POWER OF PARTNER OVER REAL ESTATE-REDEMPTION.-1. No partner or partners can sell or transfer the real estate of the firm outright for money, or by mortgage, or to assignees in trust for debts, without the consent and authority of the other partners. The power of a partner over the real estate of the firm is less than that over the personal estate. 2. It is only a mortgage or judgment creditor who acquires a lien on real estate by advancing money to redeem it; but the acceptance of the redemption money by the purchasers estop him from afterwards denying the right of the payo to redeem. 3. When real property is redeemed from a sale under execution, either by the owner or some one else acting in his behalf, the certificate of sale is simply annulled and the property restored to the position it occupied before the sale, with the judgment lien or liens reinstated for any balance or balances remaining unpaid and may be sold to discharge such lien or liens. Opinion by NIBLACK, J.-Goddard v. Renner et al.

SALE OF INTEREST IN LOTTERY PRIZE-EVIDENCE. -It is well-settled in this state that every scheme for the disposition of money or property by chance, or any game of hazard, is prohibited by law, and every contract or agreement in aid of such a scheme, is void and against public policy. 13 Ind. 346. But where a party drew $7,500 on a lottery ticket, and afterwards sold a one-tenth interest in it to another, all the demands of chance, which constituted the essence of a lottery, had been diminuated before the purchase of the interest in the money by such third person. It did not appear that the latter had any connection with the purchase or sale of the ticket, or with any of the chances which entered into the drawing upon it. Story on Sales, Secs. 499-506. 2. It was not error to admit as evidence on the trial, a bound volume of the "Acts of the State of Kentucky," to prove that the Public Library of Kentucky was a duly incorporated institution. The fair and reasonable inference from the title-page was that the volume was published by the authority of the state of Kentucky. Opinion by NIBLACK, J.-Rothrock v. Perkinson.

THINGS IN ACTION.-" Things in Action," in the statutory definition of personal property (Sub. 14, Sec. 1, Ch. 5, R. S.), comprise only such rights of action as may be the subject of sale and transfer, and not mere rights of action ex delicto, for personal wrongs; and the latter are not included in the personal property owned by a woman at the time of her marriage, which (Sec. 2, Ch. 95, R. S.) continues to be her sole and separate property after marriage. Opinion by RYAN, C. J.-Gibson v. Gibson. On motion for rehearing.

POSSESSION-REPLEVIN-CHARGE OF JUDGE.-1. Possession by the pledgee is essential to the pledge; actual possession, when practicable; constructive possession, when actual possession is impracticable. 2. In replevin, where it appeared that defendant, at the time of taking the goods in controversy, took also certain others, the jury, after being instructed as to the subject of the suit, inquires what disposition they should make of such other goods, and were informed by the judge orally that they had nothing to do with them. Held, that this statement was no part of the charge, and was not the subject of exception; and it was an abuse of discretion to grant a new trial on the ground that such statement was made to the jury without

having been reduced to writing. Opinion by RYAN, C. J.-Seymour v. Colburn.

INGS

ASSESSMENT OF REAL ESTATE-TAX DEED-PLEADAMENDMENT.-Where the assessor, in 1872, valued the lands in a town at what he thought they would bring at forced sale, knowing that this was less than the "value which could ordinarily be obtained therefor at private sale" (Laws of 1858, Ch. 130, Sec. 16), this violation of the statutory rule of assessment vitiates the tax, and a sale of the land for non-payment of the tax will be restrained. 2. The complaint alleges other facts to show that the assessment was illegal and void, without alleging those above stated; but the latter appeared from the answer, as well as from the evidence of the assessor at the trial. Held, that the question above decided is presented by the pleadings; and if the complaint is defective in that respect, it is a proper case for amendment, either before or after judgment. Opinion by LYON, J.-Goff v. Supervisors of Outayamie Co. et al.

