WEEKLY DIGEST OF RECENT CASES. 1 1. AGENCY-ACTS OF AGENT AS EVIDENCE AGAINST PRINCIPAL Whatever an agent says or does in the transaction of the business he is employed to perform may be given in evidence to affect his principal. But his declarations made after the expiration of such agency, or after the business in which be has engaged has been fully settled, can not be so used. United Brethren Mut. Aid Society v. McDermond, S. C. Pa., May 1, 1882, 12 W. N. C., 73. 2. AGENCY-CONTRACT-DISCLOSURE OF PRINCIPAL. The rule that, if an agent fails to bind his principal, he binds himself, does not prevail when the agent fully discloses his principal, the extent and limitations of his authority, and both he and the other party enter into the contract from which the agent is not expected to, and does not derive any benefit under the mutual mistake in regard to the authority of the agent. In such a case the agent is not liable. Snow v. Hix, S. C. Vt., February Term, Reporter's Advance Sheets. 3. AGENCY-Power of ATTORNEY - LIMITATIONS. A power of attorney authorizing the agent to sign the principal's name to any paper or papers, notes, etc., does not justify the signing of such documents for purposes outside of the principal's business. Camden Safe Deposit Co. v. Abbott, S. C. N. J., June, 1882, 5 N. J. L. J. 283. 4. ATTORNEY AND CLIENT — ATTORNEY'S PROMISE OF INDEMNITY TO OFFICER. There is no consideration for the promise of an attorney to indemnify a sheriff who had sold property on an execution, and turned the avails over to the attorney or his client, the execution ereditor. Snow v. Hix, S. C. Vt., February Term, 1882, Reporter's Advance Sheets. 5. COMMON CARRIER-BREACH OF CONTRACT OF CARRIAGE OF PASSENGERS-DAMAGES. A railroad passenger, wrongfully arrested and confined by the conductor for an alleged non-payment of the fare, can not recover in an action of contract for the indignity suffered, the mental pai endured, and sickness produced by his imprisonment. Such damages are not the natural and proximate consequences of the breach of contract; and if recoverable at all, it can be only by an action in tort. Murdock v. Boston, etc. R. Co., S. Jud. Ct. Mass., May, 1882, 14 Rep., 335. 6. COMMON CARRIER-DISCRIMINATION IN FREIGHT TARIFF. A railroad company has no right to discriminate, in the matter of freights, in favor of some and against other parties. An action in damages fies against the company so discriminating in favor of one who can show injury resulting from the wrongful act of discrimination. Hays v. Pennsylvania R. Co., U. S. C. C., N. D. Ohio, June, 1882, 15 Rep., 323. 7. CONSTITUTIONAL LAW- ADULTERY BETWEEN A NEGRO AND A WHITE PERSON. The fact that a different punishment is affixed to the offense of adultery when committed between a negro and a white person than when the guilty persons are of the same race, is not obnoxious to the Fourteenth Amendment to the Federal Constitution. The discrimination is not directed against the person of any particular color or race, but against the offense, and rests on sound public policy. Pace v. State, S. C. Ala., 6 Va. L. J., 509. 8. CONSTITUTIONAL LAW-CIVIL SERVICE REFORM -POLITICAL ASSESSMENTS. Act of Congress, prohibiting "all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate," from "requesting, giving to or receiving from any other officer or employee of the Government, any money or property or other thing of value for political purposes,' "' is constitutional. Defendant, in this case, was convicted under an indictment for violating the provisions of the act of Congress, of March 15, 18 6, and his motion for new trial denied. United States v. Curtis, U. S. C. C., S. D. N. Y., 4 Ky. L. J., 157. 9. CONTRACT GRAIN SPECULATION-BALANCE OF - ACCOUNT-GAMBLING. Defendant, a grain dealer in Cresco, Iowa, having a "regular" account with plaintiff, as a commission merchant of Milwaukee, employed the latter to buy and sell grain for him in form, for future delivery and account for profits, which latter transactions were kept separate on the books, and called in the correspondence of the parties "scalping, ," "deals," "options," "speculating deals,'' etc. This action is brought to recover a balance on such account against defendant. Held, tha such employment of plaintiff by defendant was a gambling transaction and their contracts gambling contracts within the definition and meaning of Barnard v. Backhaus, 52 Wis. 593. The instruction of the circuit judge that notwithstanding the original claim against defendant was void as a gambling transaction, yet there having been differences concerning the same, a compromise on a less sum became a valid and lawful claim against defendant, held erroneous. Held, that the only difference between the parties was as to which should bear the losses; that there was no difference as to the real amount of losses incurred or their validity: that where there is no difference between the parties as to the facts which make the claim valid or invalid, legal or illegal, there can be no basis of compromise on the question of its validity, but parties being presumed to know whether the claim is valid or not. Melchoir v. McCarty, 31 Wis. 252. Held, that the circuit court erred in withdrawing the case from the jury and ordering a verdict. Everingham v. Meighan, S. C. Wis., Sept. 19, 1882. 