Графични страници
PDF файл

and Blair v. Smith, supra; Vosburgh v. Teator et al., 32 N. While a husband and wife live together, the husband has a Y. 568; Baldwin v. Brown 16 N. Y. 363; Boyd v. Graves, 4 special property as bailee in the wife's separate personal Wheat. 512; Heirs of Houston v. Mathews, 1 Yerg. 118; estate. Therefore, in an indictment for burglary, where a Lewallen v. Overton, 9 Hump. 76. Where land is vacant, certain quilt, proven to have been stolen, was the separate the constructive possession followed the true title, and property of A's wife, and was charged in the indictment as possession taken under a writ habere facias possessionem the property of A, held, not to be error. The verdict of a issued against persons in possession who do not claim un. jury must be recorded substantially as rendered.-State v. der the holders of the true title is good only while it is an Wincroft actual possession; and in case of a subsequent vacancy

SLANDER - WORDS CHARGING INFAMOUS OFFENSE.there can be no constructive possession in favor of those

Words falsely spoken, charging one with an infamous ofclaiming under the writ as against the owner of the title.

fense, or with an infectuous disease, or impeaching his Opinion by HOUGH, J.-Turner v. Baker et al.

trade or profession, are, per se, actionable. When the words NOTE by the Reporter.-In this case the court appears to spoken do not on their face import such degradation, the be considerably exercised by the consideration of the doc plaintiff must aver some special damage, and must show by trine of estoppel in pais, and the statute of frauds, as ap. proof that he has, in fact, sustained a loss, in order to replied to cases in which the title papers call for certain cover. If, at the time of the utterance of the alleged slanboundary lines between the lands of contiguous owners, derous words, the person concerning whom they are spoken while the acts of the parties clearly indicate that they had is not liable to an infamous punishment by reason of the agreed upon boundary lines different from those given in offense charged, the words are not, per se, actionable. the deeds. Is not the solution of the difficulty found in the Therefore, when the defendant, in 1870, said of the plaintiff well-known principle that erecuted agreements are not within that he had sworn falsely in 1867 before the Board of Reg. the statute of frauds, and that, the acts of the parties being istrars of Davidson County, then acting under the provisevidence (Quaere, conclusive evidence?), of such an agree.

ions of the act of Congress, entitled, "An Act to Provide ment, the same is valid becaase executed without reference More Emcient Government for the Rebel States," which act to the doctrine of estoppel in pais at all ?]

ceased to operate in this state before 1870, held, that the plaintif, no special damage being alleged, could not re



AND AGENT.-When a bank receives a check for collection, COURT OF NORTH CAROLINA.

and retains it for four days, without presenting it for pay. ment, or making any effort for its collection, or giving any

notice to the depositor of its non-payment, the bank is liaJanuary Term, 1877.

ble, if loss thereby ensues. In such case, a promise there

after made by the depositor to pay to the bank the amount Hon. RICHMOND M. PEARSON, Chief Justice. due by reason of the loss, is nudum pactum. When paper is " EDWIN G. READE,

placed in the hands of a bank for collection, the bank must " W. B. RODMAN, L Associate Justicas

take the necessary steps to secure its prompt payment, by 1

Associate Justices.

presentation at maturity. If it is not paid, the bank, in or. " W. T. FAIRCLOTH, J

der to fix the liability of the drawer, must have it protested,

and due notice of its dishonor given to the depositor. If LIABILITY OF COUNTY - BOARD OF JURY - WITNESS it is not presented, the fact, that if it had been presented, FEES.- A county is not liable for the board of a jury in a

it would not have been paid, does not excuse the liability capital case, during the pendency of the trial. A witness of the bank. When one voluntarily assumes an agency to in a criminal action has no claim upon the county, until

manage the interests of another, such agent will not be the liability of the county for the costs is passed upon by allowed to sacrifice the interests of his principal to his own. the court. Young v. Commissioners of Buncombe.

