Imágenes de páginas

other up to the time of accounting. And for the purpose of selling lands it seems very clear that a public administrator could not be recognized in this State at all; for the statute contemplates the case of an administrator "appointed " in some other State or country, who shall produce and file in proper court "an authenticated copy of his appointment." § 6057. A public administrator having no appointment for the special case would not be within the terms of this statute. No case has been called to our attention in which it has been held that after letters issued in one State or country a foreign administrator can be recognized there even for the purposes of a voluntary payment; and the cases like Vaughn v. Barret, 5 Vt. 333; Young v. O'Neal, 3 Sneed, 55; and Ferguson v. Morris, 67 Ala. 389, which deny the validity of such a payment generally, if questionable when no domestic appointment exists, are perfectly sound and reasonable if there is at the time a valid administration in the State. See Noonan v. Bradley, 9 Wall. 394, 405. It is the duty of the citizens of the State to recognize and defer to the judicial determination of its own tribunals, as much when they concern matters of administration as in other cases (Henderson v. Clarke, 4 Litt. 277), and this is especially true in a case like the present, where nothing existed to bring in question the judicial determination of the Michigan court, except the bare assertion of his own authority by the foreign official. By the law of this State the title to this demand, for all purposes of administration, was in the Michigan administrator, who might put it in suit when due, or assign it of record or discharge it of record. He was therefore the only person who could be safely dealt with in respect to it. Reynolds v. McMullen. Opinion by Cooley, C. J. [26 Eng. Rep. 12; 37 Am. Rep. 737; 36 id. 700.-ED.]

[Decided Jan. 14, 1885.]

NEGLIGENCE-RAILROAD-PERSONAL INJURY-CONTRIBUTORY NEGLIGENCE-STREET CROSSING.-Where in an action against a railroad company for ersonal injury the evidence shows that the plaintiff exercised no care to avoid the danger, and there is no dispute in the testimony on this point, the court may instruct the jury to find for the defendant; but when the evidence shows, or tends to show, that the plaintiff was negligent in his efforts in the right direction to avoid the danger, but they did not go to the extent for any reason of securing his escape, it is for the jury to say, under all the circumstances, whether he was negligent in not exercising more care, or in making greater efforts to prevent the injury complained of; and especially in the case where, if the defendant had performed his duty, the plaintiff would have been likely to have avoided the danger altogether. Palmer v. Detroit, L. & N. R. Co. Opinion by Sherwood, J. [Decided Jan. 21, 1885.]

ASSIGNMENT-CHATTEL MORTGAGE-BONA FIDE PURCHASER-Where a partnership firm, in contemplation of their insolvency, execute a chattel mortgage of their stock in favor of a near relative, and a few days after ward make a common-law assignment of the same, upon a bill filed by her against the assignee for relief, and for payment of her claim, if it appears that she kiew of the insolvency of the firm when she took her security, and that this knowledge induced her to ask it, she is not entitled to preference as a bona fide secured creditor. Cron v. Cron. Opinion by Sherwood, J.

[Decided Jan. 21, 1885.]

CHATTEL MORTGAGE-SALE-SATISFACTION-PLEADING. (1) A woman who held a bill of sale of personal property in security for a debt proceeded to sell the property. Part of it was covered by a chattel mort

gage, and at her request this mortgage was purchased by a third person and held for her. She sold property enough to pay both debts, and of that which was sold enough was included in the chattel mortgage to pay that off. Afterward her son, who was cognizant of all the facts, took an assignment of the chattel mortgage. Held, that the chattel mortgage must be deemed satisfied. (2) If there were any facts to excuse the failure to apply the moneys received on the sale in satisfaction of the mortgage, they should have been affirmatively established, as the sale prima facie paid it, under the circumstances stated. Long v. Moore. Opinion by Cooley, C. J. [Decided Jan. 21, 1885.]

