COMMON CARRIERS- DELIVERY OF FREIGHTFURNISHING EXPENSE BILL TO PERSON NOT THE CONSIGNEE.-The plaintiff shipped a part of a carload of dead hogs upon defendant's road, consigned to -a firm in Cedar Rapids. Upon their arrival there, they were taken from the car by the drayman of the consignee, and a stranger who claimed to be their agent, and delivered to them. The pretended agent requested and obtained from the defendant's agent an expense bill, such as it was the custom to furnish to consignees when requested, and which showed that the freight charges had been prepaid, but did not contain the name of the consignors. This the stranger presented to the consignees, to whom he represented himself as the owner of the hogs, and from whom he obtained payment therefor. In an action by the consignors to charge defendant with the value of the freight: Held, that the delivery by defendant was a sufficient compliance with the terms of the consignment to relieve it of liability as a common carrier, and that the furnishing of the expense bill to the stranger was not such an act of negligence as would charge it with liability for the mistake of the consignees in making payment to the wrong person. Opinion by ADAMS, J.-Ryder v. Burlington, etc., R. Co.

SUPREME COURT OF OHIO.

December Term, 1878.

[Filed June 19, 1879.]

FINDER OF PROPERTY-WHEN GUILTY OF LARCENY.-1. On a charge of larceny it is not necessary to the conviction of the accused that he should at the time of taking the property, have known, or have had reason to believe he knew the particular person who owned it, or that he should have the means of identifying him instanter. 2. Lost property which has not been abandoned by the owner is the subject of larceny by the finder. 3. The finder is not bound to make search for the owner. His belief or ground of belief in regard to finding the owner is not to be determined by the degree of diligence that he may be able to use to accomplish that purpose; but by the circumstances apparent to him at the time of finding the property. 4. Where, at the time of finding the property, he has reasonable ground to believe from the nature of the property, or the circumstances under which it is found, that if he deals honestly with it, the owner will appear or be ascertained, he will be guilty of larceny if at the time of taking the property into his possession, he intends to steal it. Judgment affirmed. Opinion by WHITE, J.-Brooks v. State.

RAPE-CAPACITY BURDEN OF PROOF.-- 1. The section in the code of criminal procedure (74 Ohio Laws, 349, §31), dispensing with proof of emissio seminis, has no relation to capacity; and hence it does not so enlarge the meaning of the statutory provision in relation to rape (74 Ohio Laws, 245, § 9), as to include persons not theretofore amenable to that provision. 2 If it appear on the trial of one charged with rape that he is a boy under fourteen years of age, the burden is on the State to prove capacity to commit the crime; and if the court enumerate certain facts which are of no determinate value, and say to the jury that if they are proved the burden is on the accused to show want of capacity, it is error. Judgment reversed and cause remanded for a new trial. Opinion by ОKEY, J.—Hiltabiddle v. State.

excusable on the ground of self-defense, although the slayer believes, in good faith, that he is in imminent danger of death, or great bodily harm, and that his only means of escape from such danger consists in taking the life of his assailant, unless there were reasonable grounds for such belief. 2. In an action under the act of March 25, 1851, requiring compensation for causing death by wrongful act, neglect or default, evidence having been given tending to show that the deceased commenced the affray in which he lost his life, the defendant prayed an instruction to the jury, that if the wrong or fault of the deceased contributed to the injury resulting in his death, no recovery could be had in the action: Held, that the instruction prayed for was properly refused. Judgment affirmed. Opinion by BOYNTON, J.-Darling v. Williams.

PAYMENT-SUFFICIENCY OF ORDER OF BOARD OF TRUSTEES.-1. The treasurer of a city or village having a board of water works trustees is required, under sec. 8, ch. 1, of the municipal code of 1878 (75 Ohio Laws, 342), to disburse the water works funds de posited with him in accordance with section 7 of said act, upon orders drawn by the board of trustees and signed by one of the trustees and countersigned by the clerk of the water works. 2. Such an order must show upon its face that it is the order of the trustees. The refusal to pay an order drawn in the following form: "Water Works Order.

City Water Works Office, Columbus, O., January 13, 1879.

