ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF OHIO. December Term, 1878.

[Filed October 7, 1879. [

RECEIVER-MANDAMUS WILL NOT LIE AGAINST, WHEN.-Where the court of common pleas having jurisdiction in an action against a railroad corporation, has appointed a receiver who is in possession of the road, its property and assets, and is proceeding in the execution of the trust under the direction and orders of the court, a mandamus will not be issued against such corporation and receiver directing their conduct in operating the road. Writ refused. Opinion by GILMORE, C. J.-State v. Marietta, etc., R. Co. CONTRACT-AVERMENTS IN ACTION FOR BREACH. -1. In an action to recover damages for the breach of a contract, averments in the answer setting up a different contract are immaterial, except as they operate to deny the making of the one sued on. Such averments do not constitute new matter, and require no reply. 2. In order that the buyer may recover damages for the non-delivery of goods, it is incumbent on him to prove that he was ready and willing to receive and pay for them as delivered; and he is not relieved of this duty by the fact that the making of the contract sued on is denied. Judgment reversed and cause remanded to the court of common pleas for a new trial. Opinion by WHITE, J.-Simmons v. Green.

EXCESSIVE

JUDGMENT JUDGMENT WITHOUT PLEADINGS USURY.-1. A judgment for a sum greater than the amount due upon the cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error. 2. Sections 377 and 378 of the code of 1853, authorizing a judgment without pleadings, apply only to a proceeding wherein the debtor appears personally in court and confesses judgment. 3. Where money is loaned at the highest rate of interest allowed by law, a contract to pay a sum in addition to such rate in consideration of an extension of the time of payment is usurious. Judgment affirmed. Opinion by MCILVAINE, J.—Rosebrough v. Ansly. JUDGMENT-PROMISSORY NOTE-PAYMENT.-1. A judgment rendered on a special finding of facts made by the court, may be reviewed on error, although such finding was not made at the request of either party. 2. The holder of a promissory note accepted in good faith, from one of the principal makers thereof, who, to the knowledge of the holder, was insolvent at the time, a conveyance of a parcel of land in payment of the note. Subsequently, and within four months from the time of the conveyance, the holder of the note, on demand therefor, surrendered the property conveyed to an assignee in bankruptcy of the grantor. Held, that such conveyance did not operate as payment of the note, nor to discharge a surety thereon. Judgment affirmed. Opinion by BOYNTON, J.-Hainer v. Batdorf.

SUPREME COURT OF ILLINOIS.

[Filed at Springfield, June 21, 1879.]

LEASE-VERBAL CONTRACT-PART PERFORMANCE -THIRTY DAYS' NOTICE.-Conceding the contract for leasing was for a period of five years, as defendant insists it was, still as it was a mere verbal contract and never reduced to writing, it was for that reason within the operation of the statute of frauds and could not be made a ground of defense to an action by the landlord

to recover possession of the premises. The fact there was a part performance of the contract does not at law take the case out of the operation of the statute of frauds. So this court has ruled in 65 Ill. 395, and 78 Ill. 124. The utmost defendant can claim is that the leasing was from month to month, and therefore he was entitled to thirty days' notice to terminate the tenancy. Thirty days' notice of the landlord's election to terminate the tenancy was in fact given, and although the landlord may have stated the wrong reason for it, nevertheless it was thirty days' notice to quit and surrender the premises, and that was all the defendant was entitled to under the law. He was not, and could not be, in doubt that it was the intenion of the landlord to put an end to the existing tenancy and the notice given was effectual for that purpose, although it may not have been so accurately worded as it might have been. Affirmed. Opinion by SCOTT, J.-Creighton v. Sanders.

