should then ascertain the value of the piano upon the evidence before them, and apply that, if they found that the plaintiff had taken and used the piano as his own property, to the further extinguishment of the note. The verdict as returned and recorded stated that the jury "leave out of their estimate the value of the piano, one of the articles held under said mortgage," and that they found for the plaintiff in a sum named. Held, that the verdict as recorded was ambiguous, because it did not show whether the jury determined that the value of the piano should not be deducted from the amount of the note, or made no decision at all upon that question. Exceptions sustained and verdict set aside. Opinion PER CURIAM—Peterson v. Patrick. SUPREME COURT OF INDIANA. November Term, 1878. CONCLUSIVE RECEIPT ON JUDGMENT DOCKET NESS OF. The question presented in this case is whether a receipt of payment entered by a judgmentplaintiff or his assignee, upon the record of the judgment, which is a lien upon real estate, is conclusive as against a subsequent purchaser of the property without notice, or whether, as against him it can be explained, contradicted and set aside; Held, that as the law does not provide for the receipting of a judgment upon the record, or the effect of such receipts, they stand upon no other ground than ordinary receipts, and are subject to be explained or contradicted as against purchasers without notice. Such receipt upon the record is not constructive notice to any one nor can it work an estoppel in favor of any one. 61 Ind. 56. Judgment reversed. Opinion by WORDEN, J.-Lapping v. Breyfogle. VEXATIOUS BRINGING OF SUITS STAYING PROCEEDINGS-MANDATE.-This was an alternative writ of mandate issued against one of the judges of the Marion Superior Court to require him to proceed with the trial of a certain cause pending before him, wherein Curtis was plaintiff and one Hare defendant. A case between the same parties had been pending before said court, and the plaintiff Curtis had dismissed the same, and judgment was rendered against him for costs. An execution issued for the costs was returned unsatisfied, no property being found of said Curtis. After the dismissal of said cause, the plaintiff refiled his complaint, and upon the application of the defendant and a showing of the facts, the court made an order staying the proceedings until the costs in the former suit were paid. Held (WORDEN, J., delivering the opinion of the court), that there was no error in refusing the peremptory mandate and in rendering judgment in favor of the defendant for costs. When a second action is vexatiously brought by and between the same parties for the same cause, the court will, by order, stay the proceedings in the second action until the costs of the former action are paid. 1 Camp. 322; 5 Pet. 150; 12 Penn. St. 246; 4 Halst. 86-96; 1 Johns. Cases, 247; 6 Hill, 372. Unless the plaintiff can make it appear that his proceedings have not been vexatious, the order to stay will be granted in all cases on the assumption that they are so. 2 Wait's Prac. 620. The plaintiff voluntarily dismissed his first action, and there was nothing shown to remove the inference that in doing so, and in commencing another action, he was acting vexatiously. Affirmed.-State v. Howe. PLEADING ALLEGATIONS NECESSARY IN COMPLAINT. This was an action by the appellee for damages caused by the appellants digging a ditch through their own land in such a manner as to cause the overflow of the plaintiff's land with water, etc. A demur rer to the complaint was overruled. The objection to the complaint was that it did not allege that the acts complained of were done wrongfully and unlawfully, or without the plaintiff's license or express permis sion. Held, by a majority of the court, that the objection was not well taken; that if the alleged acts complained of by the plaintiff were right and lawful, or were done by the plaintiff's license and express permission, these were matters of defense to be shown by the defendants in their answer, or by their evidence on the trial, and that the complaint was good on demurrer. Howк, C. J., and NIBLACK, J., dissenting, held that the plaintiff should have shown by the allegations of his complaint that the acts of the appellants on their land were wrongful and unlawful, and that for the want of such allegation the complaint was bad on demurrer. Judgment affirmed.— Wilkinson v. Applegate. INJUNCTION-DAMAGES WHEN TENANT IS RESPONSIBLE FOR NUISANCE CAUSED BY LEASED PROPERTY.-1. A filed a bill in equity against B, the owner, and C, the tenant, of certain dye-works, claiming damages for injuries caused by the dye-works to A's property. The master found that C's lease contained a covenant to keep the premises in good repair, and that he had operated the works in a careless manner: Held, that C and not B was liable. 