complishments justly entitle you to receive.

Very truly yours,

EBEN. W. KIMBALL, Secretary,

A large meeting composed of the Little Rock Bar Association, and several distinguished members of the legal profession from other parts of the State, now attending court at the capital, was held on Saturday morning, June 14, 1879, at the Supreme Court room, for the purpose of taking some appropriate action in relation to the resignation by Hon. John F. Dillon of the office of United States Circuit Judge for this judicial circuit.

Upon motion of Hon. Henry C. Caldwell, Judge of

the United States District Court for the Eastern District of Arkansas, Hon. E. H. English, Chief Justice of the Supreme Court of the State, was elected president of the meeting, and Eben. W. Kimball, Esq., Secretary.

The Chief Justice, upon taking the chair, cordially thanked the meeting for the honor conferred upon him on the occasion. He then briefly stated the object of the meeting, and said that he, in common with the whole bar of the State, exceedingly regretted that Judge Dillon felt constrained to resign his present position on the bench which he had so long, so acceptably and so honorably filled, and where he had won a nationa! reputation; that Judge Dillon was a man of pure and exalted character, a judge of extraordinary attainments, application and legal knowledge, and one whom the people of the West and of Arkansas were loath to see retire from the judiciary. But, he said, while he now leaves the bench, he will not be lost to the profession, for in his new vocation-a position which would do honor to any lawyer-he would not only be able to instruct the young men of the country in the science of the law, but also to write law books for the use of the profession generally, a work for which no one seemed better fitted than Judge Dillon. The Chief Justice spoke very feelingly and eloquently of the high character and great services of Judge Dillon, and was listened to with marked delight and approval.

Upon motion of the Hon. U. M. Rose, the Chair appointed a committee of three to draft resolutions properly expressing the sentiments of the bar of Arkansas, in relation to the resignation of Judge Dillon. The committee consisted of Judge U. M. Rose, Judge T. D. W. Yonley and Col. R. A. Howard.

After deliberation, the committee reported the following resolutions. Before reading them, the chairman, Judge Rose, read to the meeting the following interesting extract of a letter recently received by him from Judge Dillon:

DEAR JUDGE:

LEAVENWORTH, KAS., June 8, 1879.

Your letter of the 24th ult. has followed me around the circuit and found me here. It anticipated an event which became a fact accomplished before it was received. I could easily perceive all the probable advantages of the offered exchange of places, the lightened labor, the increased compensation and opportunities for professional gains or distinction, if, happily, I had the ability to achieve the latter; and yet I hesitated long in reaching a resolution.

I hope I have decided wisely. It cost me a painful struggle to consent to leave the friends and associations of a life-time, and particularly the bar of the circuit, to whom I feel so much indebted and so warmly attached.

My thoughts.and reflections are tinctured with sadness whenever I think that I have severed the ties which connect me with the circuit, and go to new duties in a strange place and among unfamiliar faces.

If my health remains to me I shall try to demon

Resolved, That having been advised of the resigna

tion by Hon. John F. Dillon of his position as judge

of this circuit, we are impressed with a feeling of regret and desire to convey to him in a respectful manner our sincere admiration for the great learning, impartiality and uprightness displayed by him while on the Federal bench, the soundness and accuracy of his opinions, and his uniform kindness and courtesy to the bar; for a consistent administration of justice that has shed a lustre on the science of law, and has in many ways conduced to its clearness and purification.

Resolved, That as Judge Dillon retires to another field of labor we trust that he may find in it a wider usefulness and some diminution of the arduous toil that has marked his judicial life, and which seemed to test the limits of physical and mental endurance; and we beg leave to assure him that he carries with him our best wishes for an easier and a long and prosperous life, during which he may by his investigations add to his valuable contributions to legal learning which have already made his name a household word with the bar and courts of the country.

Resolved, That the secretary of this meeting be requested to forward to Judge Dillon a copy of these resolutions.