Therefore, when a bank received a check upon itself for WHEN A GRANT IS FOR A PARTICULAR PURPOSE only, the

collection, being at the same time a large creditor of the

drawer, and failed, without excuse, to notify the depositor conversion to another and different use is forbidden by a

of the non-payment of the check, held, to be, in law, neglinecessary implication. So, where the law prescribes that

gence. In such case, the bank makes the check its own, "all the real estate held by the North Carolina Railroad

and is fixed with its full amount.-Bank of New Hanover v. Company for right of way, for station places, of whatever

Kenan. kind, and for workshop locations, shall be exempt from taxation," etc: Held, that such exemption covers only such real estate as is actually held and used for the purposes expressed.-R. 9 D. R. R. Co. v. Commissioners of Alamance, ABSTRACT OF DECISIONS OF SUPREME

POWERS OF COUNTY COMMISSIONERS-LEVY OF TAXPERSONAL CREDIT.-The statute (Battle's Revisal, chapter 27, section 8), enumerating the duties and powers of county commissioners, makes no grade among them, and gives no

November Term, 1876. preference to one over another. A court has no power to interfere with the domestic administration of the affairs of a county, so long as the board of commissioners act intra

HON. JAMES L. WORDEN, Chief Justice.

HORACE P. BIDDLE, Tires; therefore, where it was alleged that a board of com

16 WILLIAM E. NIBLACK, Associate Justices. missioners had not levied a sufficient tax to defray the ordinary expenses of the county, including the support of the


GEORGE V. HOWK, poor, on account of the levy of a tax for repairing the court. house, held, to be no ground for interference by the courts. A tax, levied professedly and improperly for one purpose,

INSTRUCTIONS TO JURY-FACTS ADMITTED.-A court has can be collected and applied to any other legitimate pur.

no power to state to a jury what facts are proved; nor to pose. It is not fraudulent for a board of county commis. state what facts are admitted by the parties, unless they sioners to superadd their personal credit to the credit of are so admitted as facts to go to the jury as proof. Where the county, in a contract concerning the necessary ex.

no such admissions are made by the pleadings, nor appear

in the evidence, an instruction which so assumes and states penses of the county.-Long v. Commissioners of Richmond.

facts to be admitted as true, will be held erroneous. JudgJURY PANEL-DOWER INTEREST OF WIFE IN REAL ES.

ment reversed. Opinion by BIDDLE, J.-Mathers r. Story. TATE OF HUSBAND - INDICTMENT FOR BURGLARY - DESCRIPTION OF PROPERTY.-The statutory requirement that LANDLORD AND TENANT-QUALIFIED ESTATE OF THE a tales juror shall be a freeholder, does not apply to the LESSOR.-1. A lessor of real estate can not give his lessee original panel. The finding of the court below, as to whether a larger estate in the demised premises than he himself a challenged juror has paid his taxes, is final, and can not has; and where the lessor has only the special and qualified be reviewed in this court. The dower or homestead inter estate of an administrator with the will annexed, the lease. est of a wife in the real estate of her husband is a mere hold estate under him terminates when the order of the right, which may never vest; not an estate; therefore, in an proper court terminates the estate of such administrator. indictment for burglary for breaking into A's house, it is 2. When the lessee has notice of the sale of the demised proper to charge that the house is the property of A alone. I premises, he is bound to know that his lease under the ad.




January Term, 1877.

HON. ALBERT H. HORTON, Chief Justice.

D. M. VALENTINE, Associate Justices. 6 D. J. BREWER, .

ministrator is determined by such sale and conveyance. Judgment affirmed. Opinion by HOWK,1J.-Burbank v. Dyer.

JUDGE AND JURY-ABUSE OF JUDICIAL DISCRETION.After a jury had been out about fifteen hours in consultation, they came into court and reported that they could not agree. The court then asked them how mnch they lacked of agreeing, and the foreman replied: " About twelve dol. lars.” The court thereupon told the jury they ought to agree; that it would be better for both parties they s overcome that difference, than to have another trial of the canse. Held, that this conversation by the court with the jury was not an instruction of law, but rather a direction as to fact, over which the court had no authority. Neither questions of expediency nor of policy have anything to do with the administration of justice. The court should not have inquired of the jury what the difference between them was, and the jury should not have answered the question. Judgment reversed. Opinion by BIDDLE, J.-Newall v. Hutchinson.

