to take it back, unless it is returned to him in a reasonable time after it is discovered to be spurious; and the reason of the rule is, to enable him to trace out and fall back upon the person from whom he received it. But what shall be considered a reasonable time must necessarily depend on the situation of the parties and the facts and circumstances of each case. Union N. Bk. v. Baiderwick, 45 Ill. 375; Simmes v. Clark, 11 Ill. 237; Burrill v. Watertown, Bk., 51 Barb. 105. In the present case the jury were told that "by reasonable time is meant such time as would enable plaintiff, after discovering the forgery, to go to defendant without material interference with his usual and ordinary business." This was more favorable to the defendant than the rule in the cases above referred to, that plaintiff had the right to have the whole question referred to the jury. Affirmed. Opinion by NAPTON, J.-Boyd v. Mexico Southern Bank.

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TRUST FOR CHARITABLE USES-CONVEYANCE BY TRUSTEE-ACTION TO RECOVER TRUST FUND-STATUTE OF LIMITATIONS.-1. A will containing the following clause, "and further, at the decease of my said wife, Oressa, all of the above property left in trust for her benefit shall be disposed of as follows, that is: Fifteen hundred dollars of the same shall be given to the West Parish in Boxford, to build and support a public school for the education of children (as the law now directs)," was held to create a bequest for charitable uses; and it was held further that the beneficiaries of the bequest were sufficiently definite to be the subject of such a bequest. 2. The trustee of such a trust can not convey the trust fund to a school district within the limits of the parish. If it were an absolute disposition of the fund it would be a violation of duty; if, however, it was understood by all parties as a mere substitution of the district for the parish, in order that the district might, as trustee, administer the trust, it was not competent for it to do so without the consent of the court of chancery. Harvard College v. Society, etc., 3 Gray, 280. It appearing that the defendant was the chairman of the committee appointed, first by the parish and then by the district, to receive the trust fund; that at present he is the only member of the committee, his associates disclaiming any anthority to act or power over the fund; that, as chairman of the plaintiff's committee, he received the fund and the nominal transfer of the fund to the district, involving no change in the actual custody of the fund; that he has ha, since its receipt from the testator's estate, the actual keeping and control of the fund, which he has kept specifically as the fund, and now holds; that he has never claimed a personal property in the fund, but has always claimed to hold it subject to the trust, it was Held, that the plaintiff (the original trustee) was entitled to recover the fund. 4. In such a case the statute of limitations would not be a bar to the claim against the defendant. He must show that in some open and notorious manner he has disclosed to the party in interest his purpose to hold the fund adversely

to the trust, for a period of time long enough to bar the claim, and under circumstances in which he was subject to a suit for it. Opinion by LORD, J.-Second Religious Society of Boxford v. Harriman.

RENTS ARD PROFITS OF REAL ESTATE ACTION. -In the absence of a special devise or contract, the rents and profits of the real estate of a deceased person belong to his heirs or devisees, and not to his administrator or executor, even if the estate is insolvent, unless and until the real estate is sold for the payment of debts, under a power expressed in the will or by license of court; and if the executor or administrator receives such reuts, the heirs or devisees may recover them from him in an action at law. Gibson v. Farley, 16 Mass. 280. Opinion by GRAY, C. J.-Brooks v. Jackson.

AGENCY CREDIT EVIDENCE,- In an action brought to recover the price of certain property sold by the plaintiff's agent, if the question is which one of the two parties actually purchased the property, the fact that the plaintiff delivered the goods upon the agent's statement is a competent fact; but upon whose credit he delivered the property is an immaterial fact (which he could have determined only by his own construction of the language which the agent communicated to him), and incompetent, His statement that he delivered the property upon the credit of the defendant is merely another mode of giving his construction to the language which might or might not have been sufficient to create a contract between tue parties, which under no circumstances could be competent evidence. Opmion by LORD, J.-Walker v. Moors.

