the fact that the deceased wse simply a trespasser, but they INSANITY.-Where there is evidence of an issue, it is proper

should also consider his each and every other act and omis. for the court to instruct the jury and leave them to judge of

sion proved, materially contributing to the injury. 4. Where its weight. Where the petition sets forth one cause of

a person walking along the track of a railroad in a city, action, and the evidence and judgment show that the

without right, is struck by a train coming in, and killed at.. recovery was had upon another cause of action not stated

a place not a public crossing, and it appears he used no. in the petition, the judgment will be reversed. It is error for

precaution to guard against danger, although he knew he the court to order a party out of the court room, during an

was in a place of danger, not even looking back to see if a examination of a witness for the other side, on the sugges.

train was approaching, no recovery can be had, notwithtion of counsel that the witness, who is a timid girl, is in:

standing the company may have been guilty of negligence timidated by the looks and gestures of the party. Where a in running the train at a speed greatly in excess of that count at law and a count in equity are stated in the same

fixed by ordinance. 5. The fact that persons residing in petition, there must be separate verdicts and separate judg.

the locality where an accident occurs have been in the habit ments. In this state the opinions of witnesses, accompanied

of traveling upon the right of way of a railway com by statements of facts on which the witnesses base them,

without any measures being taken to prevent such acts, are evidence in question of insanity, although the witnesses

will not change the relative rights or obligations of one in. are not experts. Opinion by NAPTON, J.-Croro v. Peters.

jured while upon the track, or those of the company; such

person will still be a trespasser. 6. It is the duty of persons. APPLICATION FOR CHANGE OF VENUE-PRESENCE OF DE about to cross a railroad track to look about them and see

cibE-EVIDENCE OF PREVIOUS THREATS | there is no danger: not to go recklessly upon the track. -OF VIOLENT CHARACTER OF DECEASED-INSTRUCTIONS. to observe the proper precautions themselves, to avoid acci. -1. On application for change of venue in criminal cases, dent. 7. Although a recovery may be had by a party guilty it is not necessary that the record should show the defend. I of contributory negligence, when his is slight, and that of

the defendant is gross, yet it is indispensable to a right of recovery that the injured party shall have exercised ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property, or that the injury be willfully or wantonly inflicted by the defendant. 8. When the ordinance of a city prohibits railway compa. nies from running their trains in the city at a greater rate of speed than six miles an hour, the running of a train at the rate of fifteen miles an hour, resulting in the death of one wrongfully upon the track, will not make the injury willful or wanton on the part of the company. Opinion by CRAIG, J.-Illinois Central R. R. v. Wetherington.



January Term, 1877.

Hox. RICHMOND M. PEARSON, Chief Justice.

W. B. RODMAN, ļ Associate Justices.

JUSTICES OF THE PEACE have no jurisdiction of actions founded in tort. Nance v. The Carolina Central Railway Company.

A MORTGAGEE, under a power of sale contained in the mortgage deed, can not purchase the land of himself, so as thus to foreclose the equity of redemption.- Whitehead v. Hellen.

THE SUPERIOR COURT has no original jurisdiction to indict for the violation of town ordinances; the town only, through its proper officers and machinery of government must execute its own police laws.-State v. White.

INDICTMENT FOR ADULTERY – CO-DEFENDANT MADE WITNESS.-In an indictment for fornication and adultery, the solicitor has the right to enter a nol. pros. as to one of the defendants, and make such defendant a witness in the case.-State v. Phipps 9 Locklear.

REPORT OF TOWNSHIP BOARD NOT IN WRITING.-It is no objection to the report of a township board of trustees, that it was made to the board of county commissioners orally, and not in writing, as to the assessments of the property of a certain railroad for taxation.-Commissioners of Union County v. The Carolina Central Railway.

ADULTERY-EVIDENCE_“CUSTOM." - In an indictment for fornication and adultery, it was in evidence that, in a playful scuffle between the defendants, in the presence of the male defendant's wife and others, the woman fell, or was pulled, into the lap of the defendant. Held, that it was not error for his honor to charge the jury: "It is for you, gentlemen of the jury, to say if such acts are usual here."State v. Butner.

