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sumption of Husband's Debts by Widow. A widow

who, after electing to take under her husband's will, of
which she is a sole beneficiary, without administering
on the estate, proceeds to sell the assets and pay debts,
cannot plead failure of consideration, against a note
given by her and a surety for a debt of testator, by
which the time of payment is extended. — Kageer v.
Hodopp, 8. C. Ind., Jan. 8, 1889; 19 N. B. Rep. 297.

166. Offiob ahd Offigbb- Title te Office — Collateral

Attack. On suit by tax payers under Pub. St. Mass.

ch. 37, § 129, to enjoin the city of Boston from appropri-
ating money \o pay the salaries of the board of police,
on the ground that the statute creating them is uncon-
stitutional : Held, that the court will not in this indirect
manner try the title to a public office- Prince v. CUp of
Botlan, 8. J. O. Mass., Jan. 8, 1889; 19 N. E. Rep. 218.

156. Offiob and Offiobb— Town Marshal. Town

existing under Code,§§ 774 779, is not liable for compen-
sation beyond the time he actually served to one who
was its marshal de facto and under other facts of the
case- JOMcr v. Town, 8. C. Ga., Dec 19, 1888; 8 8. E. Bep.
428.

157. Offigb ahd Offigbbs— Court Officials — Proceeds

of Fines— AppUcatlon. Under Code 6a. ff 4665a, 46566,

the county is not entitled to prorate for dieting prison-
ers, and bringing them into court, with the officers of
court, in the distribution of such proceeds. — Gardom
Coimff V. Harrie, 8. C. Ga., Dec 19, 1888 ; 8 8. B. Bep. 427.

158. PABTIB8 — Power of Attorney. Where two

Join in a power of attorney authorizing a third person
to collect their respective shares in an intestate estate.
It is not necessary, in an action by one of them to re-
cover his share so collected, to make the other a party
thereto. — iletfr. i9iiM,8.0. Wis.,Dec22,188B; 41N. W.
Bep. 169.

159. PABTHBB8HIP — Evideuoc In suit for eject-
ment held, that evidenoe did not report finding of title
in a partnership.— ^Um v. Logam^ 8. C. Mo., Dec 20, 1888;
10 8. W. Rep. 140.

160. PABTNBBSHiF— Firm and Individual Creditors.

One who has advanced money to enable one partner to
purchase an interest of another, has no equity superior
tothiit of the partnership creditors, though the ad-
vancement was made on the promise of the partner to
secure him by mortgage, and at a time when there were
no partnership debts.- ^sief v. Amee, U. 8. C. C. (Minn.)t
Dec. 11, 1888; 87 Fed. Rep. 80.

161. Pabthbbship— Evidence of— Letters. In an

action on a contract against persons whom plaintiff al-
leges to be partners, a letter signed with the names of
both defendants, and relating to the subject-matter of
the contract, is admissible to prove partnership. —
Zackary v, PMlHpe, 8. C. N. Car., Dec 19, 1888; 8 8. B. Bep.
859.

163. PATBirrs— Infringement — Measure of Damages.

The measure of damages for infringement of a

patent is to be ascertained by considering the amount
of profits or savings made by defendant by the use of
the infringing device, beyond what he could have made
by the use of tools free to the public— ifeif«rra|r v. Em'
ereon, U. 8. C. C. (Mass.), Nov. 21. 1888; 86 Fed. Bep. 901.

168. Plbadiko— Allegation— Interest in Land. In

an action in rem against land, it is sufficient, in making'



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one a party defendant, to allege that he has, or claims
to haTe, some Interest in the land, withoat alleging the
nature of sach interest. — Oti$ v. DeBoer, 8. 0. Ind., Jan.
5,1889;19N.E. Bep. 817.

164. Plbaoino— Oomplaint— Averment of Residence-
County Ooarts. Under Const. Amend. N. T. 1878,

and Code Civil Proc. N. T. § 340, the complaint must
arer that defendant is a resident of the county in which
the action is brought. — Gilbert v, Tork, N. T. Ct. App.,
Dec U, 1888; 19 N. B. Bep. 968.