SEVERAL ACTIONS FOR ONE CONVERSION.-In an action of tort for the conversion of certain articles that were part of a large number, converted at one time by one act, for which conversion a judgment had been recovered by the plaintiff against the defendant which had been paid, the plaintiff can not be allowed to prosecute his suit by proof that the defendant fraudu lently concealed the fact that the articles, for the value of which this suit was brought, had been taken by him, and that he had fraudulently prevented the plain. tiff from ascertaining the fact by refusing to allow him to examine the articles taken. See Folsom v. Clem. ence, 119 Mass. 473. Opinion by LORD, J.-Mc Caffrey v. Carter.

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MANDAMUS-PREVIOUS DEMAND AND REFUSAL.This was an appeal from a judgment of the court below, awarding a peremptory mandamus for the payment of a judgment held by appellee, by assignment from one Peter Mar against appellant. Several preliminary objections are taken to the jurisdiction of the court below, SCHOLFIELD, C. J., who delivered the opinion, says: "The duty here sought to be enforced rests upon appellant as a corporate body, and there is therefore no impropriety in directing the writ to it. Dillon on Municipal Corporations, 70; 78 Ill. 382. No objection appears to have been urged in the court be

low on account of a previous demand, and it is therefore too late to urge the objection now, even if we were to concede its materiality. "The objection,' says Tapping, in his work on Mandamus, 'as to the neglect of a demand or the absence of a refusal should, in order to prevent a waste of time, be objected to in the first instance, viz., in showing cause against the rule for the writ, and cannot be made after the merits of the case have been discussed."" Affirmed.-City of Chicago v. Sansum.

SUMMONS-MISNOMER-EFFECT OF APPEAL BY PARTY NOT SUMMONED.-Suit was commenced before a justice of the peace, by the plaintiff, against Michael Andrew Roorke. The summons was returned as "served on the within named defendant, Andrew Roorke. Judgment was rendered in favor of the plaintiff, and against Andrew Roorke. Within twenty days from the date of this judgment Andrew M. Roorke, a son of Michael Andrew Roorke, filed an appeal bond in his own name, and the cause was docketed in the circuit court as 66 v. Andrew M. Roorke, sued

by the name of Andrew Roorke." The cause came on for trial in the circuit court, and evidence was given on both sides, when it seems to have been discovered, for the first time, that the party appealing and defending, was not the one sued, and against whom the judgment was rendered, whereupon the appeal was dismissed. Andrew M. Roorke appeals from that judgment and argues that, inasmuch as issue was joined, and evidence proved, he was entitled to have judgment. SCHOLFIELD, C. J., who delivered the opinion, says: "It is very clear Andrew M. Roorke could not prosecute an appeal from the judgment rendered by the justice of the peace. He was no party to it, and it nowise concerned him. No one has a right to appeal from a judgment who is not in fact a party to it." Affirmed.-Roorke v. Goldstein.

PLEADING - DUPLICITY LIABILITY OF STOCKHOLDERS. This was a suit by plaintiff to recover of defendant as a stockholder in a corporation under the ninth and tenth sections of the act of 1857. Defendant pleaded various pleas, to which plaintiff demurred, and the court sustained the demurrer and gave judgment for plaintiff. Defendant appeals, and claims that the court erred in sustaining the demurrer to his third plea which avers that, at the time the indebtedness accrued, defendant had fully paid all the capital stock he subscribed for, and that he had paid to the creditors of said corporation an amount of money equal to the amount of stock held by him. And the grounds of demurrer specified as reasons therefore, "that the plea is double, and alleges two grounds of defense, and that it does not state the names of the creditors to whom the money was paid. The court held that, according to the authority of Chitty on Pleading, the demurrer should have pointed out specifically in what the duplicity congists. WALKER, J., who delivered the opinion, further says: "Nor does the plea set up two grounds of defense. It avers first, that at the time the indebtedness sued on accrued, he had paid for all the stock, for which he had subscribed. But to have rendered this a defense it should have appeared that all other shareholders had done so, and a certificate of the fact had been made and filed in the clerk's office as provided in the 10th section of the act. This, then, was but a part of the facts constituting a defense. When he had paid the corporation in full for his stock and had also paid a like sum to the creditors of the company oefore this indebtedness accrued, that, under any construction that can be given to the act, discharged him from liability." Reversed and remanded.-Kipp v. Martin.


