desirable to throw the principles decided in them under the same titles. The titles "At and From," "At Sea," ," "For Account of Whom it may Concern," "From the Loading," "In Trust, on Consignment, or on Commission," "Until Safely Moored," and "Warranted Free from Average," are phrases that occur in marine policies, and fall naturally as sub-titles under the general heading, Policy. "Condemned for being Unsound or Rotten," belongs to Seaworthiness. "Invasion, Riot, Insurrection, Civil Commotion, Military or Usurped Power," is a ponderous heading, and should also be classified as a phrase in a policy. “OneThird New for Old" should fall under the heading Adjustment in Marine Insurance. "To Recover Money Back," apparently belongs to Action. "Valid and Void Policies," "Void in Part, Valid in Part," " Void in Part, Void in Toto," relate to the construction of policies. Although these titles are used, and many others like them appear as cross-references, the very obvious title, Lapse, is nowhere given, and Forfeiture only appears in the cross-reference, “Forfeiture of Policy," which refers to Estoppel.

66

The cross-references themselves are of little use. They are incomplete, indefinite and misleading. For instance, the title "Liberty to Touch and Stay," covers only the cross-reference: "See Illicit Trade; License; Touch and Stay." Illicit Trade is a subject that fills thirteen pages, and contains more than a hundred statements of principles, among which one must diligently search for those that relate expressly to liberty, to touch and stay, as the leading topic; License itself is merely a cross-reference to Illicit Trade, and there is no such title as "Touch and Stay" in the book. Seizure for illicit trade is considered under the title "Law of Nations," though there is neither cross nor index reference to show that it is there. The title Medical Attendant refers to no other; yet there are statements helping to define that term under Proofs of Loss (col. 1,120, par. 83), and under Misrepresentations (col. 793, par. 16). The title Invasion, etc., includes several clear instances of proximate cause of loss; yet there is no reference to them in the index, nor crossreference from the title Proximate Cause. Cross-references, however, can be dispensed with, if the index is full, which is not at all the case in this book. Fortunately, this defect is one that can be easily remedied, and if it were, the convenience and value of the digest would be very greatly increased. The present index is principally a loose summary of what is found under each title, and might be very much more nearly perfect without taking more space than it now occupies. If the author and publishers would replace it with a minute and careful index, such as too few digests have, in fact, they would greatly add to the usefulness of the book. As it is, no one can be sure, on any ordinary examination, that he has found all that has been decided on any given subject.

Mr. Sansum includes considerable matter touching upon Pleadings and Practice, and embracing points of law that have no relation to insurance beyond having been announced in insurance cases. They are given under such headings as Abatement, Agreements of Counsel, Agreed Case, Allegata et Probata, Amendments, Appeals, Appearance, Arguments of Counsel, Attorney-at-Law, Bills of Exceptions, Continuance, Demurrer, etc. This might just as well have been left out, and, from the infrequency of such titles in the latter part of the book, the author seems to so have concluded. But he has also omitted some decisions of local application, apparently because they were mere interpretations of local statutes, such as relate to service of process, substituted service, and the powers of a state commissioner of insurance. It would have been well to include these, not only for the information

of lawyers as to the local law, but for that of insurance companies extending their business into the various states. Under the regulation policy, whereby several of the state governments assume to supervise in some degree the operations of railway and insurance corporations within their jurisdiction, such matters speedily acquire something of the force of common law, and no exposition of the law can be quite complete that omits to notice them. H. A. C.

NOTES OF RECENT DECISIONS.