WILLS—How POWER TO SELL MUST BE EXPRESSED.When A dies leaving a last will and testament, appointing B and C his executors,“ with discretionary power to settle my estate as they shall judge best for the interest of my heirs at law :" Held, that the executors had no power to sell the lands of the testator. To confer a power to sell lands under a will, plain and express words are necessary, or the power must be implied by the imposition of duties on the executor, which can not be performed exoept by sale.Skinner v. Wood.

CLERK OF COURT APPOINTED to SELL REAL ESTATECHARACTER-THEFT.-A clerk of the superior court, ap. pointed to sell real estate in a proceeding for partition, acts in his official capacity, even though he is not designated as clerk in order of appointment. And the loss of money collected by him, in pursuance thereof, by being stolen from a safe in which it was deposited, is an official default and breach of bond for which his sureties are liable.-Coy v. Blair.

FRAUDULENT REPRESENTATIONS BY ONE OF A FIRM LIABILITY OF PARTNER TO ARREST.-Where goods were purchased by one of the members of a firm, upon a credit obtained by false pretenses and representations, in an action against both members of said firm: Held, that the partner who was not present, and had no knowledge of

such purchase, could not be arrested. Sec. 149, sub, sec. 4, of the Code of Civil Procedure, provides that no one can be arrested, unless he has been guilty of a fraud in con. tracting a debt.-McNeely g Walton v. Haynes.

LAPPAGE_WHO PRESUMED IN POSSESSION-RELEASEESTOPPEL.-In case of lappage, the law considers the party having the better (older) title to be in possession, unless the party having the junior grant be in actual possession; and it is sufficient for the defendant to rely upon his pos. session in law, and the plaintift has to show how it has been divested. Where one has possession of land, under an older and better title, and accepts a deed, it is only a releasc of a right, operating by way of extinguishment of any claim another party (the plaintiff) may have, and does not operate as an estoppel.-McAllister v. Devane.

DEED OF LAND HELD AS SECURITY - REQUISITES OF WARRANTY-DAMAGES.-When a mortgagee conveys land held as security for the payment of money, he is only required, upon its repayment, to make a deed with a special warranty. Therefore, where A purchased of C a house and lot, and borrowed from B a part of the purchase-money, C executing to B a deed with general warranty, and, opon A's repaying the money, B made a deed to A also with general warranty: Held, that B had a plain equity to have the deeds reformed, and, in case equity is not invoked to reform the deed, the plaintiff would only be entitled to nominal damages for breach of the covenant of quiet enjoyment.West v. West.

PLEADING-INSUFFICIENCY OF ANSWER-LANDLORD AND TENANT.-An answer which sets out" that no allegation of the complaint is true," is insufficient. It is necessary that the defendant shall separately answer each material allegetion of the complaint by a general denial, either of the whole allegation (not the whole complaint), or by a specific denial of some selected and specific part of the allegation. In a proceeding before a justice of the peace, under the Landlord and Tenant act (laws of 1868–69, ch. 156), a de. fendant who does not deny having entered as tenant of the plaintiff is estopped from setting up a superior title existing at the date of the lease, or subsequently acquired from a third person.-Hoyer v. Beatty.

CERTIFICATE OF DEPOSIT-WHEN NEGOTIABLE.-1 Certificates of deposit are negotiable, when expressed in nego tiable words; and their transfer to the endorser is governed by the same rules which control other promissory notes, the liability of the endorser being the same as upon the endorsement of such promissory notes. 2. To make a bill of exchange or promissory note (or certificate of deposit) negotiable, the promise must be to pay in money. And unless the instrument, on its face, affords every element to fix its value, such a paper is only a special contract, and is not negotiable. Hence, a promise to pay in "bank stock." in "current bank bills," or in “ current funds," will render the instrument unnegotiable.---Johnson r. Henderson.