only question which arises in this case, is whether the real estate in the city of Chicago, owned by a corporation created in Ohio, entitled the "Western Seaman's Friend," and used chiefly as a home for sailors and their families, should be exempt from taxation under the laws of the State of Illinois. SCOTT, J., who delivered the opinion, says: " Property exempt from taxation under that clause of the revenue law cited, is property of 'institutions of purely public charity.' Such institutions must be corporations, or else they would not be capable of taking and holding property, whether real or personal. What institutions had the general assembly in view, in providing for exemption from taxation as to their property? Primarily, the legislature must have meant such institutions of public charity as have been, or may be established by the laws of this state, such as asylums for the care of the insane, etc. Under our constitution, which requires that all taxes shall be imposed equally upon the property of persons and corporations, exemptions from such burdens are to be construed strictly, and are not to be enlarged or made to embrace other subjects by judicial construction than those plainly expressed in the act. It may be well doubted whether that clause of the statute was intended by the legislature to embrace more than institutions of public charity, such as have been founded and are maintained solely by the state, as contradistinguished from institutions formed by private enterprise, for the dispensation of private charities. Belonging to the latter class is the institution now seeking exemption from taxation on its property." The court further say that if a broader construction could be given to the statute, so as to let in private charitie there is still a valid reason why the property of this institution should not be exempt, viz: The statute" must be understood to have exclusive reference to institutions created by the laws of this state, and not to foreign corporations that locate here." Reversed. DICKEY, J., dissents.-People v. Western Seaman's Friend Society.


A TREATISE ON THE DOCTRINES OF RES ADJUDICATA AND STARE DECISIS. By J. C. WELLS, author of "Questions of Law and Fact;""Instructions to Juries and Bills of Exceptions;" "Separate Property of Married Women," etc. Des Moines, Ia. Mills & Co. 1878.

This is a work on a couple of legal topics which are only incidentally treated of in other treatises. Over 500 pages are devoted to the subject of Res Adjudicata, and about 75 to the maxim stare decisis et non quieta movere. Over 1,000 cases are cited. The book appears to be well arranged, though it would have been much better had headings been made to the sections, after the style of most of the recent law books which we have noticed. The reader's attention is more likely to be attracted to what he is looking for when these catchwords are employed, than when the subjects of the sections are only to be found at the beginning of the chapters.

According to our custom this book would have received earlier notice, but for the fact that soon after we received it a prominent member of our bar, who was investigating the subject, took it for the purpose of assisting him in his search. After a much more careful examination of the work than we could have given it, he' is of the opinion that it states the law on the subjects very clearly, and has collected together all the cases of importance. While thinking that it is somewhat pad

ded by very lengthy extracts from the reports, he believes it will be useful to the profession. It might, he adds, have been more thorough-the author sometimes failing to get to the bottom of a question. A subsequent examination of the book induces us to believe that his judgment is both fair and correct:


[Correspondents in this department are requested to make their questions and answers as brief as possible. Long statements of facts of particular cases will be rejected. Anonymous communications will not be noticed.]


LIMITATION IN MISSOURI.-What was the statute of limitation in Missouri as regards foreclosing of a mortgage in the year 1862. Mortgage given in 1862? Can the statute of limitations be pleaded in bar? Was it ten years in 1862 the same as now? E. Lancaster, O.

No. 56.

[7 Cent. L. J. 199.]

