for the most part, from the oldest and most respectable members of the library association. It consists in loud talking, in consulting with clients around the common tables, and, worst of all, in loud and boisterous anecdote-telling. I positively affirm that our library almost as frequently resembles a bar-room (leaving out the fumes of smoke and the smell of liquor), as a quiet place where grave and serious men meet for purposes of study. I do protest against these interruptions, as an attack upon the life of me and of every other man who resorts to that place for the purpose of earning his daily bread. If this injury is not stopped, I for one shall commence insulting those who inflict it upon me, no matter how old or venerable. I have in my mind's eye now one aged man whose forenoon anecdotes have confiscated much of my valuable time during the last six months. I hope he will read this letter, and not only " reform it indifferently," but "reform it altogether." X.

ST. LOUIS, Feb. 25, 1878.

EFFECT OF FRAUDULENT CONVEYANCE UPON THE RIGHT OF HOMESTEAD.

To the Editor of the Central Law Journal:

Your issue of February 8th, quotes the Supreme Court of Illinois, as holding that a conveyance of the homestead premises, fraudulent as to creditors, defeats the homestead right, but you predict that view will be overruled "whenever the question is again presented." Your prediction was fulfilled the day before it was published, February 7th, the Supreme Court filed an opinion at Ottawa, in Leopold et al. v. Krause, on an appeal from the Will Circuit Court, which decides this question in conformity with the general current of authority. In that case Christian Leopold, the debtor, and his wife, Anna, conveyed the homestead premises to their son Henry. Henry afterwards re-conveyed to Anna. Christian and Anna remained continuously in possession of the premises as a homestead. The supreme court held these deeds fraudulent as to Krause, the creditor. Krause had caused the premises to be sold at execution sale without regarding the homestead law, and had bought them in and obtained a sheriff's deed. It was urged this sale was void and conferred no title, because of noncompliance with the statute regulating the sale of homesteads on execution. In reply it was insisted that by the fraudulent conveyances they had lost the homestead right.

On this point the Supreme Court says: "But it is contended, on behalf of appellee, that the conveyance of the homestead by Christian and Anna, his wife, to Henry Leopold, and the subsequent conveyance by him to Anna, deprived them from relying upon the provisions of the homestead act. The position, as we understand it, is, the deed is valid for the purpose of conveying the homstead rights of the grantees, and invalid for all other purposes. This theory is not reasonable or logical, and we can not adopt it. The law does not require the defendant in execution to be possessed of the fee in the premises occupied as a homestead, to enable him to invoke the benefit of the homestead act; an estate in land less than a fee may be protected as well. In the discussion of a similar question in Deere v. Chapman, 25 Ill. 610, the court used this language: The object of the law most clearly is to secure the head of the family in the possession and enjoyment of the lot and buildings, for the maintenance and shelter of himself and family as a home, without any special regard to the extent of the estate or title by which he owned it.' What was there said seems to be in point here. The facts of this case do not require that we should define or definitely determine the motive or character of the title held by the defendant in the execution. It is enough that he was a house

holder, occupying the premises as a homestead, and possessed a title that could be sold upon execution. Appellee has conceded from the beginning of the controversy that Christian Leopold had such a title to the premises as could be sold upon execution; indeed, his case rests upon this conceded fact. If he is correct in this regard, it follows that Leopold had the right to claim the protection of the homestead act, as it was expressly held in the case of Deere v. Chapman, last cited, that the homestead act would embrace within it the estate which the debtor might own in the land and buildings thereon, and occupied as a residence, and which could be sold on execution. We are, therefore, of opinion under the facts of this case the appellant did not, on account of the conveyance, lose the right to claim the premises as exempt from levy and sale under the provisions of the homestead law."

JOLIET. ILL., February 9, 1878.

DORRANCE DIBELL.

BOOK NOTICES.

ANALYSIS OF AMERICAN LAW. BY THOMAS W. POWELL. Second edition. Philadelphia: J. P. Lippincott & Co.