INDICTMENT-SELLING INTOXICATING LIQUORSEVIDENCE-PHYSICIAN'S PRESCRIPTION.- Plaintiff in error was indicted for selling intoxicating liquors in a less quantity than one gallon, and on the trial was found guilty and sentenced to pay six several fines, amounting in the aggregate to $120. The second section of the "Dram Shop" Act makes it unlawful for any person not having a license to keep a dram shop to sell intoxicating liquors for any purpose in a less quantity than one gallon, or in any quantity to be drunk on the premises or in or upon any place adjacent thereto. It is not claimed that defendant had any license to keep a "dram shop," or any permit from the authorities of any village or city, as a druggist, to sell liquors for "medicinal, mechanical, sacramental and chemical purposes." On proof being made, as was done, that defendant had sold intoxicating liquors in less quantities than one gallon, prima facie, the conviction was warranted by the law and the evidence. Whether a druggist not having a permit to do so may lawfully sell intoxicating liquors on a physician's prescription, if the same were done in good faith and the person for whose use the prescription was made was in fact sick, is a question that can not arise on this record as there is not a particle of testimony that shows or tends to show that defendant at the time he sold the liquor [was] or ever was a druggist. The only testimony that indicates in the slightest degree the occupation of defendant is that one of the witnesses says he was his "family physlcian," and as such prescribed for him. So far as this record discloses, the prescriptions introduced in evidonce may have been a mere device to avoid the statute prohibiting the sale of intoxicating liquors. It does not appear that any of the witnesses who obtained the prescriptions were at all sick or needed medicine of any kind. Affirmed. Opinion by SCOTT, J.-Necker v. People.

SUPREME COURT OF INDIANA.

September Term, 1879.

SALE BY ASSIGNEE OF BANKRUPT A JUDICIAL SALE. -This was an action by Shroyer to recover certain real estate which he had bought at a sale by the assignee in bankruptcy of Charles H. Roberts. Roberts' wife claimed one-third of the land by virtue of the Act of March 11, 1875, which provides that in all judicial sales of real estate in which a married woman has an inchoate interest by virtue of her marriage, and such inchoate interest is not directed by the judgment to be sold or barred, such interest shall become abso lute in the wife. Held, the sale of land by the assignee in bankruptcy was a judicial sale. It was a sale ordered by a judge of a court having jurisdiction, while acting

in his official capacity, during the progress of judicial proceedings in a cause, and was duly confirmed by said judge acting in his official capacity as a court. (Rorer on Jud. Sales, 2 ed. 1, 3, 46, 86; 39 N. Y. Ct. App. 302.) The wife is entitled to one-third of the land. Judgment reversed. Opinion by PERKINS, J.—Roberts v. Shroyer.

LIABILITY FOR RENT DURING YEAR OF REDEMPTION.-The Act authorizing the redemption of real estate sold upon execution, provides that the judgment debtor shall be entitled to the possession of the premises for one year after the sale, and in case they are not redeemed at the end of the year, he shall be liable to the purchaser for their reasonable rents and profits. Held, it is only against the judgment debtor that the purchaser at sheriff's sale has any claim for rents and profits during the year of redemption, and where a third person has purchased the equity of redemption from the judgment debtor after such sale, and gone into possession of the property, the purchaser at sheriff's sale can not hold such third person liable for the rents and profits of the land. His right of recovery is against the judgment debtor alone. Judgment reversed. Opinion by NIBLACK, J.-Wilson v. Powers.

PLEADING-FORMER ADJUDICATION. —The rule that every question which might have been decided or litigated in a cause will be presumed to have been decided, means that everything which was within the issues in the cause and might have been proved under them will be presumed to have been proved and adjudicated. 12 Ohio, 11; 13 Johns. N. Y. 227; 32 Ind. 248. An answer of former adjudication, to be good, must show that the matters in controversy in the case at bar actually were determined in the former action, or that they might have been litigated under the issues. If a plaintiff joins in his complaint several separate causes of action, making the aggregate of such causes the amount for which he demands judgment, and, neglecting to withdraw any of these causes on the trial, he fails to establish any of them by proof, he can not afterwards bring another suit for those items. 3 B. &. C. 235; 14 Mich. 348. But a judgment for the defendant on demurrer to the complaint in a suit on account of the omission of an essential allegation therein which is supplied in a second suit, will not be a bar to such second suit. Opinion by PERKINS, J.-Griffin v. Wallace.

SUPREME COURT OF MASSACHUSETTS.

66

September Term, 1879.

FIRE INSURANCE-POLICY-EXPLOSION.-A policy of insurance, insuring the plaintiff against loss or damage by fire" on his stock in trade as an apothecary," besides providing that the defendant company should not be liable for any loss caused by the explosion of gun-powder or any explosive substance, nor by lightning or explosions of any kind, unless fire ensues, and then for the loss or damage by fire only, which loss shall be determined by the value of the damaged property after the casualty by explosion or lightning," contained also this provision: "If a building shall fall, except as the result of a fire, all insurance by this company on it or its contents shall immediately cease and determine." The evidence at the trial tended to show that, by a sudden combustion of inflammable gas, brought into contact with some burning substance, an explosion, accompanied by a flash of light and a loud report, took place in one of the upper stories of

