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Dean v. McDowell, 468

Deaver v. Randall, 197

DeCamp v. Dobbins, 449.

Delaney v. State, 99.

Dement, ex parte, 11.

Dickenson v. Casey, 17.

Dickson v. Ind, Man. Co., 97.

Diebold v. Powell, 118.

Dillon v. Tobin, 285.

Dilworth v. Bradner, 195.
Dobbins v. United States, 113.
Dobson v. Dobson, 441.
Doehring v. State, 99.

Donnel v. White, 316.

Donohoe v. Mariposa L, & M. Co., 487.
Dorsey v. P. & C. Con. Co., 19.
Dougherty v. Bouavia, 435.
Doyle v. Harris, 1.

Dragos v. Whisner, 39.

Draper v Inhabitants of Hatfield,
337.

Drea v. Carington, 436.

Driscoll v. Soper, 296.

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v. Trowbridge, 418.

Ederly v. Curtis, 356.

Edmunds v. Attorney-General, 481.
Edwards v. Allonez Mining Co., 177,
189.

Edwards v. H. & St. Joe. R. R., 277.

" v. Kearzy, 391.

Ellett v. Richardson, 478.

Elliott v. Shaw, 296.

Emerson v. Patch, 216.

English v. Ozburn, 141.

Erie R. R. v. Stringer, 376.

Essex v. Hays, 415.

Estabrook v. Gebhart, 297.

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Hartman v. Anderson, 435.

Haskell v. Jones, 241, 372.

Haskett Smith's Trusts, in re, 355.

Haskilt v. Elliott, 198.

Hathaway v. Wilson, 59.

Hawkeye Benefit & Loan Ass. v.

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Leathers v. City of Springfield, 96.

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v. Hopkins, 254.

v. Keep, 293.

The John T., 261.

Morrell v. Cowan, 114.

Morrison v. Kramer, 117.

Morse v. Shaw, 298.

Mound City Life Ins. Co. v. Twining,

120.

Moynahan v. Wilson, 29.

Mueller v. St. Louis Hospital Assn.,
257.

Mulliner v. Florence, 308.

Murphy v. Lucas, 155.

Murray v. City Council of Charles-

town, 374.

Musser v. Krum, 397.

Mutual Benefit Life Ins. Co. v. Hig-
ginbotham, 113.

Myers v. Vanderbilt, 2.

Mynard v. L. B. & N. Y. R. R., 56.

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The Central Law Journal. the purpose of protecting some property in

SAINT LOUIS, JANUARY 4, 1877.

CURRENT TOPICS.

THE conflict of judicial opinion in regard to marriages between the white and black races in Texas, which has been frequently referred to in this journal (see 4 Cent. L. J. 588, 5 Cent. L. J. 2, 149), may be said to have ended by the decision of the court of appeals of that state, in the case of Frasher v. State, 1 Tex. L. J. 132. The following propositions were declared by the court: 1. The statute of Texas, passed in 1859, making it a felony for a white person to marry a negro, is a valid existing law, and is not in violation of the fourteenth and fifteenth amendments of the Constitution of the United States, or the first section of the civil rights bill. 2. Congress does not possess the power, under the Federal Constitution, to pass a law regulating and controlling the institution of marriage in the several states of the Union. 3. Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the civil rights bill. It is a civil status, left to the discretion of the states, under their general power to regulate their domestic affairs. The rights, obligations and duties arising from it are not left to be regulated by the agreement of the parties, but are matters of municipal regulation, over which the parties have no control. 4. The objection that the statute fixes a penalty upon the white person alone, and none upon the negro, should be addressed to the legislature, and not to the judicial branch of the government.

A DECISION of much importance on the law of the domicil as affecting contracts of marriage has been announced by the English Court of Appeal, in Sottomayor v. De Barros. The case arose on a petition to declare the marriage of petitioner with the respondent void. The petitioner and respondent, Portuguese subjects and first cousins, went with their parents to reside in England, in 1858. In 1866, they In 1866, they went through the civil form of marriage before the register of the district of the city of London. They were both infants at the time of the ceremony, and they went through the form at the earnest solicitation of their parents, for Vol. 6.-No. 1.

Portugal. The marriage was never consummated. In 1873 they returned to Portugal, and continued to reside there. By the law of Portugal the marriage was invalid, first cousins being within the prohibited degrees of consanguinity. The wife brought a suit in the English court, praying for a decree of nullity, on the ground that the marriage was void by the law of Portugal. On the hearing, Sir R. J. Phillimore held that the lex loci contractus must prevail, and that, as by the law of England the marriage was good and binding, the court was bound to uphold it. The petitioner appealed, and the Court of Appeal has reversed this decision, holding that the petitioner and respondent, as domiciled Portuguese subjects, carried with them to England the incapacity to contract marriage with one another inflicted on them by the law of Portugal; that the English court was bound to recognize this incapacity, and that a decree of nullity should be granted.

