increase in the rate of taxation, such board shall determine the rate of taxation necessary to be levied in such district, within the maximum rates prescribed by the Constitution for such purposes, and shall submit to the voters of said city, town, village or other school district, who are tax-payers of such city, town, village or other school district, at an election to be by such board called and held for that purpose, at the usual place of holding elections for members of such board, whether the rate of taxation shall be increased as proposed by said board; and if a majority of the voters who are tax-payers voting at such election shall vote in favor of such increase, the result of such vote and the rate of taxation so voted in such district shall be certified by the clerk or secretary of such board or district, to the clerk of the county court of the proper county, who shall on the receipt thereof proceed to assess and carry out the amount so returned on the tax-book, on all the taxable propoerty, real and personal of such city, town, or village or other school district, as shown by the last annual assessment for state and county purposes, including all statements of merchants, as provided by law.

SEC. 2. Such boards of education or school boards of any city, town or village, or board of directors of any school district in the state, shall, whenever it shall become necessary in their judgment, or be requested by a petition of two tax-payers of any school district, city, or town, or village, to increase the annual rate of taxation for the purpose of erecting school buildings in such district, determine the rate of taxation necessary to be levied within the maximum rates prescribed by the Constitution and as therein limited for such purposes, and shall submit to the voters of districts formed of cities, towns and villages, or other school districts, at an election to be by such board called and held for that purpose, at the usual place of holding elections for members of such board, whether the rate of taxation shall be increased as proposed by said board for erecting school buildings; and if two-thirds of the qualified voters of such school district, or of such city, town or village, forming a school district, voting at such election, shall vote in favor of such increase, for the purpose aforesaid, the result of such vote and the rate of taxation so voted, shall be certified by the secretary or clerk of such board to the clerk of the county court of the proper county, who shall, on the receipt thereof, proceed to assess the amount so returned for building purposes on all the taxable property, both real and personal, of such city, town, or village, forming such school district, or other school district, as shown by the last annual assessment for state and county purposes, including all statements of merchants, as is provided by law.

SEC. 3. The elections authorized in this act may be held at the same time and place, and in the manner now provided by law for holding elections for school purposes; but the propositions in that event submitted, must be voted upon separately, and certified as hereinbefore provided.

SEC. 4. Said boards of directors of boards of education, calling such election, shall cause at least fifteen days' public notice to be given of the time and place of holding such election or elections, and the purposes for which it is held, by publication in some newspaper published in such city, town or village forming such school dirtrict, or other school district; and if no newspaper is published in such school district, then by five written or printed hand-bills, posted in five of the most public places in such district. SEC. 5. There being no law by which the people may have the benefit of this act in holding school elections in the year 1877, an emergency exists for the immediate taking effect of this act; therefore, this act shall take

effect and be in force from and after its passage. Approved March 24th, 1877.

ILLINOIS LEGISLATURE-SESSION OF 1877.

AN ACT to establish Probate Courts in all counties having a population of one hundred thousand, or more, to define the jurisdiction thereof and regulate the practice therein, and to fix the time for holding the same.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That there shall be established in each of the counties of this state, now created and organized, or which may be hereafter created and organized, and which have a population of one hundred thousand, or more, court of record to be styled, "The Probate Court of (name of) County." Such court shall have a seal and may, from time to time, as may be necessary, renew or alter the same. The expense of such seal, and of renewing and altering the same, shall be paid by the county.

SEC. 2. Said court shall be held in the court-houses of the respective counties in which they shall be established, or in the usual places of holding courts, or in suitable rooms provided therefor at the county seat.

SEC. 3. The judge of said court, in each county in which such court shall be established, shall be elected on the Tuesday next after the first Monday in November, at the same election at which the county judge is elected, and every fourth year thereafter, and shall enter upon the duties of his office on the first Monday of December after his election, and shall hold his office for a term of four years, and until his successor is elected and qualified, and shall be known as the Probate Judge of (name of) county.

SEC. 4. The Probate Judge of each county in which a Probate Court shall be established, shall, before entering upon the duties of his office, take and subscribe and file with the secretary of state the oath required by the Constitution.