The resolutions received the hearty and earnest approval of the entire meeting, and upon motion of Hon. M. W. Benjamin were unanimously adopted. Upon motion of Gen. R. C. Newton, Judge Rose was requested to furnish the meeting with a copy of the abstract of Judge Dillon's letter, just read by him, and the same was made a part of its proceeding-. It was moved by Hon. John McClure, and carried, that the secretary of this meeting be requested to furnish the papers of the city with a copy of its resolutions and other proceedings for publication. Upon motion of Judge Yonley, the secretary was requested to present to the United States Circuit Court for this District a copy of the proceedings of this meeting, with the request that they be spread upon the records of that court.

Upon motion of Sam'l R. Allen, Esq., the meeting then adjourned. EBEN. W. KIMBALL, Secretary.

UNITED STATES CIRCUIT COURT,

EIGHTH JUDICIAL CIRCUIT, CHAMBERS.

DAVENPORT, IA., July 9, 1879. My Dear Sir-I have the honor to acknowledge the receipt of the proceedings of the bar of Little Rock, relative to my retirement from the bench. I am deeply sensible of the debt I owe to the bar of your State, and I fully prize this expression of their regard and friendship. I am grateful for it. It places me under a perpetual obligation. I part from them with unaffected regret. They have a sunny spot in my heart and a cherished place in my memory. I beg you to accept, personally, my warm thanks for your kind expressions and well wishes. I am, very truly, sincerely yours,

JOHN F. DILLON. Hon. Eben. W. Kimball, Secretary, etc., Little Rock.

BOOK NOTICES.

REPORTS OF CASES DETERMINED IN THE SUPREME Court of the State of California, at the January, July, October Terms, 1877, and the January Term, 1878. CHAS. A. TUTTLE and G. J. CARPENTER, Reporters. Vol. 52. San Francisco: A. L. Bancroft & Co. 1879. A volume of little more than seven hundred pages sufficient to contain the decisions of the Supreme Court of California during five terms, shows that, in that State, somebody has a discretion as to what shall be published and what not. The result is a book which contains little that will not be of frequent use to the bar, and illustrates the absurdity of a contrary system, such as, in other States, compels the profession to pay for what they do not want.

We note the following as of general importance and interest: The candidate for an office who does not receive a majority or a plurality of the votes, is not elected, because the opposing candidate who did receive a majority or plurality of the votes was ineligible: Crawford v. Dunbar, p, 37. When contributory negligence is a question of law, and when one of fact: Fernandes v. Sacramento City R. Co., p. 45. (This case is reported in full and annotated in 4 Cent, L. J. 82.) A railroad company has power, upon a sufficient consideration, to guarantee the payment of the bonds of another company: Low v. Central Pacific R. Co., p. 53. Proof that a tax was paid under a written protest before it became delinquent, and before threats were made to sell property for its collection, is not proof that it was paid under duress: Bank of Woodland v. Webber, p. 73. But a tax paid under protest after the delinquent list comes out of the hand of the tax-collector for collection by sale of the property, is paid under duress: Smith v. Farrelly, p. 77. A legislature has no power to compel a city to pay a claim made against it which it is under no obligation to pay: Hoagland v. City of Sacramento, p. 142. An action will not lie against the sureties on a bond of a guardian until his accounts have been settled by the probate court: Graff v. Mesmer, p. 636. If a deed of trust leaves an interest in the trust property in the grantor, such interest may be sold on an execution: Kennedy v. Nunan, p. 326. B & C, having had a quarrel with A, is approached by A. B commands him to halt or he will shoot him, and C thereupon shoots and kills A. Held, that the circumstances do not import a common criminal intent between B & C to kill A, so as to make B guilty. People v. Leith, p. 251. The cases are excellently reported, the syllabi deserving of special remark for their conciseness. The rules of the Supreme Court, as well as a list of attorneys admitted since the publication of the last volume, are given in an appendix. The publisher's work is likewise excellent.

QUERIES AND ANSWERS.

[The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

The following queries received during the past week are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able.

QUERIES.