10. CRIMINAL LAW-HOMICIDE-SELF-DEFENSE BY VICTIM OF ATTEMPTed Rape. To justify the use of a deadly weapon by a female upon an attempt to rape, the circumstances must have been such as to induce her to reasonably believe that the felony was about to be committed, and that the use of the weapon was necessary to prevent its commission. People v. De Los Angeles, S. C. Cal., July, 1882, 14 Rep., 327. 11. EVIDENCE-ILLICIT CONNECTION CHARACTER. CHANGE OF A connection illicit in its origin will be presumed to retain that character until some change is established. Such change is often indicated by facts and circumstances, and may occur although the precise time or occasion cannot be clearly ascertained, and it is not imperative that the court should be able to say precisely when or exactly why it occurred. Badger v. Badger, N. Y. Ct. App., April 11, 1882; 1 N. Y. Cond. Rep. 365: 12. EXEMPTION-SALE FROM HUSBAND TO WIFEINCREASE OF LIVE STOCK. A man sold nine lambs, for a valuable consideration, to his wife; and his creditor afterwards attached seven of these and eleven others, the increase of the nine. Held, 1. That the sale was valid; that it vested a perfect title in the wife. 2. No change of possession was required; because the nine sheep were exempt, and the ownership of the young followed their dams. 3. If they were not exempt at the time of the sale, because the husband owned thirty others,they were when attached, and this would inure to the benefit of the wife. 4. As between the vendor and vendee the sale of the nine lambs was valid; hence, the vendor never was the owner of the increase of these nine, which was necessary in order to require a change of possession. Leavitt v. Jones, S. C. Vt., February Term, 1882. Reporters' advance sheets. 13. FALSE IMPRISONMENT-WORDS AND ARRAY OF FORCE." Where the county judge told the jury that false imprisonment is any unlawful restraint of a man's liberty, whether in a place made use of for imprisonment generally, or in one used only on the particular occasion, or by words and an array of forces without boits or bars in any locality whatever. Held, That admitting the definition of false imprisonment to be theoretically correct, yet as it includes acts which the defendant was not shown to have committed, the jury should have Been explicitly told what "words and array of force" would constitute false imprisonment; and that neglect so to do, may have confused or misled them and was error, Marshall v. Heller, S. C. Wis., Sept. 19, 1882. 14. INSURANCE APPLICATION - FALSEHOOD IN SERTED BY AGENT. Where the agent of an insurance company examines and inspects a building upon which the owner desires to effect a policy of insurance, and afterwards fills up an application, which he reads to the owner, and which is signed by him, such agent is to be regarded with respect to such application as the agent of the owner, and not of the company, and hence the company will not be estopped from setting up the falsehood of statements in the application as to the condition and use of the premises, as a defence to an action on a policy of insurance issued by it in pursuance of such application. Pottsville Mutual Fire Ins. Co. v. Fromm, S. C. Pa., May 29, 1882; 12 W. N. C., 69. 15. INSURANCE, FIRE-MORTGAGE-CHANGE OF TITLE. A mortgage upon personal property, made after issuing a policy of insurance thereon, but under which no possession has been taken by the mortgagee, the principal not being due at the time of the fire, is not per se such a "change of title," or "alienation" as avoids the policy, unless made so in clear terms. Judge v. Connecticut Fire Ins. Co., S. Jud. Ct. Mass., April, 1882, 14 Rep., 332. 16. INSURANCE, LIFE-AGENCY-NOTICE OF CHANGE OF RESIDEnce. A policy of insurance contained a provision that the same should be forfeited if the insured should fail to give notice to the secretary of the insurance company of any change in his residence. The insured did change his residence and notified the agent through whom he had obtained his policy and from whom he received his notices of assessment, and to whom he paid the same. After his removal he continued to receive like notices and to make like payments to the same agent. Held, that he had sufficiently complied with the provision of the policy requiring him to give notice of his change of residence, and that said policy was not in consequence forfeited. United Brethren Mut. Aid Society v. McDermond, S. C. Pa., May 1, 1882, 12 W. N. C., 73. It is not necessarily a defense to an action of libel that every act charged in the alleged libellous article might be done without the violation of any law. It is enough if the acts charged are such as are calculated to render the party in the judgment of his fellows infamous, odious or ridiculous. 