the building, which was of such force as to lift up the roof over the rear part of the building, to blow outward the larger portion of its walls on the two sides next the streets, and to cause the instantaneous fall of the whole roof, the internal partitions and the contents of the rooms, including a stove with a coal fire burning therein, in a mass of ruins upon the plaintiff's shop in the lower story; and that, immediately after the explosion and fall, a fire caused thereby, and kindled by the burning coals from the stove, broke out in the fallen ruins, and destroyed the plaintiff's stock. Held, that the provision in the policy, being ambiguous, was to be construed most strongly against the insurers; that it appears to have had in view the case of a building falling by reason of inherent defects or by the withdrawal of the necessary support as by digging away the underlying or adjacent soil. It might, perhaps, include the case of a building thrown down by a storm or flood or earthquake. But it would be construing this provision too liberally in favor of the insurers to hold it to include the case of the destruction of a building by an explosion within the building itself and of a fire immediately ensuing upon and connected with such an explosion, the measure of the liability for which has been carefully and precisely defined in the previous provision of the policy. Opinion by GRAY,, C. J.-Dows v. Merchants' Insurance Company.

INDICTMENT FALSE PRETENSES-SUFFICIENCY OF ALLEGATIONS.-1. A count in an indictment alleged that in order to induce M. to sign a lease to C., the defendant falsely represented that said C. "was then and there a liquor dealer, then doing business as such dealer in Broad Street in said Boston, and that said C. was then and there a man worth ten thousand dollars, and that a certain person whom the said defendant then and there pointed out and designated to said M. was then and there the said C." Upon a motion to quash, it was held, that the representation as to C.'s pecuniary ability might have been intended and understood as the expression of an opinion or judgment and not as the representation of a fact. Moore v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 Mass. 431; and not being aided by any other averments in the indictment, is not, as set out, a false pretense within the statute. So the pointing out a person as C. would not seem to amount to the representation of a material fact which was calculated to deceive M. and induce him to sign a lease to C. But the representation that "C. was then and there a liquor dealer then doing business as such dealer in Broad Street in said Boston" is a false pretense within the statute, and therefore the count is sufficient. Com. v. Parmenter, 121 Mass. 354. 2. A count in an indictment alleged that the defendant falsely pretended to M. that he had then and there in his possession a check for the payment of money drawn by him in favor of M. from the proceeds of which he intended to pay certain bills due from M. to other persons, and that M. believing said false pretenses was induced to sign a certain mortgage deed. Held, that the only proper legal construction of all the allegations is that the defendant agreed to take his own money and pay the bills due by M. if he would sign the mortgage; that the mere representation that he had drawn a check, if it could be treated as a representation that he had money in the bank, that fact not being negatived, did not prevent the indictment from being fatally defective. 3. A record of divorce proceedings in which a witness was a party, and in which the jury found that said witness had committed adultery, does not show the conviction of the witness of any crime which under the statute would be admissible to affect his credibility. St. 1870, ch. 393, § 3. Opinion by MORTON, J.--Com. v. Stevenson.

NOTES.

WILLIAM E. BECK has been elected to the Supreme Bench of Colorado, succeeding Chief Justice Thatcher who was elected in 1876 for the short term.- -Mr. Justice Hunt has returned to Washington, but it is doubtful if he will be able to resume his judicial duties. Though his health has improved, his recovery is far from complete. The amendment to the Connecticut Constitution allowing judges of the Supreme Court of Errors and the superior court to hold office until seventy-five years of age, was defeated by 26,335 majority out of a total vote of 58,307.Lottery speculations have received a severe blow in the opinion just issued from the office of the Assistant Attorney-General for the Post Office Department. Its purport is that according to the provisions of the statutes letters addressed to lottery companies, or to individuals as agents of such companies, are unmailable per se, and that postmasters must refuse to register such letters. There are said to be at least one hundred lottery schemes which hereafter will be cut off from the use of the Post Office. They can neither send circulars, nor can letters to be sent by mail be addressed to them. It will now be held that the fact that the letter is addressed to a lottery company must be taken as furnishing sufficient evidence that it is a letter concerning a lottery, and, is therefore unmailable.