2. That if the nuisance had arisen wholly from the nature of the premises, the tenant would not have been liable, semble, Opinion PER CURIAM.-Somers' Appeal. 6 W. N. 441. DAMAGES FOR BREACH OF CONTRACT TO FURNISH A MAN DURING HIS LIFE A PASS FOR HIMSELF AND FAMILY.-The E. & P. R. Co. agreed to give D, during his life, a free pass over its railroad for himself and family. In an action to recover for breach of this contract: Held, that the cause of action was the refusal of the pass, the document agreed to be furnished as evidence of the right of plaintiff and his family to ride free; that this cause of action was single, and the measure of damages for such breach of contract was the sum which such pass for plaintiff's life would be worth; that though this estimate may be difficult, owing to the uncertainties of length of life and amount of travel, it must be made to approximate certainty as closely as possible. The burden of proof was on the plaintiff who knew the number of his family and the customary number of trips made by himself and them. Opinion PER CURIAM.-Erie R Co. v. Douthet. 6 W. N. 494.. PAYMENT OF DEBTS BRANCES ON LAND DISCHARGE OF INCUMASSUMPTION OF PRIOR INBUMBRANCES-WORDS "Under and SUBJECT TO A CERTAIN MORTGAGE DEBT."-1. Where land has been purchased incumbered by the debts of a former owner, the heir or devisee of the purchaser is not entitled to call upon his personal estate for exoneration, unless the decedent had made himself directly liable for the debt for which the incumbrance was created. 2. A mere covenant by the purchaser of a mortgaged estate to indemnify his vendor, does not make it his personal debt. 3. The words in a conveyance, "under and subject to a mortgage," do not import an assumption by the purchaser of the debt, unless there exists special circumstances to raise a covenant to that effect. They import only that the vendee takes the land incumbered, and at most that so taking it at an agreed consideration which includes the incumbrance, he will indemnify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time. Opinion by SHARSWOOD, J.-Moore's Appeal. 6 W. N. 474. SUPREME COURT OF WISCONSIN. March 1879. PRAC COMMON CARRIERS-SPECIAL CONTRACT TICE-BILL OF Exceptions.-1.Where the bill of exceptions is not stated to contain all the evidence bearing upon specific questions of fact submitted by the court to the jury, it must be presumed that there was evidence to support the findings of the jury upon the questions. 2. In such case, also, it must be presumed, in the absence of proof to the contrary, that the evidence was such as to support the instructions, so far as they rest upon assumption of fact. 3. The liability of a common carrier, as such, attaches to goods received by it for carriage from the time of such reception, and while they remain in its warehouse before the actual carriage begins. 4. One who ships his own goods consigned to a person who has a special contract with the carrier for the carriage of goods at reduced rates at the owner's risk, and afterwards accounts with his consignee for the freight charges paid by the latter on the goods at the reduced rates, will not be held to have ratified the contract as one for the carriage of such goods at his risk, unless it appears that he had notice of such contract. Opinion by LYON, J. -White v. Goodrich Trans. Co. NEGLIGENCE - CONTRIBUTORY NEGLIGENCE.-1. While, in a proper case, and perhaps in most cases, the question of negligence is for the jury, yet where negligence conclusively appears, whether by averment or by undisputed evidence, the court must so hold. 2. In an action for injuries alleged to have been caused by defendant's negligence in leaving a narrow passageway between its depot and a canal, undefended by any railing along the canal, such passage-way being the only way of access for teams for delivering or receiving freight at said depot, and being so narrow as to leave hardly sufficient room for two wagons going in opposite directions to pass each other without forcing the outer one into the canal, the complaint shows that plaintiff, with knowledge of the danger, voluntarily attempted to drive his wagon loaded with goods along the canal side of such passage-way, and pass another wagon thereon, and in so doing met the injury complained of, from his horse becoming frightened and backing into the canal: Held, that these averments show contributory negligence. Opinion by LYON, J.