FORECLOSURE-RIGHT OF REDEMPTION — TENDER.-A purchaser under a decree of foreclosure of a junior mort. gage may redeem against a senior mortgagee, before foreclosure, and after foreclosure, if he has not been made a party to the suit. A junior judgment.creditor stands, in this respect, upon the same footing; and where one purchases land at sheriff's sale on a judgment, subject to a senior mortgage-lien, which is afterwards foreclosed without making the purchaser at the sheriff's sale a party, the lat. ter has the right to pay off such older lien and protect his title; and in cases of this kind, where the court can decree the amount due, and make it a lien on the land, it is not necessary to make a tender before suit, nor to bring the money into court, but it is sufficient to make the offer in the pleadings to pay the amount, when it is ascertained. Judgment reversed. Opinion by HOWK, J.-Coombs r. Carr.

VENDOR AND PURCHASER-DEFICIENCY IN LAND SOLD.Where the lands in a conveyance are estimated to contain so many acres, or the words "more or less" are added, if there be a small portion more than the specified quantity, the vendor can not recover it; and if there be a small quan. tity less, the purchaser can not obtain any compensation

r the deficiency: and even a large excess or deficiency has not been considered a ground for relieving a vendor or purchaser, in the absence of fraud; representation, or other equitable circumstances affecting the particular case. In the absence of such conditions, a deficiency of one-tenth in the quantity of land purchased will not en. title the purchaser to compensation therefor, and such a deficiency will not constitute a good defense to a suit on a note given for the purchase price of the land. Judgment reversed. Opinion by PERKINS, J.-King v. Brown et al.

CONSTRUCTION OF WILL-UNCERTAINTY-INTENTION OF TESTATOR.- Where a will bequeathed all of the testator's real estate " to the County of Owen,” to be sold, and the proceeds invested as a permanant fund for the education of the colored children of said county; Held: 1, That the testator intended to devise his estate to “The Board of Commissioners of Owen County," and that the name of the devisee was given with such certainty that it could readily be ascertained to what corporation the testator intended to devise his estate. 2. That the County of Owen, in its corporate capacity, was capable of holding as trustee the real estate so devised to it. 3. That the will was not void for uncertainty as to the cestui que trust. The ben. eficiaries were limited to the colored children of said county, and there was no vagueness or uncertainty as to the persons intended. Judgment reversed. Opinion by HOWK, J.-Craig, Admr. etc. v. Secrist et al.

NEGLIGENCE.-The plaintifs evidence showed substantially the following facts: The plaintiff's intestate was a laborer in the employ of the defendant, assisting the de. fendant to build a bridge. Said intestate fell from said bridge and was killed. The fall was caused by a heavy step of the intestate on a defective board or plank, causing the plank or board to break in the middle, and allowing the intestate to fall about 25 feet. This plank was a part of a scaffold. The intestate and his co-laborers had erected said scaffold on the very morning that said accident oc. curred. How this particular plank came to be placed in said scaffold is not shown. There were plenty of good planks at the bridge from which to make a good scaffold. Whether any one knew, prior to the accident, or eren sus. pected that this plank was defective, is not shown. The evidence, so far as it went, tended to show that all the planks were tested before they were used. It was not shows that the defendant was negligent in any respect whatever,

nd no negligence was shown against any one, unless it may be inferred from the foregoing facts. The defendant demurred to the plaintiff's evidence on the ground that it did not prove any cause of action against the defendant. The court below sustained the demarrer. Held, that the court below did not err in its decision. Opinion by VAL. ENTINE, J.-Kelly v. Detroit Bridge Co.

HOMESTEAD.-A husband and wife gave a mortgage to G on their homestead and on other real estate belonging to the husband. Afterwards L obtained a judgment lien upon all the property belonging to said husband, except said homestead. Afterwards the husband and wife sold and conveyed to W a portion of the real estate, not occupied as a homestead, but covered by said mortgage and said judgment lien. Afterwards the husband died. His wife and family still occupy said homestead. The plaintiff in this action has a claim of $800 against the decedent's estate for money loaned to the decedent during his lifetime, which claim has been allowed by the probate court; but such claim is not secured in any manner by lien or other wise. The estate is insolvent and unable to pay all its creditors in full. The plaintiff now seeks by this action to have the assets of the estate marshalled; to have G compelled to exhaust that portion of said real estate, occupied as a homestead, in payment of said mortgage, before resorting to any other property belonging to the estate; to have L compelled to exhaust said real estate belonging to Win payment of his (L's) judgment lien, before resorting to any other property belonging to the estate, and to have the administrator, in the meantime, restrained from paying said mortgage or said judgment lien from the proceeds of any property except said homestead, and said property sold to W. Held, that the plaintiff has no such superior equities over the family of the deceased as occupiers of said homestead, or over W as the purchaser of said land, as can be enforced, either in law or equity, and therefore, that this action can not be maintained. Opinion by VALENTINE, J. -Calby v. Crocker et al.