If the note be negotiable, the indorsement after due makes it equivalent to a new bill at sight. Although the maker be insolvent, demand must be made and notice given within a reasonable time. Davis v. Francisco, 11 Mo. 572; 2 Pars. Notes and Bills, 13. What will be reasonable time depends upon the circumstances of the case, the same rules applying as in the case of a sight bill. Winville v. Welch, 29 Mo. 203; 1 Pars. Notes and Bills, 375 et seq. and notes. The time when D made demand is not stated in the query; but as he did so in a "short time after he became owner," he probably can hold B. But as C kept the note "some time" after he received it, B would be released. St. Louis.


Jos. T. TATUM.

HON, JAMES H. ROTHROCK has been re-elected to the Supreme Court of Iowa, and Hon. William White to the Supreme Court of Ohio.--Lord Chelmsford, an eminent English lawyer, died last week. He was born in 1794, and was appointed attorney general in 1845. In 1858 he became Lord Chancellor of England, but resigned in 1859. He again held the same office from 1866 to 1868. His son, Mr. Justice Thesiger, is a judge of the English Court of Appeal. The "oldest solicitor" in England died on the 9th instant. He was born March 12, 1777.-The British Social Science Association will hold its twenty-second congress, commencing October 23d. In the department of Jurisprudence the subjects discussed will be: 1. The codification of the criminal law, with special reference to the proposed government bill. 2. Simplification of the evidence of title to real property by record of title or otherwise. 3. Whether the extinction of all customary and other special tenures, and the limitation of leasehold terms are not desirable? 4. Should the summary jurisdiction of magistrates be further extended? 5. The consideration of the proceedings of the Stockholm International Prison Congress.- -This is the way lawyers advertise in New Zealand; "Notice to the whole of the tribes in New Zealand, of Wairarapa, of Taranaki, of Ahuriri, of Taupo, and Poverty Bay. This is a notice to you all, that none of you shall sign your names for the sale of

lands, of leases, of mortgages, or of anything concern. ing land. First come all of you to me, that you may understand what you are about to do. From Rees, Lawyer, Napier."

THE British Social Science Association some time since, for the purpose of ascertaining the practical workings of the laws adopted in some of our states, permitting the testimony of accused persons in criminal cases, sent out a series of queries to the different Chief Justices of those states. A number of replies have been received. The principal queries were: 1. If your system has been changed in favor of admitting the testimony of prisoners, how has the new system worked in practice, and has it given satisfaction to the profession and the public? 2. Especially has the change been productive of any real hardship or injustice to the innocent, or has it assisted in bringing the guilty to punishment? As to the effect of the law in Maryland, Chief Justice Bartol replied: "1. So far the new system appears to work tolerably well; but what may be the ultimate opinion with regard to its merits remains to be seen. Its efficacy as a means of disclosing the truth depends greatly upon the vigor and skill of the prosecuting attorney. If he be weak and unskillful, and the accused be an ordinary representative of his class-a shrewd and cunning fellow-it will always be in his power, unless the adverse evidence be direct and overwhelming, to create such doubt as to furnish ground for an ingenious counsel to claim an acquittal. Many clear cases of guilt, depending on circumstantial evidence, will doubtless be turned in favor of the prisoner, upon his own evidence, however false it may be. 2. The change has certainly not been productive of any real hardship or injustice to the accused; but whether the working of the system will materially aid in bringing the guilty to punishment may admit of great doubt. Our experience of the working of the law in practice is not sufficient to enable us to form any very definite opinion upon the subject." From Michigan, Chief Justice Cooley, says: "1. The new system has worked well, and gives general satisfaction. The best evidence of this, perhaps, is that no one proposes to go back to the old system. Indeed, that seems to us barbarous. I am confident innocent men are often saved from conviction by their explanations, while guilty persons are very likely to injure their case if they place themselves on the stand. 2. This, I think, is answered above. The sentiment here is against compelling accused parties to disclose, and their not doing so is not allowed to be the subject of comment to the jury. Therefore our system cannot work any hardship to the innocent. I believe it does assist in bringing the guilty to punishment in this way, in their unintentionally supplementing by their statements the evidence put in by the prosecution." From Nevada, Chief Justice Hawley replies: "1. The members of the profession entertain different opinions upon the question; but the practice has given satisfaction to the public. 2. The rule of allowing prisoners to testify has not been productive of any hardship or injustice to the innocent. Whether it has assisted in bringing the guilty to punishment is a more doubtful question, and one upon which there is much difference of opinion. And from New Hampshire, Chief Justice Doe: 1. The new system has worked well in practice, and has given satisfaction to the profession and the public. 2. The change has not been productive of any real hardship or injustice to the innocent. On the contrary, it has greatly facilitated their acquital. Sometimes ii enables the guilty to escape; sometimes it secures the conviction of those who would escape if they were silent. On the whole, it is an undoubted improvement."

