set up. Appellant claims that the homestead right has not been released or extinguished. Although the trust deed contains a formal release of the homestead right, that will not suffice under our statute without the acknowledgment of the deed. And it is alleged against the release here that the dead was not acknowledged; that the grantee in the deed himself took and certified the acknowledgment, and that such an acknowledgment is void. 61 Ill. 307; 13 Mich. 329; 7 Watts. 227; 20 Iowa, 231. Appellee contends that though this may be so, the finding in the decree of foreclosure upon proof taken, that the trust deed was legally and properly acknowledged, and that the homestead right was duly and legally relinquished is an adjudication of court upon the question which must be held as conclusive in this collateral proceeding. All the answer that is made to this view is that the bill of foreclosure did not contain any allegation that the homestead had been released, and hence that the decree did not profess to bar or extinguish the right of homestead. There was no specific allegation in the bill of the release of the homestead, but there was a general allegation sufficiently comprehensive to include that. The bill alleges that by the trust deed the premises were conveyed to, trustee. How could that be unless the homestead was released?

ELECTION LEGALITY OF - PARTIES NON COMPOS MENTIS.-This was a proceeding commenced by the appellant, in the county court of Cole county, to contest the election held on the 7th day of November, 1876, in that county, for clerk of the circuit court of that county. The cause was heard at the July term, 1877, and judgment given against appellant, from which this appeal was taken. There were a number of votes contested, in reference to which questions of law arise. 1st. Appellant objects to certain votes cast, on the ground that the persons casting them were non compos mentis. The court, upon this subject, through SHELDON, J., say: "Upon this subject Judge Cooley, on his work on Const. Lim, 599, remarks: 'In some states, idots and lunatics are also expressly excluded, and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women minors and aliens from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision,' citing Cushing's Legislative Assemblies, §§ 24, 27. There is In this state no express exclusion by constitution or statute. Without further remarks upon the legal question, we deem it sufficient to say that we do not regard the testimony as bringing these persons within the description of the above-named classes. In regard to one, who is most obnoxious to the objection, in the amount of adverse professional testimony, there is the testimony of three persons in whose employ he has been, that he is a good hand at work, etc., converses freely, and talks like other men, but owing to some disease he had at some time, his speech is imperfect Yet three medical experts, whose opinions we are asked to accept as conclusive, pronounce him an idiot. They differ in their ideas of an idiot from Blackstone. He says: 'An idiot or natural fool is one that hath had no understanding from his nativity,

and, therefore, is by law presumed never to have any.' We find no error in counting these votes for appellant." Affirmed.-Clark v. Robinson.

BOOK NOTICES.

THE LAW OF HOMESTEADS AND EXEMPTIONS. By SEYMOUR D. THOMPSON, author of "Cases on the Law of Self-Defense," etc. F. H. THOMAS & CO., St. Louis, 1878.

There is no branch of the law so imperfectly understood by the profession, as the one selected by Mr. Thompson for his theme, and this results from a combination of circumstances readily explained. The exemption of the homestead from execution and sale is of very late and modern invention, and only exists in about thirty of the states of our Union. In England and other sections of the old world, where the feudal system prevails, no necessity exists for such a law, for the policy of those governments has always been to impose as many restrictions upon the alienation of real property as possible. Homestead exemption is based upon the most enlightened policy, for nothing tends so much to attach a man to his government as a knowledge of the fact that he and his family will be measurably protected from his heartless creditor, and from the pangs of that destitution and want which can not always be guarded against, even by the most careful and prudent.

The exemption of the tools and implements of the farmer, mechanic, and manufacturer from forced sale, has been encouraged by every enlightened government from time immemorial, not only as a protection to the owner, but to prevent the government itself from being deprived of the products of his skill and labor. But the policy of exempting the "home" of one who is at the head of a family dependent upon him for support, first attracted the attention of the young republic of Texas, which, in January, 1839, placed upon her statute book the first act of "homestead exemption" known in this or any other country. In 1849 Vermont followed suit, and now it exists in about thirty states, in no two of which, however, is the law precisely alike; and for a long period we were without any well-defined judicial interpretation of these numerous acts. As a natural and legitimate consequence, the practitioner was forced to wade in the dark in his efforts to ascertain the law applicable to this subject, in the several states where homestead acts existed.