IN Doyle v. Harris, recently decided by the Supreme Court of Rhode Island, where a contract for the sale of land provided for the payment of the "balance of the purchase-money" at a time certain, and the court, from evidence which was conflicting, found that the time had been extended by agreement to a day certain, and the vendee did not then pay, nor did he claim that he had ever tendered the price and demanded a deed, the court dismissed the vendee's bill for specific performance. Potter, J., in delivering the opinion of the court, after intimating that in this country the tender of a deed by the vendee is unnecessary in order to put the vendor in default, said: "At law the vendee suing must show either a strict performance on his part, or a tender and refusal. And in equity the party suing is not discharged from performance any more than at law, except in cases of accident or mistake on his part, or laches or default on the other side. He must show that he has not been in default himself. Walker v. Jeffreys, 1 Hare, 341, 348, 352; Voorhees v. De Meyer, 2 Barb. S. C. 37. Equity excuses actual performance in some cases where it would have been of no avail, as where a tender would have been refused. Fry on Specific Performance, § 619; Hunter v. Daniel, 4 Hare, 420, 433. So in cases of accident or mistake, or justifiable excuse, where the other party suffers no injury.

Longworth v. Taylor, 1 McLean, 395, 400, 402. He must perform or show a readiness to perform, or some default of the other party which excuses him. McNeil v. Magee, 5 Mason, 244, 256; Fry on Specific Performance, § 608; 2 Eq. Ca. Abr. 33; Wood v. v. Perry, 1 Barb. S. C. 114, 131. And the defendant's negligence can not excuse the complainant. Fry on Specific Performance, § 608. And if the court finds that there was a sufficient excuse; that the condition of the parties and the value of the property remains unchanged, and the same justice can be done, it will grant relief. Longworth v. Taylor, 1 McLean, 305, 400, 402; opinion of Story, J., in Taylor v. Longworth et al., 14 Pet. 172; Doleret v. Rothschild, 1 Sim. & Stu. 590; Crofton v. Ormsby, 2 Sch. & Lef. 583, 603; Benedict v. Lynch, 1 Johns. Ch. 370; Scott v. Fields et al., 7 Ohio, 2d part, 90, and cases there cited."

The same rule applies to promissory notes.
Byles on Bills, 134; Story on Promissory
Notes, § 11; Geary v. Physic, supra; Closson
v. Stearns, 4 Vt. 11; Partridge v. Davis, 20
id. 499; Brown v. Butchers and Drovers
Bank, 6 Hill, 443. So a book account made
in pencil was held admissible in evidence as a
book of original entries. Hill v. Scott, 2 Jones,
169. In 1 Redfield on Wills, § 17, pl. 2, it is
said:
"The English statute of frauds ex-
pressly required a will of lands to be in writing.
But it has been held that a will written in pen-
cil instead of ink would be good." Citing
In re Dyer, 1 Hag. Ec. 219. That a will
written in pencil may be valid was also ruled in
Rhymes v. Clarkson, 1 Phil. R. 1; 2 id. 173.
In Main et al v. Ryder, 34 Leg. Int. 372,
speaking of the signature of a testator, it was
said that the manifest object of the act is to
permit a will to be signed as any other written
instrument may be signed. The court con-
sidered the authorities to establish that a valid
will may be drawn with the same materials
that will suffice for the drawing of any writ-
ten contract. As was well said by Mr. Jus-
tice Coulter, in Hill v. Scott, supra, they
abundantly prove that a writing in pencil is
equivalent and tantamount to a writing in
ink. The validity of a will written or signed
with a lead pencil was referred to, but left un-
decided, in Patterson v. English, 21 P. F.
Smith, 454, but the opinion of Mr. Justice
Williams contains a strong declaration against
the propriety of writing or signing in that
manner. The reason given against it, is the

THE Supreme Court of Pennsylvania in Myers v. Vanderbilt, 34 Leg. Int. 455, has just decided a point of some interest on the law of wills. Under a statute of that state declaring that "every will shall be in writing" it holds that a will written and signed in lead pencil is valid. The statute, said the court, did not indicate the material on which it shall be written, nor the instrument or materials with which it shall be impressed. In Blackstone's Com.,book 11, p. 297, it is said: "A deed must be written, or, I presume, printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written upon stone, board, linen, leather, facility with which the writing may be altered or the like, it is no deed." Blackstone does not prescribe whether the writing shall be in ink or in pencil. He stops with declaring the Writsubstances on which it shall be made. ing is the expression of ideas by visible letters. It may be on paper, wood, stone or other materials. The ten commandments were written with the finger of God on tables of stone: Exodus xxxi, 18. The general rule, undoubtedly is, that whenever a statute or usage requires a writing, it must be made on paper or parchment; but it is not essentially necessary that it be in ink. It may be in pencil. This view is sustained by numerous authorities, as applied to contracts generally. Chitty on Cont. 72; Jeffery v. Walton, 2 Eng. C. L. R. 385; Geary v. Physic, 11 id. 214; Merritt v. Clason, 12 Johns. 102; Clason v. Bailey, 14 id. 484.

"There is force in this or effaced. Mercur J.: suggestion. No prudent scrivener will write a will in pencil, unless under extreme circumstances. Whenever so written, any appearance of alteration should be carefully scrutinized. Yet inasmuch as the statute is silent on the question, we can not say the mere fact that it was written or signed in pencil, thereby makes it invalid. It is nevertheless a writing, known and acknowledged as such by the authorities, and fulfills the requirement of the statute."

ULTRA VIRES.

In a recent case in the House of Lords, Riche v. Ashbury Rwy. Carriage Co., L. R., 7 Eng. and Ir. App. 653, Lord Cairns began his opinion by saying: "The history and pro

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