JUST exactly what are the powers of police officers is a matter about which the average citizen knows little. The order to "move on," or to "come along," enforced by the awful presence of the baton and star, is usually promptly obeyed, and the citizen seldom stops to question the legality of the mandate. This ready acquiescence has come to render the police, particularly in cities, arrogant and often brutal in their dealings with the public; so that it is safe to say that in all the large cities of the country, breaches of the law are committed daily by those who are supposed to be the preservers of the peace. The powers and duties of a policeman are regulated by the law, and if he goes beyond that he does it at his peril, and the citizen may resist, to any extent necessary, his unlawful commands. A case tried in New York last week (McIntyre v. Radmus), contains a very clear exposition of the rights of the public in this respect. The plaintiff, one evening last March, while accompanying a young lady to her home from a social gathering, was stopped by the defendant, a police officer. The officer told the young lady she had better go home, at the same time pushing her escort from her with his club. When plaintiff demanded the policeman's number, the latter arrested him and took him to the station, where he was locked up over night on a charge of disorderly conduct. The plaintiff brought an action for illegal arrest, and the jury returned a verdict for $2,500 against the officer. In his charge, the trial judge stated the law as follows: "The only allegation in the answer of defendant, the police officer, which he claims justifies his conduct in this case, is that Mr. McIntyre and the lady were talking loudly, and making a noise tending to disturb the peace. The answer does not claim that plaintiff assaulted and struck the defendant. Now, it is important that I should state precisely what an officer can and what he can not do, because we have of late heard a great deal in this great city of the improper interference of officers with individuals who are in the pursuit of their occupations, and who are entitled to go undisturbed. I say to you first, that mere talking or singing does not, at common law, constitute a breach of the peace; and an officer can not arbitrarily make it one by calling it a disturbance. Second, unless there is an act

ual breach of the peace or an affrav, there is nothing of which the common law takes cognizance; nothing which justifies an officer's interference; and if he interferes, and parties do not desist, and he then threatens force, they may then threaten resistance. Have you heard any evidence in this case of there being any tumult or disturbance of the peace, except this alleged noise? If there was not, then the officer could be resisted, and the plaintiff was entitled to exercise just such force as was necessary to protect himself. The defendant himself committed a breach, and he can not justify himself by calling that a breach of the peace which was not a breach. He must show by the facts that there was an actual breach. Third, being merely drunk is not by the law sufficient to justify interference. These are rules which it is proper for our citizens to remember, and I wish the officers were here to hear me. Merely being drunk is not, by the law, sufficient to justify interference. The words 'drunk and disorderly' must mean disorderly not only in the sense of being drunk, but of causing annoyance to others. As to the word disturbance,' it must mean a disturbance tending to a breach of the peace. It is a great mistake to suppose that you can take a man by the collar and drag him off to prison, because he has got too much liquor aboard. The police officers in this city have no right to do it, although I am very sorry to say they do do it, and thus cause a great deal of disturbance. Ought they not rather, as men armed with power, to be charitable, and to take care of the unfortunate men? Because a man is drunk is no reason why he should be pummelled. It is only when he is creating a disturbance that he may be arrested. It has been decided in our courts and in the courts of England, time out of mind, that where a policeman arrests, unless he is legally justified in arresting, resistance to him to any extent necessary will be lawful and justifiable. If the defendant in this case had done just what plaintiff said he did do, then I hold that plaintiff could have done anything for the purpose of preventing him; and if it was true that the defendant continued to insult the young lady in the manner in which it has been said he did, they could have gone to very great extremes, and could have taken the law in their own hands as against him. Now, gentlemen, it is unnecessary for me to go further. Understand that I do not for one moment justify opposition to lawful authority. I would not say one word to encourage it; but the time has come when something should be done to discourage officers from interfering with peaceable people, and from exercising authority for which there is no foundation in law or in morals." This is undoubtedly good law. The rule enunciated, that unless an officer is legally justified in making an arrest resistance to any extent necessary is justifiable, is as old as the ancient maxim that there is no wrong without a remedy. The law is jealous of the rights of the public, but only in a few cases can it give relief without its being specially invoked. An occasional action like that of Mr. McIntyre will do much to curb the reckless officiousness, in some cases the outrageous cruelty, of those who are after all the servants of the public and not its masters. Readers of Victor Hugo will remember that before popular government had been established in England, the policeman of that time was an individual known as the wapentake, a touch of whose staff was a command to follow, to disobey which was instant death. More than once, as we have read in the daily papers of a police officer shooting an escaping thief before he had commenced to pursue him, or clubbing almost to the death a drunken vagrant incapable of understanding his commands, have we imagined that the wapentake still prowls through the streets of our American cities

ST. LOUIS, OCTOBER 24, 1879.

