ABSTRACTS OF RECENT DECISIONS. 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 fraude. SUPREME COURT OF OHIO.

So this court has ruled in 65 III. 395, and 78 III. 124. The DecemberTerm, 1878.

utmost defendant can claim is that the leasing was

from month to month, and therefore he was entitled [Filed October 7, 1879. 1

to thirty days' notice to terminate the tenancy. Thirty RECEIVER-MANDAMUS WILL NOT LIE AGAINST,

days' notice of the landlord's election to terminate the WHEN.-Where the court of common pleas having tenancy was in fact given, and although the landlord jurisdiction in an action against a railroad corporation, may have stated the wrong reason for it, nevertheless bas appointed a receiver who is in possession of the

was thirty days' notice to quit and surrender the road, its property and assets, and is proceeding in the premises, and that was all the defendant was entitled execution of the trust under the direction and orders to under the law. He was not, and could not be, in of the court, a mandamus will not be issued against doubt that it was the intenion of the landlord to put such corporation and receiver directing their conduct an end to the existing tenancy and the notice given was in operating the road. Writ refused. Opinion by effectual for that purpose, although it may not have GILMORE, C. J.-State v. Marietta, etc., R. Co. been so accurately worded as it might have been.

Affirmed. Opinion by Scott, J.-Creighton v. San. CONTRACT-AVERMENTS IN ACTION FOR BREACH.

ders. -1. In an action to recover damages for the breach of a contract, averments in the answer setting up a dif

INDICTMENT-SELLING INTOXICATING LIQUORSferent contract are immaterial, except as they operate

EVIDENCE - PHYSICIAN'S PRESCRIPTION.- Plaintiff to deny the making of the one sued on. Such aver

in error was indicted for selling intoxicating liquors in ments do not constitute new matter, and require no

a less quantity than one gallon, and on the trial was reply. 2. In order that the buyer may recover dam

found guilty and sentenced to pay six several fines, ages for the non-delivery of goods, it is incumbent on

amounting in the aggregate to $120. The second sechim to prove that he was ready and willing to receive

tion of the “Dram Shop" Act makes it unlawful for and pay for them as delivered; and he is not relieved

any person not having a license to keep a dram shop to of this duty by the fact that the making of the contract

sell intoxicating liquors for any purpose in a less quansued on is denied. Judgment reversed and cause re

tity than one gallon, or in any quantity to be drunk on manded to the court of common pleas for a new trial.

the premises or in or upon any place adjacent thereto. Opinion by WHITE, J.- Simmons v. Green.

It is not claimed that defendant had any license to keep a

“dram shop," or any permit from the authorities of any EXCESSIVE JUDGMENT JUDGMENT WITHOUT yillage or city, as a druggist, to sell liquors for "medicPLEADINGS - USURY.–1. A judgment for å sum inal, mechanical, sacramental and chemical purposes." greater than the amount due upon the cause of action On proof being made, as was done, that defendant bad as stated in the record is erroneous; and the previous sold intoxicating liquors in less quantities than one consent of the parties that such judgment might be gallon, prima facie, the conviction was warranted by rendered does not cure the error. 2. Sections 377 and the law and the evidence. Whether a druggist not 378 of the code of 1853, authorizing a judgment with- having a permit to do so may lawfully sell intoxicating out pleadings, apply only to a proceeding wherein the liquors on a physician's prescription, if the same were debtor appears personally in court and confesses judg- done in good faith and the person for whose use the ment. 3. Where money is loaned at the highest rate prescription was made was in fact sick, is a question of interest allowed by law, a contract to pay a sum in that can not arise on this record as there is not a partiaddition to such rate in consideration of an extension cle of testimony that shows or tends to show that de. of the time of payment is usurious. Judgment affirm. fendant at the time he sold the liquor (was) or ever ed. Opinion by MCILVAINE, J.-Rosebrough v. Ansly. was a druggist. The only testimony that indicates in JUDGMENT-PROMISSORY NOTE-PAYMENT.-1. A

the slightest degree the occupation of defendant is that judgment rendered on a special finding of facts made

one of the witnesses says he was his “family physi. by the court, may be reviewed on error, although such

cian," and as such prescribed for bim. So far as this finding was not made at the request of either party.