17. COVENANTS JOINT AND SEVERAL.-Suit is instituted against A & B, under a covenant against in

cumbrances in an ordinary warranty deed. No words of severalty in the deed. A answers. B is in default. If judgment by default be taken against B, will A thereby be released? L.

18. EXEMPTION-COUNTERCLAIM.-Under the Code of Iowa, section 3074, the personal earnings of a head of a family, at any time within ninety days next preceding the levy, are exempt from execution. A, the head of a family, performs labor for B, and within ninety days thereafter brings an action to recover for the same. At the time the services are rendered, A is indebted to B, can B set up his claim against A as a counterclaim? Can a counterclaim be pleaded in any case where the action is to recover for property or labor that is exempt from execution? M.

The language of the statute is, "One horse, unless a horse," (that is, another horse) "is exempt as hereinafter provided." Now here is an absolute exemption to all heads of families, unless the person is also claiming under the provision referred to as being thereinafter contained, which provision is that a certain class of persons named therein may hold two horses exempt, provided "they habitually earn their living by the use of the same;" and the burden of showing such use is upon the party claiming the benefit of the proviso. 27 Ia. 379. It will be observed that the only condition attached to the first named provision is that a horse shall not also be exempt under the second; while the grammatical construction of the statute will not allow the proviso of the second clause to be attached to the first. Hence, I answer the question in the affirmative. M.

No. 10.

[9 Cent. L. J. 99.]

The first payment fell due March 13, 1878, and the payments indorsed upon the note furnish a strong if not conclusive presumption that the makers so un'derstood it. The payment of $200, March 13, 1878, left $800 due upon the note; and the payment of $100, April 18, 1878, left $700 due upon the note. By the terms of the note, another $100 was due on the 13th May, 1878, and, not being paid, carried interest at ten per cent. per annum until paid; and, on the 13th June, 1878, another $100 became due, and, if not paid, carried interest at ten per cent. per annum until paid, and so

on monthly, on the 13th of every month until the 13th of November, 1878, when the last $100 became due, and if the same was not paid then, it must carry interest from that time at ten per cent. per annum until paid. St. Louis, Mo. J. T. C.

No. 11.

[9 Cent. L. J. 99.]

A promissory note, by the terms of itself, always imports a consideration. Moreover, the only question in the case seems to be in regard to the sufficiency of the consideration of the note given by A to B. As the error in payment was a mistake of fact, C would have had a good ground of action against A for the money had and received, to the extent of the ten dollars over payment. In accordance with the agreement made between the parties, the giving of the note for ten dollars to B by A, extinguished the claim of C against A, and therefore this extinguishment of C's claim against A would operate as a good and valid consideration for the note given by A to B. Therefore, it seems that B's plea of no consideration in A's note would be no defense to the action, and C would be entitled to recover. H. W. A.

No. 11,

[9 Cent. L. J. 99.]

C. having, through mistake, made an overpayment of $10 to A. for the note, could have recovered it back in an action of assumpsit against A. Moses v. McFarland, 2 Burr. 1005. It does not lie in the mouth of B. to say that the $10 note which A gave him was without consideration; nor does it lie in the mouth of A. to say 80. B.'s agreement to pay C. the $10 was a sufficient consideration for A.'s $10 note to B., and A.'s $10 note to B. was a sufficient consideration for B.'s agreement to pay C. the $10 which A. owes C., and the latter can recover the $10 from B. upon B.'s agreement to pay it, provided that he (C.) assented to the agreement, and thereupon released A. from liability to pay him the $10. 4 Barn. & C. 163; 1 Mees. & W. Exch 124; 11 Ill. 34; 4 La. Ann. 281; 15 N. H. 128; 5 Barn. & Ad. 925; 3 Nott & McC. So. C. 171; 15 Mees. & W. Exch. 23. See 1 Ad. & E. 106; 2 Camp. 383; 1 La. 410; 1 Exch. 601; 24 Conn. 621; and see Scott N. P. 938. St. Louis, Mo.

No. 12.

[9 Cent. L. J.99.]