HABEAS CORPUS-FALSE PRETENSES.-1. Under section 672. Gen. Stat. 1868, p. 763, the judge or court, issuing a writ of habeas corpus on a petition complaining that the person in whose behalf the writ is applied for is restrained of his liberty without probable cause, may, even in case there is no defect in the charge or process, summon the prosecu. ting witnesses, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal. 2. On the hearing and determination of 3 cause arising upon a writ of habeas corpus, before a judge or court investigating the criminal charge against a person committed by an examining magistrate for the odense of having obtained money or property by false pretenses, the prosecutor, when examined as a witness, may testify that he believed the pretenses, and, confiding in their truth, was induced thereby to part with his money or property. 3. It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses

IN Maule v. Stokes, 3 Weekly Notes, 373, a ground rent created in 1806 was payable in "current silver money or the United States," and the tenant, in 1875, tendered an in. stallment of the rent in silver dimes. The tender was held insufficient, under sec. 3586, Rev. Stats. which reads: “The silver coins of the United States shall be a legal tender at their nominal value for any amount not exceeding five dollars in any one payment." The decision overruled that of Kohler v. Parrish, 2 W. N. 488 in which it was held that a mortgage created in 1846 for the payment of $5,000 in law. ful silver money of the United States, could be paid in silver half dollars.

which are false, nor need the pretenses be the paramount for the payment of debts by the administrator. Such mort. cause of the delivery to the prisoner. It is sufficient, it gage is not barred, as to the property which it covers, by a they are a part of the moving cause, and, without them, failure to present it to the court for allowance, as a claim the defrauded party would not have parted with the prop against the estate. But unless 80 presented, the holder is erty. 4. A pretense which is false when made, but true by confined to the mortgaged property, and can not share in the act of the person making the same, when the prosecu. the general assets of the estate. Judgment reversed. tor relies thereon and parts with his property, is not a false Opinion by LAKE, C. J.-Nul v. Jones. pretense within the statute. 5. To hold a person for trial,

RIGHT OF PROPERTY IN GOODS LEVIED UPONLIABILwho is charged with obtaining money or property by false

ITY OF SHERIFF.-1. A trial of the right of property in pretense, it must appear that the pretense relied upon re

goods levied upon by third parties under sections 486, 487, lates to a past event, or to some present existing fact, and

and 488 of the code can only be had at the instance of the not to something to happen in the future. A mere promise

claimant. 2. It in such proceeding the jury find against is not sufficient. Opinion by HORTON, C. J.-Ex parte

the claimant, he can not afterwards maintain an action Snyder.

against the officer. If the jury find in favor of the claim. ant, the plaintiff in execution may tender the undertaking

prescribed, and require the sale to proceed; and the officer ABSTRACT OF DECISIONS OF SUPREME will not be liable to the claimant, his remedy being upon

the undertaking. Judgment afirmed. Opinion by MAX. COURT OF NEBRASKA.

WELL, J -Storms v. Eaton.

WARRANTY.-When the soundness of a piece of machinJanuary Term, 1877.

ery is guaranteed by a warranty, one of the conditions of

which is, that in case of a defect being discovered in any Hox. GEORGE B. LAKE, Chief Justice.

portion of it, the seller shall be liable only on condition of " DANIEL GANTT, Associate Justices.

the production of the defective piece at the manufactory, or " SAMUEL MAXWELL,

to the agent by whom it was sold, this is a condition pre

cedent, and must be complied with, or there can be no reEQUITABLE JURISDICTION.-A court of equity will grant covery. Where the very defect complained of is fully and relief against judgments obtained by fraud, surprise, or clearly covered by the warranty, no liability can be estab. mistake, or when, from any cause, manifest injustice has lished against the seller, on the ground of fraud in not been done. Judgment reversed. Opinion by GANTT, J. disclosing the defect, if known by him at the time of the Horn e. Queen.

sale. In such case, the purchaser must rely on the conCOUNTY NOT LIABLE FOR NUISANCE.-A county is not

tract of warranty. Judgment affirmed. Opinion by LAKE, liable at the suit of a private person, for damages occa.