SEC. 5. Probate Courts shall have original jurisdiction, in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts, and in all matters relating to apprentices, and in cases of the sale of real estate of deceased persons for the payment of debts; and as soon as such court is organized in any county, the county court in such county shall turn over to the Probate Court all of its probate records and all files, books and papers of every kind, relating to probate matters, in such county court, and all records, files and papers in matters of guardianship and conservators; and the clerk of the Probate Court shall be authorized to demand and receive from the county clerk all such records, files, books and documents, and upon the receipt thereof, the Probate Court shall proceed to finish and complete all unfinished business relating to probate guardianship and conservator matters, in the manner provided by law.

SEC. 6. The terms of the Probate Court shall commence on the third Monday of each month during the year, and shall be always open for the granting of letters testamentary, letters of administration and guardianship, and for the transaction of probate business, and all other matters of which it has jurisdiction, and shall continue open from day to day, until all business before it is disposed of.

SEC. 7. The Probate Court shall have the power to impanel a jury for the trial of issues or matters of fact in any matter or matters pending before the court, and for such purpose the court may, at any time when it becomes necessary to have a jury, direct the clerk of

said court to issue a venire for either six or twelve competent jurors and deliver the same to the sheriff or coroner, or any bailiff of the court, who shall summon such jurors from the body of the county to be and appear before said court at any term or day named in such venire; and if by reason of non-attendance, challenge or otherwise, said jury shall not be full, the panel may be filled by talesmen. Said court shall have the same power to compel the attendance of jurors and witnesses as the circuit court has or may hereafter have; and jurors to act as such in said courts shall possess the same qualifications, and be entitled to the same privileges of exemption, and subject to the same rules of challenge for cause or peremptorily as jurors in the circuit courts of the state. When such jury shall be brought into said court, the court may retain such jury during the term or any portion thereof, as may be necessary for the trial of any matter or matters of fact, which in the discretion of the court requires a jury. The per diem and mileage of said jurors shall be the same as they are for jurors in the circuit court to be paid out of the county treasury, upon the presentation of a certificate of the clerk of said court, issued to each juror at the time of their discharge, certifiying to the number of days he may have attended court as a juror, and the amount of juror fees and mileage due him.

SEC. 8. The process, practice and pleadings in said court shall be the same as those now provided, or which may hereafter be provided for the probate practice, in the county courts of the state; and all laws now in force, or which may hereafter be enacted, concerning wills, or the administration of estates, shall govern and be applicable to the practice in the Probate Courts of the state.

SEC. 9. The sheriff in person, or by his deputy, shall attend the sittings of the Probate Court of his county, preserve order in the same, and execute the legal commands and process thereof.

SEC. 10. Whenever the Probate Judge of any county is interested in the estate of any deceased person, and the letters testamentary, or of administration, shall be grantable in the county of such judge, such estate shall be probated in the County Court of such county, unless the County Judge be also interested, in which event the facts of such interest may be entered of record in the Probate Court of the county, and certified to the Circuit Court of the county, and upon the filing of such certificate with the clerk of the Circuit Court, such court shall have full and complete jurisdiction in all matters pertaining to such estate, under all laws of this state concerning the administration of estates, or the probate of wills; and in all cases so transferred, the clerk of said Circuit Court shall have the same power in all matters of such estate in term-time or vacation, that the clerk of the Probate or County Court has. Provided, that if the Probate Judge is only interested as a creditor, no change may be made except in relation to his claim.

SEC. 11. Appeals may be taken from the final orders, judgments and decrees of the Probate Courts to the circuit courts of their respective counties, in all matters, except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo.

SEC. 12. Appeals and writs of error may be taken and prosecuted from the final orders of the Probate Court to the supreme court in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate; such appeals and writs of error, when not otherwise provided, shall

be taken and prosecuted in the same manner as appeals from, and writs of error to, the circuit court.

SEC. 13. There shall be elected, at the same time as the Probate Judge is elected, a clerk of the Probate Court, who shall hold his office for a term of four years, and until his successor shall be elected and qualified; before entering upon the duties of his office, he shall take and subscribe the oath required by the constitution of the state.