USURIOUS INTEREST PAID UNDER PROCESS OF LAW -RIGHT TO RECOVER BACK.-Federal Ins. Co. v. Robinson. Supreme Court of Pennsylvania. 3 Weekly Notes, 173. Opinion by SHARSWOOD, J. Usurious interest paid upon process of execution without collusion, can not be recovered back in a new action. The remedy of the defendant is, to apply to the court to open the judgment. While it is well settled, as a general principle, that money voluntarily paid upon a claim of right can not be recovered back, an exception has been recognized in the case of usury so paid. The reason of this exception is stated to be, that it is money obtained by oppression, and by taking advantage of the distresses of others in violation of a law made for their protection. It is not, therefore, a voluntary payment; for the parties are not in pari delicto. Thomas v. Shoemaker, 6 W. & S. 183. But money collected or paid upon lawful process of execution, can not be recovered back, though not justly or lawfully due by the defendant in the execution to the plaintiff. The authorities for this position are many and clear. 1 Selwyn's N. P. 82; 1 Archbold N. P. 267; Rapalje v. Emory, 2 Dall. 51, 231; Herring v. Adams, 5 W. & S. 459; Mann's Appeal, 1 Barr. 29; Boas v. Updegrove, 5 Id. 516. In the case of Rapalje v. Emory, the money was recovered and collected of a garnishee in foreign attachment in the Island of St. Eustathius. It was held that the defendant in the attachment could not recover it of the plaintiff, though he had no notice of the proceeding. The reason is a very obvious one. An execution is the end of the law. To permit money so collected or paid to be reclaimed in a new suit, would lead to indefinite and endless litigation. If such suit could be maintained, then another might be brought to recover the money paid on the judgment and execution in it, and so on ad infinitum.

BANKRUPT ACT-MEANING OF “TRADESMAN" IN SEC. 5110. -In re Cote-United States District Court, District of Mas sachusetts. 14 N. B. R. 503. Opinion by LOWELL, J. The meaning of the word "Tradesman in Sec. 5110 of the Bankrupt Act, is substantially the same as a shopkeeper. Persons who buy and sell in a small way merely, and subsidiary to some other business in which they earn their living, are not tradesmen. As the word is in a section that is almost penal, it should be confined to those who belong to that class with some degree of permanence. In Ritchie v. McCauley, 4 Penn. 472, the Supreme Court of Pennsyl vania was called upon to construe a statute of that state exempting the necessary tools of a "tradesman" from seizure on execution. "It is to be regretted," says Bett, J., in delivering the opinion in that case, "that, in framing a statutory provision of so much importance, a term so vague, and admitting of such a variety of significations, should have been employed." He then goes on to say, that in England the word is applied to small shopkeepers; but that, in the United States, it is rarely applied to persons engaged in buying and selling, but to mechanics and artificers of every kind whose livelihood depends upon the labor of their hands. Burrill, in his Law Dictionary, adopts this meaning, and gives this case as the authority. Bett, J., cites, too, the opinion in a case in Massachusetts, where the word is used in the same sense. Howard v. Williams, 19 Mass. 80. In Webster's Dictionary the,definitions are: 1. One who trades, a shopkeeper. 2. Any mechanic or artificer whose livelihood depends upon the labor of his hands. Citing Burrill. 3. A handicraftsman in a borough. Citing Scott. In Wharton's Law Lexicon (English), the definition is "a shopkeeper." The Act of Congress is taken in this part from the insolvent law of Massachusetts (Gen. Stats., Ch. 118, Sect. 87); but there is no reported case in which it is construed by the courts of that state. "The word might, in some circumstances, be used in the sense

of any man who trades; but I hold that such is not, at the present time, its usual signification, and that it does not have that meaning in this section. The subject-matter proves that the act does not apply to handicraftsmen, or, at least, that there are many such to whom it can not apply. The meaning of tradesman is, I think, substantially the same as shopkeeper. Merchant, in this connection, contrasts with tradesman, as the greater with the less, and not rice versa. It does not seem to me that Congress intended to say that every one who ever bought and sold, under whatever circumstances, must keep books of that part of his business; but that real merchants and actual tradesmen, being the class of persons whom the common practice of mankind makes book-keepers, should keep their books properly; and that there may be persons who trade-such as peddlers, in a small way, but more especially persons like this defendant, who buy and sell merely by way of eking out their living, which is principally earned in other ways-that are not to be required to do this. Such a construction may leave the law a little uncertain; but it is, in my judgment, a sound construction, and the only one that will effect justice in the long run. In short, the distinction I take between the intent of this part of the law, and that which made traders an extensive class, is, that the latter was remedial between debtors and creditors, and to be extended, and this almost penal; it is a duty im posed on a certain class of persons as such, and ought to be confined to those who actually belong to that class with some degree of permanence."