DIVORCE-REOPENING PROOFS-EXTREME CRUELTY-ALIMONY.- 1. Where there is nothing to hinder a party from taking his proofs within the time allowed by the rules of practice, and from cross-examing the witnesses of his opponent, he can not get leave afterwards to bring contradictory testimony without a strong showing that justice requires it, and that he has not been so far at fault as to have forfeited his claim to favor. Thayer v. Swift, Walk. Ch. 384; Ham. mersley v. Lambert, 2 Johns. Ch. 432. 2. A general reopening of proofs is matter of discretion. 3. A complainant may have special equities making it proper to reopen proof for his benefit without allowing defendant to put in further testimony. 4. Defendant having vexatiously refused to pay alimony and withheld means that he was bound to give complainant for expediting the cause, meanwhile taking no proofs himself until after the time allowed by rule had expired, and then, while still in contempt by his refusal to pay alimony, having asked leave to introduce proofs, such permission was properly refused. 5. It may be supposed that licentious persons of opposite sexes, consorting together, and holding loose views of the marital relation, commit such offenses as they have oppor tunity to commit. 6. It is extreme cruelty to a wife for her husband openly to consort with and express his preference for loose females. 7. The allowance of alimony in gross instead of by periodical payments

is approved in cases where the husband would be likely to vexatiously delay or withhold payments. Opinion by CAMPBELL, C. J.-McLung v. McLung.

EQUITABLE WARDSHIP-MENTAL UNSOUNDNESS. 1. An equitable wardship arises where a son takes charge of his father's affairs, in the belief that the latter is incompetent to manage them, and the father passively assents. 2. The conduct of relations and others towards an individual, is better evidence of what they think of his mental unsoundness, than any term they can use to express it, especially when, without being experts, they recognize in him a condition of mental disorder without thinking it amounts to insanity. 3. If a person, by reason of having "the blues," is considered unfit to attend to his business, and passively surrenders it to the conduct of others, his condition justifies equitable investigation into the justice of any bargain which those who have charge of his affairs may have made with him. 4. A presumption arises against the justice of any bargain made by one in the position of a guardian, with a ward incompetent to manage his affairs, and the guardian has the burden of showing that the transaction was fair, and for the other's interest. Opinion by GRAVES, J.-Jacox v. Jacox.

MUNICIPAL CORPORATIONS-ULTRA VIRES-RATIFICATION.-Highway commissioners of a township having made partial payments upon a completed work, further payment was resisted on the ground that the work contracted for and carried out was not in a part of the township open to the exercise of such authority; was where such things could be done at township cost, but was upon territory which, in fact, was under separate village government. 1. A municipal corporation can not ratify an act which it would have been positively unlawful to do. Taymouth v. Koehler, 35 Mich. 22; Marsh v. Fulton Co., 10 Wall. 676; Horton v. Town of Thompson, 71 N. Y. 513; McCracken v. San Francisco, 16 Cal. 501; Ashbury Railway Carriage, etc., Co. v. Riche, L. R. H. L. 653. But this rule can not affect proceedings to recover back money or property obtained by an act ultra vires. 2. Highway commissioners can not bind their township by a partial payment for work which the township could not have authorized, such as the digging of a sewer within another jurisdiction. 3. The recovery of money obtained through a transgression of power does not affirm, but denies the existence of the power. 4. An act that might originally have been so done as to be binding, may be so ratified or assumed, as to bind the immediate parties. Opinion by GRAVES, J.-Highway Commissioners of Sault Ste. Marie v. Van Dusan.

BOOK NOTICE.

2. MARRIED WOMAN-DEED - ESTOPPLE.-Husband conveys, as his land, in one boundary. The title to a small portion is in his wife. Her name appears nowhere in the deed except the testamentary clause, which clause is as follows: " In testimony of all which, the said A and his wife B, who is a party to the conveyance, set their hands and seal." She signs and acknowledges with him as one of the grantors. Is the deed sufficient as to her? If not, can a plea of "estoppel in pais" be interposed as a bar by a subsequent and remote purchaser by proof aliunde, showing that she knew the number of acres of her land embraced, and united in the deed for the purpose of making the purchaser a good title, and was a part of her homestead tract and recognized purchaser's title, during her husband's lifetime, ten years, and said valuable improvements on it? J. M. T.

[NEW BOOKS RECEIVED. American Reports, Vol. 26.; J. D. Parsons, Jr., Albany. Manual of International Law.; Barnes & Co., New York. Morse on Banks and Banking.; Little, Brown & Co., Boston. Daniels on Negotiable Instruments; Baker, Voorhis & Co., New York.]

A COLLECTION OF LEADING CASES on the Public Land Laws of the United States, with notes and references. By J. VANCE LEWIS, attorney at law. Washington: 1879.

