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adultery, and the glaring and abominable crime of polygamy, we should have more sympathy with them. But there has always been a class of the clergy who act upon the principle of the policeman who thwacks the unoffending small boy for the disorder of the adult whom he overlooks. Copies of the pamphlet may be obtained on application to Mr. Gale.

In responding at the Cutlers' Feast to a toast to the House of Lords, Lord Coleridge said, among other things: "I have not disguised - why should I disguise? — that I am of opinion, with thirteen years' experience of its working, and of the renewed flow of things that goes on all around us, that it cannot be expected that the House of Lords, any more than any other institution in this country, should be saved for ever from change and reconstruction. But I will be equally frank, and I would say that I do hope that it will be dealt with in the way of change and reconstruction, and not by way of abolition. In every free country, I believe I am sure in mostit is found necessary, or it is believed to be necessary, to have a second chamber in the legislative machinery of the State, and I am certain that in the English House of Lords there is the most admirable material for the reconstruction of the chamber. The English House of Lords never did want, and it does not now want, grand, commanding ability. A debate in which to go no further than four names a debate in which the Duke of Argyll, Lord Salisbury and Lord Selborne, and the Bishop of Peterborough mingled, is a thing, let me tell you, worth a man's while to go many miles to listen to; and we find that still to great men of all sorts, to great contractors, to great brewers, to great bankers, to great men of commerce, to great soldiers and sailors, and may, I say, excluding myself, great lawyers, not only to men who are remarkable for nothing but the number of acres and the quality of stock or consols they may own, the position of a seat in the House of Lords is still an object of ambition; and I would undertake to say, speaking with all reverence in presence of some of the foremost men in the House of Commons, that a man might now take up fifty men out of the House of Lords who, man for man, would be the equals in ability, with perhaps one enormous exception that will occur to every one, on whichever side of politics he may sit, absolute equals of any fifty men in the House of Commons. It is not in eloquence, it is not in learning and ability, it is not in knowledge, it is not in high character and noble ambition, nay, it is not in a certain sense in currency with affairs that the House of Lords is deficient. The House of Lords has lost its weight in the country, if it has lost it, from other causes, because, unfortunately, a vast majority of the peers never come near the House of Lords at all, and never take any part in its business; because those who do take part come there because they choose to come, and are responsible to no one but themselves, and it is im

possible, with all their ability, that they should not, to some extent, lose touch of the people, and get out of harmony with the times. But let this be altered. Let men sit in the House of Lords because some one thinks them fit to sit there; let them be sent there by some system of choice, some mode of election I do not say necessarily directly from the people, but speaking roughly and offhand, and I pray you remember, after dinner, by some such system as is so succesful in the American Senate, and I will venture to say that the English House of Lords would not be only the most ancient, the most venerable, the most illustrious body, but one of the most powerful and most popular legislative assemblics which the world has ever seen." But do abolish the House as a law court, in which regard it is of no credit to itself and no use to anybody else.

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IN

NOTES OF CASES.

N Collins v. South Boston Railroad Co., Massachusetts Supreme Court, July 3, 1886, the court gives a very intelligent summary of the doctrine respecting contributory negligence in infants. They say: "It was said in Lynch v. Smith, 104 Mass. 52; S. C., 6 Am. Rep. 188, that it does not necessarily follow, because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot recover. If the child, without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury.' But if the child does act in a manner which would be careless in a prudent person of mature years and ordinary intelligence, and the carelessness contributes to the injury, what is the test by which the conduct of the child is to