LIABILITY OF SURETY.-1. The liability of a surety can not be extended by construction or doubtful implication. 2. By the conditions of a bond, duly given by P. as a constable, he and his sureties jointly and severally agreed to pay to the persons entitled thereto "all such sums of money as the said constable might be liable to pay by reason of or on account of any summons, execution or other process of proceedings, which should be delivered to him for collection, and for all moneys which should come into his hands as such constable." Held, that no action will lie upon the bond for the amount of a judgment recovered by plaintiff against P. for the value of plaintiff's property, seized by P. under an attachment against the goods of a third person. 3. It seems that the bond would cover a breach of duty by a constable, not only in omitting to serve a fi fa, but also in omitting to serve a summons or other process. Opinion by COLE, J.-Taylor v. Parker et al.

REFERENCE FOR TRIAL-CONSTRUCTION OF "WRITTEN CONSENT"-JURISDICTION OF REFEREE.-A reference of a cause for trial (under Tay. Stat., Ch. 132, § 25, p. 1499), whether compulsory or by consent of parties, must be by order of court; and such order can not rest in parol, but must, in some way, appear in the record. 2. Where such an order is based upon consent of parties, the statute requires their written consent; but it seems that oral consent, given in open court, and entered upon the minutes, is sufficient. 3. The voluntary appearance of parties before a person not duly appointed a referee, and their going to trial before him without objection, does not confer upon him the powers, or subject him to the obligations of a referee; and where there was no order of reference in the record, it was error to confirm and render judgment upon the report of one before whom the cause was thus tried. Opinion by COLE, J.-Stone v. Merrill, imp.

INJUNCTION-TAX DEED.-The charter of a city provides that "whenever the common council shall determine to make any public improvement, as authorized by this charter, they shall cause to be made an estimate of the whole expense thereof, and of the amount thereof to be charged to each lot and parcel of land; and, in case of grading, of the number of cubic yards to be filled in or excavated in front of each lot; and such estimate shall be filed in the office of the city clerk for the inspection of the parties interested, before such work shail be ordered to be done." Held, that where the council ordered a street to be graded in front of a lot, without any estimate whatever having been made or filed, as the charter requires, it had no jurisdiction to make the improvement at the expense of the lot owner; and the lot having been sold for nonpayment of a pretended special assessment for such improvement, the certificate of sale will be cancelled,

and the issue of a deed thereon restrained. Opinion by LYON, J.-Pound v. Supervisors of Chippewa Co. et al.

AUTHORITY Of Trustees of CHURCH CORPORATION - SUBSCRIPTIONS TO CHURCH CORPORATIONS. — 1. Trustees of a church corporation, in order to bind it, must act officially at official meetings, or under authority conferred by such meetings (R. S., Ch. 66, Sec. 12); and a lawful meeting is one duly called, and which all the trustees have at least constructive opportunity to attend. 2. At the dedication of a church edifice, defendant and others, at the request of the person who conducted the services, made subscriptions "for the purpose of paying the expenses of building and furnishing such edifice." Most, or possibly all, of the trustees of the church corporation met the evening before and had some informal conversation, to the effect that subscriptions should be thus taken; but it does not appear that all were certainly present, or had received notice of such meeting, or that there was any official meeting or action of the board of trustees at that time; nor were such subscriptions accepted at any subsequent meeting of the board of corporation. Held, that defendant's subscription was not a valid contract. M. E. Church v. Sherman, 36 Wis., 404. Opinion by RYAN, C. J.-Leonard v. Lent.