166. Plbadimo— Release. Plea of release puis dor-

rein conMmMitice is defective which does not allege the
place where the release was made.— Field v. Coffer, 8. J.
C. He., Dec 9, 1888; 16 Atl. Bep. 826.

166. Plbaoino— Complaint— Suit for Commissions.

In an action by real estate brokers to recover commis-
sions, an averment that plaintiffs found purchasers at
the prices fixed by defendant, and that he refused to
consummate the sale, is fatally defective, on demurrer,
in not alleging that such purchasers were able, ready
and willing to carry out the sale— Sapre v. Wiison, 8. C.
Ala , Dec. 11, 1888; 6 8outh. Rep. 157.

167. PsAOTicx IN Civil Casbs — Agreement to Arbi-
trate. ^A motion to set aside a judgment, and rein-
state the case, on the ground that the parties had
agreed to arbitrate, and to have the case, when called,
continued for that purpose, is properly denied, where
such agreement Wiis not communicated to the court,
and no motion for a continuance was made when the
case was called.— GcMfij» «. Morgan, 8. C. Ga., Deo. 19, 1888;
-6 8. £. Rep. 4S3.

168. PHAcnoB m CIVIL CASB8 — Entry of Motion —

Docket. Under act Ga. 8ept. 35, 1888, a motion in

Atlanta city court, after judgment by default, involving
as issue as to whether defendant was served, having
been entered on the motion docket, should bi> dismissed
therefrom, and should be entered on the issue docket,
but should not be dismissed from court.— ^arrfo v. Lowe,
8. C. Ga., Dec S, 18S8; 8 S. B. Rep. 419.

160. PsAOTiOB IN Civil Casks — Amendment — Objec-
tions. Allegations, in an answer to an amended

complaint, that the latter changes the form of the
action, are properly stricken out as irrelevant and re-
dundant. — Wheeler V, West, 8. C. Cal., Dec. 81, 1888; 20
Pac Rep. 46.

170. PRAonOB IN Civil Casbs— Action. Construe-

ttlon of Code Iowa as to service of notice at commence-
ment of action. — Himtrager v, NigthengtUe^ U. 8. C. C.
(Iowa), Dec 18, 1888; 86 Fed. Rep. 847.

171. Principal and Aobnt — Settlement. Where

an agent, authorized by a principal to purchase sup-
plies for the use of the principal, and instructed to pur-
chase only for cash, purchases in his own name, upon
credit, of a seller who supposes the agent to be buying
for himself only, and the principal pays or settles with
the agent for the supplies in good faith, supposing that
the agent had purchased them for cash or upon his
personal credit, he is not liable over again to the seller
for the price of the supplies.- Fra<Mey v. HgUmd, U. 8. C.
C. (N. T.), Dec. 1, 1888; 87 Fed. Rep. 49.

ITS. Phinoipal and 8UBBTT — Fraud— Estoppel.

Facts upon which court held that the ward was not es-
topped to assert the liability of surety on bond of
guardian, though the latter had obtained final dis-
charge of his trust.— (7iUeM« v. WHeg, 8. C. DL, June, 1888;
19 N. B. Rep. 287.

178. Principal and aobnt— Ratification. An agent

placed in charge of a retail store with Instructions not to
pnrohase on credit, cannot bind his principal by a pur-
chase of goods on credit, though made from persons
Ignorant of the limitation of his authority, unless they
show that the principal, by ratiflcatlon of or acquiscence
in previous acts of the agent, had extended his author-
ity.— IThssler v. MeOwire, 8. C. Ala., Dec 18, 1888; 5 South.
Rep. 190.

174. PRIKOIPAI.ANDSUBBTT — Right to Collaterals —
Xqnlty. ^A tarety has no ground for relief in equity



under a contract with the creditor to transfer to the
surety the collaterals received from his principal, upon
payment of the sum for which he is surety, where it
appears that the principal has himself paid the debt. —
IMOmmev, Toungblood, S, C. Ala., Dec 17, 1888; 5 South.
Rep. 175.