C. J.-Miller v. Nichols, et al. sioned by reason of the erection of a county jail in near COMPETENCY OF DEFENDANT TO TESTIFY IN MALICIOUS proximity to his residenee, nor if the jail be kept in so filthy PROSECUTION-PROBABLE CAUSE-CONVERSION NOT LARà condition as to become an actual nuisance to persons CENY.-1. In an action for a malicious prosecution, the de. living near it. Judgment affirmed. Opinion by LAKE, C. fendant is competent to testify as to his belief in the guilt J.-Wehn o. Gage Co.

of the plaintiff, when the prosecution was commenced; that ACTION ON UNDERTAKING IN ATTACHMENT.-In an action

he instituted the prosecution without malice, or in accord

ance with the opinion of counsel first obtained. 2. It is the on an undertaking in attachment, the petition should allege

duty of the court to determine whether the proof of certain that the order of attachment was wrongfully sued out or obtained. It is not enough to state in the petition, that the

facts constitutes probable cause, and it is error to submit attachment was quashed, and the property released by

this question to the jury. It is the duty of the jury to say lings in error. Judgment reversed. Opinion by

what facts are proved, and to decide on the weight of evi. LAKE, C. J.-Eaton v. Bartscherer.

dence and the credibility of witnesses. 3. Mere conversion

of property is not larceny, and information of such conver DESCRIPTION IN DEED.-When, in a mesne conveyance,

tion constitutes no grounds of probable cause as a defense the premises are described according to the government to such action. Judgment reversed. Opinion by GANTT, surveys, but without designating the county or state in

J.-Turner v. O'Brien. which the lands are situated, and the deed was executed in the state, it will be presumed that the deed was intended to convey lands situated in this state. Judgment affirmed.


COURT OF IOWA. ATTORNEY'S LIEN ON JUDGMENTS.-An attorney has a lien upon a judgment to the extent of his reasonable fees

[From the advance sheets of 43 Iowa.] and disbursements in the suit in which it was obtained. And this right is paramount to the rights of the parties in the suit. But he must file his notice of a lien, and the right

HON. WM. H. SEEVERS, Chief Justice. to a lien against a debtor is restricted to the claim set forth


JAMES H. ROTHROCK, in the notice. Judgment modified. Opinion by MAXWELL,

Judges. J.-Griggs j Ashby v. White.


“ AUSTIN ADAMS, BEST EVIDENCE.-Where, in an action on notes given for a threshing machine, the defendant set up as a defen

ADMINISTRATION - PAYMENT TO HEIRS - PROMISSORY breach of warranty, alleging that the warranty was in NOTE-CONSIDERATION - ILLEGAL CLAIMS.-1. The pay. writing, and left with the agent of the plaintify, the defend. ment to the heirs of a debt due the estate of a decedent. ant can not introduce evidence on the trial of the cause, to and the possession of a receipt from them, does not disshow by parol what the contract was, without first taking charge the debtor from liability to the administrator. 2. the necessary steps to require the plaintiff, or their agent, The settlement of an illegal and unfounded claim, upon to produce the contract. Judgment reversed. Opinion by which no proceedings had been instituted, does not conMAXWELL, J.-Birdsall v. Carter.

stitute a sufficient consideration for a note. Opinion by TAXATION ACCORDING TO VALUE-DEBTORS.-1. Every BECK, J.-Tucker v. Ronk. person shall pay a tax in proportion to the value of his, her PROMISSORY NOTE - CONSIDERATION - PRACTICE — IN. or its property and franchises, and can not be compelled to STRUCTION-VERDICT.-1. In an action upon a promissory pay a tax greater than in proportion to the value of such note, it was pleaded that the title to the land for which the property. 2. Under the provisions of section 21 of the gen note was given had failed; but it appeared that the claim. eral revenue laws, in the assessment of personal property, ant under the adverse title had not succeeded in establishthe tax-payer is entitled to have a deduction of bona fide ing his claim in an action for that purpose; held that the debts owing by him, from the gross amount of his credits. plea constituted no defense to the action. 2. A verdict, re. Judgment reversed. Opinion by GANTT, J.-Jones v. Seward turned in conflict with an instruction of the court and Co.