SEC. 14. Every such clerk shall, before entering upon the duties of his office, give bond with two or more sureties, to be approved by the judge of the court in which he is clerk, which bond shall be in such penalty not less than five thousand dollars (5,000), as may be determined by such judge, payable to the people of the State of Illinois, and conditioned for the faithful performance of the duties of his office, and to pay over all moneys that may come to his hands, by virtue of his office, to the parties entitled thereto, and to deliver up to his successor in office all moneys, papers, books, records and other things appertaining to his office, whole, safe and undefaced; which bond shall be copied at large upon the records of the court, and then filed in the office of the secretary of state, upon which such clerk shall be immediately commissioned by the gov ernor and enter upon the duties of his office.

SEC. 15. Every such clerk shall attend in person to the duties of his office when it is practicable so to do, and perform all the duties thereof which can reasonably be performed by one person; Provided, however, he may, when necessary, appoint deputies, who shall take the same oath or affirmation as is required of the principal clerk, which shall be entered at large upon the records of the court, and the principal clerk shall in all cases be responsible for the acts or omissions of his deputies.

SEC. 16. Every such clerk shall attend the sessions of their respective courts, issue all process thereof, preserve all the files and papers thereof, make, keep and preserve complete records of all the proceedings and determinations thereof, and do and perform all other duties pertaining to their said offices, as may be required by law, or the rules and orders of their courts respectively; and shall enter of record all judgments, decrees and orders of their respective courts before the final adjournment of the respective terms thereof, or as soon thereafter as practicable.

SEC. 17. It shall be the duty of the county board of every county in which there shall be established a Probate Court in pursuance of this act, to provide the clerk thereof with all necessary blanks, books, stationery, pens and ink, for their respective offices, the same to be paid for out of the county treasury; and in case such supplies should not be so furnished, then the clerk of such court shall furnish the same from time to time as may be necessary, the cost thereof to be allowed by the county board and paid out of the county treasury. SEC. 18. The necessary rooms, offices and furniture, the proper vaults or other safe means of keeping the archives of their respective offices, shall be provided for the clerks of the Probate Courts in their respective counties, by the county, and the cost thereof paid out of the county treasury.

SEC. 19. It shall be the duty of the probate clerk to deliver over to his successor in office, and of his successor to demand and receive from him, all the books, papers, records and other things appertaining to his office, or in his possession by virtue of his office; and should he refuse or neglect to do so, the court shall have power to use such compulsory process, and take such measures as may be necessary to compel the delivery as aforesaid, according to the true intent and meaning hereof.

SEC. 20. In all matters concerning the probate of

the estates of deceased persons, the granting of letters testamentary or of administration, letters of guardianship, the manner of keeping the records of said court, the form of docket entries, journals, fee books, memorandums, the form of process, the recording of papers and documents, connected with any matter of which said court has jurisdiction; the clerk of said court shall be governed by and follow all laws, now in force, which may hereafter be enacted concerning similar matters in the county courts of the state.

SEC. 21. The clerk of the Probate Court shall charge and collect for each official act, the same fees as are allowed to clerks of the county courts of the state in probate matters, which fees shall be charged in accordance with the laws now in force, or which may hereafter be enacted, concerning fees and salaries, and according to the class to which the county belongs; such clerk shall keep full, true and correct accounts of all fees collected by him, and report the same in accordance with said laws, for the keeping of which accounts no fees shall be allowed such clerk, and the same shall be open for inspection by the county board in accordance with said laws, and all fees in excess of the compensation allowed to such clerk, and necessary clerk hire and other expenses shall be paid into the county treasury, in accordance with said laws concerning fees and salaries.

SEC. 22. Clerks of the Probate Court shall receive such compensation or salary as shall be allowed them by the county board, together with the amount of their necessary clerk hire, stationery, fuel and other expenses, in accordance with the provisions of the constitution: Provided, that in the county of Cook the probate clerk shall receive, aside from clerk hire, necessary expenses for fuel and stationery, the sum of three thousand dollars ($3,000) per annum, as his only compensation, to be paid out of the fees of his office. SEC. 23. Probate judges shall be allowed such salary as shall be fixed by their respective county boards, to be paid out of the county treasury.