CONSTITUTIONAL LAW-DIFFERENT SUBJECTS_SEPARATION OF OBJECTIONABLE ONES-ELECTIONS.-1. A statute may be unconstitutional in part, and constitutional in part when it relates to different subjects, or even when it relates to but one subject, if its parts can be separated and the object accomplished without the objectionable features ; but where only one object is aimed at, and the main object is unconstitutional, and all the provisions are contributory to it, and would not have been enacted but for the main object, then the whole is void. 2. Where an Act of the General Assembly, providing for a division of the City of Wilmington into three wards, and ordering an election for aldermen, at the same time appointing the plaintiff with other registrars of elections to register the voters preliminary to such election, which act has been declared vold; held, that the appointment of registrar of roters was also void; and that the plaintiff was not entitled to recover from the defendant pay for his services as registrar.Darby v. City of Wilmington.

INDICTMENT FOR ASSAULT AND BATTERY-AVERMENTSWHEN ACQUITTAL SHOULD BE DIRECTED-AUTHORITY OF OFFICER TO ARREST.-1. An indictment against & defend. ant for an assault and battery, committed on a policeman, need not aver that the person assaulted was a policeman. 2. Submitttng issues in a criminal action, requiring the jury to respond thereto, and treating the jury's findings in reply as a special verdict, is a practice inconvenient and not to be advised. 3. Where a jury found that the persoa upon whom the battery was committed was a policeman; that he arrested the defendant for violating an ordinance of the town, and struck him (the defendant) with a stick or other weapon, afterwards the defendant violently shoved him (the policeman); and the court ordered the defendant to be discharged: Held, that the court should have directed an acquittal to be entered, so that the defendant Fould be protected from another prosecution. 4. A peace officer may arrest without warrant upon suspicion of felony, and for a breach of the peace committed in his pres. ence. The violation of a town ordinance, even in the presence of a policeman. does not necessarily give him the right to arrest the offender. 5. If an officer has no authority to make the arrest, or, having the authority, is not known to be an officer, and does not in some way notify the party that he is an officer and has authority, the party arrested may lawfully resist the arrest, as if it were made by a pri. Fate person.-Belk's case.



November Term, 1876.

HON. JAMES L. WORDEN, Chief Justice.

WILLIAM E. NIBLACK, Associate Justices.

SLANDER-GENERAL AND LOCAL MEANING OF WORDS.Where words are actionable per se throughout the country, generally the complaint is sufficient without alleging that the slanderous words were spoken in the presence and hearing of a third person. 7 Ind. 347; 11 Id. 156. But where they have a provincial meaning, the complaint must show that the words have an actionable local meaning in the par. ticular place where they were spoken. Judgment affirmed. Opinion by PERKINS, J.-Emmerson v. Marrel.

LIQUOR LICENSE – VOLUNTARY PAYMENT. - Where a town, under the power of a statute, licenses the sale of intoxicating liquors, and the statute is afterwards declared unconstitutional, a party who has paid license fees under the law, can not recover back the sums of money so paid, if the same were paid voluntarily, and were not procured to be made through force, fraud or intimidation. (Citing 17 Ind. 326; 21 Id. 301; 41 Id. 312; 51 Id. 264.] Judgment reversed. Opinion by HOWK, J., The Town of Edinburg v. Hackney.

CORPORATIONS - CERTIFICATE OF INCORPORATION “DUPLICATE" DEFINED. - Where the statute requires the articles of association to be filed in the county recorder's oflice, and a duplicate in the office of the secretary of state, & writing certified by the recorder to be “a true copy of the articles of association " of the corporate body on record in his office can not be regarded as such duplicate, and is not admissible in evidence. A duplicate is an original instrument, and must be executed by the same parties, in the same manner as the original instrument, else it is not a du. plicate. Judgment reversed. Opinion by Howk, J.-NelBon c. Blakely, assignee, etc.

PUBLIC AND PRIVATE RIGHTS-ENDANGERING TRAVEL OS THE HIGHWAY-MENTAL SUFFERING.-Where a party, engaged in working a stone quarry, so blasts the fragments are cast upon the public highway and injure per. sons passing by, the question involved is not one of negligence, but the act is itself unlawful; and when the act is unlawful, it is immaterial whether it be done ignorantly, negligently or purposely, except as to the measure of dam. ages. The public travel must not be endangered to accommodate the private rights of individuals, and the latter must yield to the former. Suffering and anxiety of mind caused by corporal injuries are not matter of special damages, and need not be specially alleged. Judgment affirmed. Opinion by BIDDLE, J.-Wright et al. v. Compton.