VOID CONTRACT FOR SALE OF LAND-RIGHTS OF PARTIES UNDER.-Biggs r. Johnson. Supreme Court of Tennessee. Nash. C. & L. Rep. Jan. 3. Opinion by FREEMAN, J. Where land is sold under a contract void under the statute of frauds, the vendor has a right to sue for his land, and the vendee the right to recover back the purchase-money paid, upon notice of abandonment of the invalid agreement made by the parties. It was said by this court, in the case of Redmond v. Bowles, 5 Sneed, 553, that "either party may disregard the informal contract as soon as made, and the one sue for any money that may have been paid, and the other for the land." It was held by this court, in Sullivan v. Ivey, 2 Sneed, 489, Beard v. Bricker, 2 Swan, 50, that these rights accrue upon an abandonment and repudiation of the contract by either party, and notice of such abandonment and repudiation given to the other party. This is as far as any of these cases, fairly considered, go. The principle on which the requirement of notice of abandonment of the contract goes is, that the parties are in possession rightfully and by the assent of the other; the one of the land, the other of the consideration; neither ought, therefore, to be subject to a suit as holding wrongfully, until the agreement is abandoned or repudiated, and notice had of the fact. When notified of the fact of abandonment of the invalid contract, each party, knowing it has no binding force in law, is bound then to restore the property received under it to the other, and if he fails, is liable to a proper action to enforce this liability. This follows from the cases cited, 2 Swan, and 2 Sneed, where it is held that the agreement may be abandoned by either party, and after notice of the fact the vendee in possession becomes a wrong-doer, his holding is unlawful and he may be turned out of possession by an action of unlawful retainer by the vendor. In Hurst v. Means, 2 Swan, 599, Totten, J., says: "No right or duty can be predicated upon a void contract; it is the same as if it had not been made. Therefore, if a party enter upon land and pay money under a parol contract for its purchase, he may recover it back by action for money had and received for his use, without restoring the possession or doing other acts to rescind the contract." With the qualification that notice of abandonment must be given to the other party, the above rule is the only one sustained by a preponderant weight of authority. The ease cited by Totten, J., from 6 Blackf. 22, abundantly sustains this view, citing numerous authorities in its support. "Our own impression, at first statement of this case, was, that the party who repudiated the contract should restore what he had received under it, before he could sue the other party. But, upon examination of the authorities, we do not find them sustaining this view. On reflection, we see grave difficulties in such a rule. If the Vendee is to restore the land, he would still be liable to pay for its use and occupation, and this could not be tendered O as to put the party in statu quo, or do complete justice, because of uncertainty as to amount. If the vendor has received property, as in this case, and sold it, or it

had been destroyed or died, he can not restore the property. Must he be held to an invalid contract because of this difficulty? We think the substantial ends of practical justice will be attained by giving the vendor his right to sue for his land, and the vendee the right to recover his purchase-money upon notice of abandonment of the invalid agreement made by the parties."