-Goldstein v. Chicago, etc. R. Co. BOOK NOTICES. REPORTS OF CASES ARGUED and DETERMINED in The fourteenth volume of Blatchford's Reports includes over 600 pages,containing cases decided between October, 1876, and July, 1878. The eighth volume of Benedict has over 650 pages, and the cases reported were passed upon from January, 1875, to December, 1876. The former volume abounds specially in patent cases, and in the latter admiralty and bankruptcy adjudications are most frequent. In the former are the following decisions of general interest: A carrier can not limit its liability by conditions printed on the back of a receipt: Ayres v. Western Railroad Co. That a person who has sold an article which infringes a patent sold it as the agent of another, and has no interest in it, is no ground for refusing an injunction against him: Maltby v. Bobo. An administratrix appointed in New York, sued in that State a New Jersey corporation to recover, for the benefit of the next of kin of the intestate, damages for the death of the intestate, caused by the negligence of the corporation, the right of action being claimed under a statute of New Jersey. Held, that the action could not be maintained: Mackay v. Central R. Co. The exclusive use of a tin pail, ornamented, and used to contain paper collars for sale, can not be claimed as a trademark. Harrington v. Libby. A considerable change in the personnel of the Federal bench in the Second Circuit since the last issue of these reports is to be noted. On January 26, 1878, Alexander S. Johnson, the circuit judge, died, and Judge Blatchford was appointed his successor. The seat in the district court thus left vacant was filled by the appointment of Wm. G. Choate. In March, 1877, David A. Smalley, of the District Court for Vermont, died, and was succeeded by Hoyt H. Wheeler. QUERIES AND ANSWERS. QUERIES. [The attention of subscribers is directed to this depart. ment, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenover requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.] *** The following queries received during the past month are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able. 20. WOULD A STATUTE PROVIDING that bills of exchange, drafts, promissory notes and contracts, payable or to be executed upon Sunday, shall be payable or performable upon the business day next preceding, have any effect upon a post-dated check? E. P. 21. A OWNED A LOT OF LAND in the State of Kentucky not worth more than $1,000, and on which he lived with several small children. At his death his minor children broke up housekeeping. Are they entitled to a homestead in said property against the creditors of A? J. B. K. ANSWERS. No. 18. [8 Cent. L. J. 307.] In construing a will the intention of the testator should govern, provided his intention does no violence to the rules of law. 4 Kent's Com. (7th ed.) 596. That intention should be ascertained on grounds of a judicial nature. 2 Jarman on Wills (2d Amer. ed.) p. 223. By the first clause of the will under consideration, the testator, in clear and unmistakable language, gives to John Gray two-fifths of his estate absolutely. In the subsequent clause there is no intention or attempt on cate given John Gray in the previous clause; but it is simply a condition against alienation; and the direction that the title shall be taken in the name of John Gray's children is a device to hinder alienation. The whole of the subsequent clause being an attempt to restrain John Gray from aliening what is his absolute property, it is void. 4 Kent's Com. (7th ed.) 135. Any condition that is inconsistent with absolute ownership, when annexed to a devise in fee simple, is void. 1 Jarman on Wills (2d Amer. ed. 680); Bradley v. Piexoto, 3 Vesey, Jr. (Perkins' Notes), p. 324 and note (a); Jackson v. Buli, 10 Johns. (N. Y.) 18; Britton v. Twining, 3 Merivale, 18. A trust inconsistent with a fee is void, if annexed to an absolnte bequest. Mainnaring v Baxter, 5 Vesey, 460. The subsequent clause, upon analysis, will be found to give the children of John Gray no interest in the property bequeathed to their father; and a prior absolute bequest will never be restricted to a less estate, unless the restriction is clearly intended by a subsequent clause, 1 Jarman on Wills (2d Amer. ed.), p. 394. In several instances inconsistent words engrafted on a prior clear and express devise, have been rejected. 1 Jarman on Wills, p. 400. While the direction that the bequest to John Gray shall be invested in real estate is an equitable conversion, yet the bequest being to John Gray absolutely, he would have the right to take the property in its actual, unconverted state, and prevent the conversion. 