TRESPASS-DAMAGES.-1. Where a railroad company, without the consent of the owner, and without having acquired a right to the land in the manner provided by statute, takes possession of land for which it is liable to make compensation (in this case land forming part of a public street, but the fee of which was in the plaintiff), it is liable in an action of trespass; and the neglect of the owner to proceed by injunction to restrain the company from obstructing its road on such land, is not a waiver of his right of action for the trespass. 2. In this action for such a trespass, it was error to give instructions implying that the plaintiff was entitled to recover the difference between the value of the use of the premises with the railroad constructed and used as it was, with all its inconveniences, and the value of such use as it would have been with the railroad where it was, but without such inconvenience. 3. The damages recoverable in this case could not exceed the difference between what would have been the rental value of the premises (during the continuance of the trespass, down to the commencement of the action) in case there had been no railroad on the street, and its actual rental value with the railroad constructed and operated as it was. 4 The fact that only a part of the width of defendant's track was upon plaintiff's land will not affect the rule of damages. Opinion by COLE, J.—Blesch v. C. & N. W. R. R. Co. MASTER AND SERVANT-INSTRUCTIONS TO JURYCONSTRUCTION OF SPECIAL FINDING.-1. Where a servant knows, or ought reasonably to know, the precise danger to him of a certain object near which he must frequently pass in the course of his employment, and still continues in that employment, he may be held to have assumed the extraordinary risk thus created; but this consequence of acquiescence must rest upon positive knowledge, or reasonable means of positive knowledge, of the precise danger assumed, and not on vague surmise of the possibility of danger. It is generally for the jury to determine whether he had, or ought to have had, such knowledge. 2. It is not error to refuse an instruction, that if plaintiff had, in the course of his employment, sufficient opportunity to know the general position of the dangerous object, he was charged with knowledge of its dangerous character; such mere general knowledge, without opportunity for accurate knowledge, not being sufficient to so charge him. 3. The jury found specially a negative answer to the question, whether plaintiff knew, or had means of knowing, "the existence and

INSURANCE POLICY-PAROL WAIVER BY AGENT OF CONDITION BEFORE BREACH-MORTGAGEE'S RIGHT TO SUE ON POLICY.-1. An insurance policy provided that it should become void if the premises remained vacant for more than fifteen days. by were burnt during such a vacancy. Held, that evidence that before the issuing of the policy, the insured had stated to the agent that he expected, during the policy's continuance, to leave his home vacant for a year or more, and was informed that it would make no difference, was inadmissable. There may be waivers or estoppels doing away with the written conditions of a policy by reason of the consent of the insurers, inconsistent with reliance upon them. Peoria M. & F. Ins. Co., v. Hall,' 12 Mich, 203; Westchester F. Ins. Co., v. Earle, 33 Mich. 143; North American Ins. Co., v. Throop, 22 Mich. 146; American F. & M. Ins. Co., v. Kranick, 85 Mich. But these cases, so far as they apply, at all, relate to a knowledge by the company of existing facts at the time of their action, when such action would not be consistent with any idea that they were to be discharged from liability by reason thereof. Here the vacancy alleged to have been spoken of was one contemplated in the future. There is no resemblance between a parol variance of a written contract and a waiver of a condition after it has become binding on the parties. 2. The policy was for different sums on distinct buildings, and upon furniture and other personal property, its total amount being $2,500, and it had the clause "payable in event of loss to the property on said farm premises," to plaintiffs as mortgagees,as their interest may appear." The mortgage was for $2,000 on real estate. The policy was issued to the mortgager, and the mortgagees hold no assignment and sue as original parties. Held, that they could not sue upon the contract. The parties to the policy were the owners and the company. Van Buren v. St. Joseph Co., Village F. Ins. Co., 28 Mich. 398; Clay F. & M. Ins. Co., v. Huron Salt & Lumber M''g Co., 31 Mich. 346. This policy covers property not included in the mortgage, and only provides for payment to them of the insurance money due upon the mortgaged property, but other property was burned. There can be no splitting up of causes of action on a policy. Mortgagees having only a partial interest under an appointment in a policy are not authorized to assume its legal ownership. Whoever sues must be able to enforce the whole policy. Opinion by CAMPBELL, C. J.-Hartford Fire Ins. Co. v. Davenport.

66

THE LARGEST law book, says the American Bookseller, ever published in one volume in the State of New York, is Bliss's New York Annotated Code, just issued by Baker, Voorhis & Co. It extends to 1245 pages.

THE position of Chief Justice of the Ontario (Canada) Court of Appeal, made vacant by the death of Chief Justice Draper, has been filled by the appointment of Mr. Justice Moss, formerly a puisne judge of that court.

NOTES.

THE Court of Appeals of Maryland has decided that a negro is not entitled to admission to the bar in that state.

THE nominations of John Baxter to be United States Circuit Judge of the fifth circuit, and of J. C. Bancroft Davis to be associate judge of the Court of Claims, to fill the vacancies caused by the death of Judge Emmons and the retirement of Judge Loring, have been confirmed.