INCORPORATED BANK NOT ENTITLED TO PURCHASE NOTES.-Farmers & Mechanics' Bank v. Baldwin. Supreme Court of Minnesota. 14 Alb. L. J. 391. Opinion by CORNELL, J., Gilfillan, C. J., dissenting. A bank was authorized by statute "to carry on the business of banking by discounting notes, bills and other evidences of debt." Held, that this only conferred authority to loan money on such evidence of debt, with the right to take lawful interest in advance, and that the bank had no power to purchase such paper. A corporation can only exercise such powers as are expressly granted to it, or are incident or necessary to its existence. First National Bank v. Ocean National Bank, 60 N. Y. 288; 4 Wheat. 636; 2 Kent, 299; School Directors v. Thompson, 5 Minn. 286. So where an express power is granted, and the specific mode or manner of its exercise is prescribed, it can only be exercised in that particular way. 13 Pet. 587; 2 Kent, 290, 299. Bouvier defines a bank to be "an institution authorized to receive deposits of money, to lend money, and to issue promissory notes." These are its principal attributes. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 288. Banks are of three kinds, known as banks of discount, deposit and circulation, though usually, in every American system of banking, all these functions are united in the same institution, as in the case of the present Minnesota law. § 10, chap. 33, Gen. Laws. Their chief purpose and design are to furnish safe places of deposit for money, to facilitate its payment and exchanges between different persons and places, thereby serving as clearing-houses, where located, and to accommodate the business public with loans or discounts to such an extent and on such terms as are compatible with their continued safety and solvency, and the legitimate wants and demands of trade and commerce. McCullough's Com. Dic. vol. 1, p. 63. It is not contended, and can not be, that the power to purchase and traffic in promissory notes, as a species of personal property, belongs to any bank as a necessary incident to its existence, or to the exercise of any of its powers as a bank of circulation and deposit alone. It is not conferred, in express terms, by any provision of the statute; it must exist, therefore, if at all, as an incident necessary to transact its business as a bank of discount. A bank of discount alone is defined to be "one that furnishes loans upon drafts, promissory notes, bonds, or other securities." Am. Cyc., vol. 2, title Banks. "The discounting of notes," says Spencer, J., in People v. Utica Ins. Co., 15 Johns. 391, "is one mode of lending money." In the Firemen's Ins. Co. v. Ely, 2 Cow. 699, Sutherland, J., adopts the same definition; and Gardner, J., in delivering the opinion of the court, in Talmage v. Pell, 3 Seld. 343, declares that "to discount bonds in banking is only a mode of loaning money." In Fleckner v. The Bank of the United States, 8 Wheat. 338, Story, J., uses the following language: "Nothing can be clearer than that, by the language of the commercial world and the settled practice of the banks, a discount by a bank means, ex vi termini,' a deduction or drawback made upon its advances or loans of money on negotiable paper or other evidences of debt payable at a future day, which are transferred to the bank. We suppose the legislature used the language in this, its appropriate sense." The correct proposition is concisely stated in the syllabus to the case of The Niagara County Bank v. Baker, 15 Ohio St. 69, as follows: "To discount paper, as understood in the business of banking, is only a mode of loaning money, with the right to take the interest allowed by law in advance." Discounting a note and buying it are not identical in meaning, the latter expression being used to denote the transaction "when the seller does not indorse the note and is not accountable for it." 1 Bouv. 481, citing Pothier De l' Usure, 128. In view of this understanding of the functions of a bank of discount, the legal signification attached to the word "discount," and the distinction between it and the word purchase, when applied to the business of banking, it is obvious that the power" to carry on the business of banking by discounting notes, bills and other evidences of debt," is only an authority to loan money thereon, with the right to deduct the legal rate of interest in advance; this right can be fully