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the court would hold, as matter of law, that a girl
of that age was guilty of contributory negligence.
See O'Connor v. Boston & Lowell R. Co., 135 Mass.
352. In Messenger v. Dennie, 137 id. 197; S. C., 141 id.
335, the plaintiff was eight years and nine months
old, and the court held that there was no evidence
of due care on his part, and that he could not re-
cover, saying that 'his injury was the natural con-
sequence of his careless act.'
It would
seem that if children unreasonably, intelligently and
intentionally run into danger they shall take the
risks, and that children, as well as adults, should
use the prudence and discretion which persons of
their years ordinarily have, and that they cannot be
permitted with impunity to indulge in conduct
which they know, or ought to know, to be careless,
because children are often reckless and mischiev-
ous." See McGary v. Loomis, 63 N. Y. 104; S. C.,
20 Am. Rep. 510; note, 512; Plumley v. Brige, 124
Mass. 57; S. C., 26 Am. Rep. 645; Rockford, etc., R.
Co. v. Delaney, 82 III. 198; S. C., 25 Am. Rep. 308.

In Mc Cormick v. Township of Washington, Pennsylvania Supreme Court, March 8, 1886, the holding seems to us unreasonable. This was an action for damages, brought by the owner of a steam threshing machine against a township, the allegation being that the township had not kept in proper condition one of its bridges, the result of which was that whilst being transported over it the threshing machine and the horses pulling it were, because of the bridge giving away, precipitated into the stream

be tried, in determining whether it has exercised due care? Courts have held that up to a certain age, not very accurately defined, it must be conclusively presumed that a child has not sufficient intelligence and discretion to exercise due care under the circumstances, and in the place in which he is found, and that it is negligence on the part of the persons who have charge of him to permit him to go there unattended. If such a child has not acted as reasonable care would dictate, judged by the ordinary standards for adult persons, and this has contributed to the injury, and if the persons having the charge of such child have negligently permitted him to go there alone, both these facts constitute negligence, which will prevent him from maintaining an action. There is also an age within which courts have held that one child is conclusively presumed not to have sufficient intelligence and discretion to take charge of another who is younger, and that it is negligence on the part of the parents or guardians of such children to permit them to go together to places of danger, and if they do, and the children do not use reasonable care, and this has contributed to the injury, they cannot recover. Beyond these ages courts have left it to the jury to determine whether the parents or guardians were negligent in permitting a child to go alone to a place of danger, or in permitting him to go there in charge of another child, and if it is found that they were negligent then it has been left to the jury to determine whether the child or children reasonably exercised that degree of care of which they were capable, and it has been said that it is only necessary for them to exercise such capacity as they had.' The care which an adult person is bound to exercise is said to be the care which a person of ordinary intelligence and prudence must exercise, and it is determined by the amount of intelligence which he actually possesses, unless he is non compos mentis, and as the law, as far as is practicable, endeavors to establish general rules of conduct, it is probable that the more accurate statement of the law for children is the one usually made, namely, that a child is to be held to the exercise of that degree of care which may reasonably be expected of children of his age, or which children of his age ordinarily exercise. The court, with more or less hesitation in what it deems plain cases, according to common experience, has declared that the acts or conduct of an adult, under the circumstances, constituted, as matter of law, contributory negligence, and the question arises whether the court can make In Parker v. Remington, Rhode Island Supreme the same declaration concerning the acts or conduct Court, April 3, 1886, it was held that the acknowlof a child of tender age, who yet is so old that they edgment of a debt made to a stranger, and not cannot say, as matter of law, that he has not suffi- meant to be communicated to the creditor, will not cient discretion to be permitted to act on his own remove the bar of the statute of limitations. The judgment. We think it has been, in effect, decided court said: "The older cases, both English and that the same general principles govern courts in American, hold that an acknowledgment of a debt either case, although the degrees of care required to a stranger is as effectual to remove the bar of the are different. See Mattey v. Whittier Machine Co., statute as one made to the creditor, but the latter 140 Mass. 337. The plaintiff was six years and seven cases, both English and American, strongly mainmonths old at the time of the accident, and the tain that an acknowledgment to a mere stranger is opinion implies that there might be cases in which | ineffectual to remove the bar, unless it was intended

beneath. The verdict was for defendant. The court said: "A township is not required to assume that its bridges will be used in an unusual and extraordinary manner either as regards great speed or the passing of a very large and unusual weight. As it does not anticipate any such use it is not required to so build as to protect against injury resulting from such reckless conduct. Its liability stops with constructing and maintaining its bridges so as to protect against injury by a reasonable, proper and probable use thereof in view of the surrounding circumstances, such as the extent, kind and nature of the travel and business on the road, of which it forms a part." It does not seem unreasonable to assume that a bridge is strong enough to support a steam threshing machine moving about the country for the use of farmers.