176. Prohibition— Ministerial Officer. The writ of

prohibition lies from a superior court, not only to Infe-
rior judicial tribunals properly and technically denom-
inated such, but also to inferior ministerial tribunals,
possessing incidentally judicial powers, such as are
known in the law as quaH judicial tribunals, and even,
in extreme cases, to purely ministerial bodies, when
they attempt to usurp judicial functions. — Fleming v.
OotmmieeUmert, W. Va. Ct. App., Nov. 28, 18J8; 8 8. B. Rep.
267.

176. PoBLic Lands- Application. Pol. Code Cal. f

8600, applies to all lands, no distinction being made be-
tween lands suitable for cultivation and lands not suit-
able- IV^Ior v. We$ton,S. C. CaL, Dec 15, 1888; 20 Pac
Rep. 62.

177. PuBUC Lun>8 — Sale of School Lands — Filing

Statement. To make valid a purchase of public

school land, under act Tex. April IS, 1888, S 7, there must
be a classilicatlon of the land, and the lillng of a tabu-
lated statement in the office of the surveyor of the
county where the land is situated. — MarUn v. MeCartgf

B. C. Tex., Dec i, 1888; 10 8. W. Rep. ttl.

178. PuBUC Lands — Lease — Rejection of Bids.

Although the land board has no authority to increase
the minimum price per acre prescribed by act Tex.
April 18, 1888, relating to renting public school lands,
yet it may make a regulation reserving the right to re-
ject any or all bids.— Colemem «. Lord, 8. C. Tex., Dec U,
1888;10S. W. Rep.93.

179. Railroad Companibs— Taxation — Constitutional

Law. Act 1885, (Laws Ho. 1885, p. 280,) amending

Rev. St. § 6880, is not invalid, under Const, art. 10, f 11,
providing that for the purpose of erecting school build-
ings the rates of taxation therein limited maybe In-
creased by vote, and §5, authorising the taxation of
railroad companies for school purposes. — Chioago ^ A,
JR. V. Lamtin, 8. C. Mo., Dec. 20, 1888; 10 8. W. Rep. 200.

180. Railroad Companibs- Killing Stock — Evidence.

Evidence sufficient to justify verdict for damages

in killing mule crossing the track.— CVoipI^ v. Oa, B. B,,
8. C. Ga., Nov. 80, 8 8. E. Rep. 417.

181. Railroad Companibs- Killing Stock — Crossings.
In an action against a railroad company for kill-
ing stock In an open field, 800 or 400 yards from a public
crossing, it Is error to instruct the jury that it was de-
fendant's duty to slacken the speed of Its train when
approaching the crossing.— J\rafArM«, e<c. Co. v. Sembree,
8. C. Ala., Dec. 14, 1888; 5 South. Rep. 178.

182. RAILROAD CoMPANiBS- Traffic Associations.

Under Const. Tex. art. 10, § 6, prohibiting railroad cor-
porations from controlling competing lines, an agree-
ment forming a traffic association between a number of
such corporations for the purpose of ^'preventing sud-
den and extreme changes in Texas rates. Is illegal." —
Gulf, C. <f 8. F. Rg. Co. v. State, 8. C. Tex., Dec. 21, 1888;
10 8. W. Rep. 81.

188. RBCORD— Amendment. Where a clerk has no

list of the amounts of the delinquent taxes and costs
for which judgment is asked, and those Items are there-
fore omitted from the various columns in the record of
the judgment, the record cannot be amended after the
term closes.— .FVew v. Dan^fOrth, 8. C. 111., June 15, 1888; 19
N. E. Rep. 898.

184. Rbmoval of CAU8B8— Aliens. An alien sued

in the State of his residence by citizens of another State
upon an ordinary debt cannot remove the action to the
circuit court of the United States under the provisions
of act Cong. March 8, 1887. — Cmdakg 9, MoGeoch, U. 8. 0.

C. (Wis.), Dec 12, 1888; 87 Fed. Rep. 1.

185. RBMOVAL OF CAU8B8— Filing Petition. ^Petition

fbr removal to United States court under act 1875 most



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be filed at the term of the court at which it Is first
ready foe bearing and trial. — Kennedy v. Bhten, 8. G. W.
Va., Not. 24, 1888; 8 8. B. Bep. 898.