The Central Law Journal.



In Hallock v. Dominey, recently decided by the New York Court of Appeals, the protection given to acts done under process of court was considered under the following circumstances: The supervisors of Suffolk, acting under a statute which conferred certain powers of legislation upon supervisors, passed a penal ordinance against taking fish in the waters of East Hampton. Plaintiff was sued by the defendant before a justice of the peace of that town for a penalty under the ordiuance, and he not appearing, judgment went by default, and the defendants caused his arrest on final process, to be released from which he paid the judgment; and thereupon he sued for false imprisonment. The supreme court (7 Hun, 52) held that although the defendants acted in good faith, and in the belief that they were justified, yet the statute itself being unconstitutional, the acts of the board of supervisors conferred no jurisdiction on the justice of the peace to entertain the action or issue the execution. The court of appeals, reversing this judgment, hold that as the penalty was less than $200, and personal service had been made, the justice had jurisdiction. The jurisdiction of the magistrate is not derived from the act under which a penalty is imposed, but from the general statutes of the state; and he had jurisdiction to pass upon every question involved in the action, including the validity of the law imposing the penalty; and on this question the judgment, so long as unreversed, was conclusive between the parties. The process, therefore, was a protection to the officer and to those at whose instance it was issued. See Erskine v. Hohnback, 14 Wall. 613; Meeker v. Van Ranssalear, 15 Wend. 397; Leachman v. Dougherty, 81 Ill. 324; Walker v. Mosely, 5 Denio, 102; 14 N. Y. Daily Reg. 752.

Among the oral and unreported rulings made in the United States circuit court, sitting at St. Louis, during the present term, Vol. 7-No. 17.

In Platt v.


are the following: Life Insurance Co., DILLON, J., held that where witnesses reside more than one hundred miles from the place of trial, whose testimony is material and good, and sufficient cause is shown, a continuance will be granted, and amended rule 44, requiring cases removed from state courts to be tried at the first ensuing term, will not apply arbitrarily.In Rogers v. Mayfield the defendant executed in the State of Illinois his promissory note, payable in Missouri, for the sum of $1,000, and "twenty four per cent. interest per annum after maturity as compensation and damages for nonpayment thereof at maturity.” Plaintiff, a citizen of Missouri, became the holder of the note for value, and brought suit to recover principal and interest at the rate of twentyfour per cent. per annum as damages. Upon default and inquiry, DILLON, J., held that the note being payable in this state is to be governed by its laws, and ordered judgment for principal and interest at the rate of six per cent. per annum. -In Foote v. Marion County the plaintiff obtained judgment at the last term on coupons attached to township railroad aid bonds issued by the defendant county, and prior to the present term served notice on the justices of the county court and county treasurer that he would apply for a peremptory writ of mandamus at the opening of the present term. Upon presentation of application, it appearing that the county treasurer had on deposit a sum applicable to the payment of this judgment, DILLON, J., held that although inclined to the opinion that under the township aid act, the treasurer can pay coupons and matured bonds when presented to bim without first having a warrant from the county court, yet as the coupons in this case were merged in a judgment, and consequently could not be presented strictly under said act, it was proper to issue a mandamus on the county court to draw a warrant on the treasurer, and also on the treasurer to pay said warrant when presented.