entirely unsupported by the evidence, will not sustain a FORECLOSURE AGAINST ESTATE OF DECEDENT.-Under

judgment. Opinion by DAY, J.-Dawson v. Graham. our statute, an action to foreclose a mortgage, executed by PROMISSORY NOTE-INTOXICATING LIQUORS-COUNTERthe deceased in his lifetime, may be brought and prose. | CLAIM.-1. A contract for the sale of intoxicating liquors for cuted to final judgment within the time fixed by the court | purposes forbidden by law is void, and such sale, when the object thereof is known to the seller, will not constitute a A cotemporaneous agreement was not admissible to vary sufficient consideration for a promissory note for the pur. the terms of the written instrument. 3. If before the exchase price. 2. If liquors thus sold have been paid for, the piration of the time of performance W bad said that be amount paid may be recovered back in an action at law; or, was satisfied with the mo.lification of the terms of the in an action by the seller against the purchaser upon a contract, and had then promised payment, notwithstand. general account, the amount of such payment may be ing the modification, it might have been regarded by the pleaded as a counter-claim. Opinion by BECK, J.-Tal company as a waiver of the conditions. Opinion by ADAMS, man v. Johnson.

J.-B. C. R. 9 M. R. R. v. Whitney.
FRAUDULENT SALE.-1. Affidavits impugning the correctness
of a bill of exceptions signed by the judge will not be con-

NOTES. sidered by the Supreme Court, unless they are presented to sustain another bill of exceptions purporting to contain a correct statement of the evidence, and signed by two FOR a specimen of eccentricity, a testator residing in bystanders. 2. A sale of personal property without a Bellingham, Mass., takes the lead. The will gives his wife change of possession or visible change of ownership raises the use of a portion of the house he owned in Belling. the presumption that the sale is fraudulent. 3. Where

ham, with the use of front garden in eommon with others; there is evidence tending to support the finding of the also the use and improvement of one stall in the barn, court, it will be sustained like a verdict of the jury under together with storage for hay, during her widowhood; four similar circumstances. Opinion by SEEVERS, C. J.-Wood. cords of wood to be consumed during her widowhood, said worth v. Byerly.

wood to be cut off a lot near the house; the use of the MORTGAGE-COVENANT-PRACTICE.-1. A valid covenant

kitchen furniture and cooking stove, and one seat in a per may be inserted in a mortgage, binding the mortgagor to

on the lower floor of the Second Congregational Church of pay the amount secured thereby at the time specified. 2.

Medway, on condition of her paying one-fourth of the tax A mortgagee is not confined to the remedy of foreclosure,

assessed on said pew from year to year, also to pay all the but may maintain an action at law upon the note, bond or

taxes that may be assessed on the real estate. Each other obligation secured by the mortgage. 3. If the cov.

bequest contains the proviso, "as long as she remains a enant for payment or obligation is contained in the mort.

widow." gage, that may be made the basis of the action at law. 4.

The Nova Scotians are by no means the first people who If separate actions are commenced upon the covenant for

have been in trouble about a Great Seal. When the Prince payment of the money and for the foreclosure of the mort

of Orange, in 1688-9, took the reins of goverument in En. gage, the plaintiff may elect which he will pursue, and his

gland, there was no Great Seal. It was part of his Catholic election of the one will have the effect to continue the

Majesty's luggage when he left Whitehall; but James did other. Opinion by BECK, J.-Brown v. Cascaden.

not keep it for many minutes. With the impression on his PRACTICE- REFEREE - CONTINUANCE-CONCLUSION OF

mind that the government of the kingdom could not be

carried on without it, he dropped it into the Thames with LAW.-1. Where, upon a trial before a referee, one of the

his roval hand. About a century later, when Lord Thurlos parties asked for a continuance on the ground that, al.

was High Chancellor, his house in Great Ormond street was though the time for taking testimony had expired, yet a

broken into on the 24th March, 1784, and the Great Seal of deposition had not arrived, for the taking of which the commission had issued in due time; held that, upon a proper

