to be approved and certified. The motion was heard on the case as stipulated. Held, that hearing the motion for a new trial on the stipulated case was an approval of it and the judge ought to have then certified to it, and a mandanus will issue requiring him to certify to it as of the date when so presented to him.-Opinion by GILFILLAN C. J.-State v. Cox.

TITLE.-TRUSTEE.-Where one party has acquired from the State, through one of its officers duly authorized to make a deed of conveyance, the legal title to lands which of right under its laws belong to another, the former will be treated in equity as a trustee of the latter, and compelled to transfer the legal title as to such of the lands as he still holds, and to account for the proceeds of such portion as may have been sold. Opinion by CORNELL, J. Winona &c. R. Co. 1. St. Paul &c. R. Co.

Tax JUDGMENT-PARTNERSHIP TITLE.---When the amount of a tax judgment is only expressed in numerals without indicating what they represent, and with no reference in and of the omission it is void for uncertainty. A partnership as such cannot take and hold in its firm name the legal title to real property. Under the statutes of this State, proof of an entry or location of a tract of government land belonging to the United States is sufficient prima facie to show a legal title to such tract in the party making the entry.or location. Such facts of entry and location by any one may be shown by a certified abstract taken from the books and records of the local land office of the district wherein the tract is situate, properly authenticated by the register of such office. A defective certificate of acknowledgment will not defeat the operative effect of a deed of conveyance in passing the legal title to the grantee. A deed signed A. B. (the name of the grantor,) by C. D. his attorney in fact, sufficiently indicates that it was executed by an attorney in fact in the body of the deed. Opinion by CORNELL J.-- Tida V. Rines.

LICENSE-The charter of the City of Rushford provides that the city council shall have the exclusive right to license persons vending, dealing or disposing of spirituous liquors, malt or fermented liquors in the limits of said city, and persons so licensed shall not be required to obtain a license from the board of county commissioners, and shall not be prosecuted for selling, bartering or disposing of such liquors without first having obtained license therefor under the general laws, from the county commissioners. The effect of this provision is to substitute the city council for the board of county commissioners, as respects the granting of license to sell, etc., such liquors within the city limits, and a person selling within such limits without a license from the city council may be punished for a violation of the city ordinance, or he may be indicted under the general law. If indicted under the general law a license from the city council is a complete defense, and as respects the City of Rushford the right to issue such license is in the city council exclusively. Opinion by BERRY, J. State v. Flexenstein.

of said five years: Held, that the tax deed is invalid. Reversed. Opinion by HORTON, C. J. All the justibes concurring.-Hiller v. Rullman.

CHATTEL MORTGAGE-DESCRIPTION, A chattel mortgage in which the description of the property mortgaged is as follows: "Two hundred and fifty stock hogs, owned by said D. B. Mott, in Franklin County, Kansas,' and which contains the provisions that .'un. til default be made, or until such time as the mortcagees shall deem themselves insecure, the mortgagor (said Mott) is to continue in the peaceable possession of all the property, all which in consideration thereof he engages shall be kept in as good condition as the same now are, and taken care of at his proper cost and expense, is not void for uncertainty. Reversed. Opinion by HORTON, C. J. All the justices concurring.Shaffer v. Pickrell.

ATTACHMENT--BONA FIDE SALE.-Where a debtor sells all his property in good faith to pay certain creditors of his to the exclusion of others, without an intent to defraud, but simply to prefer some of his creditors to others: Held, that such a disposition of property is no cause for attachment and no ground to sustain the charge that the defendant had assigned and disposed of his property with the intent to defraud, hinder and delay his creditors. Affirmed. Opinion by Horton, C. J. All the justices concurring.-Campbell v. Worner.

HOMESTEAD LAW.-MILL NOT EXEMPT.-H 1 farmer owned and occupied a tract of land of 112 acres. Upon this was his house and home. On a small portion, a tract of less than two acres, he built and ran a public grist mill. The latter was entirely separate and distinct from the farm and not within any of its fences or enclosures; Held, that, the running of the mill being an independant business, the mill was not appurtenant to the farm nor exempt as a part of the homestead. Reversed. Opinion by BREWER, J. All the justices concurring.-Mouri. quand v. Hart.