2 Story's Eq. Jur. § § 793, 1213. Hence, we conclude that John Gray takes the bequest freed from all conditions or limitations. Flemingsburg, Ky. No. 10. [8 Cent. L. J. 240.] W. A. S. A gift of the drawer's own check on a bank in which he has a deposit, does not operate as a donatio causa mortis. It is not an assignment of the fund, but a mere order or authority to the payee to draw the money. As it is without consideration, it is revoked by the death of the drawer. Simmons v. Savings Society, 31 Ohio St. 59; Second Nat. Bk. of Detroit v. Williams, 13 Mich. 282; Tate v. Hilbert, 2 Ves. Jr. 118; Thompson on Bills, 244; Morse on Banks and Banking, 260; Bank of Republic v. Millard, 10 Wall. 152; Daniel on Neg. Inst., § 26; Byles on Bills, 175. Of course, if the money was drawn before the death of the drawer, the transaction would be closed, and the administrator could not recover the money, unless for the benefit C. M. F. of creditors. Topeka, Kas. No. 15. [8 Cent. L. J. 287.] The money collected by D belongs to A, and he can bring his action directly against D to recover it. Warner v. Lee, 6 N. Y. 144; McBride v. Farmers' Bk., 26 N. Y. 450; Scott v. Ocean Bk., 23 N. Y. 287; Union Bk. v. Johnson, 9 Gill & J. 297; Lawrence v. Stonington Bk., 6 Conn. 521. It would be otherwise if there was no indorsement on the draft to show that it was for collection and credit, and D had made advances to C on the strength of it. Bk. of Metropolis v. New Eng. land Bk., 1 How. 234. The insolvency of C would prevent his assignor from collecting the money, and turning the same with the general funds of the estate. Topeka, Kas. C. M. F. NOTES. JUDGES KREKEL and CALDWELL of the District Courts for the Western District of Missouri and the Eastern District of Arkansas, will supply Judge Treat's place during his absence. Mr. John A. Finch, of Indianapolis, who has made a study of insurance law, and has twice represented Indiana as Special Commissioner of Insurance in conventions of commissioners, has just been appointed by the Governor of Indiana chairman of a commission formed to codify the present insurance laws of that State, and to propose a new law covering the whole subject. The other members of the Commission are the Auditor and Attorney-General of the State. Mr. Finch has been a frequent contributor to the columns of this JOURNAL during the past three years.-A movement is on foot among the Ohio bar to make the office of clerk of the State Supreme Court appointive instead of elective. Chief Justice Durfee, of the Supreme Court of Rhode Island, has given a decision which strikes a blow at expensive municipal festivities in that State. In 1878, the ship-of-war Bellerophon, with two other British frigates, visited Newport Harbor. The city council, much impressed by the presence of a ViceAdmiral, R. N., and mindful of the duties of hospital. ity, gave to the mariners a ball and banquet at an expense of $2,950. The persons who furnished the feast and the music and the etceteras generally, have never received the money, and probably never will, at least from the City of Newport. The tax-payers, some of whom were invited to the dinner and ball, and some whom were not, have obtained from the Supreme court an injunction restraining the city treasurer from paying the expenses of the reception. Judge Durfee holds that there was no authority for incurring the expense which the tax-payers are asked to pay-the cost of fiddling which they did not hear, of wine which they did not drink. "The city," says the chief justice, "neither danced at the ball nor feasted at the banquet. It got nothing substantial out of them. The city neither bargained for nor enjoyed thein." The hardship to which those who furnished the entertainment are subjected is admitted, but it is held that they should have exercised greater caution. Judge Durfee regrets the predicament in which they find themselves, and intimates that those who shared in the pleasures should come forward and help to foot the bills, which we are pretty sure that they will not do. A similar question was settled in the same way in New York thirty years ago, in Hodges v. City of Buffalo, 2 Denio, 110, and in the recent case of Law v. People, 6 Cent. L. J. 248, the Supreme Court of Illinois held that the City of Chicago did not possess the power under her charter to use money raised by taxation for the purpose of entertaining official visitors.A curious will case has recently been decided in France respecting the property of Gustave Courbet, the distinguished painter. After his death in Switzerland, where he had taken refuge, owing to his connection with the Commune, a portrait of himself was found, on the back of which was written: "This is my will. I appoint my sister, Juliette, general legatee of all my property. Written by me, Tour-de-Peilz, 3d of June, 1877." The will was presented