2. While a lawyer may sometimes be justified in abandoning the cause of his client in the midst of a litigation, yet to do so unnecessarily and wantonly, and under such circumstances as to cause large additional expenses to the client, and especially when the litigation is brought on by following his advice, is unprofessional and dishonorable, and an article charging a lawyer with such conduct is libellous. Hetherington v. Sterry, S. C. Kan., Judge's Headnotes. 18. MARRIAGE- EVIDENCE TO PROVE COHABITATION AND REPUTE. Plaintiff returned home with a baby but with no husband, nor was one acknowledged. When the child was two or three years old plaintiff and B commenced living together as man and wife, keeping house, and continued to do so until his death. B also lived in another place with his sister, and was reputed to be a bachelor. There was no proof of a ceremonial marriage or any express agreement, but the proof was of cohabitation and general repute. Held, that the facts shown do not warrant a conclusion that the cohabitation was illicit in its origin. Evidence that B was reputed to be a bachelor, by persons who knew nothing of plaintiff or her cohabitation with B, is inadmissi ble, as it does not tend to explain such cohabitation or solve its character. A letter written by B and signed by plaintiff as his wife, eongratulating her nephew on his marriage, and saying, "We wish you much joy," etc., Held, admissible as part of the res gestæ, it being a joint act occur. ring during the cohabitation, and calculated to throw light upon its character. Badger v. Badger, N. Y. Ct. App., April 11, 1882, 1 N. Y. Cond. Rep. 365. 19. NEGLIGENCE, DAMAGE THROUGH FIRE-CONTRIBUTORY NEGLIGENCE. Damage, caused by fire through the negligence of one party, but increased through the negligence of the party suffering the loss, may be recovered up to the time when the contributory negligence began to affect the result, hence. there was error in the charge to the jury when it would be understood by them that if the plaintiff neglected to do what a prudent man would have done when be learned of the fire, it defeated his right of recov Plaintiff being at Weisbaden, Germany, and having a deposit in the Bank at Milwaukee, of $954, addressed to the cashier a letter with this request, "to remit the sum which may be due me upon my bank book by draft, or in such manner as you think is best, so that I can draw the money at Frankfort-on-the-Main." Defendant drew its bill of exchange on a bank at Frankfort for the amount payable at sight to the order of plaintiff, enclosed the same in a sealed envelope addressed to Mr. Phillip Jung, Weisbaden, Germany, Europe, and mailed the same. In due time the drawee in said bill returned it to the defendant endorsed paid." The bill, however, never came into possession of plaintiff, but was delivered by the postal officers at Weisbaden to another person named Phillip Jung, who endorsed the same and obtained the money thereon without the knowledge, consent or authority of plaintiff. Held, That the money was remitted to plaintiff in strict conformity to his written directions, viz., by "draft," and defendant was not required to use its discretion as to any other method of transmission. No negligence can be imputed to the defendant because it did not more clearly designate the person for whom the letter was intended. Defendant was authorized to adopt the address contained in plaintiff's letter to it. Jung v. Second Ward Savings' Bank, S. C. Wis. Sept. 19. 21. NEGOTIABLE PAPER-SIGNATURE BY AGENT— BURDEN OF PROOF OF BONA FIDES. The holder of a note signed by the agent under such a power with the principal's name for the purpose of raising money for the agent's own use, must show that he is a bona fide holder for value, before maturity, in order to recover against the principal. Camden Safe Deposit Co. v. Abbott, S. C. N. J. June, 1882; 5 N. J. L. J. 283. 