ESCAPE.-DEFCTIVE INDICTMENT.--An information gave a copy of an order and judgment sentencing the defendant J. H. to be imprisoned in ihe penitentiary and then stated that while the defendant was "in the lawful custody of the sheriff," "under and by virtue of the order and judgment aforesaid as entered of record,' “and while going to the place of confinement aforesaid, to-wit: To the penitentiary of the State of Kansas, under and by virtue of said order and judgment aforesaid the said Joseph Hollon did at Marion Centre," "then and there feloniously break such custody of the sheriff,'' “and did then and there escape therefrom;' But said information did not state or show that the sheriff had at the time of said alleged escape, or at any other time, a certificate of said said sentence, as is required under section 256 of the criminal code, Gen. Stat., 861 or that he had any other paper under which or by which to hold the said defendant in custody; the court below quashed said information, Held, that said information was defective and rightfully quashed. Affirmed. Opinion by VALENTINE, J. All the justicos concurring. State v. Hollon.

[ocr errors]


(Filed September 24, 1879.1

Tax DEED_WHEN INVALID.-Under the provisions of chapter 196, Laws of 1872, a county treasurer Where an indictment is quashed or a nol. pros. en. has no power to proceed to give notice of the sale of tered, the discharge of the prisoner does not necessaproperty at public auction for the taxes, penalties rily follow. The court may, whenever it thinks propand costs due thereon, until such property has remain- er, in the exercise of the power which inheres in it, ed unredeemed for the term of five years, and where without the aid of statutes, lawfully hold the accused the tax deed shows the notice of sale to have been to answer a new indictment, without hearing testigiven prior to the expiration of said five years, and the mony or calling witnesses to show his guilt.--Ex parte tax sale to have followed immediately the expiration Graves. Supreme Court of Alabama.


[blocks in formation]

(NEW BOOKS RECEIVED.-American Decisions, Vol. 11: A. L. Bancroft & Co., San Francisco. American Re. ports, Vol. 27: J. D. Parsons, Jr., Albany. Abbott's Law Dictionary: Little, Brown & Co., Boston.

Weeks on Damnum Absque Injuria: Sumner, Whitney & Co., San Francisco. Rorer on Judicial Sales: Callaghan & Co., Chicago. Life and Writings of B. R. Curtis: Little, Brown & Co., Boston.) THE PRINCIPLES OF CRIMINAL PLEADING. By


By MELVILLE M. BIGELOW, Author of Law of Estoppel, Law of Fraud, etc. Boston: Little, Brown & Co. 1879. The idea of dividing the law into its branches and treating each branch in a separate book and in an elementary way, is carried out in this series--two volumes of which are already issued and now before us. These neat and compact books are less discouraging to the beginner in the study of the law than the ponderous octavos of Blackstone, Kent and Story; they are likewise much handier. A student's text book should be his constant companion, and a volume which he can carry in his pocket will often be opened when the larger book would be left for a more convenient season. This much can be properly said concerning the style of this students series, and we congratulate the class for whom these works are intended upon the advance which is here made in the form of their text books. The treatises on Criminal Pleading and Equity will be followed by others upon other branches--Bills and Notes, Constitutional Law, Corporations, Sales, Contracts, Insurance, Criminal Law, Evidence, Real Property, Wills, for example. The volumes before us have been carefully prepared by authors of well known reputation. Of the two, Mr. Heard's book is of special value; an available work on Criminal Pleading, being hitherto unaccessible to the majority of students. He has, in short, been extremely fortunate in the subject assigned to him, more fortunate in this respect than Mr. Bigelow, whose book must of necessity contest the ground with the admirable treatise of Mr. Snell.

[blocks in formation]


No. 26.

(9 Cent. L. J. 239.) First, Under the Statutes of Ilinois whenever the fact was made known that the replevin of B. was of goods held under execution, the suit should have been dismissed at B.'s cost; see act Con. Replevin, Ills Stat. 1877—The only information and proof of that fact should have been the execution itself. Second, It was not necessary for A. to testify as to his official character; all that A. should have done was to offer the execution under which he made the levy, which execution fair on its face was a sufficient protection to A. Third, Should a state of case arise where the official character of an officer comes in question, of course the best evidence is the record of his appointment, election or commission. Hannibal, Mo.