M. THOMPSON.

It has been thought that a judgment against one joint maker, will be no bar to a joint suit against both makers. Sheehy v. Mandeville, 6 Cranch. 253; Higgin's, 6 Co. 45; 46a. But this is questioned in Ward v. Johnson, 13 Mass. 148; Robertson v. Smith, 18 Johns. 458; United States v. Cushman, 2 Sumn. 426, 438, 439. In King v. Hoare, 8 Jur. (Eng.) 1127, 13 M. & W. 494, the Court of Exchequer held the judgment against one joint contractor to be a bar to a suit against the other. See also Lechmen v. Fletcher, 1 Cromp. & Mees. 623; Liddell v. Ratcliff, 1 Mood. & Rob. 263; Dyke v. Mercer, 2 Shower, 395. It has also been thought that a judgment against one joint maker will be no bar to a several suit against the other maker. King v. Hoare, supra; Porter v. Ingraham, 10 Mass. 88, 90. The holder may sue all or any of the parties to a note, at his option. 1853, Paige v. Snow, 18 Mo. 126. All contracts which, by the common law, are joint only, shall be construed to be joint and several. 1 Wag. (Mo.) Stat., p. 269, sec. 1 and note (1), and authorities there cited. St. Louis. M. THOMPSON.

No. 14.

[9 Cent. L J. 120.]

The receipt of M P, to his father, J P, is of no binding obligation. The estate of a deceased person must

pass, either by devise or descent, and the operation of the laws of Ohio, in this respect, can not be defeated by any kind of executory contract made to control the distribution of a man's estate after his decease. 7 O. S. 432. Title to real estate, by deed, does not vest in the grantee until delivery. JP retained possession of the deeds until his death, having given certain directions in regard to them; but directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity unless made through the medium of a last will and testament. 16 O. S. 586. Hence, upon the death of JP, his property descended to his heirs, and must be distributed according to the statutes of descent, subject to be modified, in the granddaughter's case, by the statute regulating advancements. Jackson, O. M. & A.

NOTES.

THE EXECUTIVE COMMITTEE of the Illinois State Bar Association will meet at the Leland Hotel in Springfield, September 10th. Important business will be considered by the committee, and a full attendance is desired. The President of the English Divorce Court, in addressing the jury in a recent case, said: "It is a very remarkable thing, and I daresay you have heard it observed before, that the vast majority of criminal cases arise in some way or other out of drunkenness. I observe in this court also, on one side and the other, divorce causes as well as probate causes, that the litigation arises, directly or indirectly, out of drink."

If any of our readers are as much addicted to novel reading as some of the ablest judges who ever adorned the Bench have been, they may remember to have read in Charles Reade's "Jack of All Trades" (a story which, we believe, was strictly founded on fact) a very bad character of the full-grown elephant, as the "cunningest, most treacherous, and blood-thirsty beast that ever played the butcher among mankind.", Babyelephants, however, appear to possess more genial dispositions. A baby-elephant under ten years old-they grow till they are 43, and live to 100 or 150-may even be induced to appear as a witness in a court of justice, and submit to cross-examination without losing his temper. Thurman v. Bertram and Roberts, heard before Pollock, B., and a jury on the 8th inst., is a case in point. The action was brought by a young lady to recover damages for personal injuries, received through the alleged negligence of the defendants' servants. She had gone in a wagonette to the Alexandra Palace, where the Nubian encampment, with camels, elephants, etc., was then attracting crowds; and at the conclusion of the performance a certain quadruped, to wit, a baby-elephant, came out with his keeper, and frightened the plaintiff's pony. The pony bolted, and the plaintiff was thrown out of the wagonette, and fractured her collar-bone. Mr. Salter, for the defense, intimated that the elephant himself had no objection to get into the witness-box; and Baron Pollock observed, obiter, that if so it was very desirable that the court should improve the occasion. The baby accordingly walked in with bells on his head, and treaded his way through the "mazes of the law," in a body of a crowded court, without so much as crushing a Q. C. or munching two or three juniors. Jones, for the plaintiff had no questions to ask. An arrangement was come to. A juror was withdrawn. And Pollock, B., held that this happy ending was highly proper, as the elephant had come to offer his apology in person. -Irish Law Times.