22. PRACTICE-DEMURRER TO EVIDENCE-EFFECT. On petition for rehearing. The burden was upon the appellee to show that her son was not in fault-that his negligence did not contribute to his injury, and unless the testimony tended to show this, the demurrer to the evidence should have been sustained. For the purpose of determining whether there was any testimony tending to show the injured party free from fault, the court should consider all the evidence in the case. But, if there was any testimony tending to show an absence of contributory negligence, then the demurrer was rightly overruled, though other portions of the testimony tended to show with preponderating force the existence of such negligence. For, if there is conflicting evidence to be weighed and reconciled, it is the right of the parties to have this done by a jury, and neither party can deprive the other of this right by demurring to the evidence. There was evidence in this case legally tending to show that the injured party was not guilty of contributory negligence, and the demurrer to the evidence was properly overruled. Ietc. R. Co. v. McLin, S. C. Ind., Sept. 16, 1882. 23. RECEIVER-CONTRACTS- CONTROL OF CHAN CELLOR. 1. The receiver of a railroad corporation has no power. without the authority of the chancellor,to make a contract which will bind the trust. 2. All contracts made by the receiver of a railroad corporation are subject to the control of the chan cellor, and he may modify them or disregard them entirely as to him may seem best. Lehigh Coat Co. v. Cent. R. Co., N. J. Ch Ct., Aug., 1882, 5 N. J. L. J. 276. 24. TELEGRAM-FAILURE TO DELIVER IN TIME. Action by the appellees to recover the statutory penalty for failure to transmit a telegram in proper time. In such a complaint it is not necessary to charge bad faith on the part of the company. 62 Ind. 371; 49 Id. 53; 35 Id. 430. Although the statute provides a penalty, yet it is beneficial, generally, and is to be construed equitably. 13 Johns. 297; 5 N. Y, 562; 23 Ind. 377. The word 'transmit'' includes "deliver." The law means not merely that the message shall be started, but that it shall reach the person addressed. 62 Ind. 371. The facts in this case show that the person to whom the message was addressed lived in the suburbs of Frankfort, about three-fourths of a mile from the station, and, though she had been talking of changing her residence, had not done so. The messenger did not take the message to the place where she had been known to reside at all, and it did not reach her until twenty-twohours after the company's agent had received it. This evidence tended to support the finding. Western Union Tel. Co. v. Gougar, S. C. Ind., Sept. 16, 1882. 31. An execution is issued on June 15, returnable in sixty days; on July 31st it is levied on real estate; on Aug. 15 it is returned without sale, for want of sufficient time to advertise, this reason being indorsed on writ. On Aug. 23 a vendi. expon. is issued, directing such real estate to be sold, which was done by the sheriff without relevy or readvertising. Is the sale valid? Does a vendi. have to be issued before the return day of execution, or before it has expired? In this State a sale after return day is invalid. Waco, Tex. J. & K. 32. A passenger wishing to go from Boston to Fall River, boarded a train at the former city for Fall River, the train making no stops at any intermediate station. He had a proper ticket, and had no intention of evading his fare. When the train left Boston, the conductor demanded his fare, as he did of the other passengers; but he refused to pay it, on the ground that he was not entitled to be paid until the railroad 33. For the sale of real estate under the administration law of Arkansas, for payment of debts of deceased, the statute provides that the executor or administrator must apply to the Court of Probate by petition describing the lands to be sold, etc., and containing a true and just account of debts, etc., and if the court finds the personal estate insufficient to pay the debts, it shall direct the sale of such lands as are set forth in the petition, or so much thereof as will satisfy said debts. Under this statute, A, administrator, filed his petition to sell all the lands of B, deceased, for the payment of debts, and gives no other kind of description; doesn't even state where the lands lie. The court thereupon ordered the said administrator to sell all the lands of said deceased (no other description at all), and afterwards the record shows that said administrator had sold all the lands, etc., and the court doth therefore approve the sale. This is just as certain as the record is in the description of the land sought to be sold. Under it the administrator made a deed to over 400 acres, minutely described as having been ordered by the court. Now the questions are, could such an order authorize such a sale, and would a sale under such an indefinite description, and order of record be upheld? Would such a sale convey the title? Please cite authorities. Yellville, Ark. W. Query 19. [15 Cent. L. J. 139.] A. being indebted, executed to B, in 1875, in Missouri, his promissory note for $50, payable aix months after date. At that time A. was insolvent, and remained so until recently, when B called upon him for payment and threatened suit, stating, at the same time, that he had since destroyed the note under the supposition that it would never be worth anything. How can B collect his debt? Can he recover under sec. 2852 Rev. Stats. Mo., providing for the institution of suits on instruments lost or destroyed, or does his voluntary destruction of the note amount to a cancellation thereof? St. Louis, Mo. JAMBON. Answer No. 2. 