to be communicated to the creditor, the reason be-
ing that otherwise no privity is established between
the parties in respect to the new promise. Wood
Lim., § 79, p. 193, note; 1 Smith Lead. Cas. 726;
Bloomfield v. Bloomfield, 7 Bradw. 261; Parker v.
Schuford, 76 N. C. 219; Backman v. Roller, 9 Baxt.
490; S. C., 40 Am. Rep. 97; Edwards v. Crilley, 4
H. & N. 377; Fuller v. Redman, 26 Beav. 614. We
have no reported decision upon this point in this
State. We think the latter cases rest upon the
better reason. 99
Contra, Stewart v. Garrett, ante, 279.
See note, 40 Am. Rep. 160.

COMMON WORDS AND PHRASES.

PECUNI

ECUNIARY ABILITY.—In Farnsworth v. Farnsworth, Rhode Island Supreme Court, August 2, 1886, the court said: "The fifth clause of section 2362, Revised Laws, relating to causes for which divorces may be granted, provides that a divorce may be decreed: 'On petition of the wife when the husband, being of sufficient pecuniary ability to provide suitable maintenance for her, without cause, grossly or wantonly and cruelly refused or neglected so to do.' The only question presented and discussed by counsel in this case is what constitutes 'pecuniary ability' in the sense in which the words are used in the clause of the statute above quoted. To entitle the wife to a decree of divorce under this clause of the statute it is essential that the husband should be shown to be possessed of sufficient money or other available property to provide a suitable maintenance for her, according to their rank and station in society, and that the husband, without cause, has grossly or wantonly and cruelly refused or neglected to appropriate it for her maintenance. The pecuniary ability mentioned in the statute clearly has reference to the possession by the husband of means in property to provide the necessary maintenance for the wife, and not to his capacity for acquiring such means by his own labor.

source the means are derived. If the actual avails of the husband's labor were sufficient to have enabled him to provide suitable maintenance for the wife, and he wantonly and cruelly neglected or refused to appropriate it for such purpose, it would constitute a cause of divorce within the meaning of the statute."

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DWELLING-HOUSE.-In State v. Clark, Missouri Supreme Court, June 21, 1886, it was held that an under-ground cellar, used for storing ice and beer, having no internal door of communication with the living-rooms in the upper stories of the same building, and not under the control and dominion of any occupant of the building, is not a "dwellinghouse," within the statute of larceny. The court said: "An eminent text-writer-1 Whart. Crim. Law (8th ed.), §§ 781-783, 787 - treating of burglary (a somewhat kindred crime) says that 'the breaking and entering, to constitute a burglary, must be ordinarily into the dwelling-house of another; that is to say, the house in which the occupier and his family usually reside, or in other words, dwell and lie in.' 'As an introduction to the cases hereafter to be given in detail, it may be now stated, generally, that no matter to what use an out-building may be put, it is burglary to break and enter it if it is appurtenant or auxiliary to the dwelling-house, and is within such convenient distance from the same as to make passing and repassing an ordinary household occurrence. The question is, is it probable that the building is under the immediate personal care of its owner? If so, in view of the peril to life consequent upon a nocturnal attack on it, the offense is one against family peace and safety, as well as against property, and consequently rises to burglary.' 'A dwellinghouse is deemed any permanent building in which a party may dwell and live, and as such burglary may be committed in it. A set of chambers in an inn of court or college is deemed a distinct dwelling-house for this purpose. So, even a loft over a stable, used for the abode of a coachman, which he It is not necessary that rents for his own use and that of his family, is a the husband's means should consist alone of lands place which may be burglariously broken.' Anand cattle, or some property in concrete shape, other other distinguished writer - Bish. St. Crimes (2d than money. It may consist of money wages, which ed.), § 242- says that 'the word 'dwelling-house,' the husband receives for his own labor, or money the meaning of which is fully explained further on, derived from any source, as well as land and cattle, includes, in the law of burglary, and generally in or any other property in concrete form. No refusal the law, a structure for business uses, whereof any or neglect of the husband to make provision for the internally connected room is occupied for sleeping support of the wife is a cause of divorce under this and abode.' The same author, in section 277, says clause of the statute, unless he had available prop- that 'the words 'dwelling-house' and 'mansionerty which he could have appropriated for that pur-house' are identical in legal writings, but 'house' is not quite the same. * * pose, and of such an amount as the county court, The latter is of on hearing the evidence, deemed sufficient to have meaning somewhat larger than the others, though enabled him to properly support his wife. the difference is not quite definable. already seen, the meanings of these terms may vary with the subject, and their connections with other words; but in general, they are stable in the criminal law. For example, in statutes against larceny from the dwelling-house the term 'dwelling-house has the same significance as in burglary.' In section 278 the same author uses this language: 'A