England was among the property stolen. It was never got

back from the thieves, but was replaced the next day by a showing, this would be sufficient ground for continuance,

new one. Later, William IV. was very angry with Lord but that, the affidavit not being verified, the motion was

Brougham for taking the Great Seal to foreign parts in this properly overruled. 2. A referee's report reciting that he was duly sworn before proceeding to discharge his duties,

valise. A young lady once made it her pleasure to obtain the failure to file with his report the affidavit required by

the Seal from the gallant old lawyer, and compelled him statute, is not a fatal objection to it. 3. Where, by the

to go down on his knees to her on a rather public occasiou, terms of the submission, the referee was only empowered to

before she would restore it to his custody. find the facts, and, notwithstanding this, he also returned A RECENT London letter, in speaking of the bench and his conclusions of law, and the court rendered judgment bar of England, says: There has been an impression that on his report, it was held that prejudice must be shown by the humorous judges, and those with some flavor about the act of the referee, to invalidate the report. Opinion by them, have passed away with Maule and Westbury, and SEEVERS, C. J.-Shindler v. Luke.

that the bench is more and more occupied with dry per.

functionaries. But some little incidents bare recently sent GARNISHMENT-NOTICE-SERVICE-DELAY IN PROCEED.

a smile around the court, which seem to warrant a more INGS-ASSIGNMENT OF JUDGMENT-ATTORNEY'S LIEN.

hopeful view. The other day a lawyer was arguing before 1. In a proceeding of attachment by garnishment, notice of

Baron H-, and assumed a laughing tone at the case of the process to the defendant in the principal action is not

his opponent, giving a little titter at each statement, as if necessary. 2. The garnishment process may be served be.

the opposite side were too preposterons to be censidered. fore the defendant is served with notice of the commence.

The judge leaned forward and gently interrupted the bar ment of the action. 3. That one or more terms intervened

rister with, "Mr. —, I am at a loss to know why you use between the service of the garnishment process and the

this triumphant tone. Of course, if there were a jury pres. rendition of judgment against the garnishee was held not

ent, I should not say a word; but you surely don't expect to imply an abandonment of proceedings. 4. A judgment

that tone to have any effect on me?" The barrister was debtor may be garnished, even though he has appealed

funereal during the rest of his speech. In another case, from the judgment, if no supersedeas bond has been filed.

Baron — was listening to a barrister, who seemed dis5. The assignment of a judgment, after service of the gar.

posed to indulge in not only length, but eloquence. The nishment process, confers upon the assignee no rights prej.

judge interrupted, saying, “Mr. - is your client in udicial to the plaintiff in the garnishment proceeding. 5.

court?The barrister looked around, and said, "He was The claim by an attorney of a lien upon a judgment must be given in writing to bind the judgment-creditor, or those

here a moment ago, your lordship, but he seems to have

gone.” “ Then," said the judge, appealingly, "couldn't claiming through him. Opinion by BECK, J.-Phillips v.

you spare me all this?” The court-room of Mr. Justice Germon.

B- was the scene of rather an alarming outburst of feel. CONTRACT-CONSTRUCTION-EVIDENCE-WAIVER.-1. By ing on the part of the judge. A case came before him prethe terms of a contract between Wand a railway company, senting a combination of every kind of villainy in the dehe became bound to pay the latter fifteen hundred dollars, fendant; and, as the clear evidence came out, the judge if within a specified time it should have completed its road grew red and white, and was fairly boiling when the time to West Union and have done half the grading between came to charge the jury. "Gentlemen of the jury," said that place and the point of intersection with the M. & St. the judge, “it is a perfectly clear case, and a most befariP. Railway; held, that the company had not complied with ous one. The defendant has unquestionably robbed the the contract by completing the road between West Union plaintiff, and has basely betrayed his daughter and aban. and the point of intersection named, while it failed to con

ned her in a foreign land. I only wish i had been sy struct its road to West Union from the other direction, and daughter!" The lawyers gasped as this thunder rolled, that the road must have been completed to West Union on and beheld the irate judge shaking his fist across the room the one side, and half the grading done on the other. 2. | at the cowering caitir.

The Central Law Journal.