This work gives, in seven hundred pages divided into four books and forty-eight chapters, a very satisfactory condensation of the principles of law, both public and private, civil and criminal. As a first book for the study of the law, it will certainly be of great use to the student-and, though written with particular reference to the laws of Ohio, will be of value to the beginner anywhere. Indeed, we are inclined to the belief that it is the best book of the kind yet published-superior in its arrangement and method of treatment to Walker's American Law-and we only hesitate to express this opinion unreservedly for one reason.

This reason is the effort which is made by both author and publisher to convince us that it is really a valuable work; that it is, in fact, the greatest book on the subject which has yet appeared in this or any other country. While the publisher has done his part well, having devoted three pages to testimonials from various lawyers throughout the country, we find him, in the art of puffing his wares, completely distanced by the author. We have seldom read anything more ludicrous than the author's preface to the second edition. Being assured that it "has been frequently asserted by good judges that the Analysis contains more good law than any other book of seven hundred pages, and should be found in every law library," we are supposed to be prepared for anything. We are then introduced to a "learned professor" who, when asked by a student as to the object of the rule in Shelley's case, was obliged to give it up. He had never read the Analysis. Then there is a "learned judge " who endeavored to confirm his own notion of the law as to implied warranty, and who searched a large number of law reports without success. He might have been looking through the libraries yet, had he not "turned to the Analysis" and found what he wanted. Again, we have a lawyer who is sure he would have lost a case upon contract, had he not "introduced to the court and jury the law as developed on pp. 280-233, where the law in relation to the partial performance of a contract is better condensed and illustrated than anywhere else." We are unable to read of this narrow escape without a shudder, and without reflecting upon the number of cases which must each year be decided contrary to law, and the multitude of innocent suitors who must be deeply wronged by courts whose judges know not Powell. While we can but admire the cunning of that lawyer who, finding himself "at a loss to make satisfactory answer to a question of interest in the sale of blooded stock," rushed not to a cattle dealer but to the Analysis, and

there found a "complete solution," we are forced to extend our sympathy to that other "able and experienced lawyer" who, upon reading the Analysis on the subject of the examination of title to land, said "that that page was worth the cost of the whole book." Ignorance in his case, however, was bliss, and it therefore mattered not to him that the author had not mentioned the fact that it would be well to search the offices of the United States courts for liens as well as those of the state courts. "But," as our author gently reminds us, "such a case would be only one in a thousand." As Mr. Powell has provided for the other nine hundred and ninety-nine cases, everybody should rest satisfied. There is another "learned lawyer " whose experience the author relates, and which we would notice, and then we are done with this extraordinary performance. He, it seems, "wished to satisfy himself in a case of covenant," whatever that may mean. "After much search into the law books for the law in point in vain, he turned to the Analysis and there found the exact law." And not long afterwards, we are assured, he found in an old New York report a case in point confirming it. We are left entirely in the dark as to whether he was guided to this decision by the Analysis, or found it by his own industry. If the latter, we are forced to the conclusion that there are certain principles of law which have come to our author by inspiration, possibly in the same manner as he has received the gift of writing ridiculous prefaces. Such productions as this preface to the second edition generally accompany boxes of pills and bottles of vegetable bitters. But this is the first time we have found one of them within the covers of a law book.

The call for another edition of this work has caused all the mischief. While in the second preface the author's English is as wretched as his taste is bad, the preface to the first edition is an exceedingly well written review of the different elementary works on law, and contains some sensible suggestions on the proper course of a student's study. But even here, when he alludes to his own book, and advises the novice for his first year to "take" the first book of the Analysis, with a little Kent and Story, and in his second to "take" the second book with a little more Kent and a small dose of Williams and Parsons, and so on, he very nearly encroaches on the domain of the patent medicine man. In conclusion, we wish to repeat that we have nothing to find fault with in the book; we only complain of the puffing.

REPORT OF CASES ADJUDGED AND DETERMINED IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE. By DANIEL M. BATES, late Chancellor. Vol. II, Philadelphia, T. & J. W. Johnson & Co., 1878. Until very recently there had been no provision for reporting, as a public undertaking, the decisions of the Delaware Court of Chancery. Nor had this lack been supplied by private enterprise. Consequently when in 1871 the Chancellor was authorized by the General Assembly to collect and publish such equity cases as he might think proper, it was found that fewer decisions were to be obtained than could have been procured had they been reported when delivered. This is the second volume issued since the act was passed, and contains about fifty cases selected from the manuscript notes of the late Chancellors Johns, Jr., and Harrington, and decided from 1833 to 1865.