record discloses, the prescriptions introduced in evi. 2. The holder of a promissory note accepted in good

donce may have been a mere device to avoid the statute faith, from one of the principal makers thereof, who,

prohibiting the sale of intoxicating liquors. It does to the knowledge of the holder, was insolvent at the

not appear that any of the witnesses who obtained the time, a conveyance of a parcel of land in payment of

prescriptions were at all sick or needed medicine of the note. Subsequently, and within four months from

any kind. Affirmed. Opinion by SCOTT, J.-Necker the time of the conveyance, the holder of the note, on

v. People. demand therefor, surrendered the property conveyed to an assignee in bankruptcy of the grantor. Held, that such conveyance did not operate as payment of

SUPREME COURT OF INDIANA. the note, nor to discharge a surety thereon. Judgment affirmed. Opinion by Boynton, J.-Hainer v.

September Term, 1879. Batdorf.

SALE BY ASSIGNEE OF BANKRUPT A JUDICIAL SALE.

-This was an action by Shroyer to recover certain real SUPREME COURT OF ILLINOIS.

estate which he had bought at a sale by the assignee in

bankruptcy of Charles H. Roberts. Roberts' wile (Filed at Springfield, June 21, 1879.)

claimed one-third of the land by virtue of the Act of

March 11, 1875, which provides that in all judicial sales LEASE-VERBAL CONTRACT-PART PERFORMANCE of real estate in which a married woman has an in-THIRTY DAYS' NOTICE.-Conceding the contract for choate interest by virtue of her marriage, and leasing was for a period of five years, as defendant in- such inchoate interest is not directed by the judgment sists it was, still as it was a mere verbal contract and to be sold or barred, such interest shall become abso• never reduced to writing, it was for that reason within lute in the wife. Held, the sale of land by the assignee the operation of the statute of frauds and could not be in bankruptcy was a judicial sale. It was a sale ordered made a ground of defense to an action by the landlord by a judge of a court having jurisdiction, while acting in his official capacity, during the progress of judicial the building, which was of such force as to lift up the proceedings in a cause, and was duly confirmed by roof over the rear part of the building, to blow outsaid judge acting in his official capacity as a court. ward the larger portion of its walls on the two sides (Rorer on Jud. Sales, 2 ed. 1,3, 46, 86; 39 N. Y. Ct. App. next the streets, and to cause the instantaneous fall of 302.) The wife is entitled to one-third of the land. the whole roof, the internal partitions and the contents Judgment reversed. Opinion by PERKINS, J.-Rob- of the rooms, including a stove with a coal tire burning erts v. Shroyer.

therein, in a mass of ruins upon the plaintiff's shop in

the lower story; and that, immediately after the exLIABILITY FOR RENT DURING YEAR OF REDEMP- plosion and fall, a fire caused thereby, and kindled by TION.—The Act authorizing the redemption of real the burning coals from the stove, broke out in the estate sold upon execution, provides that the judgment fallen ruins, and destroyed the plaintiff's stock. Held, debtor shall be entitled to the possession of the prem- that the provision in the policy, being ambiguous, was ises for one year after the sale, and in case they are to be construed most strongly against the insurers; pot redeemed at the end of the year, he shall be that it appears to have had in view the case of a buildliable to the purchaser for their reasonable rents ing falling by reason of inherent defects or by the withand profits. Held, it is only against the judgment drawal of the necessary support as by digging away debtor that the purchaser at sheriff's sale has any the underlying or adjacent soil. It might, perhaps, claim for rents and profits during the year of re- include the case of a building thrown down by a storm demption, and where a third person has purchased or flood or earthquake. But it would be construing the equity of redemption from the judgment debtor this provision too liberally in favor of the insurers to after such sale, and gone into possession of the hold it to include the case of the destruction of a buildproperty, the purchaser at sheriff's sale can not ing by an explosion within the building itself and of a hold such third person liable for the rents and profits fire immediately ensuing upon and connected with of the land. His right of recovery is against the judg- such an explosion, the measure of the liability for ment debtor alone. Judgment reversed. Opinion by which has been carefully and precisely defined in the NIBLACK, J.-Wilson v. Powers.

preyious provision of the policy. Opinion by GRAY, .