SEC. 24. When a vacancy shall occur in the office of Judge of the Probate Court of any county, the clerk of the court in which the vacancy exists shall notify the governor of such vacancy; if the unexpired term of the office made vacant is less than one year at the time the vacancy occurs, the governor shall fill such vacancy by appointment; but if the unexpired term exceeds one year, the governor shall issue a writ of election as in other cases of vacancy to be filled by election. Approved April 27, 1877.

VALUE OF LAND-SALES OF OTHER LAND.-1. In estimating the value of a lot of land taken for public use, actual sales of similar lands in the vicinity, at or before the time of such taking, are admissible in evidence; and the question whether such other lands are sufficiently like the land taken, and the sales sufficiently near in point of time, to make the evidence competent, is largely within the discretion of the judge. Shattuck v. Stoneham R. R., 6 Allen, 115; Benham v. Dunbar, 103 Mass. 365; Green v. Fall River, 113 Mass. 262. 2. But this discretion is limited, and if this court can see that such sales could afford no just measure of the value of the land taken, an exception will lie to the ruling of the judge, admitting evidence of such sales. Paine v. Boston, 4 Allen, 168; B. & W. R. R. v. O. C. R. R., 3 Allen, 142; Presby v. O. C. R. R., 103 Mass. 1. Opinion by GRAY, C. J.-Chandler v. Jamaica Pond Co. DIVORCE-INVALIDITY OF, WHEN PROCURED IN EVA

SION OF LAW OF STATE WHERE PARTY IS DOMICILED.— 1. Every state has an undoubted right to determine the status of persons domiciled therein. Strader v. Graham, 10 How. 82, 93. No control on the subject of marriage and divorce has beeen conferred by the Constitution upon the National Government; but each state has the power to regulate such matters as between persons domiciled therein. Hopkins v. Hopkins, 3 Mass. 158. 2. When a person domiciled in this state, in evasion of its laws, goes into another state to obtain a divorce for a cause not recognized by our law, this state, by its court or legislature, can declare such divorce of no force within its limits. Hanover v. Turner, 14 Mass, 227; Rev. Stats. c. 76, § 39; Clark v. Clark, 8 Cush. 385; Lyon v. Lyon, 2 Gray, 367; Chase v. Chase, 6 Gray, 157; Smith v. Smith, 13 Gray, 209; Gen. Stats. c. 107, § 54; Ditson v. Ditson, 4 R. I. 87. 3. Sec. 1 of Art. 4 of the United States Constitution prevents any judgment of a court of another state, having jurisdiction of the cause and parties, from being impeached for fraud, or other cause. Christmas v. Russell, 5 Wall. 290; Maxwell v. Stewart, 22 Wall. 77. But when, for any reason, the court has no jurisdiction, the judgment is void, and the recital in its record of the facts, necessary to give jurisdiction, is not conclusive. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267. 4. It is competent, therefore, to show that such a decree is in fact void, because procured in evasion of the law of the domicile. Shannon v. Shannon, 4 Allen, 134; Leith v. Leith, 39 N. H. 20; Hoffman v. Hoffman, 46 N. Y. 30; People v. Dowell, 25 Mich. 247. Opinion by GRAY, C. J.—Sewall v. Sewall.