enjoyed without the possession of the unrestricted power of buying and dealing in such securities, as choses in action and personal property. Though the bank acquires a title to discounted paper, and hence may, in a certain sense, be said to have purchased it, yet it is a purchase by discount, which is permitted, and does not involve the exercise of a power of purchase in any other way than by discount. All the provisions of this chapter of the laws of this state having any bearing upon the question under consideration, are essentially the same as those contained in the New York statutes upon the same subject. Section 13, in particular, which relates to the powers of these associations, is identical in substance and nearly in language, with a similar section in the New York statutes. In the case of Talmage v. Pell, supra, the question arose, whether a bank, organized under that statute, had any legal capacity to purchase the negotiable bonds of the State of Ohio, for purposes of gain or profit; after full and exhaustive argument the court of appeals decided, in an opinion covering the whole ground, that it had no such powers. In the case of The Niagara County Bank v. Baker et al., decided by the Supreme Court of the State of Ohio, 15 Ohio St. 69, the same statute came under review upon a state of facts presenting the precise point involved in this case, and it was held that a power to carry on the business of banking by discounting promissory notes, was not a power to purchase such notes, but to loan money thereon. The principles are decisive of this case. Wiley v. First Nat. Bank of Brattleboro, 47 Vt. 546; Matthews v. Skinker et al., Am. Law Reg., Aug. No., 1876, p. 488, 3 Cent. L. J. 606; Kansas Valley Nat. Bank of Topeka v. Rowell, 2 Dill. 371; Hoffman v. Hancock Mut. Life Ins. Co., 2 Otto, 161.

CRIMINAL LAW-SUPERSEDEAS-PRACTICE IN COURT OF APPEALS.-An application for stay of proceedings in a criminal case, after judgment, will be denied, unless a full record of the case is certified to this court by the clerk of the court below, even when the petition for such stay alleges that the clerk has, for some cause unknown to petitioners, failed or refused to certify and return to this court a full transcript of the record. If the clerk unlawfully refused to so certify and return the record, the petitioner had his appropriate remedy. Mere detached portions of the record will not be sufficient. The application for stay of proceedings refused. Opinion by HAYDEN, J. -State v. Jilz.

CIVIL PRACTICE-INCIDENTAL QUESTIONS FOR TRIALCOURT.-On submitting a motion to strike a case from the docket of the circuit court for the reason that costs had not been paid as required by the court, as a condition to the setting aside of a nonsuit, the only question for the court was, whether the costs had been paid. It was not error for the court to refuse to declare the law in the form of an instruction, and the fact that the motion was overruled, after hearing, raises the presumption that the court below was satisfied that the costs had been paid, within the time required. Judgment affirmed. Opinion by HAYDEN, J.-Patrick et al v. Shields et al.

CONSTITUTIONAL LAW-ART. VIII, §§ 7-8; ART. IV, § 26, CONSTITUTION,1865-CONSTRUCTION OF STATUTE-SHERIFF AND MARSHAL'S ACT-REPUGNANT STATUTES-REPEALS BY IMPLICATION.-"An act concerning the duties of sheriff and marshal in the County of St. Louis, in relation to the levy and sale of such property under execution on attachment, as may be claimed by third persons," approved March 3, 1855, (Acts 1855, p. 464), gives the claimant an election either to claim the property under the statute or to proceed by replevin, and is not for that reason repugnant to either section 7 or section 8 of article VIII of the constitution of 1865. It does not deprive the citizen of a certain remedy, close the courts to him, cause a denial of justice, or violate the right of trial by jury. The plaintiff having claimed under the statute, lost his right to recover the

specific property from the sheriff by replevin. [Citing Bradley v. Holloway, 28 Mo. 150; State to use of Goldsall v. Watson. 30 Mo. 122]. The special act is not repealed by the sixth section of chapter 22, General Statutes of 1865. There is nothing in the special act repugnant to any provision of the General Statutes. The courts will give effect to several laws on the same subject where they can stand together. The law does not favor repeals by implication. [Citing 6 Mo. 19]. Section 26, article 4 of the Constitution, prohibiting special laws where general laws are applicable, applies to future litigation, and not to laws already in force. Judgment affirmed. Opinion by BAKEWELL, J.— Dodd et al. v. Thomas.

MANDAMUS TO CLERK OF TOWNSHIP BOARD OF EDUCA TION.-Want of consideration, or failure of consideration, for a school warrant, may be pleaded to an application for mandamus to compel the clerk to pay the warrant, and, such warrants not being negotiable, the defence may be made as well after assignment for value as in the hands of the first holder.-State ex rel. Seely v. Huff.