"With this volume," says the ex-Chancellor, "the reporter completes his report of the decisions of the deceased chancellors, who were his predecessors in office. It has been to him a grateful work-reviving pleasant recollections of his professional life in years past; giving him the satisfaction of discharging, in some degree, obligations for many never forgotten acts of courtesy and kindness from the two chancellors

whose labors fill this volume, while practicing before them; and withal greatly deepening that respect he,` in common with the profession, has always felt for the learning ability and purity of the deceased chancellors."

STUDIES IN ANCIENT HISTORY, COMPRISING A REPRINT OF PRIMITIVE MARRIAGE. BY JOHN FERGUSON MCLENNAN, M.A., L.L.D., Advocate. London. Bernard Quaritch, 1876.

This is a reprint, with some additional essays in verification, of Mr. McLennan's admirable but short essay on "Primitive Marriage." It is purely historical, and of great service to the legal practitioner in revealing the origin of an institution or phenomenon, the nature of which it is with every decade becoming more important to know. Its value to the lawyer, the studious and erudite,-it seems to us, is in many respects equal to that of Maine's, Laveleye's and Freeman's works. It is very readable, and supplies many exceedingly original ideas respecting the origin of marriage. In some respects it is open to criticism, and has been criticised by Lubbock and Spencer, and in some particulars it is opposed to the conclusions of Maine and Freeman; nevertheless, on the whole, it is a valuable, and even indispensable acquisition to the lawyer's library. The binding of the book is poor, but the typography and paper are good. M. M. C.

QUERIES AND ANSWERS.

5. A DEBT IS CONTRACTED in this state (Ohio) between its citizens; the debtor being an employee of a railroad operating its road in both states. Under the laws of Ohio the debtor's wages are exempt. The creditor sells and assigns his claim to a citizen in Indiana, who commences proceedings in attachment under the laws of said state, and garnishes the railroad. Would the assignee in Indiana be governed by the laws of Ohio or Indiana in collecting his claim? In other words, would the courts of Indiana give the assignee a right to collect the debtor's wages, when the laws of Ohio prohibit the assignee from collecting the same, on the ground that his wages are exempt?

F.

6. LIFE INSURANCE.-A insures his life in an insurance company, and by the terms of insurance a certain sum is to be paid to his widow at his death. Many years ago, A then being a resident of a foreign country, it is alleged he married there, and subsequently abandoned his wife in such country, and came to Missouri, where he again married and resided till his de. cease. No divorce has taken place. The company has received proof of death, and is ready to pay the money, but is unable to decide as to the truth of the statements of the parties, and, therefore, does not know which party is the rightful widow and entitled to the money. The insurance company desires to be protected. Now, can the company file its bill with the circuit court, stating the facts, and asking that the claimants be notified to appear and establish their claim to the money, and would the court have jurisdiction to render a decree in the premises which would bind the parties?

MCG.

NOTES.

THE subject of the examination of accused persons has at length come before the English House of Commons, in the form of a bill introduced two weeks ago. It provides for the examination of prisoners under oath, the neglect or refusal to do so not to create any presumption against the prisoner. This latter featurefamiliar in our legislation on the subject-is much criticised. If it means, it is said, that any such neglect or refusal shall not be evidence against him in the sense that if there is no legal evidence of the charge for the jury without it, there shall not be any with it, the provision seems hardly necessary. If it means that the jury shall not take it into consideration along with the other evidence, it seems an absurdity.

THERE is a police court judge in Washington who is no friend to law journals. Recently, in his court, an attorney was endeavoring to impress upon him the fact that his ruling in a certain case was contrary to law, and in addition, that the general term of the Supreme Court of the District of Columbia had already decided the question exactly opposite from the view expressed by the judge. "Where do you find that decision?" said the judge. "I have, may it please the court," said the attorney, "a copy of the Washington Law Reporter, in which the decisions of the general term of the supreme court are published weekly, where the court will find the opinion." "Let me look at it," said the judge." "Such premature publications are an impediment to justice; I shall adhere to my ruling until this opinion is published in some permanent form."

