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The Chicago Law Journal. he owned was overflowed and subsequently

CHICAGO, FEBRUARY, 1886.

patrons,

The publishers of the JOURNAL have reason for congratulation, on account of the great favor with which the receut change and enlargement thereof has been received by its The few who had not replied to our special notice, in last october number, had, in most cases, only neglected to give us an expression of approval, and as their attention is called to the matter personally, we find the approval is substantially unanimous. The following letters from two of our valued patrons, is indicative of the general character of replies which come to us: From JAMES H. VAN CLEEF, ESQ., Att'y.

NEW BRUNSWICK, N. J. Jan'y 12, 1886. "Dear Sir: Your circular received, and because you have advanced the price of your JOURNAL, I do not intend to neglect the renewal of my annual subscription to the same, as I consider you have made a grand improvement, that will be of great advantage to the profession. Yours &c..

JAS. H. VAN CLEEF.' From BOWMAN & PILLOW, Attorneys. SHAWNEETOWN, Ills. Jan. 13, '86. "We prefer the JOURNAL to all others."

the waters recede. Held that the land thus for a long time submurged did not become the property of the state. Land lost by erosion may be returned by accretion.---Muloy v Norton.-Filed Nov. 24, 1885.—N. Y.

ADMINISTRATION-DISTRIBUTION IN KIND

DISCRETION OF THE COURT.-Where an estate consist of personal property, a distribution in kind may be ordered by the court, but where the estate consists in part of chooses in action the statute does not warrant an order of distribution.- Waterman v Olden-Filed Nov. 14, 1885.—Ill.

AGENCY-PROOF OF-POSSESSION, AS EV IDENCE OF AUTHORITY.—An agency cannot be established by the declarations of the agent. Possession by a tenant at sufferance confers upon the tenant no power to bind One who is any one's interest but his own. furnished with funds and instructed to build a house has no authority to assume an obligation binding his principal in the payment of a debt.-Proctor v. Tows.--Filed Nov. 14, 1885.—Ill.

AGENCY-FRAUDULENT SALE BY AGENT— PRINCIPAL MUST SUFFER IN PREFERENCE TO AN INNOCENT PURCHASER.—An agent,to sell on commission, had taken a piano to his house which belonged to his principal, and subsequently sold it for cash and failing to remit the proceeds to his principal, his principal replevies the piano. Held that the agent had power to sell it and that an action of replevin would not lie as against an innocent purchaser.-Dias v. Chickering.-Filed

Respectfully, BOWMAN & PILLOW. The increase in our list of subscribers for the past two months, has also been very gratifying. Having, as we believe, put the JOURNAL on a basis which will make it almost invaluable to the active and busy lawyer, we shall spare no effort to carry out this plan in the spirit in which it was conceived, and in doing so, we hope and believe, we will merit and Dec. 4, 1885.---Md. receive the liberal support of the profession. We shall be pleased at all times, to receive suggestions from our subscribers, as to any point wherein any improvement can be made in our method of noles.

AGENT RATIFICATION BY PRINCIPALREGENTS OF THE UNIVERSITY-Where the land agent of the university acts upon instructions, directing him to receive applications for land, which intsructions did not eminate ACCRETION- -SHIFTING OF OCEAN BEACH. from the Board of Regents, but where the Where a party claimed title to beach Board subsequently recognized his action in lands under ancient deeds, and the beach had the premises, such instructions will be held shifted, and for a number of years land which to eminate from the Board and will be

held binding. White v. Douglass.-Filed Nov. 26, 1885.-Cal.

ARGUMENT OF COUNSEL-TIME ALLOWED -NEGLIGENCE.-The time allowed for argument by counsel is largely in the discretion ALIBI NECESSARY PROOF OF.-In a crim- of the trial judge. A person injured by mainal action where the defendant undertakes chinery, which he might reasonably have to establish an alibi,it is not essential that he avoided, is guilty of contributory negligence prove it beyond a reasonable doubt. Evi- and cannot recover. However slight the dence on that point may be supported by negligence on the part of plaintiff, if but for other evidence and circumstances in the that negligence the accident would not have It is the duty of the jury to take in- happened, he is charged with contributory to consideration all the circumstances in the negligence which will bar his recovery.case and if they raise a reasonable doubt of Hurst v Buruside.-Filed Nov 30 '85.-Ore. defendants presence at the commission of the crime, they should acquit.-State v Fry. -Filed Dec. 10, 1885.-Iowa.