186. Rbpls YIN— Pleading. As to what is sufficient

allegation of ownership In answer in replevin suit. —
M clntire v, Eatiman, S. C. Iowa, Jan. 16, 1888; 41 N. W.
Rep. 162.

187. Salb— Crops— Possession. As to what, under

the facts, constitutes sufficient change of possession on
sale of growing cotton, to pass title as against seller's
credliors.— HopHna v. Partridge^ 8. 0. Tex., Oct. 30, 1888;
10 8. W. Bep. 214.

188. 8HBRIFF8 AND OON8TABLB8 — Salary. Oon-

atructlon of act Oal. 1888, and act March 14, 1886, provid-
ing compensation for s*^eriff. — Santa Clara County v.
Branham, 8. 0. Oal., Dec. 26, 1888; 20 Pac. Rep. 76.

189. Shipping— OharteV Party — Consignment. A

memorandum indorsed on a charter-party, and signed
by the master at a port in the course of the voyage,
whereby he agrees to consign the vessel, on arrival at
the destination, to a certain firm. If a contract at all, is
one between the master and the charterers. — La Scala
V, Boughton, U. 8. D. C. (X. Y.), Nov. 28, 1888; 37 Fed. Rep.
62.

190. Taxattok— Tax-sale— Publication Notice — Print-
er's Fee. If the printer who publishes the notice of

sale of real estate for delinquent taxes fails for fourteen
days after the date of the last publication, to transmit
to the county treasurer an affidavit of such publication,
his fee therefor does not become a charge against the
county.— ^toncAard v. Hatcher, 8. C. Kan., Dec. 8, 1888; 20
Pac. Rep. 15.

191. Tbmamts in Common — Rents and Profits — Im-
provements. Where a wife's name was signed to a

conveyance of her husband's land without her consent,
and pending an action by her after her husband's
death, In which a decree establishing her title and right
of possession to an undivided third was rendered, one
holding in good faith a part of the land under the con-
veyance made valuable Improvements, the wife, though
entitled to her proportion of the rents of such part, un-
der Rev. St. Ind. 1881, § 288, is not entitled to share in the
enhanced rental value resulting from the improve-
ments. — Carver v. Fennimore, 8. C. Ind., Dec. 11, 1888; 19
N. B. Bep. 103.

192. TowNS—Troasurer— Authority. A town treas-
urer has no power to convey real estate la behalf of
the to^n, unless expressly authorized by vote, and a
note given in payment of such unauthorized deed is
without consideration, and void.— ifoiwon v. Tripp, 8. J.
0. Me., Dec. 8, 1888; 16 Atl. Bep. 327.

193. Towns- Repair of Highways— Surveyors. ^Un-
der Pub. 8t. Mass. ch. 62, §§ 3-6, power is given the sur-
veyor to contract for the town to the amount of $10
only, and be cannot bind the town by contract, to the
extent of the money appropriated for highways, and
unexpended at the time of the contract. — Blanchard v.
InTwbUantf of Ayer, S.J. C. Mhss., Jan. 2, 1889; 19 N. £.
Rep. 209.

194. TRD8T — Husband and Wife. Evidence suf-
ficient to show express trust in land conveyed by
grantor and then by grantee to grantor's wife, where
there was no consideration. — Lane v, Laue, S. C. Me.,
Nov. 19, 1888; 16 Atl. Uep. 823.

196. Trust- Implied — Agreement to Purchase.

Facts upon which court held an implied trust.— Duprte
r. Eitelle, S. C. Tex., Dec. 21, 1888; 10 8. W. Rep. 93.

196. Vbndor AND Vendbb— Vendor's Lien. Unless

waived, a vendor's lien exists against the land of per-
sons to whom the purchaser conveys it with his ven-
dor's consent, for the amount of notes given by the
vendor, vendee, and subvendees to a third person, in
lien of the original unpaid purchase money notes
which were secured by such a lien, and which were the
property of and surrendered by such third person. —
WoodaUv, Kelly, 8. 0. Ala., Dec 13, 1888; 6 South. Rep.
164.