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It is not enough to show that the husband had health and capacity to acquire ample means for such support by his own labor. It must be distinctly shown that he actually had the requisite amount of money or other property during the period complained of for furnishing proper maintenance for the wife. It is not material from what

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'dwelling-house' is the apartment, building or cluster of buildings, in which a man with his family resides. To explain: one need not so construct his habitation that all its rooms will be under one roof; therefore the word 'dwelling-house' embraces the entire congregation of buildings, main and auxiliary, used for abode.' In section 280 this writer says that if one part of a building is used for abode it gives the character of dwelling-house to every other part to which there is an internal communication, even though, according to the authorities, generally occupied by another person for an entirely different purpose. * * * If there is no internal communication, the parts are to be considered as though they were distinct buildings.' The same author, in section 283, uses the further language: 'In reason, whether a man's abode consists of a cluster of separate buildings, or of separate rooms under one roof, the result is the same; and it is that the abode - the dwelling-house tends only to buildings and rooms used either directly for habitation or as auxiliary thereto, with this single exception: that where the walls of the dwelling inclosed other premises connected by an internal communication with the rooms lived in, such premises, if not the abode of another person, are, though occupied by another, parts of the dwelling-house with which they connect.' * * * It is quite clear therefore that the ice-house, beer-cellar or basement was not, in the language of the text-writers, under the immediate personal control of any of the dwellers above, and that being so, there was nothing to make passing and repassing from said ice-house to the building above, in the language of the text-writers, an ordinary household occurrence on the part of the dwellers above; and if that be so the peril to life consequent upon a nocturnal attack upon it, much less an attack in broad daylight, apprehended by the text-writers and adjudged cases, does not exist in the case at bar, and if so, there is nothing in the facts of the case, or the policy of the law, to make the offense in question, in the language of the books, one against family peace and safety, as well as against property; or in other words, to convert a case of simple petit larceny' into one of 'grand larceny,' within the purview of section 1309, supra."

BOND.-In Re Brown, Minnesota Supreme Court, June 25, 1886, the court said: "A recognizance,' | says Blackstone, 'is in most respects like another bond, the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo; the recognizance is an acknowledgment of a former debt upon the record. This being either certified to or taken by the officers of some court, is witnessed only by the record of that court, and not by the party's seal.' 2 Bl. Com. 341. Formerly a recognizance was allowed a priority, in point of payment, over a common obligation, and bound the lands of the cognizer from the time of enrollment or record. But in this State the difference between a recognizance and a common bond is now

largely one of mere form. Hence not merely in common speech, but also in statutes, the one or the other term is often used without strict regard to the technical distinction between the two. Thus the term 'recognizance' is commonly applied to all forms of security for the appearance of the accused in criminal proceedings, whether in the form of a common-law recognizance or of a common bond. So in the case of appeals from Probate Court to the District Court. In those taken under chapter 49 of

the statutes the appellant is required to file a ‘recognizance,' while in those taken under chapter 53 he is required to give a 'bond.' Again, the term 'bond' is not unfrequently used as a general term, including 'recognizance,' which is but one kind of bond. Thus Blackstone speaks of a recognizance as in most respects like another bond.'"