C. J.-Dows v. Merchants' Insurance Company. PLEADING – FORMER ADJUDICATION. – The rule

INDICTMENT – FALSE PRETENSES--SUFFICIENCY

OF ALLEGATIONS.-1. A count in an indictment litigated in a cause will be presumed to have been decided, means that everything which was within the

alleged that in order to induce M. to sign a lease to C., issues in the cause and might have been proved under

the defendant falsely represented that said C.“ was

then and there a liquor dealer, then doing business as them will be presumed to have been proved and adjudicated. 12 Ohio, 11; 13 Johns. N. Y. 227; 32 Ind. 248.

such dealer in Broad Street in said Boston, and that An answer of former adjudication, to be good, must

said C. was then and there a man worth ten thousand show that the matters in controversy in the case at bar

dollars, and that a certain person whom the said deactually were determined in the former action, or that

fendant then and there pointed out and designated to they might have been litigated under the issues. If a

said M. was then and there the said C." Upon a mo plaintiff joins in his complaint several separate causes

tion to quash, it was held, that the representation as of action, making the aggregate of such causes the

to C.'s peeuniary ability might have been intended amount for which he demands judgment, and, neglect

and understood as the expression of an opinion or ing to withdraw any of these causes on the trial, he

judgment and not as the representation of a fact.

Moore v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 fails to establish any of them by proof, he can not after. wards bring another suit for those items. 3 B. &. C. 1 Mass. 431; and not being aided by any other aver235; 14 Mich. 348. But a judgment for the defendant

ments in the indictment, is not, as set out, a false pre

tense within the statute. So the pointing out a peron demurrer to the complaint in a suit on account of

son as C. would not seem to amount to the representhe om ission of an essential allegation therein which is

tation of a material fact which was calculated to desupplied in a second suit, will not be a bar to such sec

ceive M. and induce him to sign a lease to C. But the ond suit. Opinion by PERKINS, J.-Griffin v. Wallace.

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. SUPREME COURT OF MASSACHUSETTS.

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 September Term, 1879.

for the payment of money drawn by him in favor of FIRE INSURANCE-POLICY-EXPLOSION.-A policy

M. from the proceeds of which he intended to pay cerof insurance, insuring the plaintiff against loss or dam

tain bills due from M. to other persons, and that M. age by tire “ on his stock in trade as an apothecary,”

believing said false pretenses was induced to sign a besides providing that the defendant company should

certain mortgage deed. Held, that the only proper not be liable" for any loss caused by the explosion of

legal construction of all the allegations is that the degun-powder or any explosive substance, nor by light

fendant agreed to take his own money and pay the ning or explosions of any kind, unless fire ensues, and

bills due by M. if he would sign the mortgage; that then for the loss or damage by fire only, which loss the mere representation that he had drawn a check, if it shall be determined by the value of the damaged prop

could be treated as a representation that he had money erty after the casualty by explosion or lightning,"

in the bank, that fact not being negatived, did not precontained also this provision: “If a building shall

vent the indictment from being fatally defective. 3. fall, except as the result of a fire, all insurance by this A record of divorce proceedings in which a witness company on it or its contents shall immediately cease

was a party, and in which the jury found that said and determine.” The evidence at the trial tended to

witness had committed adultery, does not show the show that, by a sudden combustion of inflammable conviction of the witness of any crime which under gas, brought into contact with some burning substance, the statute would be admissible to affect his credibility, an explosion, accompanied by a flash of light and a St. 1870, ch. 393, § 3. Opinion by MORTON, J.-Com. loud report, took place in one of the upper stories of 0. Stevenson.

NOTES.

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, WILLIAM E. BECK has been elected to the Supreme and parties do not desist, and he then threatens force, Bench of Colcrado, succeeding Chief Justice Thatcher they may then threaten resistance. Have you heard any who was elected in 1876 for the short term.- Mr. Jus- evidence in this case of there being any tumult or tice Hunt has returned to Washington, but it is doubt- disturbance of the peace, except this alleged noise? ful if he will be able to resume his judicial duties. If there was not, then the officer could be resisted, and Though his health has improved, his recovery is far the plaintiff was entitled to exercise just such force as from complete. The amendment to the Connect- was necessary to protect himself. The defendant himicut Constitution allowing judges of the Supreme self committed a breach, and he can not justify himself Court of Errors and the superior court to hold by calling that a breach of the peace which was not a office until seventy-five years of age, was defeated breach. He must show by the facts that there was an by 26,335 majority out of a total vote of 58,307.- actual breach. Third, being merely drunk is not by Lottery speculations have received a severe blow in the law sufficient to justify interference. These are the opinion just issued from the office of the Assist- rules which it is proper for our citizens to remember, ant Attorney-General for the Post Office Department.