197. Vendor and Vbndbb — Vendor's Lien. The

English doctiine of the vendor's equitable lien for un-
paid purchase money, upon an absolute conveyance of
land, has not been generally adopted in the United
States, and this court will not enforce the lien in a State
where it has not been established by statute, or is not
recognized as in force by the same tribunals. — Sice v.
Rice, U. 8. C. C. (Del.), Dec. 12, 1888; 86 Fed. Rep. 8»8.

198. Venub in Civil Actions— Non-Resldenta. A

non-resident may sue another non-resident In any
county in which the defendant is personally served
with process.— iZice v, Broton, 8. J. C. Me., Dec. 10, 1888 ; 16
Atl. Rep. 834.

199. WARBHOU8BMBN— Mortgaged Goods. Ware-

housemeu who receive mortgaged goods for storage
from the mortgagors, and thereafter deliver them to a
third person on production of the warehouse receipt,
are liable in trover to the mortgagee whose mortgages
are recorded in another county, though they have no
actual notice of his claim. — Hudmon v. Du Boee, 8. C.
Ala., Dec. 12, 1888; 6 South. Rep. 162.

200. Waters and Water courses- Adverse Use.

An adverse, exclusive, and uninterrupted use and en-
joyment by one person, and^ of all the water of a creek,
taken therefrom by means of a ditch, and Conveyed to
certain mining grounds for mining purposes, for any
period beyond that of the statute of imitations pre-
scribing the time in which entry shall be made upon
real property, will bar the owner of the land through
which the creek runs of his riparian rights. — Hueton v.
Bybee, 8. C. Oreg., Dec. 19,1888; 20 Pac. Rep. 61.

201. Will— Devisee. Construction of will as to in-
tention of testator in use of the word ''children. — Bow-
ker V, Bowker, 8. J. C. Msss., Jan. 2, 1889; 19 N. B. Rep. 213.

202. Will — Construction. Construction of will

giving to wife certain property for life or until she mar-
ried, the remainder to her children. — Adame v. Ma$on,
8. C. Ala., Jan. 7, 1889; 6 South. Bep. 219.

2<t3. Wills— Construction — Possession. Where

property is left to one for life, with unlimited discretion
as to the use both of the principal and interest, she is
entitled to the possession and control of the property.
— Pierce V. Stidworthy, S. J. C. Me., Dec. 10, 1888; 16 Atl.
Rep. 833.

204. Wills — Bevocatlon — Birth of Child. Con-
struction of Pub. St. B. I., ch. 182, $ 12, providing that a
child born after execution of parent's will, shall inherit
as if parent died intestate.— Mer. Trust Co, v. R. I., etc.
Co., U. S. C. C. (B. I.), Sept. 29, 1888; 86 Fed. Bep. 863.

206. WlT^£ss— Impeachment. A bill of exceptions,

showing testimony of a witness in another case, is not
admissible to Impeach him, though approved by the
court; it not having been read or assented to by the
witness. — Reid v. State, 8. C. Ga., Dec. 22, 1888; 8 8. B.
Bep. 431.

206. Witness- Mileage of Non-resident. A non-
resident witness cannot charge mileage, there being no
provision authorizing it, and his attendance not being
enforceable.— Stem v. Herren, 8. C. N. Car., Dec. 17, 1888;
8 8. E. Bep. 221.

207. Witness — Competency — Transaction with De-
ceased Person. The statute which provides that in

all actions wherein an executor or administrator is a
party the opposite party shall be precluded from testi-
tifying, applies to an action on a note indorsed by de-
ceased, brought against the maker only, a stranger to
the estate, where the executor indemnifies the defend-
ant, and takes upon himslf the defense of the suit. —
mUman V. Schwenk,8, C. Mich., Nov. 2S, 1888; 40 N. W.
Rep. 924.



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^je (^tntml ^w "^ouvtmt



ST. LOUIS, MARCH i, 1889.



CDBRENT EVENTS.