MALICIOUS PROSECUTION FENDANT-FALSE ARREST-PROBABLE CAUSE.-Defendant had a horse stolen from his pasture. A man of bad reputation, who had served a term in prison, and was then under criminal accusation, told a story connecting plaintiff and his son with the larceny. De. fendant, for some time, took no notice of this story, but after three weeks or so went to a justice and obtained a warrant for plaintiff and his son, on which they were arrested in the night-time, handcuffed, and taken to the jail. Defendant, with others, was with the officer when the arrest was made and the parties taken away. The warrant was obtained without evidence, and the case was continued before the justice for three weeks, and was then voluntarily abandoned. Plaintiff then brought an action for malicious prosecution. Held (1), that the defendant, when he applied to the justice for a warrant, was bound to state to the justice any facts tending to detract from the credibility of the charge against the plaintiff, and if his information came from such a source that he gave it little or no credence himself, he should have stated the fact. (2) The defendant in thus procuring a warrant without evidence, and accompanying the officer who made the arrest in the nightime, is responsible for the conduct of the officer, and those who accompanied him, in what they did with his apparent acquiescence. (3) A story of crime which in itself or from its source is so incredible or so untrustworthy that a party does not venture to use it as evidence for others to act upon, will not justify him in acting upon it himself to the serious prejudice of others. Chapman v. Dunn. Opinion by Cooley, C. J. [Decided Jan. 21, 1885.]



CHATTEL MORTGAGE-REFILING-WITHIN THIRTY DAYS.-In order to preserve the lien of a chattel mortgage beyond the first year, the filing of the verified statement and copy required by section 4155 of the Revised Statutes, must be done during the thirty days immediately preceding the expiration of the year. The refiling of the mortgage with such statement before the commencement of the thirty days is not sufficient. The claim of plaintiff in error is that the verification and refiling of this mortgage on September 16, 1879, was equivalent to an original filing, and thereby the lien of his mortgage became valid as against subsequent purchasers in good faith, for one full year after the date of refiling; and in support of this claim relies on Swift v. Hart, 12 Barb. 530. This ease holds under a statute similar to ours that a verification and refilling after the expiration of a year from the original filing revives the lien as against subsequent purchasers. This doctrine was questioned in the subsequent case of

*To appear in 42 Ohio State Reports.

[ocr errors][ocr errors][merged small][merged small][ocr errors]

Newell v. Warner, 44 Barb. 258. It is however expressly decided in National Bank v. Sprague, 20 N. J. Eq. 18, that in order to preserve the lien of a chattel mortgage beyond the first year, the refiling a copy required by law must be done during the thirty days immediately preceding the expiration of the year. A refiling before the commencement of the thirty days is unavailing. Biteler v. Baldwin. Opinion by McIlvaine, J. [See 21 Eng. Rep. 164.]


MECHANICS' LIEN-HOW CONSTRUED-SERVICE OF NOTICE-DIRECTOR IS OFFICER 'OR AGENT. '-Under the provisious of "An act to secure pay to persons performing labor or furnishing materials in constructing railroads," passed March 31, 1874 (71 O. L. 51) which provides that "Any person performing said labor or furnishing said materials, who has not been paid therefor, shall serve a notice in writing upon the secretary or other officer or agent of said railroad compauy, stating in said notice the kind and amount of materials furnished," etc., the service of such notice upon a director of the railway company to be affected by it is sufficient. It seems clear to us, upon both reason and authority, that the design of the statute was to facilitate the methods by which the laborers and material-men chiefly affected by it are to secure their claims by charging the companies with them, and is entitled to such reasonable and liberal construction as will best carry out its purpose. Railway Co. v. Crouin, 38 Ohio St. 127; Barnes v. Thompson, 2 Swan (Tenn.), 315; Buck v. Briau, 2 How. (Miss.) 880; Phillips Mech. Liens, § 16. There certainly was a literal compliance with its requirements. When we reflect that "the corporate powers, business and property of the[railway] corporations *** must be exercised, conducted and controlled by the board of directors "(§ 3248, Rev. St.), we cannot question that a director of such company is "" officer of it. We are at liberty to suppose also that a director of a railway corporation is one who is sufficiently interested in its affairs to see to it that any fact which comes to his notice affecting his company will with promptness be brought to the knowledge of the latter. To hold that class of persons who are chiefly affected by this provision to a strict rather than liberal construction of it, would tend rather to defeat than to effectuate it. Railway Co. v. McCoy. Opinion by Owen, J.