and I wish the officers were here to hear me. Merely Its purport is that according to the provisions of the being drunk is not, by the law, sufficient to justify instatutes letters addressed to lottery companies, or to terference. The words 'drunk and disorderly' must individuals as agents of such companies, are unmail. mean disorderly not only in the sense of being drunk, able per se, and that postmasters must refuse to regis. but of causing annoyance to others. As to the ter such letters. There are said to be at least one word “disturbance,' it must mean a disturbance hundred lottery schemes which hereafter will be cut tending to a breach of the peace. It is a great off from the use of the Post Office. They can neither mistake to suppose that you can take a man by the send circulars, nor can letters to be sent by mail be collar and drag him off to prison, because he has addressed to them. It will now be held that the fact got too much liquor aboard. The police officers in that the letter is addressed to a lottery company must

this city have no right to do it, although I am very be taken as furnishing sufficient evidence that it is a sorry to say they do do it, and thus cause a great letter concerning a lottery, and, is therefore unmailable.

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 JUST exactly what are the powers of police officers is a matter about which the average citizen knows little.

reason why he should be pummelled. It is only when

he is creating a disturbance that he may be arrested. The order to “move on," or to “come along," enforced

It has been decided in our courts and in the courts of by the awful presence of the baton and star, is usually

England, time out of mind, that where a policeman promptly obeyed, and the citizen seldom stops to question the legality of the mandate. This ready acquies

arrests, unless he is legally justified in arresting, re

sistance to him to any extent necessary will be lawful cence has come to render the police, particularly in cities, arrogant and often brutal in their dealings with

and justifiable. If the defendant iu this case had done the public; so that it is safe to say that in all the large

just what plaintiff said he did do, then I hold that cities of the country, breaches of the law are commit

plaintiff could have done anything for the purpose of ted daily by those who are supposed to be the preserv

preventing him; and if it was true that the defendant ers of the peace. The powers and duties of a police

continued to insult the young lady in the manner in man are regulated by the law, and if he goes beyond

which it has been said he did, they could have gone to that he does it at his peril, and the citizen may resist,

very great extremes, and could have taken the law in to any extent necessary, his unlawful commands. A their own hands as against him. Now, gentlemen, it case tried in New York last week (McIntyre v. Rad.

is unnecessary for me to go further. Understand that I mus), contains a very clear exposition of the rights of

do not for one moment justify opposition to lawful the public Ar this respect. The plaintiff, one evening

authority. I would not say one word to encourage it; last March, wbile accompanying a young lady to her

but the time bas come when something should be done home from a social gathering, was stopped by the de

to discourage officers from interfering with peaceable fendant, a police officer. The officer told the young

people, and from exercising authority for which there lady she had better go home, at the same time pushing

is no foundation in law or in morals.” This is unher escort from her with his club. When plaintiff de

doubtedly good law. The rule enunciated, that unmanded the policeman's number, the latter arrested

less an officer is legally justified in making an arrest him and took him to the station, where he was locked

resistance to any extent necessary is justifiable, is as up over night on a charge of disorderly conduct. The

old as the ancient maxim that there is no wrong withplaintiff brought an action for illegal arrest, and the

out a remedy. The law is jealous of the rigbts of the jury returned a verdict for $2,500 against the officer. public, but only in a few cases can it give relief withIn his charge, the trial jndge stated the law as follows: out its being specially invoked. An occasional action “The only allegation in the answer of defendant, the

like that of Mr. McIntyre will do much to curb the police officer, which he claims justifies his conduct in

reckless ofliciousness, in some cases the outrageous this case, is that Mr. McIntyre and the lady were talk

cruelty, of those who are after all the servants of the ing loudly, and making a noise tending to disturb the public and not its masters. Readers of Victor Hugo peace. The answer does not claim that plaintiff as- will remember that before popular government had saulted and struck the defendant. Now, it is import

been established in England, the policeman of that ant tbat I should state precisely what an officer can and time was an individual known as the wapentake, a what he can not do, because we have of late heard a

touch of whose staff was a command to follow, to disgreat deal in this great city of the improper interfer- obey which was instant death. More than once, as ence of officers with individuals who are in the pursuit we have read in the daily papers of a police officer of their occupations, and who are entitled to go undis. shooting an escaping thief before he had commenced turbed. I say to you first, that mere talking or sing. to pursue him, or clubbing almost to the death a ing does not, at common law, constitute a breach of the drunken vagrant incapable of understanding his compeace; and an officer can not arbitrarily make it one by mands, have we imagined that the wapentake still calling it a disturbance. Second, unless there is an act- prowls through the streets of our American cities

. We are satisfied with the The Central Law Journal. erable upon them.