CURRENT TOPICS.

In Hoyle v. Page, recently decided by the Supreme Court of Michigan, it was held that in the absence of a statute authorizing it, a contract made in advance for interest upon overdue instalments of interest-i e compound interest was void. This was the opinion of Chancellor Kent in Connecticut v. Jackson, 1 Johns. Ch. 13; Van Benschooten v. Lawson, 6 Johns. Ch. 314, and his conclusion is adopted in other States. Sparks v. Garrigues, 1 Binn. 165, Stokeley v. Thompson, 34 Penn. St. 210; Hastings v. Wiswall, 8 Mass. 455; Van Hemert v. Porter, 11 Met. 210; Ferry v. Ferry, 2 Cush. 92; Doe. v. Warren, 7 Me. 48; Niles v. Board, etc., 8 Blackf. 159; Grimes v. Blake, 16 Ind. 160; Leonard v. Villars, 23 Ill. 377. The judgment of Chanceller Kent has recently been criticised in New York, but it has been affirmed by a majority of the Court of Appeals, after full discussion. Young v. Hill, 37 N. Y. 162. In New Hampshire, a different conclusion was reached, at an early day. Pierce v. Rowe, 1 N. H. 197; and this case has been followed in some States. Austin v. Imus, 23 Vt. 286; Preston v. Walker, 26 Ia. 205; Lewis v. Paschal, 37 Tex. 315; Bledso

v. Nixon, 69 N. C. 89; and it is not disputed anywhere that after the interest has accrued a valid promise may be made to pay interest upon it. Camp v. Bates, 11 Conn. 387; Wilcox v. Howland, 23 Pick. 167; Stewart v. Petree, 55 N. Y. 620. That coupons attached to negotiable paper may draw interest after dishonor, is held in some cases: Gelpcke v. Dubuque, 1 Wall. 175; Mills v. Jefferson, 20 Wis. 50; but these coupons are for many purposes a serverable contract, and are in the nature of notes given in advance for interest to become due at a certain time. ""The authority then to give a separate or severable contract for future interest" say the court in the principal case "was never doubted and we have no occasion-even if we were so disposed to question, in this suit, the soundness of the decisions that have held interest recovVol. 9-No. 17.

We are satisfied with the

New York rule which forbids the compounding of interest by virtue of any provision in the obligation on which the interest accrues, and are, therefore, of opinion that the court erred in allowing compound interest on obligation above mentioned."

The Constitution of Kentucky and the statutes passed in conformity thereto (Const. art. 4, §15, G. S. c. 28, §1, art. 2) provides that on the certificate of the Court of Appeals to the Governor, the latter shall select from the bar of the State an additional judge or judges to constitute with the remaining judge or judges, "a special court for the trial of such cause or causes as may at any time be pending in the Court of Appeals, on the trial of which a majority of the judges can not sit, on account of interest in the event of the cause, or on account of their relationship to either party, or where the judge may have been employed in or decided the cause in the inferior courts." In Buford v. Commonwealth, decided on the 9th inst. the meaning of the phrase, "on account of interest in the event of the cause," was considered-the defendant having been convicted in the court below of the murder of Judge Elliott, at the time of his death an associate justice of the Court of Appeals. The pretext for the murder was an opinion delivered by the Court of Appeals in a case in which Buford was a party. Judges Cofer and Hines, two of the judges now on the bench, concurred with Judge Elliott in the opinion rendered, and the chief justice, having decided the case in the court below, was rendered incompetent to try the case in this court, by an express constitutional provision; the three judges were witnesses for the State on the trial below. Under these circumstances the court held that the three judges were disqualified under the statute from hearing the appeal, not from the circumstance that they were witnesses on the trial, but because they were the associates of the murdered judge, who lost his life for an act done by all of them and in the justice of which they all concurred. Concerning the character of interest which would work a disqualification under the statute, PRYOR, C. J., who delivered the opinion said:

"The question addressing itself to this court is: 'What character of interest, in the event of the cause, disqualifies a judge of this court from presiding?' If a pecuniary interest only, as is maintained by some, the judge must preside in all criminal prosecutions unless he is related to the accused, or has been employed as counsel in the court below, or as the judge presided at the trial. The relationship of the judge to either party constitutes a ground of disqualification. The word party means a party to the action, and, as the judge is supposed to have no greater interest in the result of the prosecution, when in the name of the Commonwealth, than any other citizen, and occupies the same relation to the State, it is urged that he must try the case, as in no sense can he be said to have a pecuniary interest in the event of the cause. Therefore if the accused is charged in the indictment with the murder of a son of a judge, the latter is competent to try the case, or if the judge himself is himself the injured party he must try the issue between the Commonwealth and the accused because he is not pecuniarily interested in the event of the cause. This is the legitimate result of such a construction of the Constitution, and, if adopted, would be repugnant to every principal of natural justice, and in direct conflict with the rule of construction applicable to all remedial statutes."