[ocr errors]

COVENANT-ASSIGNEE OF LEASE--LIABILITY FOR RENT -RUNS WITH LAND.-(1) The lessee of a perpetual leasehold estate is liable, upon an express covenant to pay rent to the lessor, his heirs and assigns, during the term, in an action by the assignee of the reversion for accruing rents, whether such rents accrue before or after an assignment by the lessee of all his interest in the leasehold estate. (2) Such covenant for rent runs with the land, and an assignee of the reversion may, under our Code, sue thereon in his own name. (3) The receipt of rents from the assignees of the leasehold estate does not absolve such lessee from liability on his express covenant. See Crawford v. Chapman, 17 Ohio, 449; Masury v. Southworth, 9 Ohio St. 340. A perpetual leasehold estate is not a fee-simple, although by our statutes it has many incidents of a fee-simple estate. Taylor v. De Bus, 31 Ohio St. 468. The fee simple remains in the lessor, his heirs and assigns, the principal value of which is the right to the rents reserved by the lease. And the right to sue for and recover rents follows the fee-simple estate, and the action therefor must be in the name of the owner of the fee at the time the rent accrues. As to the fact that the plaintiff below, as well as her predecessors in interest, had received rent from the owners of the leasehold after the defendant had assigned and transferred all his interest therein, it will be sufficient to refer to Sutliff

v. Atwood, 15 Ohio St. 186, where it is said: "The liability of the lessee arising from his express contract is so permanently fixed during the whole term that no aot of his own can absolve him from the lessor's demands in respect to it." That was an action by the lessor against the lessee; but the principle applies in any case upon the lessee's covenant where the plaintiff is entitled to the rent secured by the covenant. It was also decided in that case that an assignment by the lessee, with the lessor's concurrence and his subsequent receipt of rent from the assignee, will be ineffectual to discharge the lessee from his liability. "The lessor, when there is an express agreement of the lessee, may sue at his election, either the lessed or the assignee, or may pursue his remedy against both at the same time, though of course with but one satisfaction." The foundation of the action by the assignee of the reversion against the assignee of the leasehold is the privity of estate between them. The principle is that the latter shall not enjoy the former's property without the payment of rent. The action against the lessee is upon this express covenant to pay rent during the term which, as we have above said, runs with the land and vests in the assignee of the reversion the right to receive the rents accruing during his ownership of the fee. Smith v. Harrison. Opinion by Mcllvaine, J. [26 Am. Rep. 311.]

EMINENT DOMAIN-PUBLIC USE- ESTION OF LAW -REV. STAT., § 4511.-The facts being ascertained, the question whether or not a ditch will conduce to the public health convenience or welfare within the meaning of the Revised Statutes, section 4511, so that it will be of public use, is a question of law; and the mere fact that larger and better crops may be raised on two farms sought to be drained does not authorize the establishment of the ditch. Article 1, section 19, of the Constitution provides that " private property shall ever be held inviolate, but subservient to the public welfare;" thus placing beyond question that private property cannot be taken for a mere private use. McArthur v. Kelly, 5 Ohio, 139; Shaver v. Starrett, 4 Ohio St. 498; Reeves v. Treasurer Wood Co., 8 id. 345. Two petitioners sufficient, and one petitioner is all the law requires; and the land through which the ditch is to pass need not be owned by more than two persons, and if owned by one person only the ditch may be made. Reeves v. Treasurer Wood Co., 8 Ohio St. 333; Kent v. Perkins, 36 id. 639. Whether or not the use for which property is proposed to be taken a public use is a question of law, to be settled by the judicial power. Coster v. Tide-Water Co., 18 N. J. Eq. 55; Tyler v. Beacher, 44 Vt. 648; Parham v. Justices, 9 Ga. 341; Anderson v. Turbeville, 6 Coldw. 150; Channel Co. v. Railroad, 51 Cal. 269. The use must be for the public at large. Memphis Freight Co. v. Mayor, 4 Coldw. 419. The use that will justify the taking of private property by the power of eminent domain is the use by or for the government, the general public or some portion of it; and not the use by or for particular individuals, or for the benefit of certain estates. The use may be limited to the inhabitants of a small locality, but the benefit must be in common, and not to a very few persons or estates. Costar v.Tide-Water Co., supra; Talbot v. Hudson, 16 Gray, 417, 424; Gilmer v. Lime Point, 18 Cal. 229. The prosperity of each individual conduces in a certain sense to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men. The draining of marshes and ponds may be for the promotion of the public health, and so become a public object; but the drainage of farms to render them more productive, is not such an object. Anderson v. Kerus Draining Co., 14 Ind. 199. McQuillen v. Hatton. Opinion by Follett, J.