HON. GEORGE W. PASCHALL, a law writer well known to the American Bar, died at Washington, D. C., on the 16th ult. He was born, says the Albany Law Journal, in Green county, Georgia, November 28, 1812. He was educated in the Georgia State College at Athens, was admitted to the bar in 1832, and removed to Arkansas in 1837. In 1841 he was elected Judge of the Supreme Court of Arkansas. In 1848 he removed to Texas. In that state he devoted himself to the practice of his profession, and in the preparation of his wellknown law works. These are "An Annotated Digest of the Laws of Texas," "Annotated Constitution of the United States," five volumes of the "Texas Reports," and a "Digest of Decisions." He also wrote many pamphlets and articles upon questions of jurisprudence and political science. In 1869 he removed to Washington, D. C., and remained there until his death.

FIVE states, viz., Maine, Rhode Island, Michigan, Wisconsin and Iowa, have unconditionally abolished capital punishment. Michigan led the way, having abolished the death penalty in 1846. Rhode Island followed Michigan in 1852. Wisconsin repealed the death penalty in 1853. Iowa reached the same conclusion in 1872, and Maine in 1876. None of these states have yet returned to the death penalty, though some are agitating the question. In the states of Indiana, Illinois, Minnesota and Louisiana, there is no capital punishment unless the jury convicting the murderer shall unanimously prescribe the death penalty. The law of New York is very similar to this. In that state, a person indicted for murder in the first degree, the penalty of which is death, may be found guilty of murder in the second degree, the penalty of which is imprisonment for life, the option of determing the degree of murder being left with the jury. Vermont, New Hampshire and Kansas have so modified their penal laws in respect to murder, that, after conviction, no execution takes place until a year has intervened, and then only when the governor shall have issued a warrant for the execution of the criminal, it being optional with the executive whether he shall or shall not issue such war

rants; making thirteen states which have either unconditionally or partially abolished capital punishment.

IN the Court of Oyer and Terminer, in New York city, last week in sentencing a prisoner named Wall to fifteen years' imprisonment for manslaughter, in having kicked his wife to death while intoxicated, Davis, J., referred in the following language to the "civil damage laws" of that state: "Guilty as you are, we can not fail to see that the real fault rests upon the condition in which you were placed by your indulgence in intoxicating liquors. You could not have been otherwise than intoxicated when you went to those places where you got whisky; and the men who sold you whisky in your condition are morally, at least, as guilty as you of the consequences of your crime. There is a law, unfortunately not often invoked, that would impose on them, in favor of your unhappy children, severe damages, and that would enable the children left to bring an action against these men who sold that whisky, and recover all the damages they sustained by the loss of a mother who was doubtless kind and good to them, and of a father whose loss has made them doubly orphans. Now, I advise you here to have steps taken on behalf of your children, to bring and maintain an action against the persons who furnished you with whisky, to enforce the remedy the statute gives, and to recover damages, that there may be some means of taking care of them; for in that way alone, unfortunately, can those men be punished. I advise you to have these steps taken immediately, to enforce the protection, as far as it goes, of your children. I should rejoice to see such an example made."

THE New York Court of Appeals, says the Daily Register, has just decided a question of great importance to the public, as it definitely settles the law in reference to the penalties for peculation by public officers and their subordinates. The defendant, Phelps, while a clerk in the state treasurer's office, appropriated to his own use a large amount of the state moneys. He was tried in 1874, on two indictments for larceny, and one for forgery, and was convicted of all of the same, and sentenced to thirteen years in the Albany Penitentiary. Judge Westbrook, upon the trial, charged the jury that the subordinate in a public office, who converts the property of the state with a felonious intent to appropriate the same to his own use, may be convicted of stealing. To these rulings the counsel for the defendant excepted, and an appeal to the court of appeals was accordingly taken. There have been but two prior cases, in which similar questions were involved and decided in this country before, and the reports of the English cases contain none upon the subject. In the case of Watkins, the defendant was tried in the United States Circuit Court, for the District of Columbia, in May, 1829, for a common law misdemeanor, called peculation in office, as fourth auditor. After several trials had taken place, and the quashing of several indictments on the ground of their insufficiency, he was found guilty of a misdemeanor only, and sentenced to pay a fine of $3,000. In the case of Hutchison, who was clerk in the office of the treasurer at Philadelphia, and who was indicted and tried for embezzlement, in 1848, a judgment of acquittal was rendered. In the Breslin case, the defaulting state treasurer of Ohio, whose defalcations were eovered up by his successor and brother-in-law, for fully over a year and a half after, we believe was never even indicted. The court of appeals have now settled the law upon the subject by their unanimous affirmance of the rulings of Judge Westbrook upon the trial, the principles of which must serve as a great safeguard against peculations by public officers and their subordinates.