to the court and sus ained. The Central Law Journal. trary opinion. STEPHEN, J., said: "I can SAINT LOUIS, MAY 9, 1879. CURRENT TOPICS. In First National Bank v Northern Railroad, recently decided by the Supreme Court of New Hampshire, it was held that a common carrier by railroad, who delivers goods entrusted to him for carriage without production of the bill of lading describing the goods, is liable in trover for their value to a bona fide holder of such bill, taken for value, before the delivery of the goods at their destination. It is well settled that the transfer of a bill of lading to a bona fide purchaser for value, or as security to one who makes advances on the goods described in the bill, entitles the assignee or pledgee to the possession of such goods subject only to the lien of the carrier for freight, or to the claims of a consignee into whose possession the property may have come before transfer of the bill of lading. Lickbarrow v. Mason, 6 East 21; Walter v. Ross, 2 Wash. 283, Ryberg v. Snell, Id. 294; Winslow v. Norton, 29 Me. 419; Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360; s. c 18 Am. Rep. 299; and the delivery of the bill of lading takes the place of delivery of the goods, for no delivery of the latter is practicable at the time, and the symbolical delivery of the bill is suffi cient to pass the title. Ricker v. Cross, 5 N. H. 570; Portland Bank v. Stacey, 4 Mass. 663; Pratt v. Parkman, 24 Pick. 46; Gardner v. Howland, 2 Pick. 601. The case of Reg v. Hermann, recently before the English Court of Crown Cases Reserved, is somewhat singular in having caused a difference of opinion among the judges on a simple question of construction. The prisoner had fraudulently filed the edges of a genuine sovereign so as to reduce the weight below the current weight, and having then added a new milling, had attempted to pass it as a genuine coin. Three of the judges held that the coin thus altered was a "counterfeit sovereign," within the meaning of that phrase in the statute, while two of them were of a conVol 8-No. 19. not bring myself to the conclusion that these coins were counterfeit, within the meaning of the statute. They were in the beginning genuine coins, and, doubtless, whoever lightened them fraudulently committed an offense; but I do not find anything in the act which goes the length of saying that a coin thus fraudulently lightened is a counterfeit coin, or that a person passing coin so lightened is guilty of any offense at all. The prisoner had adopted means of concealing the fact that these coins, otherwise genuine, had been lightened, and the whole question therefore is whether the coins were thereby rendered counterfeit. I think it would be rather an artificial straining of the word to hold that they were." DLESTON, B.-"It appears to me that when the milling was removed from these coins they ceased to be good and current coin; and that the prisoner, by putting on a milling for the purpose of making them apparently resemble current coin, and by passing them in that condition, has brought himself within the words of the act." POLLOCK, B.-"It seems to me that a sovereign which has had the milling taken off it for the purpose of deteriorating and effacing the coin is, within the meaning of the section, a false and counterfeit coin." HUD LUSH, J.-"I am of opinion that to hold these coins to be counterfeit would be to strain the meaning of the section. If that section had stood alone, I should certainly have thought that what was issued as a good coin could not, by any deduction or clipping, be made into a counterfeit coin; it could only be made so by the importation of something in the nature of base metal, The word 'counterfeit' involves the idea of spurious imitation by unauthorized persons. Then the interpretation clause extends the meaning of the word so as to include the case of current coin so altered as to be intended to pass for some coin of a higher denomination; so that a gilded farthing would, if tendered as a sovereign, be a counterfeit coin, but only by virtue of this interpretation clause, not by virtue of anything contained elsewhere in the act; but here the coins professed to pass for coins of the same denomination. Then it is said that, because the prisoner added the milling, he turned the genuine sovereign into a counterfeit one; but I do not think that this argument ought to prevail, unless spurious or base metal had been add ed." COLERIDGE, C. J.