The questions which have arisen under these different statutes are innumerable, and have given birth to a large number of conflicting decisions, which necessarily enshrouded the subject in mist and darkness, until, by the most herculean labor and years of diligent applica tion, Mr. Thompson has dispelled the mist, and by the most careful and skillful analyzation of conflicting cases, has led the mind of the practitioner to a proper understanding of the judicial construction and interpre tation placed upon these acts by the appellate courts of thirty states. Among the many questions presented to the courts for judicial interpretation and examination, are the following:

1. Is such a statute in derogation of the common law? 2. Must it be construed liberally? 3. Is it remedial?

4. Does state exemption apply to executions issued from the federal courts?

5. What is the effect of proceedings in bankruptcy upon the exemption acts?

6. What is necessary to constitute one the "head of a family," so as to avail himself or herself of the exemption?

7. What is understood by the word "family?" If a man is/without wife and child, but has servants or others

living with him whom he is under no obligations to support, does he occupy the relation of "head of a family?" 8. Can the husband convey or alienate the homestead without the consent of the wife?

9. Can he, if he has a wife and children living with him, waive or release it, or can he work a forfeiture of it by committing a tort, for which a judgment is rendered?

10. If the husband dies leaving infant children, to what extent do their rights prevent the mother from alienating it?

11. Does the privilege extend to an alien?

12. Effect of limitation as to value.

13. If the homestead of the farmer does not reach the value limited by statute, can he supply the deficiency by taking in land not contiguous?

14. Is the right of "homestead" a defense against a paramount title?

15. What title is necessary to support a "homestead right?" Is a life estate sufficient, or is a tenant by curtesy within the statute? Will an estate in common support the right in a co-tenant, or must it be an estate in severalty?

16. Can the widow of a partner claim homestead after settlement of partnership estate?

17. What kind of occupancy constitutes a dedication of the "homestead," and what acts of abandonment will create its loss?

18. How is the right of exemption affected by debts created prior to the acquisition of the "homestead?"

19. In the absence of any statutory provision, can an insolvent debtor purchase a homestead, and thereby withdraw from his creditors money which would otherwise be distributed among them?

20. What preference over the "exemption" has a vendor's lien for unpaid purchase money?

21. How, in the absence of any statutory direction, is the homestead right to be set apart?

Now, when we assert that the above do not comprise one-fifth of the questions which have arisen in our courts, with reference to the interpretation to be given to these various state enactments, the reader will begin to realize the immense labor and consummate skill that have been necessary to elucidate this subject -to bring order out of confusion, and to place before the American bar a proper understanding of our "homestead and exemption laws."

To accomplish this most desirable object, the author has grouped the various statutes, and cited and carefully analyzed every decision to be found applicable to them in the several state reports, and in the reports of the Supreme Court of the United States, and in the federal, circuit and district courts; and in a clear and lucid manner has given us the result of his diligent inquiry, and the conclusions of law reached by him.

For the ability, skill, research and learning bestowed upon this subject by Mr. Thompson, he is entitled to the gratitude of the profession. From the examination we have been able to give this book, we are impressed with the belief that it must soon take its place among the standard works of the law.

It is a beautiful volume of over 800 pages, and the publishers and printers seem to have vied with each other in their efforts to produce a work that can not be excelled for its typographical beauty and accuracy.

A TREATISE ON THE CONSTITUTIONAL LIMITATIONS which rest upon the Legislative Power of the States of the American Union. By THOMAS M. COOLEY, LL.D. Fourth Edition. Boston: Little, Brown & Co. 1878.

Mr. Justice Cooley's work on Constitutional Limitation is so well known to the profession that a single notice of the fact that it has just reached a fourth ed

THE TESTAMENTARY LAW AND THE LAW OF INHERITANCE AND APPRENTICES IN MARYLAND. With an Appendix of Forms, and an Index. By EDWARD OTIS HINKLEY, of the Baltimore Bar. Baltimore: J. Murphy & Co. 1878.

COMMENTARIES ON THE LUNACY LAWS OF NEW YORK, and on the Judicial Aspects of Insanity at Common Law and in Equity, including Procedure, as expounded in England and the United States. By JOHN ORDRONAUX, LL.D. Albany: John D. Parsons, Jr. 1878.

The Testamentary Law of Maryland is presented in this work in a handsome volume of nearly 800 pages. The author's plan has been to embrace in one book the statutes and decisions of the courts of that state on the law of wills, administration, the settlement of estate, suits by and against executors, administrators and guardians, etc. The compilation of the state code and digest law is full and accurate. The work does not pretend to touch on the laws of other states; it is entirely local, and of hardly any use outside of the state of Maryland. There, however, it will be of great value to the practitioner.