IT WOULD SEEM, from the amendment to the Sunday law passed by the Legislature of this State,

that that body has been seized with a sort of mental SAINT LOUIS, APRIL 13, 1877.

griping in the direction of religious reform. The act in question, if literally carried into effect, would

lead to the most absurd results. It would prevent CURRENT TOPICS..

the publication of any daily newspaper on Monday

morning, because such papers must be edited and The Boston University School of Law deserves

put in type, for a considerable part, on the prea general recognition for what it is doing to.ele

vious day. It would prevent the publication of any vate the standard of the legal profession. It has

Sunday daily paper, because such papers must be added another year to its course; or rather, the printed and circulated after midnight of Saturday. optional year will hereafter be required for grad We humbly conceive, however, that the public uation. The candidate must also have graduated morals would not suffer by the suspension of one in arts, science, or philosophy. We hope the Bos or two of the Sunday sheets of which we have ton University School of Law will persist in its knowledge. The St. Louis Globe-Democrat of resolution of extending the term of study required Sunday, April 8, contained no less than a dozen for graduation, until there shall be one law school pimping advertisements. These advertisements, in in the United States which does not grant a di the “ personal” column of that journal, are every ploma without four years of study added to the week getting more brazen and filthy. The cards requisite preparation. The preparatory study to of “widow ladies” seeking the acquaintance of make a good lawyer can not certainly be less than “ elderly gentlemen of means," and of “ bachelors that required to make a good soldier; and the four of means " seeking the acquaintance of " discreet years' term of the West Point Military Academy, ladies,” for “mutual pleasure,” or “ a little quiet with its attendant discipline, would seem to fur- | fun," are disgustingly common in those columns. nish a good analogy for the law schools. In the But the infamy culminates when a prostitute is great Roman Law School the term was five years, permitted to advertise that she has changed her and then a great many shipshod lawyers were un den from one well-known house of prostitution to doubtedly turned loose to put to hazard the rights another. The Legislature should pass an act to of the people.

the effect that when any newspaper publishes an advertisement apparently intended to bring about

illicit intercourse between men and women, its THE Tennessee Legislature has devised a mode of relieving the crowded dockets of the Su

proprietor or manager shall be subjected to fine preme Court of that State. It has passed a

and imprisonment, and that the question whether bill, which we print elsewhere, providing for a

an advertisement is apparently intended to prospecial commission of arbitration for the hearing

duce this result shall be a question of fact for the and trial of causes now pending before the Su

jury. preme Court. This commission is given power to hear and determine such civil causes as may be FOR some reason which, perhaps, can not be submitted to it by the Supreme Court, with the explained in any other way than because it is consent of the parties on both sides. Its decisions prohibited in the ritual, and bishops have still a shall be reported to the Supreme Court, where vote in the legislation of the country, the proposal they shall become, and have the force and effect to change the law in Great Britain which prohibits of judgments or decrees of that court, subject to the marriage of a man with his deceased wife's the approval or disapproval of the court. Juris sister, though often urged both in and out of Pardiction of causes can only be acquired by the com liament, has always met with the strongest oppomission with the consent of the parties thereto, or sition, and has, without exception, been defeated. their solicitors; which consent may be presumed, A bill was lately introduced in the House of Comunless objections thereto in writing be filed in the mons, and passed notwithstanding the opposition Supreme Court within ten days after the cause is of the government. The absurdity of the English ordered by the Supreme Court to be transferred to law consists in the fact that the ban has long ago the commission for hearing, trial, or decision. been removed in the colonies; the result being The members of the commission have already that marriages of this kind between persons dombeen appointed. They are Hons. L. D. McKisick iciled in England are absolutely invalid, but, of Shelby, Howell E. Jackson of Madison, and when solemnized between persons domiciled in John T. Caithel of Gibson County. They are now the colonies, they are valid both in the colony and in session at Jackson, having convened on the first in England—the only disability attaching to the Monday in April, contemporaneously with the Su issue of such marriages being that they can not preme Court. The commission is composed of able inherit land in England. When solemnized belawyers, and is, we understand, satisfactory to the tween persons not domiciled in the colonies, such bar of the State, who are very generally agreeing marriages are not recognized in England at all. to refer their cases, under the provisions of the The bill in question is confined in its terms to bill. A similar commission existed in Tennessee domiciled colonists, so as to prevent evasions of two or three years ago.

| the law in England, and, as was said during the Vol. 4.-No. 15.

« ПредишнаНапред »