ASSIGNMENTS-CONFESSION OF JUDGMENTS

FOR

REFEREE-Where a debtor makes and delivers a judgment note to a creditor, whom APPEAL-AUTHENTICATION OF TRANSCRIPT. he wishes to prefer, and the following day, -Upon appeal, the clerk should transmit so makes an assignment for the benefit of credmuch of the record of the case as the appel-itors, such note is valid. Although he had lant may direct, and the transcript must be in contemplation the assigument, at the time certified by the clerk under seal of the court. of making the note, it is valid. The act of -S. B. D. & R. Co. v. C D. & R. Co. 1843 simply prohibits preferences in assign-Filed Dec. 1, 1885.—Col. ments.-L. S Banking Co. v. Fuller.-Filed Oct. 5, 1885.-Pa.

APPOINTMENT OF RECEIVER--PARTNERSHIP -SUFFCIENCY OF COMPLAINT OR PETITION— Where a partnership has expired, and one of the partners is proceeding to wind up the business, the other partner cannot have a receiver appointed, on the ground that he has not sufficient time or experience to attend to it.—Bufkin v. Boyce.-Filed Nov. 23, 1885.-O.

APPEAL-BOND FOR STAY OF EXECUTION -ACTION ON.-Where an appeal is taken from an order for the payment of money, and a stay-bond executed,upon affirmance of the order by the appellate court, an action may be maintained on the bond for the debt and interest.—Errickson v. Elden-Filed Dec. 18, 1885.-Minn.

APPEAL-REVERSED FOR DECREE ADDITIONAL EVIDENCE-Where a case has been reversed and remanded for decree, the lower court may order the admission of additional evidence and no appeal will lie from such an order. Garmore v. Sturgeon.— Filed Dec. 15, 1885.--Iowa.

ASSIGNMENT-REMONAL FROM STATE TO UNITED STATES COURT.-Where an assignment for the benefit of creditors is filed in a state court, and an issue is raised as to the priorities between parties, or where one of the parties resides in another state, the case may be removed to the United states Court and the judgment in that court will be final.

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Knoxville National Bank v. Hanirick. -Filed Dec. 12, 1885.-Iowa.

ASSIGNMENT OF DOWER-JURISDICTION OF PROBATE COURT-In the settlement of an estate, the probate court cannot determine the matter, where there is a controversy between the widow and strangers who are purchasers of land belonging to the estate, at probate sale.-Hewict's appeal-Filed Dec. 15, 1885.-Conn.

ASSIGNMENT-ACTION BY ASSIGNEE TO RECOVER GOODS WRONGFULLY ATTACHED— CHATTEL MORTGAGE-In an action by an assignee, in an assignment for the benefit of creditors, recovery of the attached property may be had without showing the value of

property, and although such goods may be BANK MAKING COLLECTION-BOUND TO subject to a chattel mortgage it does not ACCOUNT-Notes are deposited in bank for defeat his recovery.-Goldsmith v Willson. collection. The maker of the notes is in-Filed Dec. 14, 1885.—Iowa. debted to the bank also. An action is commenced by the bank to recover for the notes and also its own claim against the maker of the notes. An execution issues, and a sale of defendants property had, and the bank buys the property at a price which does not cover the whole indebtness. Held that the bank and the holder of the notes should share pro-• rata, in the proceeds of the sale of the propty, in the ratio of their claim to the price at which the property was sold.-Marks v. Bodie Bank.-Filed Nov. 30, 1885.-Cal.

ATTACHMENT-CAUSE OF ACTION IN PART FRAUDULENT.—Where an attachment issues upon an affidavit alleging that the debt was fraudulently contracted, and the facts appear that only a part of the debt, which is the cause of action, was fraudulently contracted it is Held that the attachment should be discharged.-Mayer v. Jingre.-Filed Dec. 1, 1885, Neb.

ATTACHMENT-LIABILITIES OF BAILEES.Personal property being attached on mesne process, and a receipt given therefor by de- BANKS CERTIFICATE OF DEPOSIT-ENfendants, to an officer whose term expired DORSER-- Where a stranger endorses a certifibefore judginent in the case, his successor cate of deposit, and the endorsement is holding the execution, made demand on contemporaneous with the the issue of the defendants for the property but not upon the certificate, the endorsement in blank is pri attaching officer. Held that in the absence of demand upon the attaching officer no action could be maintained against defendants -Shepherd v. Hall.-Filed Dec. 8. 1885. -Me.