JUDGMENT-PARTY AFTER TRIAL-ENTRY NUNC PRO TUNC.-Where a party to an action dies after trial and submission to the court, but before a decision is announced, the court has jurisdiction, and in furtherance of justice, may enter judgment nunc pro tunc as of the day of submission. It is well established that to prevent injustice and to promote justice judgments may be entered nunc pro tunc. This power has been exercised by courts from the earliest times. Mayor of Norwich v. Berry, 4 Burr. 2277; Tooker v. Duke of Beaufort, 1 id. 146; Freem. Judg., § 56, and cases cited. In Dial v. Holter, 6 Ohio St. 228, this court said: "Where a defendant in an action for libel and slander after the finding of a verdict against him in theCourt of Common Pleas, files, duing the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nunc pro tunc upon the verdict, as of the term in which it was found." In Perry v. Wilson, 7 Mass. 39 3-395, the court say: "Where an action is delayed for the convenience of the court they will take care that no party suffers by such delay." Therefore where, after a continuance by order of the court for advisement, the defendant in the action died, judgment was entered as of a former term. This position is supported by numerous decisions. Bank U. S. v. Weisiger, 2 Pet. 481; Clay v. Smith, 3 id. 411; Griswold v. Hill, 1 Paine, 484; Gray v. Brignardello, 1 Wall. 636; Campbell v. Mesier, 4 Johus. Ch. 342; Freem. Judg., § 57. In Turner v. London & S. W. Ry. Co., L. R., 17 Eq. Cas. 561, 565, Sir Charles Hall, V. C., examines Collinson v. Lister, 20 Beav. 355, and Troup v. Troup, 16 W. R. 573, and states the law to be that "where a plaintiff dies after hearing but before judgment the court has jurisdiction to date the judgment as of the date of the hearing.' And in Chitty's Archbold's Practice, Q. B. (12 ed., p. 1572), the rule at law is stated thus: "The court will in general permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by an act of the court. Therefore if a party die after a special verdict, or after a special case has been stated for the opinion of the court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer is set down for argument, and pending the time taken for judgment, or whilst the court are considering their judgment, the court will allow judgment to be entered up after the death nunc pro tunc, in order that a party may not be prejudiced by a delay arising from the act of the court." Matter of Jarrett. Opinion by Follett, J.



following decisions were handed down TuesTHE day, June 9, 1885: Judgment of the General Term reversed; that of Special Term affirmed, with costs-Eliza Hegerick, administrator, etc., respondent, v. John Keddie, executor, etc., appellant.- Order of General and Special Terms reversed and motion denied, with costs to all courts-Polly Moriarty, respondent, v. Virgil C. Bartlett, executor, etc., appellant.- Order of General Term reversed, and case remitted to General Term for further consideration-James Mingay and others, respondents v. Henry B. Hansom and others and the Holly Manufacturing Company, appellants.—Judg ment affirmed with costs-People ex rel. Alfred Short and others, appellants, v. Orin S. Bacon, sheriff, etc.,