STATUTE OF FRAUDS-PROMISE NOT WITHIN THE STATCTE.—"A promise to pay the debt of another is not within the statute, if its consideration was the abandonment to the promisor of a security for the payment of the debt, consist.

ng of a lien upon, or interest in, property to which the promisor then had a subordinate title." Throop on Verbal Agreements, p. 157. The widow of a decedent, at the time of his death, acquires title to his personal property, subor

dinate to the interest of his creditors, and when she ver. bally agrees with a creditor, before the estate of the decedent is settled, that if he will not require payment of the note held by him out of the assets of the estate, she will pay the same, the promise is not within the statute of frauds, and may be enforced. [Citing 7 Ind. 81, and 33 Ver. 132.] Judgment reversed. Opinion by HOWK, J.-Crawford v. King.

MECHANIC'S LIEN-A JOINT LIEN CAN NOT BE TAKEN ON SEVERAL BUILDINGS.-A material-man can acquire a lien on a building on account of the materials he has furnished for its construction; but he can not have a lien upon one building for materials furnished for, and used in, another. Such liens attach only by virtue of the materials used in the construction of the building, and the statute contemplates only a separate lien on a single building, not a joint lien on several buildings. So far as the lien is given upon the land, it is only an incident to the lien mpon the house. A lien of $1,400 on seven separate houses, not showing the amount due on any given one, is a possible lien of that sum on each of the houses, and it is against public policy to thus burden property with indefinite and uncertain incum. brances, embarrassing its sale and depreciating its market value. Judgment affirmed. Opinion by PERKINS, J.-Hill et al. v. Braden et al.

PROMISSORY NOTES-WHEN GIVING DEEMED PAYMENT OF PRECEDENT DEBT-LAW OF ANOTHER STATE.-The giving of a negotiable promissory note, governed by the law merchant, will be held to be a discharge of the debt, unless it be shown that the parties did not intend it should have that effect; but the taking of a note not governed by the law merchant does not operate as such a payment, unless it is expressly so stipulated between the parties. (Cit. ing 11 Ind. 22; 45 Ind. 300.] Where a note is made and is payable in Kentucky, it will be presumed, in the absence of proof to the contrary, that the common law prevails there, and that the note is governed by that law. Where the law of another state, claimed to be dillerent from the common law, is involved in a judicial proceeding in this state, it becomes matter of fact, and must be proved, and even alleged, unless the question arises in such a way as to render the pleading unnecessary. Judgment affirmed.. Opinion by WORDEN, C. J.-Alford v. Baker.

MARRIED WOMEN - CONTRACTS DURING COVERTURE WHEN VALID.-A married woman, being in need of medical attendance, called in a physician, and, her husband being worthless, expressly agreed that, if the physician would continue his attendance on her, she would pay him out of her separate estate, op which promise the physician depended. Afterwards her husband died, and while she was sole, she executed a note to the physician in payment for his services. Held, in a suit brought on the note, that the sole consideration thereof was the promise of the maker while a married woman; that a married woman can not, during coverture, make any contract which will be binding on her personally; that, although her property, real and personal, remains her separate property, yet she can not, as a general rule, contract so as to encumber or convey the same, without being joined by her husband, but may charge her real estate by contracts which are for the betterment thereof or are necessary to preserve or protect her title thereto. 31 Ind. 92: Id. 106, 233; 44 Id. 316. That the promise of a mar. ried woman to pay her physician out of her separate estate is not such a contract, but is absolutely void, and consti. tuted no consideration for the note. Judgment reversed.. Opinion by HOWK, J.-Thomas et ut. v. Passage et al.



January Term, 1877.

Hox. ALBERT H. HORTON, Chief Justice.