THE Commissioners of the District of Columbia have refused to appoint women notaries public, on the ground that the statute, in this respect provided, nowhere contemplates the existence of female notaries, the forms of expression always running in the masculine gender.

THE total number of law students attending law lectures in Prussian Universities for the summer session of 1877, was 2,221 (209 not Prussian). The University of Berlin had the largest number, viz., 785. At Bonn there were 244; in Breslau there were 431; Goettingen had 238; in Greifswald, 105; in Halle, 125; in Kiel, 26; at Koenigsberg, 181; in Marburg, 81.

THE trade-mark treaty, just concluded between the official representatives of Great Britain and the United States, is important in its relations to American manufactures. It provides that the subjects or citizens of each country shall have equal rights with those of the other in everything relating to trade-marks and labels, after fulfilling the formalities of the laws of the respective countries. American manufacturers who have complained because inferior goods, with an imitation of their brand, have been pushed upon foreign markets, ought at once make application in Great Britain for registration under the new treaty.

GEORGE ALFRED TOWNSHEND, in a gossipy letter from Washington to the Cincinnati Enquirer, speaks as follows of Mr. Justice Miller: "I think opinion is general that Miller is the most harmonious and original lawyer on the Bench, born and modeled with a legal head. The lawyers are in the habit of saying, he is a legal genius,' and the great test cases find their clearest elucidations by him. Like nearly all strong judges -Jay, Marshall, Taney-Miller is a stiff partisan, but so bold and unflinching about it, that his attitude is never misunderstood. Hence, during the recent excitement over the Presidential question, Miller, who was the bulwark of the Hayes case, was never attacked at all, although the less decided Bradley was fiercely assailed. When Bradley gave his views on the Florida case, he said: The remarks of Mr. Justice Miller on this subject are of great force and weight.' Any lawyer who wants to see a piece of lucid and compact judicial reading on an intricate political and constitutional subject may read Miller's opinion on the Florida case, found on page 1006 of the Proceedings of the Electorial Commission. The breadth of Miller's opinion on the Florida case was that it covered all the cases following, and was designed to do so. His great reading availed to fortify it with numerous Judicial decisions, most of which were novel and apt.""

MESSRS. A. L. BANCROFT & Co., of San Francisco, announce the issue of the first volume of a work which promises to be an event in the history of legal publications in this country. It is a revision of the state reports from the earliest reported decisions up to the year 1869, when the series at present published, and known as the American Reports, commence. The revision will make about seventy-five volumes-from six to twelve being issued in a year and will contain all the cases of value at present scattered through nearly two thousand volumes. In regard to the arrangement of the work, the publishers say: "The arrangement

of the cases is made with a view of showing a connected, regular order of adjudication in each state. Thus the reports of a state for a certain period are taken, and cases are selected in order from them; then the reports of another state are examined for the same period of time, and cases selected in the same manner; and in this way, until a volume is compiled. In the selection of cases for the succeeding volume, the cases are taken up at the point where they were left in the preceding volume. This has been found the most feasible, and, it is believed, the most advantageous plan; for in this manner, each volume will cover a certain period of time, and the decision from the reports of each state can be traced in continuous order through the series. Thus, in the first volume of the series, the decisions will be given up to about 1801, taken from thirty different state reports." The cases are to be annotated, the editorial work being in the hands of Mr. John Proffatt, the author of "Jury Trial,” “ Corporations," etc., and a competent staff of assistants.