WANTON.-In State v. Brigman, 99 N. C. 889, the court said: "The sole question then is whether the shooting and killing the cow under the circumstances detailed, and for the purpose mentioned, is 'wanton and willful' within the contemplation of the statute, and more especially, was it 'wanton?' To be criminal the act must possess both qualities. It was certainly willful, for it was the development of a preconceived purpose, not an impulse of anger, excited by unexpectedly seeing a repetition of the annoying trespasses. But more is required to constitute the indictable offense. The act must not only be of purpose, but it must also be wanton. What does this qualifying adjective mean when applied to the killing? Wantonness is defined by Bouvier to be 'a licentious act of one man toward the person of another, without regard to his rights,' and licentiousness to be 'the doing what one pleases, without regard to the rights of others.' In Welch v. Durand, 36 Conn. 182; Butler, J., speaking for the court, says, 'wantonness is action without re gard to the rights of others.' Mr. Justice Willes declares that 'wantonly means not having a reasonable cause.' Clark v. Haggins, 103 E. C. L. 543. In Cobb v. Bennett, 75 Penn. St. 326, when the ac tion was for an injury done to a fishing net in the waters of the Delaware, in use by the plaintiff, Chief Justice Agnew uses this language: 'It is wantonness when a mariner, warned of the net, seeing the lights marking its position, and requested to avoid it, yet indifferent to the interests of the fisherman, keeps on his course, when a reasonable pursuit of his voyage would not be prejudiced by avoiding the net. Wantonness is reckless sport — willfully unrestrained action, running immoderately into excess. If a man will do an injury, when he may reasonably avoid doing so without inconvenience to himself, can he be said to be blameless?' This is, in our opinion, a fair exposition of the sense in which the word is used in the statute. The ille gal act is wanton when it is needless for any rightful purposewithout adequate legal provocationand manifests a reckless indifference to the interests and rights of others."

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DRAINAGE, SEWERAGE. - In Wetmore v. Fiske,

FOREIGN ADMINISTRATORS AND EXECUTORS.

II.

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tor of a creditor dying in another State, and becoming lawfully possessed, as part of his assets, of a bond given and secured by a mortgage upon lands in the State, is competent, as I should apprehend, to receive payment and give an acquittance without first resorting to the Court of Probate here. Can they not give a voluntary discharge of a mortgage without clothing themselves with the office of an executor or administrator under the judicial authority of this State? And is not the policy of the law sufficiently

answered when our courts refuse to lend their assistance to any authority not derived from our own laws touching the administration and distribution of assets? If the parties can transact their own business

according to their own agreement without asking the

Rhode Island Supreme Court, July, 1886, the court said: "While there has been no judicial construction of the words 'drainage' and 'sewerage,' and in many cases they may be and are synonymous, THE chancellor said: "An executor or administrayet, as they are used nowadays, they suggest to the mind a difference. Formerly the word 'sewer' was used for a fresh-water trench, compassed in on both sides with a bank; a small current or little river.' Callis, Sew. 80. So the statute of 25 Henry VIII, ch. 5, concerning commissions of sewers, was to remedy damage from the flowing surges and course of the sea in and upon marsh grounds,' also land waters and springs upon meadows, and other water-courses. More recently, however, and probably from the appropriation of the word in acts and ordinances to the common conduits for liquid filth, it is usually associated with such a use. Thus Webster defines 'sewer' a drain or passage to convey off water and filth underground.' For drain he gives a water-course; a sewer.' Kent speaks of the right of drain (vol. 3, p. 436) as a 'right to convey water in pipes through or over the estate of another.' In Goldthwait v. East Bridgewater, 5 Gray, 64, the court says: 'The words 'ditch' and 'drain' have no technical or exact meaning. They both may mean a hollow space in the ground, natural or artificial, where water is collected or passes of.' So in Queen v. Godmanchester, 5 Best & S. 886, a distinction is made between a drain and a sewer, but the distinction is based upon a statute. While we cannot say, as a matter of legal definition, that 'sewerage' may not, in some cases, be included in 'drainage,' yet when the simple term drainage 'is used, as appurtenant to lands, the most obvious suggestion is a drainage of water; and when, in addition, we find that a drain for water exists, and that no suitable provision is made for sewage from houses, which, if included, might result in a nuisance, we cannot think that an agreement for drainage, which did not include house drainage in its terms, could have been intended to cover it by necessary implication."