CORPORATION-ACT TO SECURE ITS PROPERTY TO CREDITORS-RIGHTts of Creditor HOLDING COLLATERAL SECURITY.-An act, passed for the relief of the defendant corporation and to secure its creditors, provides a mode of determining its liabilities upon all claims enforceable at law, whereby commissioners may be appointed to decide upon such claims, from whose decision an appeal lies to the court. Any other liability is to be defined and established by the supreme court in equity. It also secures the property to the creditors by means of a trust mortgage creating a lien upon it in favor of all creditors to whom certificates have been issued by the commissioners, upon proof of their claims in the manner pointed out by the act. The petitioner held a promissory note of the defendant, and as collateral three other notes of defendant, payable in ten years from date, with interest coupons annexed, said latter notes being regularly quoted in the market. A decree was asked for, by which petitioner might receive certificates for both the principal debt and the security, or be allowed to sell the security and take a certificate for the balance, after applying the proceeds to the payment of the debt. Held, that the petitioner was not entitled to the decree asked for. The purpose of the act is to give all the creditors an equal participation in the security afforded by the mortgage. To this end, existing liabilities are extinguished and a new liability created by the issuance of certificates. The creditor is not compelled to come in under this act and take his certificate; but if he does, he must do so on terms of equality with the rest. He can not, directly or indirectly, be allowed double proof for the same debt, nor transfer his contracts so as to give different persons the right to full proof of each. A debtor's liability, where other creditors are concerned, is not increased by increasing the number of his promises to pay the same debt. Royal Bank of Liverpool v. Grand Junction Ry. Co., 100 Mass. 444, is not in conflict. That was an action at law upon cer tain bonds, and the defense was, that part of the bonds were security; and it was held unavailing, because a seal imports a good consideration, and the holder could maintain an action if the delivery had been gratuitous. In re Regents' Canal Co., 3 Ch. D. 43, was a case where a creditor held the debentures of his debtor secured by mortgage as security for debt of less amount, and the company being in liquidation, he was properly allowed to prove all his debentures pari passu with the other debenture holders, because otherwise he could not reach his share of the property mortgaged, as to which he had priority over other creditors. In Morris Canal Co. v. Fisher, 1 Stockton, 667, as in the English cases, the bonds were part of a limited amount secured by mortgage, and the transaction operated to give the creditor the benefit of the mortgage security. See In re Xeres Wine Shipping Co., L. R. 3 Ch. 771. The petitioner is allowed single proof of his debt only. Opin. ion by COLT, J.-Third National Bank v. Eastern Railroad.

INSURANCE-WITNESS TO Prove Value of BUILDING DESTROYED - REPRESENTATIONS OF AGENT — FRAUDU LENT MORTGAGE-INSURABLE INTEREST.-1. Any person acquainted with property such as a dwelling house, and its value or the value of like property, is a competent witness to prove its worth, in a suit to recover for its loss against an insurance company. 2. If a policy of insurance refers to a written application, which is not signed by the assured, but by an agent of the company, and it is not shown that the assured authorized it to be made, or ratified the same after its execution, he will not be bound by any representations therein, if they should prove to be false; nor will the fact that it fails to disclose the title prevent a recovery for a loss. 3. A condition in an insurance policy, making an application referred to a part of the contract and a warranty by the assured, and declaring that any false representation by the assured as to the condition, etc., of the property insured, or any omission to make known every fact material to the risk, or if the interest of the assured be not truly stated in the policy, the same shall be void, can not be said to have been violated when the assured has made no written application. 4. If an insurance policy provides that if the interest of the assured be any other than the entire, unconditional and sole ownership for his own use and benefit, or if the building stands on leased ground, it must be so represented to the company and so expressed in the written part of the policy, otherwise the same shall be void, and the assured states such facts to the agent, but they are not inserted in the policy, either by accident or design, such omission will not defeat a recovery in case of a loss. 5. A party applying for insurance on property is not bound to disclose the existence of a mortgage thereon which has been paid, or one which is invalid by reason of its execution having been obtained by fraud and circumvention. 6. A mortgagee's power to sell only continues as long as the debt survives. When the debt is extinguished, the power to sell ceases, and an attempt to exercise it is therefore ultra vires, and transfers no title, unless the mortgagor so acts as to estop him from showing the facts. 7. The principal thing in an insurance is, that the assured has an insurable interest, and has acted in good faith. Under a statement that he is the owner, he is only bound to prove an insurable interest, which is such a title as, if there should be a loss without insurance, it would fall on him. A mortgagor has such an interest. 8. The refusal of instructions not pertinent to the issues, or of such as, when proper, announced principles that have been given in others, is not error. Opinion by WALKER, J.— Lycoming Ins. Co. v. Jackson.

signment, and shall make oath before the clerk of the county court for the faithful performance of the same and other specified duties, has no application to a testamentary trust for the benefit of designated legatees. Opinion by FREEMAN, J.-Kerr v. White.