CONSTITUTIONAL LAW.-The act of the General Assembly (Adj. Session Acts, 1863-4, p. 126), authorizing Brown, Admistrator de bonis non, to sell lands of Corgill deceased, which he had during his life mortgaged to James, upon which mortgage judgment of foreclosure had been rendered (and other similar acts), was not in conflict with the organic law of the state, and was constitutional. [Citing Thomas v. Pullis, 56 Mo. 211, and the cases there referred to; Kirby v. Chitwoods, 4 Monr. 91; Shehan v. Barnett, 6 Monr. 542.]-Corgill v. Fornauld.

JURISDICTION.-Consent of parties can not confer juris diction as to the amount or subject-matter of a controversy; but where, by law, the court has jurisdiction, it is only necessary for the parties to submit themselves to its jurisdiction, and this may be done either by the voluntary appearance of the parties, or by their consent to reinstate, after the court shall have been vested with jurisdiction of the amount, a case which had been dismissed before the court had acquired such jurisdiction.-Tippock et al. v. Bryant.

RES ADJUDICATA.-In order that a judgment, in a former action, may constitute a bar to the pending suit, it is not essential that the name of the present plaintiff should have appeared upon the record as a party thereto. If he was, in fact, a party assuming control of the case, and employing attorneys to attend to it in his own interest, he is barred, and the record of the former suit might be pleaded in bar, or offered in evidence, with like effect. [Strong v. Phoenix Ins. Co., 62 Mo. 287.]—Wood v. Eusel.

SCIRE FACIAS ON FORFEITURE OF RECOGNIZANCE.— Although a demurrer to the writ, in cases of scire facias, goes against the record as well as the writ, the writ is not demurrable because the indictment is even fatally defec tive The condition of the recognizance binds the re spondent not "to depart without leave of the court," and the cndition is broken by the failure to appear, whether there be any valid indictment found, or any indictment at all. [State v. Randolph, 22 Mo. 474; State v. Potts, 60 Mo. 368.]- The State v. Porton, et al.

ACTION ON BOND OF GUARDIAN AND CURATOR-PLEADINGS.-Although a petition may be "badly and inartificially drawn," yet, if it appears clearly that the whole petition together states a good cause of action, and shows that the court had jurisdiction, a demurrer should not be sustained because the facts necessary to constitute a cause of ac tion and show the jurisdiction of the court are not stated with technical precision and directness. In this case there was no direct averment that the guardian had been ap pointed by the Osage county court.-State, etc., v. Carroli.

SAINT LOUIS, FEBRUARY 9, 1877.

The mails sometimes fail to deliver this paper punctually and regularly to subscribers. Where we are notified of such failure WITHIN A MONTH after it occurs, we will, if possible, replace the numbers without charge. Otherwise, subscribers are expected to pay extra for numbers needed to complete file.

Subscribers sending for back numbers of volume 3 or former volumes, must enclose 15 cents per copy. If we are able to supply the numbers called for, we will d this price; if not, we will return the money

CURRENT TOPICS.

SENATOR BURKEHOLDER has introduced a bill in the state senate making an important amendment in the statutes of this state in regard to verdicts. It provides that "in every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict; [and in all such cases the court, at the request of the parties, or of either of them, shall direct the jury to find a special verdict in writing upon all or any of the issues in the case; and upon like request, instruct the jury, if they shall render a general verdict, to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon; the special verdict or finding shall be filed with the clerk and entered upon the records of the court; when the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly."] That portion in brackets comprises the amendment. It seems to us that this amendment would prove a very salutary check upon the ignorance and mistakes of juries in construing instructions. Where they find the facts, it can, in complicated cases, be more safely left to the court to apply the law to the facts, than to require them to apply the law as given them by the court. Juries often misapprehend the instructions given them, and sometimes wholly disregard them, and in a majority of cases the injured party is without remedy.