SAINT LOUIS, MARCH 8, 1878.

In pursuance of an arrangement made some time ago, Mr. Thompson now retires from active connection with this journal, and leaves its editorial management in the hands of his learned and capable associate, Mr. Lawson, who, during the last two years, has really borne the heat and burden of the day, acting much of the time as sole editor. He leaves its business management in the hands of his late partner (now its sole owner), a gentleman whose business energy, capacity and integrity

have been known to the merchants of St. Louis for the last twenty years. The regret which one naturally feels at parting with an old friend is softened, in this instance, by the reflection that it will suffer no detriment from its new associates. The success of the JOURNAL is now, after four years of struggle, fully assured. It has at last begun to yield a reasonable profit to its proprietor, and it is the privilege of its former editor to make his parting bow to an audience nearly twice as large as that which greeted Mr. Stevenson when he became connected with this enterprise eight months ago. In returning thanks to the noble little army of contributing editors, and to the many occasional contributors, both on the bench and at the bar, whose united labors have done so much to make this journal what

it is, there is one name which deserves especial mention that of the distinguished jurist who planned it, named it, was its leading editor during the first years of its existence, and whose unremunerated contributions during the last three years have done more to maintain its present standard of excellence than many of its readers know.

SEYMOUR D. THOMPSON.

CURRENT TOPICS.

A note payable at a future day with interest greater or less than six per cent., in which nothing is said about the rate of interest after maturity, it is held by the Supreme Court of Maine, in Eaton v. Boissounault, 5 Rep. 270, will draw the stipulated rate till maturity only, and after that the usual or customary rate of six per cent. This decision is in accord with

Ludwick v. Huntsimger, 5 Watts. & Serg. 51; Brewster v. Wakefield, 22 How. 118; Burnhisel v. Firman, 22 Wall. 170; and by the English House of Lords in the recent case of Cook v. Fowler, L. R. 7 H. L. 27. This rule has been followed in Connecticut, in Hubbard v. Callahan, 42 Conn. 524, and in Rhode Island in Pierce v. Swanpoint Cemetery, 10 R. I. 227. The reason given by Lord Selborne, in the last English case, is, that interest for the delay of payment, post diem, is not given on the principle of implied contract, but as damages for a breach of contract; that while it might be reasonable, under some circumstances, and the debtor might be very willing to pay five per cent. per month for a very short time, it would by no means follow that it would be reasonable, or that the debtor would be willing to pay, at the same rate, if, for some unforseen cause, payment of the note should be delayed a considerable length of time. In the Rhode Island case, the court says that if the parties to the note, or other contract for the payment of money, intend that it shall carry the stipulated late of interest till paid, they can easily entitle themselves to it, by saying so, in so many words. On the other hand, in a recent case in Massachusetts, the court held that when a recovery is had upon a note bearing ten per cent. interest, the plaintiff is entitled to interest at the same rate till the time of verdict. Brannon v. Hursell, 112 Mass. 63. The reason given

is, that "the plaintiff recovers interest, both

before and after the note matures, by virtue of the contract, as an incident or part of the debt, and is entitled to the rate fixed by the contract." But see Ayer v. Tilden, 15 Gray, 178; Capen v. Crowell, 66 Me. 282.