4 D. M. VALENTINE, Associate Justices. “ D. J. BREWER,

WHEN JURY TRIAL CAN BE CLAIMED AS OF RIGHT.-In civil actions a júry can be claimed as a matter of right only for the trial of " issues of fact arising in actions for the recovery of money or of specific real or personal prop. erty;" therefore, in an action to have a certain deed set aside and to have the land mentioned in such deed made subject

to the payment of a certain judgment previously rendered in favor of the plaintiff and against one of the detendants : Held, that the defendants were not, as a matter of right, en titled to have the issues tried by a jury. Opinion by BREWER, J.-McCardell v. McNay.

AMERCEMENT OF SHERIFFS UNDER CODE.--Sec. 472 of the code, which provides for the amercement of sheriffs, etc., is imperative in its terms and grants no discretion to the court. Being summary and penal in its nature, a party who asks relief under it must bring his case and strictly within its terms. When he has done so, it is the duty of the court to amerce the sheriff, whether his omission result from wilful wrong, or mere neglect, and whether such omission has resulted in actual injury or not. Opinion by BREWER, J.-Bond v. Weber.

PROMISSORY NOTE FOR LIQUOR_WHEN VOID.-Where intoxicating liquor 18 sold in violat

iquor is sold in violation of the law of Kan. sas, and a promissory note is given by the vendee to the vendor for the amount agreed to be paid for such liquor, the collection of such note can not be enforced by the vendor against the vendee under the laws of Kansas. And it can make no difference that the vendor sold the liquor on a month's credit, and that the note was not given until the end of such month, and was then given on an extension of the time for payments, till another month; nor can it make any difference that the note was dated “Kansas City, Mo.," (though in fact executed in Kansas), and made payable "at Kansas City Savings Bank.” Opinion by VALENTINE, J.Glass v. Alt.

BURGLARY-DIFFERENT DEGREES-ERROR.-1. Burglary in the night time, as defined by section 63 of the act rela. ting to crimes and punishments, does not include burglary in the day time as defined by section 69 of the same act 2. Upon an information or an indictment for an offense consisting of different degrees, the jury can only find the defendant guilty of a degree inferior to the one charged, when the facts constituting the offense stated include the lesser offense. 3. Where a defendant is charged in an in. formation with the commission of the crime of burglary in the second degree, and in the night time, under section 63 of the act relating to crimes and punishments, page 330 Gen. Stat. 1868, a verdict that the defendant is guilty of burglary in the third degree is error, and will be set aside on appeal to the Supreme Court. Opinion by Horrox, C. J.-Behee v. The State.

CLAIM TO LANDS UNDER INDIAN TREATY-FRAUD-REQUISITES OF PETITION.-1. Where G sets up a claim to cer. tain lands under article 17 of the treaty between the United States and the Cherokee Indians, of the date of July 19, 1866, which, he alleges, have been awarded and patented to P, under article 19 of the treaty, upon false testimony and through bribery and corruption of the oficials of the United States, the former may come into the courts of the state and litigate the claim, and, upon the proper showing, a patent obtained thus fraudulently by P will inure to G, if G be entitled to recover the lands patented. 2. Where G files his petition, alleging he was an occupant of certain lands ceded in trust to the United States by the treaty with the Cherokee Indians of July 19, 1866, and sets forth the facts showing he was entitled to buy the same at its ap. praised value, under article 17 of the treaty, and would have obtained a patent therefor except for the false tes. timony of P, and the corruption and bribery of the com. missioners of appraisal appointed under the provisions of the treaty, as well as the arbitrary action of the secretary of the interior, whereby the lands were awarded and patented to P under article 19 of the treaty; held, the petition is fatally defective, if it fails to show that G paid or offered to pay the United States for the lands, and fails to state what proceedings were taken by G to contest the right of P to the lands in controversy, prior to the issuance of the patent. Opinion by HORTON, C. J.-Phillips r'. George.