CHANCERY PRACTICE-SURETY ACCOUNT.-1. A bill for an account, brought by wards of a deceased guardian against the surety on the guardian's bond, may be maintained without making the representatives of the deceased guardian parties, his estate being insolvent. [Citing Story's Eq. Pl. § 169; 1 Dan. Ch. Pr., 4th Am. Ed., pp. 270 271.] 2. The code, making all parties to joint obligations liable severally, applies to such a case. [Citing Foster v. Maxey, 6 Yerg. 224.] Opinion by SNEED, J.-Parker's Heirs v. Irby.

CRIMINAL PRACTICE-EVIDENCE.-Testimony elicited by the state from a witness, if found unexpectedly to contradict and discredit another of the state's witnesses, can not be withdrawn from the jury on the application of the state, over the objection of the defendant. Opinion by FREEMAN, J.-Logan v. The State.

SUBROGATION-LIEN.-The heirs of W, supposing his estate amply solvent, paid off certain of his debts; but the estate afterwards proving insolvent, the heirs then claimed by subrogation not only the debts, but also the liens of such debts on the lands of the estate, and priority of payment out of the proceeds of such lands when sold. Held, as to judgments, the lien of which was gone by the lapse of a year without execution levied, when the payment was made, the heirs acquired no lien, being subrogated merely to such rights as the creditors had. [Citing 1 Story Eq. Jur. § 562: Mitchell v. Mitchell, 8 Humph. 361.] Held, as to deeds in trust, which the heirs took up, securing additional time, and giving instead new deeds of trust, in which new trustees were named, no intent appearing at the time of payment to continue the debts and seek subrogation as lien creditors, the liens were discharged and the purchasing heirs were entitled to prove such debts as creditors merely. [Citing 1 Lead. Cas. in Eq. 155; Starr v. Ellis, 6 Johns. Ch. 396; Gardner v. Astor, 3 Johns. Ch. 55.] Opinion by FREEMAN, J.-Belcher v. Wickersham.

MORTGAGE FORECLOSURE-Value of PropeRTY.—In a mortgage foreclosure, where the land has been conveyed since the mortgage to a railroad company for the use of its road, its value (for the purpose of determining the rights of the company, under sections 16 and 21, chapter 119, Laws of 1872), must be estimated as it was when the company acquired the title, without improvements made by the company; and if its actual market value was then enhanced by the projected and prospective construction of the company's road, it must be estimated at such enhanced value. Opinion by LYON, J.—Aspinwall v. C. & N. W. R. R. Co., imp.

CRIMINAL LAW-EVIDENCE-CHARGE TO JURY.-1. One accused of crime is entitled to have the evidence against him closely and carefully scrutinized, and can be lawfully convicted only where, after such scrutiny, the jury can say, upon their oaths, that the evidence leaves in their minds no reasonable doubt of his guilt. 2. On the trial of a criminal information, the jury were thus instructed: "In order to convict, the evidence should be such as to convince you as reasonable men that the charge is true. If, as reasonable men, guided bg that prudence and reason which govern you in the ordinary conduct of your affairs, you have a doubt of the defendant's guilt, you should acquit." Held, that this language might, without violence, have been understood by the jury to mean that if, in their ordinary affairs, they would, upon the evidence before them, adopt and act upon the hypothesis that the accused was guilty of the crime charged, they should convict him; and that, so understood, the instruction would have exposed the accused to conviction on insufficient evidence; and it was therfore erroneous. Opinion by LYON, J.-Anderson v. The State.

A MEMORIAL recently submitted to a committee

SAINT LOUIS, MAY 18, 1877.

CURRENT TOPICS.