ATTORNEY- NEGLIGENCE-DAMAGES. Where an attorney, by negligence, allowed judgment to be taken against his client, and subsequently purchased the judgment, the client brought an action for damages for allowing the judgment to be taken, and asked that an injunction issue restraining him from enforcing payment of the judgment pending his action for damages. Held that in the absence of an allegation that the defendant was insolvent an injunction would not issue. -Baker v. Ryan.-Filed Dec. 15, 1885.— Ia.

BANKRUPTCY-DISCHARGE OF INSOLVENT BY STATE AFTER HE HAS BEEN REFUSED DISCHARGED BY UNITED STATES.—Under the insolvent act, no discharge can be granted the debtor, if he has within three years received the benefit of any insolvent act, and if he has been adjudged a bankrupt under the United States law, and refused a discharge, it is a bar to a discharge from the state.-In Re Smith.-Filed Dec. 19, 1885.-Cal.

ma facie evidence of a contract of guaranty, and the consideration on which the certificate is issued, is sufficient to sustain such guaranty. -Jones, v Kuhn.—Filed Dec 4 1885-Kans.

BASTARDY-MARRIAGE TO ANOTHER MAN DURING PREGNANCY-PRESUMPTION OF LAW, The natural father, of an illegitimate child, cannot be held for its support, if the mother during pregnancy marries another man. The child, born after wedlock, is presumed to be legitimate, and the husband assumes the obligation of its support by marriage of its mother. This rule does not apply where heirship is involved-Miller v. Anderson.— Filed Nov. 3, 1885.--Ohio.

BILL OF LADING-NEGLIGENCE BY CARRIER IN DELIVERY OF GOODS CONTRARY TO INSTRUCTION.-Where it was agreed between vendor and vendee in the presence of a station agent, that the bill of lading, should show the shipper to be the consignee, and that an advance should be obtained from the bank on the bill of lading, and in accordance therewith a draft, with the bill of lading attached is discounted. The goods are shipped and delivered to the drawee before

payment of draft. Held that the railroad owner is not liable for damages in electing company is liable because of their negligence whom he shall admit to the rink.—Bowlin v in delivering goods before payment.-- Garden Lyon.-Filed Dec. 11, 1885.-Ia. Grove Bank v. H. & S. Ry. Co.-Filed Dec. 11, 1885.--Ia.

CONTRACT-CONSIDERATION —Retrial – Where an action is commenced to recover BILL OF SALE-BAILMENT-PRESUMPTION on a promise, the consideration of which was OF AN ACCOUNT STATED-Where an absolute that plaintiff would abstain from intoxication bill of sale is pleaded, as a bailment for a it is competent for the defense to introduce special purpose, the party is estopped from evidence of plaintiff's intoxication as a breach showing the purpose of the bill or bailment, of contract. Where, upon appeal, a cause is by oral testimony. Where a promissory note "reversed and remanded" and in the decision has been made and delivered it raises a pre- of the appellate court there are no words sumption of a settlement and a statement of qualifiying or limiting these words, the parties account.--Allen v. Bryson.-Filed Dec. 12 have a right to a retrial of the issues.-My1885.-Iowa. ers v McDonald.-Filed Nov. 30 '85.-Cal.

BURGLARY-AVERMENT

AS ΤΟ WHOSE

HOUSE WAS ENTERED---VARIANCE.-In an indictment for burglary, the averment that the ownership is in the occupant, if he is lawfully in possession, and the proof shows that the ownership is in another, such variance does not invalidate the indictment. The possession of stolen property, shortly subsequent to the time it was stolen,is prima facie proof that the person having it in possession committed the theft, and if burglary is connected with the theft it is applicable to the proof of the burglary also.-Smith v People. -Filed Nov. 14, 1885.—Ill.

COMMON CARRIERS-EJECTING A PASSENGER FROM RAILWAY CAR-PASSENGER RESISTING.-Where a conductor of a railway train ejects a passenger from the car, while the train is in motion, he is guilty of an assanlt. If a conductor assumes to put a passenger off the train, who is not wrongfully on the car, it is not necessary for the passenger to forcibly resist being ejected, in order to lay the foundation for an action. It is sufficient if he protests against the wrong about to be done him.-State v. Rumey.-Filed Dec. 4, 1885. Minn.