2 Parsons on Notes & Bills, 293, says: "If the plaintiff have deliberately or voluntarily destroyed the note, it is said that secondary evidence is inadmissible, and he can not recover;"' and he cites 8 Johns. 149; 2 Green (N. J.), 178; Fisher v. Query 23. [15 Cent. L. J. 179.] TH M proeures insurance on his life, and causes policy to be made payable to his wife, A A M, and his children." At the time the policy is issued he has two children. Subsequently he has another child. He dies, leav ing his wife and three children surviving him. Has his last child any interest in the policy? What interest has his wife, A A M in it? Does she take one-half, or an interest equal to each of such of the children as take an interest? Or does she take a life estate, and the children an interest in remainder. Maysville, Ky. C. & 8 Answer. In the case supposed, the last child has a one-fourth interest in the policy. The wife has also a one-fourth interest absolutely. In all such eases where the widow and children are beneficiaries, the proportion not being pre-arranged, they take equal shares. Gould v. Emerson, 99 Mass. 154. Chicago, Ills. W. I. CULVER. Query 26. [15 Cent. L. J. 200.] Is there property in dogs under the laws of Missouri? Can a city council adopt an ordinance requiring the chief of police to "kill every dog he may find without a tag showing that the city tax has been paid?" Can property be destroyed, simply because the owner refuses or neglects to pay the taxes thereon? W. Answer. There seems to be a qualified property in dogs, insomuch that the owner may maintain an aetion for damages against one who kills or injures his dog (Rev. Stat. of Mo., sec. 2124; 27 Ala. 480), and at common law. Yet, although the common law reeognizes property in the dog, It has always been. esteemed a base property and entitled to less consideration and protection than property in other domestic animals." 81 Conn. 121. The legislature of a State has the power, as a means of internal police, to encourage the rearing of sheep; and with that object in view, may pass a law to discourage the keeping of dogs, by assessing a penalty upon the owner or keeper of the latter. 27 Ind. 62; 16 Wis. 298; Id. 566. AN property stands good for the taxes due on the same; and as most dogs are declared useless, and the purpose of a dog tax is not to provide a revenue for publis uses, but to discourage the keeping of dogs (27 Ind. 62; Id. 120), the only adequate remedy would seem to be to kill the dog in default of taxes, and thus further the ends of the law. A. P. B. Kansas City, Mo. Query 28. [15 Cent. L. J. 200.] A having an execution against B for $3,000, caused it to be levi d on three separate parcels of real estate belonging to B, worth about that sum, and advertised the same for sale in one lot. B requested both A and the sheriff to sell the three parcels separately, which they refused to do, and the property was sold by the sheriff in one lot to A for $1,000. Shortly afterwards A resold the property for more than $3,000. B having died, A now sues his administrator for the balance of $2,000, which he claims to be still due on his execution. Can the administrator maintain a bill in equity to restrain the suit, claiming that A has been already paid out of the proceeds of the real estate, and that the three parcels would have brought enough at the sheriff's sale to satisfy the execution if they had been sold separately as requested? Cite authorities. H. Answer. The administrator can not maintain such a bill. The debtor's only remedy was to have the sale set aside. 2 Cow. (N. Y.) 139; 19 Ind. 233. This he has lost, I take it, by acquiesence and lapse of time. If he, after requesting the sheriff to sell the lots separately, stood by and let the lots be sold in a lump, he can not afterwards be heard to complain. 10 La. Ann. 725. The sheriff's deed to the purchaser was not vold but voidable, and passed the title to the purchaser. 