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IN THE VICINITY.- Etymologically and by common understanding, the phrase "in the vicinity' means in the neighborhood, and neighborhood, as applied to place, signifies nearness as opposed to remoteness. Whether a place is in the vicinity or in the neighborhood of another place depends upon no arbitrary rule of distance or topography. One village may be said to be "in the vicinity" of another village without being joined or incorporated with it, and one house may be said to be near, "in the vicinity" of, or in the neighborhood of another house, and not structurally adjoin it. Vicinity admits of a more indefinite and wider latitude in place than proximity or contiguity, and as applied to territory, may embrace a more extended space than that lying contiguous to the place in question, and as applied to towns and other territorial divisions, may embrace those not adjacent. Langley v. Barnstead, 63 N. II. 246.

aid of our courts, why may they not lawfully do it? * * * The bond was in Vermont and owned there, and was assets to be distributed there under the proper jurisdiction of the courts, the land here was held only by way of mortgage for the payment of the bond, and was but an incident to the bond. If a creditor of H. had sued out letters of administration in this State he would have had nothing to administer. He could not have touched the mortgaged premises, for they be longed to the plaintiff; and he could not have enforced the lien and collected the money due upon the bond, for that power was a right attached exclusively to the lawful possessor of the bond, who was in this instance the foreign administrator, and who was responsible there, and not here, for the due and faithful administration of the assets."

In Wilkins v. Ellett, when the case came before the Supreme Court the second time (108 U. S. 256), it appeared that the debt was paid in the domicile of the decedent, Tennessee. to an administrator who had been appointed in Alabama, and yet the court held the payment good as against an administrator subsequently appointed in Tennessee, although made by a debtor of the State in which the decedent was domiciled at the time of his death, there being no administration in that State at that time, and no creditors, legatees or next of kin therein. This decision upholds a payment made by a debtor to a foreign ancillary administrator, though a domiciliary administrator is subsequently appointed in the State in which the debtor lives, and makes the payment.

But in Klein v. French, 57 Miss. 662, the court made a distinction between payment to domiciliary and payment to ancillary representatives, holding that while payment to the former is always good if there is no representative at the time in the debtor's State, yet that payment to the latter is good only where the debtor lives in the same State. To same effect is Hatchett v. Berney, 65 Ala. 40.

There are cases in which a foreign administrator or executor can sue in his own name in another State. But in all these cases it will be seen that he sues, not in his representative capacity. but individually. After having recovered a judgment in his own jurisdiction on a claim in favor of the estate, he may sue on the judgment in any other jurisdiction whatsoever, without taking out letters there. Wilkin v. Ellett, 108 U. S. 256; Nichols v. Smith, 7 Hun; Talmage v. Chapel, 16 Mass. 69; Biddle v. Wilkins, 1 Pet. 688; Bright v. Currie, 5 Sandf. 437; Lawrence v. Lawrence, 3 Barb. Ch. 74; Rucks v. Taylor, 49 Miss. 552.

The reason for the rule is very clearly stated in Talmage v. Chapel: "The debt was due to him" (the plaintiff and administrator, who had recovered the judgment in the State in which he was appointed) "he

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