THE ELECTORAL COMMISSION completed by the selection of Mr. Justice Bradley as the fifth member from the Supreme Court, having been organized and having adopted rules of order and procedure, has had submitted to it, as being the first case where the returns have become the subject of dispute under the provisions of the bill, the electoral vote of the State of Florida. The distinguished character of the tribunal, and the gravity of the interests involved, are shown in the appearance before the commission of the ablest and most celebrated advocates which either of the political parties contains. The sitting of Monday was taken up with the arguments of Wm. M. Evarts and Charles O'Conor representing the republican and democratic side of the question, respectively. Mr. Vol. 4.-No. 6.

counsel, that the commission ought to receive evidence other than that which had been laid before the two houses of Congress by the presiding officer of the Senate, and which had been referred to the electoral commission. He charged that the democratic counsel wanted to introduce extraneous evidence to show every step taken in the election itself, but not to prove that Governor Stearns' action was not based on the returns as received by him from the regular count of the canvassing boards. Mr. Evarts then maintained that there was no law of Congress which provided for taking proof of any acts of electors, and that there was no other process of counting the vote, except that provided under the Constitution. By going behind the returns, as suggested in the case of Florida, he maintained that Congress would be exercising plenary judicial powers, which the Constitution of the United States does not confer upon that body. He said the proposition to interpose judicial inquiry into a purely political proceeding was a most novel one. Mr. O'Conor, in his argument, maintained that the commission had the right to make a full inquiry into the facts of the Florida election. He also declared that the Tilden electors had the best legal right to be recognized, and concluded by insisting that the commission receive as evidence the testimony taken by the Congressional committees. As we go to press we learn that the judgment of the commission has been announced, in which, by a vote of 8 to 7, it is decided not to go behind the certificates of the governor of the State, or to hear testimony except on the point of the ineligibility of electors.

IF MR. CHIEF JUSTICE WAITE keeps on writing those crisp and terse opinions which have characterized him since he has been on the bench of the Supreme Court of the United States, we think we shall be able to publish in full one or two each week, under the head of "Current Topics." The following is his opinion in the case of the Western Union Telegraph Company v. Rogers, delivered at the present term. It will be seen that nothing whatever is needed to give it fullness or symmetry: "Before the act of February 16th, 1875 (18 St. 316), increasing the sum or value of the matter in dispute, necessary to give this court jurisdiction, from two to five thousand dollars after May 1, 1875, it was held that we had no jurisdiction in cases where the matter in dispute was two thousand dollars and no more, and that, in determining the jurisdictional amount, neitherfinterest on the judgment nor costs of suit can enter into the computation." Walker v. U. S., 4 Wall. 164; Knapp v. Banks, 2 How. 73. The act of 1875 simply increases the jurisdictional amount. No other change is made in the old law. The judgment in this case was rendered May 8th, 1875, for five thousand dollars and no more, except costs. It follows that, according to the practice established under the old law, this writ must be dismissed for want of jurisdiction."

*

The following, also, is his opinion in the case of Meyer et al. v. Pritchard, lately delivered: "In Moffitt v. Garr, 1 Black, 282, we held that a surrender of a patent means an act which, in the judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right, after the surrender, than could an act of Congress which has been repealed. The re-issue of the patent has no connection with or bearing upon antecedent suits; it has, as to subsequent suits. The antecedent suits depend upon the patent existing at the time they were commenced, and, unless it exists and is in force at the time of trial and judgment, the suits fail.' To the same effect is Reedy v. Scott, 23 Wall. 364. We are satisfied with this ruling. Since the appeal in this case, the appellants, who represent the original patentees, have surrendered the patent upon which the suit was brought, and obtained a re-issue. This fact is conceled. If we should hear the case and reverse the decree below, we could not decree affirmative relief to the appellants, who were the complainants below, because the patent upon which their rights depend has been canceled. There is no longer any real or substantial controversy between those who appear as parties to the suit upon the issues which have been joined, and for that reason the appeal is dismissed, upon the authority of Cleveland v. Chamberlain, 1 Black, 426, and Lord v. Veazie, 8 How. 255. The cause is remanded to the circuit court, to be dealt with as law and justice may require.”