CRIMINAL TRIAL-INSTRUCTIONS-INFERENCE OF GUILT FROM FAILURE TO TESTIFY AND TO DENY CHARGE.-1. An instruction in a criminal case that, “ where evidence which would rebut or explain certain facts and circumstances of a grave and suspicious nature is peculiarly within the de. fendant's knowledge and reach, and he makes no effort to procure it, the jury may properly take such fact into con sideration in determining the prisoner's guilt or innocence, but nó inference of guilt is to be drawn from the omission of defendant and his wife to testify," is not erroneous, and, if applicable to the facts in the case, furnishes no ground

of reversal. 2. On the trial of a party charged with the larceny of a large sum of money, and in which the eri. dence is mainly circumstantial, evidence that, prior to the larceny, the defendant's family were in very straightened circumstances, and that subsequently they displayed considerable means, and evidence that, subsequently to the larceny, a creditor in seeking to collect his claim charged him in the presence of several witnesses with having bad and used considerable sums of money, and with having lost many dollars in gambling, and referred him to the records of the county and the bystanders for proof of such charges, and that defendant in reply thereto denied none of such charges, except that he had lost any amount of money in gambling, is competent to go to the jury. 3. Upon examination of the testimony in this case, it is beld that the judgment can not be set aside in this court on the ground that the verdict is against the evidence. Opinion by BREWER, J.-State v. Grebe.

DUTY OF JURORS-INSTRUCTION TO JURY URGING THEM TO AGREE - ERROR.-1. No juror should be induced to agree to a verdict by a fear that a failure to so agree will be regarded by the community as reflecting either on his intelligence or his integrity. Personal considerations should not influence his conclusions, and the thought of them never should be presented to him as a motive for ac. tion. 2. Where, upon a charge of assault with intent to kill, the testimony runs in two lines, one tending strongly to prove the full crime charged, and the other to prove an alibi, and that the defendant was innocent of any offense, and where it appears that for a long time the jury were unable to agree, and that after having been unable to agree for many hours, they are brought into court and the duty of agreement is strongly urged upon them by the court, who intimates that it would be a reflection on them not to agree; that there should be concessions in matters of detail and of minor importance; that they should bring their minds together as an apothecary mixes different ingredients and ascer. tains the product, and that they need not hope to be discharged for a long time; and where the whole tendency of this instruction is to impress too strongly upon the jury the duty and necessity of coming to some agreement, and thereafter the jury return a verdict of guilty of an assault only: Held, that such verdict ought not to be permitted to stand; that it is too apparently a compromise between those believing defendant guilty of the crime of assault with intent to kill, and those believing him guiltless of any

se, induced wholly or in part by the urgent instructions of the court upon the duty of agreement. Opinion by BREWER, J.--State v. Bybee.

It is a curious coincidence that three of the pine jadges of the Supreme Court of the United States are natives of Connecticut, namely, Chief Justice Waite, and Associate Justices Field and Strong. To make the coincidence more striking still, the Chief Justice and Judge Field were born, not only in the same state, but in the same county (Middlesex), within twenty miles of each other, and in the same year and same month-November, 1816-50 that they are both now just sixty years old.-[Nashville Com. g Leg. Rep.

IN A trial for murder in the New York Court of Oyer and Terminer the other day, the jury, after an allnight session, came into court with a verdict of guilty of manslaughter. When the verdict was announced, Mr. A. Oakey Hall, the prisoner's counsel, arose and spoke in a voice choked by emotion: I desire to say -and I must say it-that I know this man to be absolutely innocent. So believing and so knowing, I desire in this public manner to declare my unalterable determination never again, as a lawyer, to appear in a homicide case. II, La such circumstances, I cannot demonstrate a man's absolute innocence to a jury, while I have no right to find fault with the jury, I have a right to find fault with myself." At the col clusion of these remarks, Mr. Hall sat down, and was apparently deeply affected. Judge Brady said, if the man was innocent, it was unfortunate that there was no way of proving it; but the counsel did himself injustice; all was done for the prisoner that could be done, and the jury was fully warranted and justified in finding the verdict. . Howe spoke of the intense interest Mr. Hall felt in the case, owing to the belief (which he shared) in their client's innocence. Mr. Howe then implored Mr. Hall, for the sake of the profession and of the administration of justice, not to adhere to his resolution.

The Central Law Journal.