respondent.-Judgment affirmed with costs-John H. Haight, appellant, v. Mayor, etc., respondent.Order and award affirmed, with costs-John Sipple, respondent, v. State of New York, appellant.-Judg. ment reversed, new trial granted, costs to abide events -George C. Gerritt, appellant, v. City of Brooklyn, respondent.-Judgment reversed, new trial granted, costs to abide event-Samuel D. Coykendall, appellant, v. Abraham Constopto and others, respondents.Judgment affirmed, with costs-Supervisors of Tompkins County, respondent, v. George H. Bristol and others, appellants.Order of General Term affirmed and judgment absolute ordered for the defendants on stipulation, with costs-Town of Ontario, appellant, v. Hezekiah Hill and others, respondents.-Order of General Term reversed and judgment absolute rendered for the respondents on stipulation, with costsBenjamin Gould, respondent, v. Cayuga County National Bank and others, appellants. Judgment af firmed, with costs-Addison Macullar and others, appellants, v. John W. McKinlay, respondent.-Judgment affirmed with costs-Isabella B. Clute, appellant, v. Adam Emerich.-Judgment affirmed with costsPeople ex rel. Carrie L. Van Deusen, appellant, v. George W. Drum and others, trustees, etc., respond. ents. Judgment affirmed with costs-John Rehberg, appellant, v. Mayor, etc., respondents. Judgment reversed, new trial granted, costs to abide event-El len Bullock, respondent, v. Mayor, etc., respondents,

-New trial ordered, costs to abide event-National Bank of Virginia, appellant, v. Robert A. Mills and others, respondents.- -New trial granted, costs to abide event- Benjamin P. Fairchild, appellant, v. Theresa Lynch.-Judgment affirmed with costs.Gustave Pantzur, respondent, v. Tiltz-Foster Manufacturing Company, appellant.-Judgment affirmed, with costs-Mary R. Husted, respondent, v. John H. Sweeney and others, appellants. Judgment affirmed with costs-Patrick Cowan, respondent, v. Hudson River Bridge Company, appellant.—Judgment affirmed, with costs-Charles W. Miller, respondent, v. N. Y. C. & H. R. R. Co., appellant.-Motion to dismiss appeal. Ordered that the appellants have leave to apply to General Term for the preparation and settlement of a case as required by section 1339 of the Code, etc., and that appellants pay $10 costs, in which case motion to dismiss is denied; if not it is granted, with costs-George Jackson and others, respondents, v. Horace D. Tupper and another, appellants.—Motion to dismiss appeal granted unless, within twenty days after the service of a copy of this order, appellant file the proper undertaking and proceeds to justification, if objected to, and pay $10 costs of motion; in such case motion denied-Clarence T. Sauford, respondent, v. Louisa C. Pollock, appellant.- -Motion to perfect appeal granted in payment of $10 costs; but if not paid within twenty days from entrance of this order, motion to dismiss appeal granted; otherwise dismissed-Edward D. McCarthy, respondent, v. Robert Bouynge, appellant.- Motion to vacate order granted without costs-Julia E. Blackman, respondent, v. Eliza Wheeler, appellant.-Motion denied, without costs-J. Smith McIntosh, appellant, v. State of New York, respondent.- -Order that remittitur be consolidated, and that it direct that on plaintiff's ap peal the judgment of General Term, so far as it reversed the judgment entered in referee's report, be modified by ordering a new trial, and as modified af firmed; and on defendant's appeal the judge of General Term, so far as it affirms the referee's report, be reversed and new trial granted, costs to abide eventDaniel R. Lyddy, appellant and respondent, v. Lilah Chamberlain, respondent aud appellant.

[ocr errors]

The Albany Law Journal.

ALBANY, JUNE 20, 1885.