THE equity rules established by the Supreme Court of the United States certainly need revision in respect to the compensation allowed masters in chancery for making sales. As it is now, under the 82d rule, the fees of masters in chancery of the United States Circuit Courts, for making sales, stand on the same footing as their fees for other services, that is to say, they rest in the discretion of the court. This discretion appears to be a floating and variable discretion, without anything to guide it. Thus, in the late foreclosure sale of the Northern Pacific Railroad, which took place in the United States Circuit Court for the Southern District of New York, the property was bid in by the bondholders at the nominal sum of one hundred thousand dollars; but the master in chancery and the marshal, denominated a master-commissioner, received for making the sale, exclusive of expenses, the sum of twenty-five thousand dollars; while in a case where a railroad was sold by the United States Circuit Court for the District of Iowa, by a special master, and was bid in by the bondholders at the nominal sum of twelve hundred thousand dollars, the master received for his services but eight hundred dollars.

We have learned with surprise, that in those circuits where no rule upon the subject has been established, a practice has sprung up of making

bargains in advance with the officers appointed to perform such services, as to the amount of their compensation. We certainly hope that the Supreme Court will, by the promulgation of a definite rule, put a stop to this practice. This is aptly illustrated by the case of Gilman v. The Des Moines Valley, etc., R. Co., 40 Iowa, 200, which was a suit to foreclose a mortgage on a railroad. In this case, under the threat of bringing the suit in another county, the sheriff of the county in which the suit was brought, was induced to sign an agreement to charge only two hundred and fifty dollars for making the sale. After making the sale, he repudiated the agreement and insisted on his commission under the statute, which amounted to some fifty-nine hundred dollars. In this he was sustained by the Supreme Court, the court holding that the agreement was void, first, because it was against public policy, and secondly, because it was without consideration.

Practices not differing in spirit from this are strongly denounced in England, and, we presume, in every American state, by statutes against buying and selling offices. In Tappan v. Brown, 9 Wend. 175, a deputy inspector of flour, who was entitled by law to a certain commission, agreed with his principal to take, in lieu of his statutory fees, a fixed salary. This was heid to be a corrupt agreement, and within the prohibition of the statute against selling any office or deputation of office. In Georgia a clerk farmed out his office to his deputy, the deputy to pay him a sum certain therefor. It was held, under the statute 5 and 6 Edw. 6, ch. 16, §§ 2, 3, in force in Georgia, that the agreement was void. And the English courts have so held. Godolphin v. Tudor, 2 Salk. 468; Greville v. Attkins, 9 B. & C. 462. Similar rulings will be found in this country, in the cases of Smith v. Whildin, 10 Pa. St. 39; Warner v. Grace, 14 Minn. 487; Lewis v. Knox, 2 Bibb. 454; Outon v. Rodes, 3 Marsh. 433; Gray v. Hook, 4 Comst. 449; Dodge v. Stiles, 26 Conn. 463; Hatch v. Mann, 15 Wend. 45; Hall v. Gavitt, 18 Ind. 390.

POSSESSION OF REAL ESTATE AS NOTICE OF ADVERSE TITLE.

Both in this country and in England the doctrine seems quite firmly established, that open, notorious, unequivocal and exclusive possession of real estate, under an apparent claim of ownership, is notice to the world of whatever claim the possessor asserts, whether such claim is legal or equitable in its nature. In general, the possession upon which such claimants rely, is held under, and pursuant to an unrecorded deed or an executed parol contract. The application of this doctrine has been somewhat modified, particularly as applied to unrecorded instruments, by the recording acts of the several States.

In Missouri, where the statute provides in relation to conveyances of real estate, that " no such