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fully denied, that an attorney ought to have a lien upon a judgment recovered by his diligence, the same as a warehouseman or wharfinger has upon the goods which he has provided with storage, or as a mechanic has upon the house upon which he has performed labor, or as a shoemaker has upon a pair of boots which he has mended. The principle is the same; and if the ill-paid editor (whose article upon this particular question was, however, no doubt worth all he got for it), has not a lien upon the edition of the paper which contains his valuable lucubrations, we can only say that the law is defective in that particular, and we are sorry for him.

AGAIN we call the attention of the profession, CURRENT TOPICS.

and particularly of the active members of bar asso

ciations, to the necessity of passing a law in each In calling attention to another of the scurrilous state providing for the organization of a parliaeditorials of the St. Louis Globe-Democrat, in mentary bar. We have had numerous cases, both which it grossly attacks and insults the entire le- | in Congress and in the state legislatures, where gal profession, we are sorry to be obliged to corruption-money was largely used to secure the point out, as we have done with reference to passage of laws of benefit to individuals or corpopreceding articles in the same journal, a gross in rations, in which members of such legislative bodies accuracy in point of fact. The ranting editorial and of the press have received handsome bonuses, to which we now allude is found in that journal undoubtedly designed to secure their influence in a of March first. It begins by stating that a motion secret and corrupt manner, which, upon exposure, was presented in the St. Louis Bar Association, they have endeavored to palm off under the name debated and referred back for revision, to make of fees for legal services." The last instance of the fee of the attorney a lien upon the judgment, this kind which has come to our knowledge is that and thereby give the lawyer a preference, which of a well-known journalist, who, while perhaps is enjoyed by no other profession, class or interest being a member of the bar, is not engaged in pracin the community. The ignorance betrayed by tice. The Saint Louis Globe-Democrat has made the writer in the statement that such a measure the exposure the occasion of another one of its would give the lawyers a preference which is en | abusive tirades against lawyers, forgetting that it joyed by no other profession, class or interest in was his influence as a journalist, and not as a lawthe community, is only equaled by his inaccuracy yer, that was corrupted in this way. It never ocas to the particular fact which forms the text of curred to the over-zealous writer that it belonged, his complaint. Such a resolution was presented not to the lawyers, but to the republic of outraged in the St. Louis Bar Association, and debated, and journalists, to protest against the bribery as a then instead of being referred back for revision, stigma upon the honor of their order. It would it was laid on the table by a unanimous vote; and have provoked grim humor to have done so. The that is probably the end of it. The reasons which idea of a system of honor, ethics, or ordinary morals induced the members of the association to lay the | or decency, as applied to American daily journalmeasure on the table have not come to us. The ism, is a thing which has never entered either the measure, in our judgment, if practicable, is one of editorial or the public mind. It is well knownsimple justice, and would merely give the mem or, if it is not well known, it ought to be-that the bers of the legal profession in this state a right | most deliberate utterances in the editorial columns which they enjoy in many other states of the | of some of the daily journals are bought for a dolUnion. In England, at common law, an attorney | lar a line. Side by side with a tirade against lawhad a lien on a judgment recovered, and could yers, you may expect an editorial on the subject of enforce it upon money in the hands of the text-books in schools, recommending in a bungling sheriff. Cross on Liens, 220 et seq. In this and clumsy manner, that there is need of a change country, where the two branches of the legal pro in a certain class of books, but not in another. fession, attorneys and barristers, are blended to- | Which is bought and which is unbought, the public gether, the doctrine has been transplanted, and can only conjecture; and one will therefore have as has been repeatedly declared and enforced in sev much influence as the other. The legal profession eral of the states. The supreme court of Mis- differs from that of journalism in this: In the souri, however, has held a contrary doctrine. In former there is a recognized possibility of reformIowa the subject is regulated by a carefully drawn ation, while the latter is admittedly past redempstatute; and the resolution which was introduced tion's skill. Therefore we say that our different in the bar association simply recommended, with legislatures, state and national, should pass laws little alteration, the adoption of this statute. In defining and regulating legal practice before legispoint of common right it can not be success- tive assemblies. If a lawyer draws a bill, prepares

Vol. 4.-No. 10.

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