Thos. F. Gatts,


QUERIES. 33. CITIZENSHIP.-A. is born in 1856, in this country of German parents; his father who had come here in 1848 had been admitted to full citizenship, but in 1862 he returned with his whole family to Germany, where he is living now, and acquired anew the German citizenship, relinquishing all claims as an American citizen. In 1862 A. who was then 17 years old returned to this country, where he has lived ever since. First, Is it necessary for him to take out naturalization papers in order to acquire American citizenship? Second, Did A not forfeit his American citizenship that he had acquired by birth, by his father's becoming a German citizen while he was under age?

The testimony of the constable as to his official character was properly admitted, as the general rule requiring the best evidence has been relaxed in cases where general convenience requires such relaxation. 1 Greenl. Ev. Secs. 83, 92, Brown v. Connelly. 5 Bikf. 390, and cases cited; Strails v. State, Ind. 576. The relaxation of the rule may not apply where the source of the title to an office is executive appointment. Cornwall v. Allen, 21 Ind. 521.

H. S. C.

34. JURISDICTION.-Can Jasper Ct. Ct. maintain jurisdiction over 'defendant, (one) who reside and is summoned in St. Louis, in suit to quiet titles (sec. 53, W. S. 1022.) to real estate in this county? P.

No. 24.

[9 Cent. L. J. 239.] D. is an innocent purchaser within the rule in 3d. Wash. Real Property 4th. Ed. page 325, citing 46 Mo. 239, and 15 Ill. 148, to sustain him. He gives 24 Conn. 211, 6 B. Mon. 532, and 18 Ib. 312 as asserting a contrary doctrine.

KANSAS. In the absence of any statutory regulations, D.'s deed is good if recorded prior to B.'s. Wash. on Real Prop. vol. 3, 325. Such questions are regulated by statute in Ohio, and probably in most other states.. Cadiz, 0.

G. D. is unquestionably an innocent purchaser and the unrecorded deed of B. will be defeated in his favor. Orth V. Jennings, 8 Blkt. 420; Doe v. Hall, 2 Ind.

35. MORTGAGE-NOTICE.-A ownes Blackacre and Whiteacre, and mortgages both to B. He afterwards


556, Baily v. Baily, 38 Ind. 442; Corbin v. Sullivan, 47 Ind. 356. This would not be the case if the title of A had been equitable. Wright v. Shepard, 47 Ind. 176.

Land, in its legal signification, has an indefinite ex. tent upwards, so that, by a conveyance of land, all buildings, growing timber, and water erected and being thereupon, shall alike pass. 9 Rep.54; Allaway v. Wagstaff, 4 H. & N. 307. St. Louis.




No. 31.

(9 Cent. L. J. 299.] See Union Bank of Georgetown v. Geary, 5 Pet. 107, where it is beld that an agreement, such as is set out in the query, is binding, and may be enforced by injunction.

H. J. MILLIGAN. Indianapolis.

The Supreme Court of the United States met on the 13th inst. The President being absent, the usual ceremonial visit to him did not take place—The Weekly Jurist an Illinois legal newspaper having published, a fortnight ago, a large number of abstracts of the Supreme and Appellate Courts, of that State was prepared to receive any complimentswhich its enterprise might deserve, But another legal paper The Chicago Legal News speedly transferred the abstracts to its columns omitting even to give the Jurist the very inadequate return of an acknowledgment of the source whence it bad taken the matter. But the editor of the Jurist must be commended for the very polite manner in which the offense is excused. “The omission” he says "must have occured by the hurry in setting up so much mat. ter between the time of receiving our number on Friday and issuing the News on Saturday. We presume this will not occur again.”

[ocr errors]

No. 25.