I OWN that I never perused my chief favorite, "The Merchant of Venice," without a mixture of melancholy, to think that it has so many faults, and in particular that the distress turns chiefly upon embarrassments, with which no lawyer can seriously sympathize. There are several striking flaws in this drama. In the first place, Antonio's difficulties arise entirely from his gross oversight in not effecting an insurance upon his various argosies. He should have opened a set of policies at once upon the Rialto, where marine insurance was perfectly well understood, and where the brokers would have got him fifty names in a forenoon to any extent upon ship, freight or cargo, lost or not lost. This prudential step would have given a totally different turn to the whole affair. When he wanted to help Bassanio with three thousand ducats for three months, he could have easily raised the money at four per cent. on a security of an assignment of the policy. Shylock says of him: "Antonio is a good man, yet his means are in supposition. He hath an argosy bound to Tripo. lis, another to the Indies. I understand, moreover, upon the Rialto, he hath a third at Mexico, a fourth for England, and other ventures he hath squandered abroad. But ships are but boards, sailors but men; there be land-rats and water-rats, water-thieves and land-thieves-I mean pirates: and then there is the peril of waters, winds and rocks." Now, these are the very risks which the contract of insurance is intended to cover, as clearly explained in Marshall and other writers, and as expressed in the following clause, inserted in all policies: "Touching the adventures and perils which the said assurers are contented to bear, and do take upon them in this voyage, they are of the seas-men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, etc., barratry of the master or mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods or merchandises, and ship or vessel." With this precaution, Antonio's means would have been no longer in supposition, but in certainty, and as good as hard cash, under deduction merely of premium of insurance. Finally, when intelligence was received of Antonio's argosies being wrecked, it is plain that he might in the circumstances have at once abandoned to the underwriters and claimed for a total loss. It is painful to see so many amiable characters involved in griefs and difficulties which this simple and natural expedient would have obviated. My feelings at this reflection are something akin to those of a very susceptible medical friend, who declares that he can never sit out "Romeo and Juliet," from a thought that a judicious use of the stomach-pump in the last scene would remove all the distress, and make two lovers happy. From "A lawyers criticism upon Shakespeare" in Blackwood's Magazine.

SAINT LOUIS, JANUARY 11, 1878.

CURRENT TOPICS.

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A CASE of considerable interest to railway companies and travelers in Wisconsin has been recently decided by the Supreme Court of that State. Bass v. Chicago & Northwestern R. R., 2 N. W. Rep., 84. The cause had been twice before in that court, on appeals from judgments for the plaintiff, and will be found reported in 36 Wis. 450 and 39 Wis. 636. The facts were as follows: The plaintiff was a passenger upon one of defendant's trains, and being unable to find a seat elsewhere, he, without consulting conductor or brakeman, or requesting to be furnished with a seat, went into the ladies' car, where there were several vacant, from which, without being requested to leave, or being proffered a seat elsewhere, he was ejected by a brakeman, the train being in motion and the brakeman using more force than was necessary. The defendant retained the brakeman in its employ, subsequently promoting him. The jury found that the defendant had ratified the act of the brakeman, and returned a verdict for $2,500 compensatory damages, and $2,000 punitory damages. On peal, the supreme court has affirmed the judgment, holding that the damages were not excessive. The opinions of Ryan, C. J. and Lyon, J., filed in the case, contain an exhaustive discussion of the question of punitory damages against a principal for the acts of an agent. The Chief Justice, in his concurring opinion, says: "I have always regretted that this court adopted the rule of punitory damages in actions of tort. In the controversy between Prof. Greenleaf and Mr. Sedgwick, I can not but think that the former was right in principle, though the weight of authority may be with the latter. It is difficult in principle to understand why, when the sufferer by a tort has been fully compensated for his suffering, he should recover anything more. And it is equally difficult to understand why, if the tortfeasor is to be punished by exemplary damages, they should go to the compensated sufferer, and not to the public in whose behalf he is punished. The reasons against punitory damages are peculiarly applicable in this State, since the just and broad rule of compensatory Vol. 6.-No. 2.

Railway Co., 36 Wis. 657. But the rule was adopted as long ago as 1854, in McWilliams v. Bragg, 3 Wis. 424, and has been repeatedly affirmed since. It is therefore too late to overturn it by judicial decision. That could well be done now by legislative enactment only."