7 Dana (Ky.) 506. Hence A has a good title, if not voided in proper time by action to set aside. It is no one's business how much he sold it for, and he may maintain his action against the administrator of B for the balance due on his claim. Kansas City, Mo. RECENT LEGAL LITERATURE. B. LEADING CASES SIMPLIFIED. A Collection of the Leading Cases of the Common Law. By John D. Lawson. St. Louis, 1882: F. H. Thomas & Co. This book, which is intended primarily for students, has, as stated in the preface, a two-fold object: 1. To give the student a collection of acknowledged leading cases of the common law; and, 2. To present these in a style which shall arrest his attention, render it possible for him to acquire their principles readily, and fix those principles in his mind unincumbered by unimportant and sometimes unintelligible facts. The great bulk of the work, being thirteen of the sixteen parts into which it is divided, is devoted to the law of contracts in some of its numerous departments, apportioned as follows: I., Formation of Contract; II., Consideration; III., Parties; IV., Statute of Frauds; V., Written Contracts and Oral Evidence; VI., Illegal Contracts; VII., Performance of Contracts; VIII., Sales; IX., Principal and Agent; X., Negotiable Paper; XI., Landlord and Tenant; XII., Insurance; XIII., Bailments; Parts XIV. and XV. are devoted respectively to Negligence and Miscellaneous Torts; and XVI. to Evidence, etc. The cases, which are over two hundred in number, are really leading cases, and are carefully selected. Of course the experienced lawyer will find some among them, especially of the older cases, which have been somewhat modified by more recent adjudications, but the cardinal principle of the law which it is intended in these pages to illustrate, will generally, we fancy, be found to be intact. In many instances, where there are adjudications at variance with the doctrine of the principal case, the fact is noted in convenient foot notes. While the book is intended for the student, still, the practitioner will find it useful as a review of general principles, and an entertaining relaxation. We venture to say that he will be not a little astonished, sometimes. to see how queerly simple some of his old friends look, when stripped of professional wig and gown. ELEMENTS OF THE LAWS, or Outlines of the System of Civil and Criminal Laws in force in the United States, and in the Several States of the Union. Designed as a Text Book and for General Use, and to Enable any one to Acquire a Competent Knowledge of his Legal Rights and Privileges in all the Most Important Political and Business Relations of the Citizens of the Country; with the Principles upon which they are founded, and the means of asserting them in Civil and Criminal Cases. By Thomas L. Smith, Late one of the Judges of the Supreme Court of the State of Indiana. New and Revised Edition. Philadelphia, 1882: J. B. Lippincott & Co. We doubt whether any lawyer ever picks up a law book intended for the use of the laity, without a quiet grin of satisfaction. Unless his experience is indeed limited, he knows well that few individual peculiarities are more prolific of obstinate and lucrative litigation, than the bumptious and opinionated idea on the part of a layman, which is fathered by such works, that he is sufficiently equipped with knowledge of the law to act as his own legal adviser, and save himself the expense of a fee. The existence, however, of such quackeries as books which undertake to teach the laymen all the law, should not blind us to the existence of a legitimate field for books upon legal topics specially addressed to laymen, and this is the acquisition of an appreciation of the general principles upon which are founded the system of laws of the country in which he lives. This, we take it, is an undertaking practicable for any person of general intelligence and moderate leisure. Such an acquisition, too, is well worthy the time and labor required, not, indeed, for the lawyers fees which it will save, but for the breadth of view which is thereby imparted. Such knowledge, of course, is extremely partial, and in case its possessor attempts to make a practical use of it, he is very apt to be led into error. The application of the general principles to the facts of the specific instance, is a fatal marsh in which such explorers almost invariably sink. It is a good deal as if one who had learned the name and shape and location of the bones of the human skeleton, should usurp the office of surgeon, and undertake to set a compound and comminuted fracture of the thigh bone. For the limited purpose indicated the volume before us is specially adapted, and seems to have been very carefully and conscientiously compiled, with a thorough appreciation on the part of its author of the division line between matters of technical and general interest. The book is fairly printed, and bound in the style usual with school textbooks. LEGAL EXTRACTS. COMMUNICATION BETWEEN SOLICITOR AND CLIENT IN PRESESENCE OF A THIRD PERSON. The doctrine that professional communications made to legal advisers are confidential and priv |