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COMMON CARRIERS- -BILL OF LADING— CHATTEL MORTGAGE-WAIVER OF LIEN BY NEGLIGENCE.—A package of specie shipped MORTGAGEE-FAILURE TO ASSERT CLAIM. in Havre, France, and consigned to "Frank The mortgagee, of a chattel mortgage, if Guillaum, 152 and 154 Blecker street, New present when a levy is made upon goods on York, Utica, America," was delivered to a which he holds a mortgage, should assert his party on Bleeker street, New York City, claim, but if he fails to do so he does not wrongfully, when the proper place of dethereby waive his lien on the property under livery was in the City of Utica, New York. the mortgage, unless the attaching creditor In an action against the carrier to recover is mislead and suffers loss by reason of his the value of the package, Held that the silence. Gunsell V. McDounell. question of negligence was properly a question for the referee.-Guillaum v Gen. Frausathutie Co.-Filed Nov. 24, 1885.—N. Y.

Filed Dec. 11, 1885.-Iowa.

CIVIL RIGHTS- SKATING RINK NOT A PLACE OF PUBLIC AMUSEMENT.--Where a skating COMMON CARRIER-PENALTY FOR UNJUST rink is carried on without any municipal or DISCRIMINATION.-A common carrier is liastate license, it is not a place of public ble for triple damages for unjust discriminamusement in that sence which makes ap- ation and the statute must be strictly conplicable the law of civil rights, and the strueed. The failure to furnish cars, for

transportation of freight when wanted, is not of a statute regulating the internal affairs of such a discrimination as is contemplated by towns or counties, which applies in general the statute.--Bond v. W. St. L. & P. Ry. terms, to all towns and counties, but by reason Co.-Filed Dec. 15, 1885.-Iowa. of prior existing condition of things, in reality only affects one, the statute is not thereby Special or local and therefore, unconstitutional but valid.-State Ex Rel, Burnstead v. Govern.-Filed Dec. 19, 1885.-N. J.

COMMERCIAL TRAVELERS-NOT PEDDLERS

CONTRACT-AGENT TAKING CONTRACT IN HIS OWN NAME.—A party, as agent for plaintiff, entered into a contract with the government for the transportation of mail, but took the contract in his own name. Held that the contract was for the benefit of plaintiff,-LICENSE IMPOSED.-Where an agent exhiband that he must account to them. Oregon Steam-ship Co. v. Otis.--Filed Nov. 24, 1885.--N. Y.

its samples and receives orders, for goods to be shipped by his principal, as is the general custom of what is know as commercial travCONTRIBUTION TO ELECTION FUND-WHEN ellers, such agent is not a peddler or a merLAWFUL.—The only objects for which a can- chant, and cities have no authority to comidate for any office may legally contribute pel such agents to pay a license tax as a pedare ist, for expenses of printing, 2nd, for cir- ler or merchant.-City of Kansas v. Collins. culation of votes and papers, and 3rd, for Filed Dec. 4, 1885.-Kans. conveying the poor, sick or infirm to the polls on electiou day. An agreement to contribute for any other purpose is illegal. -Foley v. Spier-Filed Nov. 24, 1885-N. Y

CONTRACT-OBTAINED BY FRAUD-EVIDENCE-In an action on a contract, made under fraudulent representations made by a third party, the declarations made as inducements, to enter into the contract, may be produced in evidence. No action will lie on parol representations as to a man's credit, although the party making the representations may have entered into conspiracy with the party whose credit he exagerates. -Cook v. Chinchman.-Filed Dec. 8, 1885. ---Ind.

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COMMON CARRIER CLASIFICATION FREIGHT FRAUDULENT REPRESENTATIONS OF SHIPPER.-Where a common carrier makes special and low rates on household goods, and the shipper contracts for a car load of household goods, and then puts into the car other goods not household, the carrier is entitled to charge regular rates for the goods fraudulently shipped, notwithstanding the contract made. Household goods do not include potatoes, bacon, vinegar or salt.-Smith v. Finley.-Filed Nov. 7, 1885.-Kans.

CONTRACT TO CONVEY LAND-OFFER AND ACCEPTANCE BY MAIL OR TELEGARAPH-Where an offer to sell land is made by letter CONTRACT OF PURCHASE-PAYMENT OF A and, on receipt of the same the party tele

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CGNSTITUTIONALITY OF STATUTE-SPECIAL COUNTY FOR CARE OF SICK--PAUPERSLEGISLATION -WHAT IS.-The enactment Persons rendering service, at the request of

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