TTENTION is called to a communication in another column on "The Law's Delays," criticising Judge Learned's article of that title in the North American Review. It is written by a jurist of distinguished experience and ability and of great eminence, whose opinions on the topic in question should command the same respect that his judicial opinions have long obtained. We do not however altogether agree with "Judex." He is unquestionably right about the methods of such arbitrary judges as Kenyon and Ellenborough, the latter of whom "went through the calendar like an elephant through a sugar plantation." To turn off " seventeen defended cases" in one day, unless they are intrinsically "short causes," is a monstrous perversion of justice. We do not agree with "Judex" that "most lawsuits are brought to a termination with all the speed any reasonable person could expect or desire," but we do agree with him that generally "when they are not, the judiciary is not to blame." The parties, and their counsel, one or both, are usually willing or even anxious to procrastinate. Especially is this true of referred causes, where great delays occur through the disposition of counsel to accommodate each other. We have no doubt that Lord Eldon's doubting habit was a curse to suitors in a great many instances, and yet it was justly said that his "tardy justice was better than the swift injustice of his Vice." Trial judges, in our opinion, are frequently not strict enough in compelling parties to trial, but we should be very loth to believe that this even proceeds from an indisposition to work. As to a desire to make precedents, we think, as we have said before, that Judge Learned is substantially right. Not that they do this purposely, perhaps, or consciously, but that it is the inevitable tendency of "judge-made law" to bend the judges toward making rules that will answer for other We once heard William A. Beach say with great indignation to Judge Hogeboom, "why, sir, there is no precedent for your honor's ruling." "Very well," drawled the great judge, with his inimitable sarcastic grin, "then we'll make one." Now if Mr. Beach had not reminded the judge of the manufacturing process, it would not have occurred to him that he was making a precedent, but he would have been doing so, nevertheless. But we chiefly disagree with "Judex" in the matter of long opinions. As a rule, we do not think that opinions in this State, especially in the Court of Appeals, are too long, and it is true, perhaps, that it takes longer to write a short opinion than a long one; but we do not accede to the necessity of telling the suitor all about the reasons, nor of satisfying him and his counsel that none of the points VOL. 31-No. 25.


have been overlooked. "Judex," in our opinion, labels this practice wrong. It really springs from the unconscious desire-if there can be such a thing of making a precedent that shall do for all like cases. Some things must be taken for granted of the judiciary. It must be presumed that they examine and consider all the points raised, without their certificate to that effect. It is no part of a judge's duty to convince parties or counsel. It is their duty simply to decide, adjudge, declare the law. Therefore we have always been opposed to the practice of reporting dissenting opinions. They are mischievous- a note of dissent is enough, if not too much. When Judge Learned speaks of disregarding errors when substantial justice has been done, he probably does not mean that appellate judges have that power, but that it would be well to confer it on them. But let all read the forcible and candid views of our correspondent, and not be in haste to decide a matter that divides such eminent judges as Judge Learned and "Judex."

[ocr errors]

Those who try to keep cool in this weather "by thinking on the frosty Caucasus," may find some comfort in reading a recent decision of the Iowa Supreme Court, that a fireman on a railway locomotive, injured in the act of "bucking snow," runs his own risks, and cannot hold the company responsible.

President Dwight's address to the graduating class of Columbia Law School is very interesting. We do not even object seriously to what he says about Codes. He says: "Having had considerable experience in the nurseries of the law, I confidently affirm that no legal infant can be named who has developed, by a mere law of his inner nature, a natural fondness for such a code." (Infants seldom know what is good for them.) He continues: "One code develops another quite unlike itself. The Field Code of my youth has given way to the a tiny pop-gun supThroop Code of my later life Into what the planted by a mighty cannon. Throop Code will develop I am straining my eyes

to see.

After all, one cannot help feeling a sincere sympathy for the ingenuous and earnest youth just from college, full of high hopes, and born, as he fondly imagines, to aid in reforming the world, just from the critical study of Homer, and an artistic analysis of the tragedies of Shakespeare, with the very freshest dew of Castalia on his lips, who is called upon in a down-town office to translate the New York Code of Procedure into lucid and intel

ligible English, and then to mark and inwardly digest it." We concur. Nobody ever heard us say any thing in favor of the style or dimensions of the Throop Code. But to forbid codification is not the way to cure bad codification.

An interesting communication in another column accounts for the inconsistency of Illinois decisions by the practice of assigning opinions to be written

by a single judge, and the absence of critical exam- shall look to see a bill introduced into the Vermont ination by the others, and denies that codification legislature next winter setting apart the 12th of would cure the difficulty. We do not see why not. June as a public holiday, and expect that Judge The trouble now comes, it is said, from ignorance Poland in August next will submit gratulatory resor forgetfulness of what some other judge has de-olutions for adoption by the American Bar Associ cided. Now if the law were reduced to rules, as- tion in honor of this marked triumph of one of its certainable by quick and easy reference, there late presidents. would be no such difficulty. Of course, we assume that the rule shall be explicitly and clearly laid down, and that the judge shall not be too indolent to hunt it up if he has any doubt.