New York rule which forbids the compound

ing of interest by virtue of any provision in ST. LOUIS, OCTOBER 24, 1879. the obligation on which the interest accrues,

and are, therefore, of opinion that the court CURRENT TOPICS.

erred in allowing compound interest on the

obligation above mentioned." 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 The Constitution of Kentucky and the statcontract made in advance for interest upon

utes passed in conformity thereto (Const. art. overdue instalments of interest-ie compound

4, $15, G. S. c. 28, $1, art. 2) provides that interest was void. This was the opinion of Chan

on the certificate of the Court of Appeals to cellor Kent in Connecticut v. Jackson, 1 Johns.

the Governor, the latter shall select from the Ch. 13; Van Benschooten v. Lawson, 6 Johns.

bar of the State an additional judge or judges Ch. 314, and his conclusion is adopted in other

to constitute with the remaining judge or States. Sparks v. Garrigues, 1 Binn. 165, judges, “a special court for the trial of such Stokeley v. Thompson, 34 Penn. St. 210;

cause or causes as may at any time be pendHastings v. Wiswall, 8 Mass. 455; Van He

ing in the Court of Appeals, on the trial of mert v. Porter, 11 Met. 210; Ferry v. Ferry,

which a majority of the judges can not sit,

on account of interest in the event of the 2 Cush. 92 ; Doe. v. Warren, 7 Me. 48; Niles v. Board, etc., 8 Blackf. 159; Grimes v.

cause, or on account of their relationship to Blake, 16 Ind. 160 ; Leonard v. Villars, 23 Ill.

either party, or where the judge may have

been employed in or decided the cause in the 377. The judgment of Chanceller Kent has

inferior courts.” In Buford v. Commonrecently been criticised in New York, but it has

wealth, decided on the 9th inst. the meaning been affirmed by a majority of the Court of

of the phrase, "on account of interest in Appeals, after full discussion. Young v. Hill,

the event of the cause,” was considered-the 37 N. Y. 162. In New Hampshire, a different

defendant having been convicted in the court conclusion was reached, at an early day.

below of the murder of Judge Elliott, at the Pierce v. Rowe, 1 N. H. 197; and this case

time of his death an associate justice of the has been followed in some States. Austin v.

Court of Appeals. The pretext for the murder Imus, 23 Vt. 286 ; Preston v. Walker, 26 Ia.

was an opinion delivered by the Court of Ap205; Lewis v. Paschal, 37 Tex. 315; Bledso

peals in a case in which Buford was a party. . v. Nixon, 69 N. C. 89 ; and it is not disputed Judges Cofer and Hines, two of the judges anywhere that after the interest has accrued

now on the bench, concurred with Judge Ela valid promise may be made to pay interest

liott in the opinion rendered, and the chief upon it. Camp v. Bates, 11 Conn. 387; Wil justice, having decided the case in the court cox v. Howland, 23 Pick. 167; Stewart v. below, was rendered incompetent to try the Petree, 55 N. Y. 620. That coupons attached case in this court, by an express constitutional to negotiable paper may draw interest after

provision; the three judges were witnesses for dishonor, is held in some cases : Gelpcke v. the State on the trial below. Under these Dubuque, 1 Wall. 175; Mills v. Jefferson, 20 circumstances the court held that the three Wis. 50; but these coupons are for many pur- judges were disqualified under the statute poses a serverable contract, and are in the na- from hearing the appeal, not from the circumture of notes given in advance for interest stance that they were witnesses on the trial, to become due at a certain time. "The au

but because they were the associates of the thority then to give a separate or severable murdered judge, who lost his life for an act contract for future interest” say the court in done by all of them and in the justice of which the principal case "was never doubted and they all concurred. Concerning the character we have no occasion-even if we were so dis- of interest which would work a disqualification posed-to question, in this suit, the soundness under the statute, PRYOR, C. J., who deliverof the decisions that have held interest recov- ed the opinion said:

Vol. 9_No. 17.