The opinion then calls attention to the fact that the framers of the Constitution excluded the judge who tried the case below from all participation in the decision of the cause on appeal because:

"Having a fixed opinion in the case, it was supposed that it would control the action of the judge thereafter, and prevent the litigant from having a fair and impartial trial, and by reason of this constitutional provision one of the judges now on the bench was prevented from consulting with his associates in the civil action from which has originated the present prosecution, and, while incompetent to try the civil cause in this court, if that judge had been the victim instead of his associate, and the blow not fatal, he would have been competent to try the accused for malicious shooting and wounding; and so if the shot in the case of Judge Elliott had not taken his life, he would have been competent to try the case, because as has been suggested, the prosecution is in behalf of the Commonwealth, and the judge can have no interest in the event of the cause. Can it be said that the father, because the prosecution is in the name of the Commonwealth, has no greater interest in the prosecution of the murderer of his own son than his neighbor, or that the judge whose life has been imperiled on account of an act done by himself and associates, and by means of which the latter has lost his life, has no greater interest in the event of the prosecution than the mere desire that every good citizen should have to see the law enforced? The interest disqualifying a judge may result from bias or passion, such as is calculated to control his action, notwithstanding his efforts to divest himself of all prejudice and feeling. A concious bias or prejudice is such an interest as should cause the judge to leave the bench."'

The opinion of the chief justice, after referring to the novelty of the question, there being no precedent in point, and citing Hall v. Hagar, 105 Mass. 223; Williams v. Robinson, 6 Cush. 333 concludes as follows:

"The life of an associate was taken for an act done and approved by all. The previous connection of the three judges with the subject-matter from which this

prosecution had its origin, and their participation in the trial resulting in the conviction of Buford, whether as witnesses or otherwise, render them incompetent to try this case. While the judge can not and should not avoid a responsibility imposed upon him by law, although it may subject him to the criticism of others, even of those who rank high in the profession to which he belongs, he should be careful never to so act in the decision of any cause as to invite suspicion as to personal or professional integrity. We are satisfied that we should retire from the bench, making an order certifying to the Governor the fact that three judges now present on the bench can not preside on account of interest in the event of the cause."

THE ELEVENTH VOLUME OF THE "AMERICAN DECISIONS" *

The eleventh volume contains cases from six States, covering a period of two years, from 1822 to 1824. The series has now reached a point where progress becomes slower; more cases in each volume must be re-reported, and fewer can be omitted as not "of general interest and authority." In Mr. Proffatt's first volume he was able to include thirty of the old reports, while his last can embrace but nine, viz.: 2 Me., 1 Pick., 20 Johns., 7 Johns. Ch., 2 Halst., 8 & 9 Serg. & Rawle, and 2 Hawks. A extraordinary task confronts his successor, who will find the work of selecting grow more difficult the further he proceeds, and who, if he shall succeed, under these circumstances, in making the coming volume as excellent an example of judicious sifting and selection as were those of the late lamented editor, who labors closed so suddenly four months ago, will have performed a work almost unparallelled in the history of legal literature.

The following cases are worth noting:

A sheriff can not be sued jointly with his deputy for a tort conmitted by the latter alone, nor will an action lie against him after a judgment against the deputy upon which execution has been issued. Campbell v. Phelps, 1 Pick. 62. In Stebbins v. Palmer, 1 Pick. 71, it was held that an action for breach of promise of marriage would not survive against the personal representative of the promiser. Said Wilde, J.: "The maxim actio personalis moritur cum personae decides nothing, for it is admitted that it is not

*The American Decisions, containing the cases of general value and authority decided in the courts of the several States. Compiled and annotated by JOH PROFFATT, LL.B., author of a Treatise on Jury Trial, etc. Vol. XI. San Francisco: A. L. Barncroft & Co. 1879,