The

THE Supreme Court of the United States, during the present term, in the case of Terry v. Anderson, passed upon the question of the constitutionality of state legislation affecting statutes of limitation. By a statute of limitation of the State of Georgia, actions against a stockholder of a bank to enforce his individual liability were not barred until twenty years from the time the action accrued. By an act of the legislature of Georgia, passed March 16, 1869, it was provided that such actions, accrued before June 1, 1865, should be barred if not commenced before January 1, 1871. court held that the legislature had a constitutional right to shorten the statute of limitations as to actions upon contracts already made, a reasonable time being left to enforce the contract; and that in the case before it the time given was reasonable. The Chief Justice, in delivering the opinion of the court, said: "This court has often decided that statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet. 466; Sohn v. Waterson, 17 Wall. 599; Christmas v. Russell, 5 id. 300; Jackson v. Lamphire, 3 Pet. 290; Sturgis v. Crowninshield, 4 Wheat. 206. And it is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which has been fixed, than they have to an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the legislature may change them at its discretion, provided adequate means of enforcing the right remain. We have had occasion to consider this subject at the present term, in Tennessee v. Sneed, not yet reported. In all such cases, the question is one of reasonableness, and we have, there

fore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primarily the judge, and we can not overrule the decision of that department of the government, unless a palpable error has been committed." In George v. Gardner, 49 Ga. 450, the Supreme Court of Georgia held that the time prescribed in this act was not so short or unreasonable as to make it unconstitutional. The same conclusion was reached by the U. S. Circuit Court for the Southern District of Georgia, in Samples v. Bank, 1 Woods, 523.

THE question of the advisability of the interrogation of accused persons on their trial is the theme of Sir James Stephens' last contribution to legal literature. In a paper in the December number of the Nineteenth Century, he discusses the subject at length. He does not favor rendering prisoners competent witnesses in criminal, as parties are in civil cases, his principal objection being that a prisoner could not be punished for committing perjury in his own. behalf, and that cross-examination to credit would be revolting to humanity; while, in the absence of such cross-examination, the prisoner would not, in reality, be a witness. He would have the accused examined, not as a witness under oath, but to give him an opportunity of proving his innocence by explaining matters apparently suspicious; and in order, if he is guilty, to prove his guilt by showing that he is unable to give such explanations when he has every possible reason to do so, and when his attention is pointedly directed to the subject. Such being the object for which prisoners ought to be questioned, "at the trial," to quote from his article, "the prisoner should, at the end of the case against him, be invited to say whatever he pleased, even though he might be defended by counsel. I would allow the counsel for the Crown to cross-examine him on his statement, or if he kept silence, and I would also allow the judge and jury to interpose at any time any questions they thought fit to ask. I would allow his own counsel to re-examine him. It admits of some doubt whether the whole of the examination ought not to be conducted by the judge and jury, to the exclusion of the counsel on each side. Something, at all events, may be said for adopting this plan, in cases where a prisoner is |

not defended by counsel; but be this as it may, in one way or another, I think the prisoner ought in every case to be called upon to tell his own story, and to be questioned as to its truth, and that not in the character of an ordinary witness, but in order that the best and most natural of all conceivable tests may be applied for discovering whether he is innocent or guilty."

The English law on this subject, based on the ancient maxim nemo tenetur seipsum accusare, is at present in the same state as to criminal cases, as less than thirty years ago it was as to all civil causes. It differs essentially in this respect from the Continental system where the judge becomes an inquisitor, and the prisoner's examination a torture. In this country, however, in all but a few states, the common law restriction has been within a few years removed-Maine being the first state to allow the evidence of defendants in criminal cases. The statutes on this subject are, in a large majority of the States, substantially the same, and provide that any person on trial for a crime shall be a competent witness, at his own request; but his neglect or refusal to testify shall not raise a presumption of guilt, or justify such an inference being drawn by the prosecuting attorney. For an instructive and entertaining sketch of the common law and continental methods of obtaining evidence against the accused in criminal trials, see 3 Cent. L. J., 684; for a full statement of the law, as altered by statute in this country, 3 Cent. L. J., 782, and construed by the courts, 5 Cent. L. J., 399. The Georgia law, which provides that "in all criminal trials for a felony, the prisoner shall have the right to make to the court and jury such statement in the case as he or she may deem proper in his or her defence; said statement not to be under oath, and to have such force as the jury may think fit to give it; provided the prisoner shall not be compelled to answer any questions on cross-examination, should he or she think proper to decline to answer such questions," and the provision in the evidence act of Michigan, that, "nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify; but any such defendant shall be at liberty to make a statement to the court, and may be cross-examined upon any such statement,' seem substantially to state the law as advocated by Serjeant Stephen.

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