To those interested in the laws relating to the public lands, this volume will be of great value. It contains one hundred and twenty leading cases on questions which have grown out of this subject, and have been adjudicated during the past few years. Nearly all of these one hundred and twenty cases have annotations appended, in which the other decisions on the same

3. CONDUCT OF TRIAL EXPERIMENTS MADE BY JURY. In the trial of a case on promissory note, where the defense is forgery, and one of the questions arising in the case is, whether the note was originally signed in pencil and traced with ink, or whether first in ink and traced with pencil-after the jury have been sworn and part of the evidence in, court adjourns for dinner, two of the jurors get together, and experiment on paper, by writing first with pencil, and trace over with ink, then write some names and words with ink, and trace with pencil, and compare effects, and also compare same with the note in suit. Is this such misconduct of the jury as will warrant the setting aside the verdict, the jury having been by the court charged to hold no communication with any one or among themselves touching the matters in controversy until after all the evidence was in, the argument, final

When final judgment is rendered by a court of competent jurisdiction, in an action upon a promissory note, against the maker, the note is eo instanti merged in the judgment, and no suit can thereafter be maintained against the maker upon the note, and the judgment rendered in the State of the defendant's residence has the same force and effect in every court within the United States and territories that it has in the State in which it was rendered; and, as no action could be maintained upon the note, after its merger in the judgment, in the State in which such judgment was rendered, none could be maintained elsewhere, such judgment being conclusive between the parties. Blake v. Downey, 51 Mo. 437; Dutchess of Kingston's Case, 20 Howell, St. Tr. 538; 2 Smith's Lead. Cas. 424; 2 Gall. C. C. 229; 4 Watts. Penn. 138; 1 Greenl. Ev. §§ 523, 536; 1 Greenl. Ev., §§ 504, to 510, and authorities there cited. But see generally 1 Greenl. Ev. pt. 3, ch. 5, and authorities there cited, as to impeachability of judgment collaterally for fraud.

By the common law, goods seized under execution can not be distrained while in the custody of the law. For the protection of landlords, by statute, 8th Anne, c. 14, and adhered to by the American courts and reenacted generally by the States, the sheriff must first pay the rent due, and for which the landlord has a lien, before he can remove the property taken in execution from the rented premises. And if, after notice and demand, the sheriff fails to pay the landlord his rent, the landlord's remedy is by suit "in case" against the sheriff, or he may move the court from which the execution issued, that the proceeds of the goods in the hands of the sheriff be applied to the satisfaction of his rent. Archbold Landlord and Tenant, p. 134; Eaton v. Southy, Willes,136; 2d vol. Sharswoods Blackstone, p. 6; 4 Moore S. C. 473. J. M. T. Bowling Green, Ky.

No. 27.

[8 Cent. L. J. 447.]

66

In the matter of Bird, tried in the United States District Court for the District of Oregon, May 24, 1871, DEADY, J., says: As at present advised, I do not see what provision of the Constitution, or statute, or common law, can be invoked to prevent the arrest and trial of a person by court martial for a military offense, committed while such person was an officer or soldier of the army of the United States, after the expiratiou of the term of service, so that the order for the trial be issued within the time limited by the article of war." (The article of war herein referred to is the present 103d article, and is a statute of limitation for military offenses, the time being two (2) years.)

The cases of Lord Geo. Sackville (1760), and Lieut. Jas. Blake (1805), cited by Simmons & Tytler, in their respective works on Courts Martial, are to the same

66 #

effect. But the President has announced, in general court martial orders No. 16, Adjutant-General's office, 1871: That officers or soldiers, after they have been regularly discharged from the military service, or after their term of service has expired, unless proceedings have been commenced before such expiration, are not (except when otherwise provided by statute) within the jurisdiction of a court martial for offenses committed by them while in the service." The statutory exceptions here mentioned are certain cases of fraud, perjury, etc., set forth in the 60th article of war; also the crime of desertion, 48th article of war. This last article provides that a deserter shall be liable to trial and punishment by court martial, although his term of enlistment may have elapsed previous to his apprehension. But it is submitted that a soldier's term of enlistment can not elapse while he is absent in desertion. "ARMY OFFICER." Fort Hamilton, New York Harbor.

NOTES.