(9 Cent. L. J. 239.) The inchoate right of dower of the wife of A is just where it was before A conveyed the land to B. A's wife's right of dower is in no way altered, enlarged or abridged by any or all the conveyances referred to. G. S. ch. 130, $ 13; Way. Stat. p. 540; Davis v. Davis, 6 Mo. 183; G. S. ch. 109, $ 2; Wag. Stat. p. 273; Myer's Suppl't to Wag. Stat. pp. 150, 151, 152, ch. 47. Until the death of her husband, the wife's right of dower is not an interest in real estate of whicb value can be predicated. 9 N. Y. 110. And although on the death of her husband this might become consummated, it remains a chose in action till assignment. 4 Kent Comm. 61; 1 Barb. (N. Y.) 500; 5 Id. 438; 32 Me. 424; 2 Cow. (N. Y.) 651.; 5 J. J. Marsh, (Ky.) 12; 10 Mo. 746. Until assignment she has no estate which she can convey, or which can be taken on execution for her debts. 2 Keen, 527; 1 Barb. Ch. (N. Y.) 500: 4 Paige Ch. (N. Y.) 448; 9 Miss. 489; 1 Dev. & B. (N. C.) 437; 14 Mass. 378; contra, 10 Ala. N. S. 900. But where she does sell or assign the right of action, equity will protect the rights of the assignee and sustain an action in the widow's name for his benefit. 4 Rich. (8. C.) 616; 10 Ala. N. S. 900; 7 Ired. Eq. (N.C.) 152. She can release her claim to the one who is in po-session of the lands, or to whom she stands in privity of estate. 2 III. 384; 13 Ib. 483; 17 Johns. (N. Y.) 167; 32 Me. 424; Park. Dow. 335. St. Louis.


No. 27.

(9 Cent. L. J. 239.) Fishes are serve naturæ. Such animals belong to the person who has captured them only while they are in his power; for if they regain their liberty his property in them instantly ceases, unless they have animum revertendi, wbich is to be known only by their babit of returning. 2 BI. Comm. 386; 3 Binn. Penn. 546; Brooke Abr. Propertie, 37; Comyn's Dig. Biens, F.; 7 Coke, 17b.; 1 Chitty Prac. 87; Inst. 2, 1, 15; 13 Viner Abr. 207. Property in animals feræ naturæ is not acquired by hunting them; if, therefore, another person kills such animal in the sight of the pursuer, he has a right to appropriate it to his own use. 3 Caines (N. Y.) 175. But if i he pursuer brings the animal within his own control, as by entrapping it or wounding it mortally, so as to render escape impossible, it then belongs to bim, Id.; though if he abandons it, another person may afterwards acquire property in the animal. 20 Johns. (N. Y.) 75. If a man started game on another's private grounds, and killed it there, the property belonged to him in whose ground it was killed. 2 BI. Comm. 419; Churchward v. Studdy, 14 East, 249. There is no property in animals feræ naturæ or wild animals, including game, until they are caught. Co. Litt. 8 a; The case of Swans, 7 Rep. 17 b. Cujus est solum ejus est ad solum-Co. Litt. 4a: Broom'. Leg. Max. 395.

A commission lately appointed by the Prussian Gore ernment to investigate the best class of inks to be em. ployed for official purposes have just presented their report. They state that aniline inks are not suited for this purpose, because they can be easily washed away, especially by preparations of chlorine. Inks in the composition of which alizari (Adrianople red), is em: ployee can be obliterated less easily. But they are of the opinion that the best of all is that made from gall nuts, and recommend that it shall be used for official purposes and for all documents the preservation of which is of importance. -Thr oldest member of the Scotch Bar, Mr. Oliver Rutherford, died last month. He was called to the bar in 1803 and died in the ninetyninth year of his age. -A stubborn juryman carried the day against his eleven colleagues in a coronors inquest on the body of a married woman, in England lately. After half-an-hour's deliberation, a juryman came out with a verdict, which the coroner would not accept. The Juryman: Do I understand that we are to stop here all night without meat, drink, or fire?Coroner: Yes.-The Juryman: Then, I think we are agreed. Another half-hour passed, and then a jury. man said there were eleven for a verdict and one against. -The Coroner said they must carry the other man with them. At 9:40 P. M. the Foreman said the dissenting juryman would not give in-not if he stopped there a month. The Coroner then called the jury in and pointed out the features in the evidence again. The eleven were now getting angry with the dissentient (Mr. Hart).-A Juryman: What do you think of it now, Mr. Hart?-Mr. Hart: I am of the same opinion as before.-The Coroner: If there is no chance of your agreeing I must bind you over to appear at the assizes. -A Juryman: We have decided by a majority before in this room.-Another: It has been done by “tossing.” Mutual recriminations then took place, and the dissentient told the others, “There are eleven dogs and one bone.” At 10:15 P. M. a compromise was effected, the eleven giving in to the one, and passing a verdict that deceased came to her death by spinal apoplexy, brought on by excitement, but the eleven added a rider to the verdict that the cause of death was the husband.