There is no book more delightful for a lawyer's summer vacation than Mr. McMaster's "History of the People of the United States," the second volume of which has just been published. The author is undoubtedly an imitator of Macaulay's method and style, but he follows him closely and worthily. His work is a wonderful mosaic. His industry and research are wonderful. His list of petty and obscure authorities is an astonishing evidence of his patience. The result is a book as picturesque and interesting as a novel. We note a singular mistake on the first page of the current volume. The author states that Oglethorpe served with Peterborough in Italy; meaning Spain-the war of the Spanish succession, undoubtedly.


It will probably be necessary to fence Vermont in with a strong barrier, to prevent her from trespassing on her neighbors, so swollen with pride will she be to think that Minister Phelps had an ovation" in the House of Lords on the 12th instant. He appeared before that august body, and testified that between 1691 and 1830 a ceremony was not essential to a marriage in the State and colony of New York. We do not suppose that he means it to be understood that he lived here during all that period and speaks from knowledge, but that such is his opinion of the law. Others may have a different opinion, and think that the common law did not prevail here in the earlier colonial days. But it seems that "when Mr. Phelps arose to leave the Chamber, their lordships all rose and bowed deferentially to him, the American minister returning the greeting in a graceful and appropriate manner." It is a great thing to be "known and honored in the House of Lords," and it is touching to observe that these representatives of an effete civilization do not "forget the deference due" to the representative of this glorious country, any more than the victim forgot that due the executioner, in Mr. Gilbert's last opera. We flatter ourselves that when it comes to manners our new minister knows all about the politest observances, and will never, never trip over his own sword. But what was Mr. Phelps' "return" for the greeting? We are consumed with curiosity to know. Probably he had not his sword about him; otherwise he might have drawn and flourished it. Did he ask their lordships all out for "a modest quencher?" That would have been "graceful and appropriate." We



T is important to know that evidence that "the prosecuting witness will be twenty-one years old the first day of August next” after the trial justifies a finding that he was under twenty-one on Dolke v. State, 99 the 15th of November preceding. Ind. 229. The court observe: "But counsel say that evidence that the alleged minor will be twentyone years old next August is not conclusive that he was under twenty-one years of age at the time of the alleged sale, and they cite Meyer v. State, 50 Ind. 18, which seems to support their position. Upon the point now under consideration the case cited was criticised and condemned in the recent case of Ehlert v. State, 93 Ind. 76, and must now be regarded as overruled." In the Meyer case, the minor being Edward Gresh, the evidence showed that "( Gresh "" was nineteen; it was held that it did not show that he was a minor. The court said: "For any thing that appears in the evidence Gresh might have lived the age of Methuselah," because "it does not show he was older than that." But in the Ehlert case it was held sufficient that the evidence showed that the person in question was nineteen in August preceding the trial. The court said of the Meyer case: "What was said in that case in relation to the age of the party to whom the liquor was sold was not necessary to a decision of the case, and may therefore be regarded as a dictum. The statement there made, and the argument bere, are too refined and technical to commend themselves to our judgments. In this case the witnesses were asked to state the age of the party to whom the liquor was sold by appellant. It would be a straining of terms, and an unusual interpretation of the language, to hold that the answers left any reasonable doubt as to the young man's age." But see Arbintrode v. State, 67 Ind. 267; S. C., 33 Am. Rep. 86, holding that an allegation in an indictment of a sale of "one gill" does not necessarily imply less than a quart.

In State v. Wasson, 99 Ind. 261, it was held that under a statute requiring election tickets to be printed on plain white paper, but prescribing no quality or thickness, they may be printed on plain white paper of unusual thickness. The court said: "The object of the statute undoubtedly was to secure the privacy of the ballot. But if a voter uses a ballot which comes within the letter of the statute, his vote is not to be rejected because the quality or grade of the paper upon which it is printed differs from that of others, which also come within the

« AnteriorContinuar »