JUDGE DILLON was presented with a farewell address by the Minnesota bar at Minneapolis on the 27th ult. The address contained the following passage: "We recognize in you a man of extraordinary learning in all the branches of knowledge that combine to make a thoroughly good judge. We also concede to you all those qualities of temperament which are essential to the same end; you have been patient when we have been tedious; you have been amiable when we have been irritable; you have always been clear when we have been in doubt. It has been an edifying pleasure to us to listen to your lucid expositions of the many difficult questions we have in the discharge of our professional duties so often submitted to you for solution. The varied interests that have been referred to your decision have involved the welfare of the greatest enterprises of the Northwest, and these contests have arrayed in antagonism forces of corresponding magnitude, yet your wisdom and impartial justice have enabled you to satisfy all interests and make your judgments respected by all parties. The highest tribute we can pay to your excellence as a judge is to say that in all the long years in which we have practiced before you, and in all the various contests which we have represented as counselors in your court, the instances which any of us can recall in which we have suffered defeat, are very rare indeed where we have not on reflection been compelled to acknowledge the correctness of your decisions, and in no cases have we ever had occasion to doubt your perfect impartiality and conscientious discharge of duty." The bar of this city have prepared and will present at an early day an appropriate address.-A number of judicial nominations were presented during the last few days of the present session of Congress, most of them being confirmed. Among these were Wm. J. Galbraith, of Iowa, Associate Justice of the Supreme Court of Montana. John F. Morgan, of Illinois, Chief Justice of the Supreme Court of Idaho. Norman Buck, of Idaho, Associate Justice of the same court. John A. Hunter, of Missouri, Chief Justice of the Supreme Court of Utah, and Thomas J. Morris, of Maryland, United States District Judge for the District of Mary. land. Mr. Charles S. C. Bowen, has been appointed a judge of the Queen's Bench Division of the English High Court of Justice, vice Mr. Justice Mellor resigned. He was called to the bar in 1861. He was for several years recorder of the borough of Penzance, and in 1872 he succeeded the late Mr. Justice Archibald in the office of junior common law counsel to the Treasury.

The Central Law Journal.

SAINT LOUIS, JULY 11, 1879.

CURRENT TOPICS.

An interesting question in mercantile law was decided by the English Court of Appeal in the recent case of Duncan v. North, &c., Wales Bank, 27 W. R. 521, where it was ruled that where bankers hold security given them by customers for the payment of any balance on account current or otherwise, and, in the ordinary course of business while holding such securities, they discount bills which have been accepted or indorsed by those customers, they are not bound to apply the security in discharge of the liability of such customers on the bills, but may deal with it without reference to those transactions. In this case, one of a firm deposited with the firm's bankers security belonging to himself, to secure the general balance of the firm for the time being. The firm subsequently accepted certain bills in favor of the plaintiffs, who procured the bankers to discount them. Upon the insolvency of the firm, the plaintiffs claimed that the securities held by the bankers must be applied in discharge of the sums due on the bills. The plaintiffs claimed that they were mere sureties (the firm being the principal debtors), and were entitled to contribution, and the vice chancellor sustained this claim The Court of Appeal reversed this, holding that without the consent of the bankers, or their knowledge of the real position of the other parties, the plaintiffs should be treated as sureties, so as to prevent the bank from dealing in their own way with the securities they held. "No bank," said the Master of the Rolls, "which held a security, either by way of suretyship or by way of deposit from its customers, could venture to discount a bill with eight or ten names on it, without examining carefully to see if any one of the names was the name of a debtor to the bank who had given them security, and if they did, they might be put in the position of being incapacitated from carrying on their dealings with their customers by varying the securities given by that customer to the bank. It shows at once that to extend the doctrine to such a Vol. 9-No. 2.

case would paralyze the business of discounting bills of exchange, and that it would be unwise, as far as this court is concerned, to extend for the first time the doctrine of principal and surety, which for certain purposes extends to bills of exchange, to such a transaction as this. On this ground alone I think the decision cannot be supported." JAMES, L. J., added: "What I desire to say is this, that, as a matter of mercantile law, and I say this for the purpose of preventing any embar rassment which would be certain to arise from an extension of the rule in mercantile cases of this kind, the equities of principal and surety can not arise accidentally and promiscuously from the position of names on the face or the back of a bill of exchange which a man hands to his banker or to a merchant in the ordinary course of business, and that where a man takes a bill of exchange to a banker or a bill broker, and asks him to lend money on it, which he does, he is still the principal debtor, and he has no right to ask, nor has the banker or bill broker any right to tell him, whether any of the other names on the bill are customers of the bank, or what security they have from any of them, or anything of the sort." See as to the law in this country Gilbert v. Marsh, 12 Hun. ; Cory v. Leonard, 56 N. Y. 494, aff'g 1 S. C. (T. & C.), 183; Meehan v. Forrester, 52 N. Y. 277; Hazard v. Wells, 2 Abb. (N. C.) 444; Wood v. Sheehan, 68 N. Y. 365; Gray v. Green, 12 Hun. 598; N. Y. D. Reg. 1252; and in England, Newton v. Chorlton, 10 Ha. 646; Wade v. Cope, 2 Sim. 155; Pearl v. Deacon, 24 Beav. 186; Ex parte Overend, 20 L. T. N. S. 296.