The Central Law Journal.

the same. By leaving a copy of the attachment in the town clerk's office, an officer ac

quires the constructive possession of the propST. LOUIS, OCTOBER 31, 1879.

erty attached. There can be no joint posses

sion of such property by officers making diffCURRENT TOPICS.

erent attachments. The constructive or actual possession of the same by the officer making

the first attachment excludes the possession In Coffin v. Smith, recently decided by the

of other officers making or attempting to make Supreme Court of Vermont, A, a deputy subsequent attachments. But cessante sheriff, attached a quantity of hay, the prop- tione legis cessat-ipsa lex.

When the conerty of B at the suit of a creditor of B's, bystructive possession of the property in question lodging a copy of the writ in the clerks's office.

acquired by the plaintiff by the first attachment Afterwards and while that attachment was in

ceased, its effect upon the second attachment force, defendant attached the same hay in the made by the defendant also ceased; and his same way at suit of other creditors. The first

attachment, which up to that time had been suit being discontinued, plaintiff again at- kept in abeyance, became operative and in tached the hay in the same way at the suit of force; and thereafter the constructive possesstill other creditors. During all these pro- sion of said property was in the defendant ceedings the hay remained unmoved on the until he took the actual possession of the same premises of B, but afterwards, and while af- and sold it, as above stated.” fairs were in the posture in which they were left by the last attachment, it was, on application of B, appraised, advertised, and sold by The recent decision of the Supreme Court of defendant on the writ on which he attached it.

Pennsylvania in Allegheny County v. Gibson, In an action of trover therefor the court held

holding the county liable for damages to propthat the attachinent by defendant, though void

erty destroyed hy the mob in the riots of 1877, at the outset as against plaintiff and the first

has attracted considerable attention. The attaching creditor, was valid as against the

case was however decided under a statute of debtor, and that when the first suit was dis

Pennsylvania (act of May 31, 1841, P. L. 416) continued, and plaintiff's constructive posses

which provided that "in all cases where any sion thereby ended, the defendant's attach

dwelling house, or other building or property, ment became operative and valid. DUNTON, J.,

real or personal has been, or shall be destroysaid: “It is claimed by the plaintiff that in

ed within the counties of Philadelphia and Alasmuch as there was a valid subsisting attach

legheny, in consequence of any mob or riot, it ment upon the property in question by him as

shall be lawful for the person or persons indeputy sheriff at the time the attachment was

terested in and owning such property, to bring made by the defendant, the attachment of the

suit against said county where such property latter was absolutely void, and no lien was then or thereafter acquired thereby upon said

was situated, for the recovery of such damages

as he or they sustained by reason of the deproperty. We are not aware that this exact

struction thereof." Although the plaintiff would question has ever been before this court until

have been without remedy according to the now; but a similar one, as to the validity of a subsequent attachment made by an officer

rules of the common law, the principle em

bodied in the act is not new to legislation, as other than the one making the first attachment, where the lien created by the first attachment

shown by the court. continued in force or the property had been

“As early as 1285, the Parliament of England, by

statute of Winton or Winchester, (1 Stat. 13 Edw. p. sold upon execution, has been frequently be

2 ch. 3; See 1 Hawk. P. C. ch. 68 $ 11), provided a fore the court. It has been repeatedly held remedy against the hundred, county, etc., in which a that such subsequent attachment is invalid,

robbery should take place, for the damages caused

thereby, to be recovered by the party robbed, in any for the reason that no valid attachment of per- action against any one or more of the inhabitants. This sonal property can be made by an officer with- statute was re-enacted by 28 Edw. 111, ch, 2. Subse

quently the Stat. of 27th Eliz. ch 13, § 2, provided for out taking actual or constructive possession of

the assessment of the damages against all the inhabi. Vol. 9-No. 18.