The Central Law Journal.

SAINT LOUIS, AUGUST 22, 1879.

CURRENT TOPICS.

sult of the election had been declared, to treat the proceedings already had as irregular and invalid, and to vote anew. The petitioner, therefore, acquired no right to the office. State v. Foster, 2 Halst. 101."

In Baker v. Cushman, decided in the Supreme Judicial Court of Massashusetts at its last term, it was held that where a convention of a city council, assembled for the purpose of electing city officers, proceeds to ballot for the choice of an officer, and a greater number of votes is cast than the number of members present and voting, it is within the lawful power of the convention, at the same meeting and before the result of the election has been declared, to treat the proceedings already had as irregular and invalid, and to vote anew. The case arose on a petition for a writ of mandamus to compel the delivery of the official papers and seal to the petitioner. The record of the city council, was as follows: "Upon motion a ballot was taken for city clerk. The whole number of votes cast was thirty-two (32). William S. Baker had seventeen (17), Laurens N. Francis had one (1), James M. Cushman had fourteen (14). The whole number of votes cast being thirtytwo (32), and the number of qualified members being only thirty one (31), the vote was declared void, and the convention proceeded to ballot again, with the following result: Whole number of ballots thirty-one (31). William S. Baker had fourteen (14), James M. Cushman had seventeen (17) and was declared elected. Upon motion, the convention dissolved." GRAY, C. J., who delivered the opinion of the court, said: "Whether we look to the record only, or to the facts found by the judge before whom this petition was heard, it does not appear that there was a complete election of the petitioner to the office of city clerk; but it does appear that the vote by which he appeared to be elected was immediately declared void, and the convention at once proceeded to another vote, in which all the members took part, resulting in the election of the respondent, and that he was accordingly declared to be elected. It was within the lawful power of the convention, at the same meeting and before the reVol. 9-No. 8.

are

Bills of lading, properly indorsed, symbols of the property covered by them, serving all the purposes of actual possession, and so remain until there is a valid and com

plete delivery of the property to some person entitled to the possession under the bills of lading. In the recent case of Heiskell v. Farmers and Mechanics National Bank, 7 W. N. 249, a quantity of cotton was shipped from Galveston to Philadelphia via New York, and the bills of lading therefor, in the name of A., properly indorsed, forwarded together with drafts on the purchaser for the price of the cotton, to a bank in Philadelphia for collection. with directions to hold the bills of lading until payment of the drafts, this being in accord

ance with the terms of the sale. The cotton was reshipped from New York, new bills of lading being issued in a new name, and was delivered at Philadelphia by the carrier (the original bills of lading remaining in possession of the bank), to the purchaser in this city, who obtained from B. an advance of $10,000 thereon. In replevin by the bank against B., it was held by the Supreme Court of Pennsylvania that the delivery. was unauthorized, and that the bank was entitled to recover, See, also, Dows v. National Exchange Bank, 1 Otto, 618; Stollenwerck v. Thatcher, 115 Mass. 224; Alderman v. Eastern Railroad, Id. 233; Meyerstein v. Barber, L. R. 2 C. P. 661; Tarner v. Trustees, etc., 6 Exch. 543; Jenkyns v. Brown, 14 Q. B. 496; Henry v. Warehouse Co., 31 P. F. Smith, 76; Benjamin on Sales, §§ 381, 382, and note. In Meyerstein v. Barber, advances had been made on cotton shipped from Madras to London, and bills of lading delivered to secure the lender. It was there said by Chief Justice Erle: "If it were established that a bill of lading— one of the most frequent securities for advances amongst mercantile men-becomes exhausted and ceases to be a security when the ship has reached her destination, and the goods which it represents have been landed and warehoused, what a wide door would be opened for fraud! It is scarcely possible to exaggerat

the evil consequences which would be likely to flow from such a doctrine. There is no authority for it." In a concurring opinion it is said: "There can be no complete delivery of the goods under a bill of lading until they come into the hands of some person who has a right to the possession under it."