In the case of Taylor v. French, recently decided by the Supreme Court of Tennessee, it was held that parol evidence is admissible as between the immediate parties to show that the indorser in blank of negotiable paper had, by agreement, varied the liability implied by law from the indorsement. COOPER, J., in deciding the point said: "The general rule that parol evidence is not admissible to contradict or vary the terms of a written instrument, applies to promissory notes, as has been repeatedly held by this court. Campbell v. Upshaw, 7 Humph. 185; Hancock v. Edwards, 7 Id. 349; Black

more v. Wood, 3 Sneed, 470; Ellis v. Hamilton, 4 Id. 512, The rule also, perhaps, applies to regular indorsements as against a bona fide holder for value before maturity. And some courts have applied it even between the immediate parties, Lake v, Stetson, 13 Gray, 310, note. The tendency of recent decisions seems to be in that direction, upon the ground that the contract is as fully expressed by the simple indorsement as if written out in full over the signature. 1 Dan. Neg. Instr., § 717. The rule is clearly otherwise where indorsements are irregular, as, for example, where the indorser puts his name on the paper before the payee, or for the benefit of the payee. Ib. § 710; Rivers v. Thomas, 1 Lea 649. And many courts allow parol evidence in all cases of blank indorsements, because the right to demand and notice arises by implication of law, and may be waived directly or inDick directly by conduct or circumstances. v. Martin, 7 Humph. 263; Ross v. Espey, 66 Penn. St. 487; Davis v. Morgan, 64 N. C. 381; Johnson v. Martinus, 4 Halst. 144; Castrique v. Ballegreg, 10 Moore P. C. C. 94. The authorities are generally agreed that the statute of frauds has no application to contracts within the law merchant, or that an indorsement in blank is sufficient to satisfy the statute, the signature applying to the contract already written in the instrument indorsed, or to the words above the signature which are afterwards written by express or implied authority. 5 Dan. Neg. Instr., § 1765. This court has uniformly held that parol evidence is admissible between the immediate parties to show the real contract of the indorser, even in case of regular indorsements. Thus parol evidence has been declared admissible to show a waiver of demand and notice. 3 Humph. 17; 7 Ib. 263. So, to prove that the indorser guaranteed the payment of the note.

Hall v. Rogers,

6

7 Humph. 536. And to show an absolute undertaking on the part of the indorser provided the proof was clearly and satisfactory. Newell v. Williams, 5 Sneed. 209. There is no question,' says Judge McKenney, but that an indorser in blank may, by his agreement, enlarge or vary the liability created by law. As in the case of an endorsement in full, it may be general and restrictive, qualified, conditional, or absolute. Nor is there any doubt as to the right of the holder to fill up the blank

indorsement in conformity to the agreement of the parties; and such agreement is to be interpreted so as to carry into effect their true intention; neither is there any doubt that if the indorsement remain in blank, or only partially filled up, the holder may upon the trial show by parol evidence the nature and extent of the undertaking of the indorser.' Brockway v. Comparree, 11 Humph. 360.”

THE DOCTRINE OF INDENTIFICATION OF PASSENGER WITH CARRIER IN ACTIONS OF TORT.

It has been a disputed question in England and in this country whether a passenger in a stage coach, railway train or other conveyance, who has been injured by the negligence of a third person, to which injury the negligence of the person managing the conveyance in which such passenger was riding at the time of the accident has contributed, can recover damages against such third person, or whether the very act of placing himself in the care of the driver or manager of the conveyance, does not establish such an intimate relation between them that, in case of accident, the negligence of the driver is to be considered the negligence of the passenger himself so far as his right of recovery for the injury is concerned.

The weight of authority in England seems to be that in such a case the negligence of the driver is as complete a bar to recovery as if it were the negligence of the passenger himself. On this side of the Atlantic, however, there still exists considerable difference of opinion in the courts of those States which have had occasion to take the subject under judicial cognizance.

The first English case is that of Vanderplant v. Miller, decided in 1828, and reported in 1 Mood. and Malk. 169. This was an action against the owners of a ship, which collided with the ship upon which were the plaintiffs' goods. The action was brought for damage done to the plaintiffs' goods. The defense set up was negligence in the management of the plaintiffs' vessel, in not having men on the look out. Lord Tenterden charged the jury, that "if there was want of care on both sides, the plaintiffs cannot maintain their action; to enable them to do so, the accident must be attributable entirely to the fault of the crew of the defendants." To the same effect is the case f Bridge v. Grand Junction Railway, de