ON THE 7th inst., Hon. T. M. Cooley of the University of Michigan and Chief Justice of that state, commenced a course before the law students of Johns Hopkins University at Baltimore. The course will continue till the first day of next month. The subject is the Law of Torts, and is divided into twenty lectures as follows: The General Nature of Legal Wrongs; A General Classification of Legal Rights; The Method of Obtaining Redress for Wrongs; What Parties may be held Responsible for Legal Wrongs; Joint Wrong-doers; Wrongs Affecting Personal Security; Affecting Civil Rights and Political Privileges; Affecting Personal Property; The Invasion of Rights in Real Property; Injuries to Incorporeal Rights; to Family Rights; Wrongs in Confidential Relations, from the Non-performance of Duty and the Neglect of Official Duty; The Immunity of Officers where Individual Injury Results from their Actions; Wrongs from Negligence; Torts Accomplished through Fraud; The Influence of Motive in the Law of Torts; Responsibility of Owners of Property and Masters for Injuries.

IN Gardner v. Kellogg, recently decided in the Supreme Court of Minnesota, 1 N. W. Rep. 12, it is held that in the trial of a civil action founded upon an assault of an indecent character committed upon a female, the same rule of evidence applies as in a criminal trial on an indictment for the same offense, in regard to proof of complaint made by the female concerning the assault immediately after the occurrence and while still suffering from the result of the injury received. Whatever may be the reason for the rule applied to criminal cases, whether it is that statements of their character as to the cause and immediate consequences of the injury, made by the injured party so soon after the injury and while still under the influence of the smart and suffering occasioned by it, constitute a part of the "res gesta" as was held in Thompson et ux. v. Trevannion, Skin. 402, approved in Avenson v. Kinnaird, 6 East, 188, and in Ins. Co. v. Mosley, 8 Wall. 397; or whether it is that silence under such circumstances will raise, if not explained, an unfavorable presumption affecting the credibility of her testimony as a witness, and hence, as is suggested by Woodruff, J., in Baccio v. People, 41 N. Y. 265, affirmative proof is admissible to repel the inference, it would seem quite clear, that the rule has for its support a foundation equally as firm and reasonable in civil as criminal actions.

Vol. 4.-No. 20.

the reports of New York and Ohio are furnished so cheaply, the former at $2, and the latter at $2.50 per volume. In Ohio the state pays the reporter a salary, and the judges are required to make the head-notes in each case. The state purchases 350 copies of each volume at $2.50 per volume. To this it may be added, that the number of decisions reported appears to be limited in that state by the discretion of the judges, so that reports are not ground out as rapidly there as in Illinois and Missouri. It follows that a larger edition of each volume is necessarily sold; so that, at the price named, the business of printing and selling those reports is probably sufficiently remunerative. In New York the reporter receives an annual salary of $5,000, and $2,000 more for clerk hire. He has the custody of the opinions of the court, after they are delivered, and charges for the copies furnished on application; so that the revenue of his office is believed to be about $10,000 per annum. The exceedingly large edition of 3,000 copies of each volume is printed, and about 600 are struck off annually thereafter for some years. It is very easy to see that with nothing to pay the reporter, and with such a circulation, there is profit in publishing those reports at $2 per volume.

CONSIDERABLE criticism is being directed against the eloquent and learned lawyer who at present presides over the department of state, because, since he accepted the position in the cabinet of President Hayes, he has appeared in court as a counsel in private litigation. The objections which have been urged against this course have, for the most part, been based upon the idea that th there is something derogatory in a member of the cabinet engaging in any other undertaking while occupying this high position. A stronger argument would seem to be that holding a post of the greatest and most delicate responsibility— a post second only to that of chief magistrate— it might well be assumed, imposes such duties upon the incumbent of the office as would scarcely admit of his pursuing another different avocation. Still, even this may be an unfair conclusion; for there are men whose capabilities for performing work can not easily be measured. Mr. Gladstone, while holding one of the highest offices in the English government, wrote and published his Studies on The Homeric Age; and the author of Coningsby has not been deposed from his high position because he occasionally leaves affairs of state to write a novel. Nor do we suppose that Mr. Bancroft's History of the United States was entirely neglected, while he was secretary of the navy. Yet these are all labors beside which the trial of a few cases in court is certainly but a trifling affair. But Mr. Evarts' course becomes even less open to criticism when it is stated that the cases which he appeared in had been accepted by him and partly prosecuted prior to his appointment to the secretaryship of state.