“It may

tants of the hundred, after a recovery against one or ure of the civil authorities to suppress it, or more. Next we have the famous riot act of 1 Geo. 1 ch. 5, $$ 1 to 7, which was passed by reason of the tu

that their calling upon the military authorities mult attendant upon the accession of that king to the for aid relieved them from liability. Three throne, and which made it a felony, without benefit of

notable instances of this are given in supclergy, for any persons unlawfully to assemble and demolish any church or dwelling house. The 6th section port of this position—the No Popery riots of of the same act provided that, in case such church or

1780, the Philadelphia riots of 1844, and the dwelling house should be destroyed, the inhabitants of the hundred in which it was situate, should be liable

draft riots in New York in 1863; in all of for its value. This was followed by the Act of Geo. which cases the cities were held liable for the II, ch. 10, § 1, and the laws upon this subject were consolidated in 1827, by 7th and 8th Geo. IV, ch. 31.

damage. It will thus be seen that we have imported the principle of the act of 1841, from that country from where we derive the great body of our common law. That it was not transplanted at an earlier date is perhaps due

One portion of the opinion of the court reto the fact that new countries, sparsely settled, do not calls the apathy of the civil authorities and early develope riotous tendencies.

the citizens during the first few days of the Among the defences set up by the county Pittsburg riots—an apathy which contrasted were these: that at the time of the



greatly with the energy displayed in other the act in question, the railroad system of the

cities, notably in St. Louis and New York State out of which the riots grew had no ex- in dispersing the rioters after they had organistence; that its framers could not have in

ized or in suppressing them before they had tended that it should embrace such unlooked

become formidable. For this indifference the for and exceptional cases, and that the mob

citizens of Pittsburg have now to pay, and to in question amounted to an insurrection

pay dearly. As a check to this in future, and which the county was unable to quell, and for

as a means of compelling citizens to do their the consequences of which it was not liable.

duty in preserving the public peace and the The first ground was held untenable in that it general property, the policy of the act refailed to point out what kinds of riots were ceives the approbation of the court. were within the act.

“How can we say,seem a hard rule,” they say, "to hold a comsaid the court, “that the riots of 1877 were munity responsible for the effects of mob not within its spirit? Is it because of the size violence, which, apparently, at least, they had of the mob? Yet it did not compare to the no power to prevent, yet not more so than to London riots of 1780, the Philadelphia riots hold every inhabitant of the English hundred of 1844, or the New York riots of 1863. Is liable for a robbery of which he knew nothing, it because the mob was composed of strikers, and had no means of arresting. In both cases and the object of their vengence a railroad it is a police regulation. It is based upon corporation? No such exceptions are found the theory that with proper vigilance the act in the statute, and to write them in now to might and ought to have been prevented. meet the exigencies of this case would be That this is true with mobs, as a general rule, judicial ex post facto legislation of the most is well known. A mob is always cowardly, objectionable character. Where is the line to and usually of slow growth. It increases in be drawn and by whom? Is the act to apply size and courage just in proportion that the to mobs of ten persons, and not to those of authorities evince hesitation or timidity. That one hundred? Or to those of one hundred this hesitation is often the result of indifferand not to those of one thousand ? Is com- ence, if not of open sympathy, is unfortupensation to be made for a broken window, nately too true. It is rare that a mob is and denied when the entire building is sacked without a large body of sympathizers at its and burned?” The second ground was de- commencement. This is because its fury cided against the defendant because it was is generally directed against an unpopular not an insurrection within the meaning of that object. In populous communities, especially word, but simply a riot, although a very for- in large cities, there are always antagonisms midable one, and because it had never been of race, religion, politics, or social condition, held that the resposibility of a city or county which enables the demagogue to fan the fires for the violence of a mob depends upon its of popular discontent, and to incite the dissize or formidable character, or that the fail- orderly to acts of violence. It is becaus

« ForrigeFortsett »