THE judgment of the Court of Queen's Bench in Leyman v. Latimer et al. reported in 5 Cent. L. J. 74, and referred to there as an interesting decision in the law of libel, has just been affirmed by the English Court of Appeal. The defendants, it will be remembered, were sued for having printed in the newspaper of which they were proprietors and editors, that the defendant, the editor of a rival paper, was a convicted felon," and for also having referred to him as a "felon editor. The defendants justified on the ground that the plain

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The

tiff had been convicted of a felony. plaintiff replied that he had duly endured the punishment adjudged, and thereby stood in the same position as though a pardon had been granted to him, relying upon the evidence act, which is to that effect. The Queen's Bench, on the authority of Cuddington v. Wilkins, Hob. 81, held that effect of a pardon, and also of the statute, was to purge a man who had undergone his sentence, and to make it libelous to charge him with having committed that offense. The Court of Appeal, in affirming this decision, distinguish between the effect of the words "convicted felon" and "felon editor," holding that, as to the former words, it is a good defense to prove that the plaintiff had been convicted of felony, while as to the latter words it is not. Brett, L. J., said: I think upon the facts, that it could not have been disputed that on some former occasion the plaintiff had been convicted of felony; and I do not think he would have been prepared to say that he was not rightly convicted. I shall assume, therefore, that by some unhappy state of things he had been convicted, and rightly convicted. But upon those facts I am prepared to hold that, if you take the meaning of the first libel to be that he was a convicted felon, and of the second that when the libel was published he was a felon, inasmuch as he had served his punishment, the defendants could not have proved he was a felon-that what they had said was true-because he had suffered his punishment and was no longer a felon. The plaintiff has a right to maintain this action. I say so because I think the judgments of the learned judges at the time that Cuddington v. Wilkins was decided were right, and based upon right, and good and righteous grounds. At that time it was held that, after a man was pardoned, the effect was that he was no longer to be considered a felon. They say they would hold so in order not to favor idle and injurious words. They might have put it more strongly, as a matter of public policy. We ought not to favor libels which are wicked and malignant. Cotton, L. J.: I am of opinion that it would not be an actionable libel to say that a man had been convicted in former times. Parties can judge as to whether it is reasonable to bring forward such a matter, having regard to the time that has elapsed and the possibility of making a mistake. But it is a different thing to state that

a man, under those circumstances, is a felon. In my opinion, it is actionable to state, as regards a person in the position of the plaintiff, that he is a felon. As a matter of public policy, I think that other persons should not, except when there is any duty, public or private, which requires them to enter into a man's life, be allowed to bring forward a statement that a man is a felon, so as as to put him to the investigation as to whether he did or did not years ago, commit the act. In my opinion, as a matter of policy, we ought to hold that it is actionable, after conviction and pardon, to say of a man, he is a felon. I am not laying down a new doctrine; that doctrine is laid down in Cuddington v. Wilkins; and as there is no authorty to the contrary, I am quite content to adopt it as a sound rule.

THE Supreme Court of New York, in Herries v. Nowell, 17 Am. L. R. 97, construed the words "laborers and servants," in a statute making stockholders personally liable for the services of laborers and servants of a corporation, as including a reporter and city editor of a newspaper. In Conant v. Van Schaick, 24 Barb. 86, and Williams v. Wadsworth, 49 Barb. 274, a civil engineer was held to come within these words, while in Erickson v. Brown, 38 Barb. 390; Aitken v. Warren, 24 N. Y., and Coffin v. Reynolds, 37 N.Y. 640, the contrary was held of a consulting engineer, a contractor for the construction of a railroad, and the secretary of a corporation. Sullivan's Appeal, 77 Penn. St. 107, holds that a cook in a hotel has no lien and is not a "laborer" within the act, and Allen v. Fehl. 33 Leg. Int., decides that a hotel does not come within the terms of the act, the words being: "any works, mines, manufactures or other business where clerks, miners or laborers are employed." Solm's Estate, 34 Leg, Int. 169, decides that a laborer on a farm is not within the meaning of the act, for the same reason. Wentroth's Appeal, 82 Penn. St. 469, holds that a lumber contractor for a saw-mill, who did not perform the labor himself, is not within the act. In Penn. R. R. v. Leuffer, 5 Cent. L. J. 74, the claim of a civil engineer was held-contrary to the New York decisions—not to be within the act. See, also, Seiders Appeal, 46 Penn. St. 57.