In the case of Fourth National Bank v. Franklin County, which came before the United States Circuit Court, sitting in this city, during its present term, a new question of interest to those engaged in bond litigation, was discussed at the bar and passed upon by

the Circuit Judge. The question arose on an application for a peremptory writ of mandamus to levy a tax to pay a judgment of $150,- | 000, obtained against the county. Counsel submitted two forms of an order for a peremptory writ. One of these forms distributed the levy to be made over three years. The other wanted a peremptory writ, commanding the county to levy-when it levies its general tax -the sum of $150,000 to be collected in one year. When the matter was upon the return to the alterative writ, the attorney for plaintiff stated that he was willing, whatever might be his legal rights in the matter, to give the county the benefit of this distribution, if it could be done. DILLON, J., in deciding the motion for the peremptory writ, delivered an oral opinion, as follows: "There are two views in this matter: One is, that this mandumus, proceeding as a sequel to the judgment in this court, is in the nature of a writ of execution; and that the creditor has a right to have the writ go for the full sum, against this county-just as against a natural person; and the court has no discretion to say that it will give three years or any other extension of time, within which to comply with the judgment. If the analogies that apply to the case of a natural person apply to the case of a municipal corporation, the plaintiff is entitled to a full writ. Another view arises from the peculiar nature of the writ of mandamus; for the awarding of that writ is in some measure discretionary with the court. It is not to be awarded in frivolous cases, where it is legally impracticable to execute its demand; nor is it to be awarded where there is any other adequate remedy. The doctrines applicable to it at common law practice are very rigid; and in the Court of King's Bench, where it was a prerogative writ, it was really discouraged and defeated in every possible way by the application of technical doctrines. Here is an alternative writ which commands the justices of the county court to levy a tax, or show cause. Now, it is the settled practice at common law that the peremptory writ can not be awarded in any other terms, greater or less than, or different from, the alternative writ; and, if that is so, the peremptory writ in this case must go in the exact language of the alternative writ, which was to levy the whole tax in a year. Another technical doctrine, connected with the law of mandamus, is this:

that the command must be single, or essentially so; and, therefore, if the writ commands body to do this thing or that alternatively, it is bad, because it would be uncertain as to what it should do. For example, if shown that some money is in the treasury of this county, and the writ issued commanding the payment of the money, and if not sufficient to satisfy the judgment to levy a tax, it would be certain to some extent, but might not be according to the legal technicalities which surround this writ. But why should not this writ have a plastic form? There is no reason, which I can see, when the alternative writ has been awarded, and the parties have been heard and their rights are before the court, why the peremptory writ should be issued in the same form as the alternative; or why the peremptory writ should not be awarded to meet the exact exigencies of the case? I know no reason why that should, not be law. In accordance with these vi ews the peremptory writ may go for the levy of one-third of the tax this year, one-third next, and one-third the following year; and I would suggest to the counsel for plaintiff to put the writ in such form as he thinks he can sustain; and my judgment is that if he puts in a recital that this matter came on to be heard on the return to the alternative writ, and it appearing to the relator and the court that the levy of this tax of $150,000 in one year would be onerous and oppressive; and that the relator waived the right to collect more than one-third in one year, the Supreme Court will not reverse it, because he assented to take in a milder form less than what he was strictly entitled to under the alternative writ, inasmuch as the defendant can not be damnified thereby."


A glance back into English history, as disclosed by such historians as Stubbs, Freeman, and others, gives us some idea of the conditions which brought about the gradual growth of an artificial and exceedingly formalistic system of procedure, which, in our day, we call the common law system of procedure in England, and, following Coke, invest with the high-sounding saying of "the perfection of reason." Studied carefully, the common law of England is a very indefinite thing; for,

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