-"I should be content to say that this sovereign, having been made into something which is not a sovereign, is a counterfeit coin, within the strict and grammatical meaning of the word, something factum contra quod oportuit. But I am also content to base my judgment upon the ordinary sense in which the word is used, and which implies something 'imitated.' I think the coins, when lightened, ceased to be sovereigns; then, by the fraudulent act of the prisoner, they were made to resemble sovereigns, still not being sovereigns; and I think that every coin to which anything has been done which has the effect of making it pass for what it is not, may be said to be a counterfeit coin." THE EIGHTH VOLUME OF THE AMERICAN DECISIONS.* The latest volume of this admirable series contains decisions from seven States, originally printed in the following reports: 1 N. H.; 15 & 16 Mass; 3 Conn.; 15, 16 & 17 Johns. ; 3 & 4 Johns. Ch. ; 2 South. (N. J.) 3 & 4 Serg. & Rawle (Pa.); and 6 Munf. (Va.) The cases were decided between the years 1817 and 1820. The notes are, as usual, very full and valuable. Particularly worth mention are the annotations to the cases on replevin (p. 109), public right on highways (p. 125), acknowledgement of debt (p. 162), delivery by carrier (p. 214), partnership property (p. 297), promise to pay note after maturity (p. 304), consideration (p. 366), liability of quasi-corporations for negligence (p. 442), lex loci contractus (p. 490), foreign assignments (p. 597), illegal contracts (p. 691), and testimony of absent witnesses (p. 717). Among the cases of general interest we note the following: The case of Medway v. Needham, 16 Mass. 157, though not now the law in the State in which it was decided, is entitled to a place in the series on account of the frequent reference made to it in later cases. It was there held by the Supreme Judicial Court of Massachusetts that a marriage valid by the laws of the country where it was en *The American Decisions, containing all the cases of general value and authority, decided in the courts of the several States, from the earliest issue of the State Reports to the year 1869. Compiled and annotated by JOHN PROFFATT, LL. B. Vol. VIII. San Francisco: A. L. Bancroft & Co. 1879. tered into is valid everywhere, and this principle was held to apply where the parties went into another State for the purpose of evading the laws of their own State which prohibited the marriage, and after their marriage returned to their own State. Parker, C. J., while admitting that a fraudulent evasion of the laws of the country where the parties have their domicil cannot, in the case of ordinary contracts, be protected, thought that an exception must be made in the case of marriage contracts "with a view to prevent the disastrous consequences to the issue of such marriages, as well as to avoid the public mischief which would result from the loose style in which people so situated would live," and referred to the English cases in the ecclesiasti cal courts as sustaining his view. But in Brook v. Brook, 9 H. L. 193, the English House of Lords expressed the opinion that "the American decision of Medway v. Needham cannot be treated as proceeding on sound principles of law." The whole subject is elaborately discussed by the Court of Appeals of Virginia in the recent case of Kinney v. Com., 7 Cent. L. J. 330, where the contrary doctrine is maintained. In Merrill v. Sherburne, 1 N. H. 199, the Supreme Court of New Hampshire declared void an act of the legislature awarding a new trial in a case which had been once decided in a court of law. Woodbury, J., said: "The grant of a new trial belongs to the courts of law from immemorial usage. The power to grant a new trial is incidental to their other powers. It is a judgment in relation to a private controversy, affects what has already happened, and results from a comparison of evidence and claims with the existing laws. It will not be denied that the consideration and decision by the superior court of the motion for this same new trial was an exercise of judicial power. If so, a consideration and decision upon the same subject by the legislature must be an exercise of power of the same description; for what is in its nature judicial to-day, must be judicial tomorrow and forever. The circumstance also that the legislature themselves did not proceed to make a final judgment on the merits of the controversy between these parties cannot alter the character of the act granting a new trial. To award such a trial was one judicial act, and because they did not proceed to perform another by holding that trial before themselves, the first act did not become any more or less a judicial one." In Manufacturers Bank v. Gore, 15 Mass. 75, a partner on a note signed by the firm, by means of a forged indorsement of which his co-partner was ignorant, obtained money from a bank which was placed to the credit of the firm. Before the maturity of the note, it was |