The case of Ho Ah Kow v. Nunan, recently decided by Mr. Justice FIELD, in the United States Circuit Court for the District of California, has attracted much attention throughout the country, and would seem to have placed another barrier in the way of legislation against-on the Pacific coast at leasta very unwelcome class of immigrants. Though a Chinamen is not a citizen, and can not be, (In re. Ah Yup, 6 Cent. L. J. 38) there are still it seems some rights of his which States and legislators are bound to respect. In the case at bar, the plaintiff sued the defendant for trespass, the trespass consisting in having cut off the queue of the plaintiff, a queue being worn by all Chinamen, and its deprivation being regarded by them as degrading, and as entailing future suffering. The defendant pleaded that he was the sheriff of the city and county of San Francisco, and that the act referred to had been done by him while the plaintiff (who had been committed for five days in default of a fine of $10) was confined in the county jail under authority of a city ordinance, which declared that every male person imprisoned in the county jail, under the judgment of any court having jurisdiction in criminal cases in the city and county, shall, immediately upon his arrival at the jail, have the hair of his head cut or clipped to a uniform length of one inch from the scalp thereof," and it is made the duty of the sheriff to have this provision enforced. plaintiff then denied the validity of the ordinance, first, because it exceeded the power of the county authorities to pass such a law; and second, because it was unconstitutional as inflicting a cruel and unusual punishment on one class of persons alone. Mr. Justice FIELD held that both positions were well taken. On the first he said:

The

"No one would pretend that the board of supervisors could, for any breach of a municipal regulation, or any violation of the consolidation act, declare that a man should be deprived of his right to vote, or to tes

tify, or to sit on a jury, or that he should be punished with stripes, or be ducked in a pond, or be paraded through the streets, or be seated in a pillory, or have his ears cropped, or his head shaved. The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and can not be maintained as a measure of discipline or as a sanitary regulation. The act has no tendency to promote either discipline or health. The close cutting of the hair which is practiced upon felons in the State penitentiary, like clothing them in striped pants, is to distinguish them from others, and thus facilitate their capture in case of escape. They are measures of precaution. Nothing of this kind is practiced or wonld be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. The plaintiff in this case, who has the option of paying a fine of $10 or imprisonment for five days, required no such clipping of the hair for the purpose of discipline or detention. It was done designedly to add torture to his confinement."

The constitutional question was considered at greater length:

"It is special legislation on the part of the supervisors against a class of persons who, under the Constitution and laws of the United States, are entitled to the equal protection of the laws. The ordinance was intended only for the Chinese in San Francisco. This was avowed by the supervisors on its passage. It was so understood by every one, and it is not enforced against any others. The reason advanced for its adoption, and now urged for its continuance, is that only the dread of the loss of his queue will induce a Chinaman to pay his fine. That is to say, in order to enforce the payment of a fine imposed upon him, it is necessary that torture should be superadded to imprisonment.

Then, it is said, the Chinaman will not accept the alternative which the law allows of working out his fine by imprisonment, and the State or county will be saved the expense of keeping him during the imprisonment. Probably the bastinado, or the knout, or the thumb. screw, or the rack, would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character was possible. Upon the Chinese prisoners its enforcement operates as a cruel and unusual punishment.' Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a specifie class with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them. We have, for instance, in our community, a large number of Jews. They are a highly intellectual race, and are generally obedient to the laws of the country. But, as is well known, they have peculiar notions with respect to the use of certain articles of food which they can not be forced to disregard without extreme pain and suffering. They look, for example, upon the eating of pork with loathing. It is an offense against their religion, and is associated in their minds with uncleanness and impurity. Now, if they should, in some quarter of the city, overcrowd their dwellings and thus become amenable, like the Chinese, to the act concerning lodging-houses and sleeping apartments, an ordinance of the supervisors requiring that all prisoners confined in the county jail should be fed on pork, would be seen by every one to be levelled at them; and, notwithstanding its general terms, would be regarded as a