Thb subject of the leading article in this
issue — * 'Constitutionality of Registry Laws"
— suggests a few thoughts, which it would
be well for legislators, who are casting about
for eflectiye election laws, to consider. In a
recent number of this Journal, we reviewer
the Australian system of voting, which is the
basis for most of the proposed enactments in
this country, and the cardinal features of which
are, as pointed out by us, compulsory secret
voting, and official ballots prepared by the
government. These innovations are wise,
and tend, in a large measure, to correct some
of the admitted evils of the old system, such
as bribery, intimidation, and improper influ-
ence of a voter. But are these all the evils,
to which our system of voting has given birth?
In the first place, a wise, and effective regis-
tration law (in cities at least), is as impor-
tant, as a reform in the manner of depositing
the ballot. For, without the former, the
latter will be of little use. It accomplishes
nothing, in the desired direction, to secure to
a voter freedom from violence, iqtimidation,
or interference, or to remove him from the
impossibility of bribery, if that voter has no
right to vote,. or, if by fraud, his name ap-
pears upon the registration lists. Nor does
it conduce to a satisfactory election, to secure
the fullest, fairest, and freest expression of
choice, on the part of those, whose names
appear entitled to vote, where, by accident,
or design, a considerable number of names
of legal voters have been left off the official
poll list. Therefore, we need wise registra-
tion laws, so framed, as to prevent the regis*
tration of those not entitled to vote, and to
secure the registration of all who have the
right of suffrage, and who have complied
with the requirements of the registry act;
and diis beyond the power of partisans, to
destroy by dropping their names from the
official list. In another feature, it seems to
us, that the Australian system does not pro-
vide a remedy. Though the registry of

Vol. 28— No. 9.



voters may be strictiy accurate, and contain
a true list of those entitled to vote; though
the election may be free from bribery, or in-
timidation, and the ballots, that go into the
box, absolutely represent the free choice of
the voters, what security is provided against
a false count, or miscount, on the part of
Judges of election? What is to prevent a
destruction of ballots? A fraudulent count
of ballots is even worse, and may be more
serious, in its results, than bribery. Again,
an effective election law should provide
against a possible tampering with the re-
turns, after they have left the returning offi-
cers, and when on the way to, or actually in
the custody of, the officer whose duty it is to
receive them.

These are all questions, which must be met
in the consideration of the subject of a re-
form of election lawSj and it is to be hoped
that the many legislatures, now engaged in
the work, may realize the great importance
of guarding against fraud or errors at every
step.



It will be interesting to note the opinioi
of the Supreme Ck»urt of the United States
which may shortly be expected, in the Moi*-
mon church case, recently submitted to them.
The case is of interest, not only on account
of its social significance, but also by reason
of the novel and important questions of law
involved. To be strictly accurate, it is a suit
brought by the United States against <The
Late Corporation of the Church of Jesus
Christ of Latter Day Saints'' in the Supreme
Court of the Territory of Utah, wherein,
under and by authority of acts of congress,
passed in 1862 and 1887, judgment was ren-
dered against defendants, escheating all the
personal property belonging to the above
corporation and declaring forfeited all its
real property. The acts of 1862 and 1887,
were intended to repeal former acts of con-
gress, under which defendants obtained legal
existence and acquired the right to own prop-
erty, etc., in 60 far as they established and
countenanced polygamy, and they also declare
the corporation, by reason of such acts, dis-
solved and its property forfeited and escheated
to the United States, granting authority to the
attorney general to institute proceedings to
wind up its affairs, in the hands of a receiver.



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The contention made by the Mormon church
and its adherents is, in effect, that the acts
under which proceedings were instituted are
unconstitutional, in so far as they attempt
to dissolve the corporation or purport to
forfeit or escheat the property of defendants ;
that the charter granted the latter
in 1851 as a corporation for relig-
ious and charitable purposes was a contract,
which, by its acceptance, became an executed
contract; that, relying thereon, it had ac-
quired valuable property, and that it was
without the power of congress to thus destroy
and take away vested rights of the defendant.
Though the admission is made that so far as
political rights are concerned congress is
supreme in its legislative power over the
Territories, and may to-day pass a law in the
direction indicated which to-morrow they
may repeal or effectually change ; but when
it comes to civil rights, congress cannot vio-
late those fundamental princl[,les of the con-
stitution by which the personal rights of
every citizen are guarded. This was the
doctrine announced by the supreme court in



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