Mr. Ordronaux's work is scarcely so local in its character, Though principally a history of lunacy legislation in New York and a commentary upon the revised lunacy statutes of that state, it is not confined strictly to those subjects. There are chapters on lunacy legislation in Great Britain; the civil disabilities of persons of unsound mind as affecting contracts, conveyances, etc.; the testamentary capacity of such persons and of habitual drunkards; the criminal responsibility of the insane. The work proper is prefaced with a comprehensive digest of adjudicated principles in the law of insanity. It will be, we should say, of much interest to every criminal lawyer, both in and out of the state whose lunacy laws it is intended to expound. The experience and learning of the author in the subject of which he treats are a guarantee of its worth. He is already widely known as the commissioner in lunacy of the state of New York, professor of medical jurisprudence in the Columbia college law school, and the author of a treatise on the Jurisprudence of Medicine.

The statute of limitations of Missouri does not apply to the remedy on mortgages, nor never did. So our supreme court have uniformly held from its organization to the present time. However, they hold that a mortgagee can not foreclose after the lapse of twenty years, on the ground that after that time the debt is secured by the instrument is paid presumptively, not barred (Cape Girardeau Co.v. Harbison, 58 Mo.90), since they have held in other cases that though the debt itselt is barred by the statate of limitation, yet the remedy can be pursued on the mortgage until the lapse of twenty years. So, if a mortgage was executed on lands in Missouri in 1862, it can yet be foreclosed. The statute of limitations of ten years did not apply then nor now, nor never did. S. P. S.

Warrensburg, Mo.

NOTES.

FRANCIS HILLIARD, the well-known legal writer, died at his residence in Worcester, Masss., on the 9th instant, aged 72 years. He was born in Cambridge, Mass., and graduated at Harvard in 1823. He practiced law for several years in the courts of Massachusetts, served as a member of the legislature, and was judge of the Court of Insolvency of Norfolk county. He abandoned practice many years ago, and has occupied himself in the preparation of various works in different departments of law, beginning with a work on the Elements of Law, of which a second and much enlarged edition in two volumes has just been issued from the press. His other books on Injunctions, Bankruptcy, Contracts, Mortgages, New Trials, Taxation. Torts, Real Property, Sales, Vendors, etc., have become standard works and have passed through several editions. He was a contributor to this JOURNAL from its first number.-The Supreme Court of the United States met on the 14th inst. All the judges were present except Mr. Justice Field. The docket for the present term contains 849 cases.- -The annual meeting of the Illinois State Bar Association will take place next January. The session is to extend over two days, and the exercises are to consist, among other things, of an address by Hon. O. H. Browning,

and a memorial address by Hon. C. B. Lawrence upon the life, character and services of the late Mr. Justice Breese. Miss Belva Lockwood, the Washington female lawyer, has been refused permission to practice in the Maryland Circuit Court.-Mr. Justice Keogh, the Irish judge who lately made a murderous assault upon his servant while under a fit of insanity, is dead. The Times says that his was a "career of unflinching duty, passed in affairs and before the eyes of a nation, not always above reasonable criticism, but free from all serious approach. To the example of such a career his countrymen may point with pride, and only the least reputable among them, we hope, will try to blacken it. Mr. Justice Keogh was a brilliant orator and a courageous judge. Ais judgment in the Galway petition will be cited to his honor, and will bear fruit to the good of Ireland, long after the party and priestly virulence from which he suffered has passed out of mind."

A WRITER in the last number of the International Review discusses the recent changes in the American State Constitutions. In 1870, amendments were made in Illinois, Tennessee, Louisiana and Vermont; in 1871-5, in Florida; in 1872, West Virginia; in 1873, Pennsylvania; in 1874, New York; in 1875, Alabama, Arkansas, Kansas, Missouri, Nebraska, North Carolina, Texas, Connecticut, Maine, Minnesota, New Jersey; in 1876, Colorado, Michigan; in 1877, Georgia and New Hampshire. The most striking change in the reservation of power to the people in pure administration is the assumption of the choice of judges by the people in place of their appointment by the executive, or their designation by the legislative body. In 1830 half the twenty-four states intrusted the appointment of the judges to the Governor; the other half provided for elections by the Legislatures in joint assembly, or qualified the executive nomination by legislative sanction. Of the thirty-eight states now existing, twenty-four now elect judges by popular vote, nine give their appointment to the Governor, and five continue to elect in joint assembly. In 1830 no state elected judges by popular vote; to-day the number of states so electing is equal to the whole number of states in the Union at that time. On the other hand, the short terms of office which characterize those states with a legislative choice, have been succeeded under popular elections by long terms. Under popular elections the term of the judges of the highest court in California and Missouri is ten years; in West Virginia, twelve years; in New York, fourteen years, and in Pennsylvania, twenty-one years, incumbents not being re-eligible in the last case. In fact, the average term of popularly elected judges is not much less than ten years, with such classification as to secure the state against the change of its whole Bench at once. The states intrusting judicial appointments to the Governor secure to the incumbent possession during good behavior, sometimes with a limit of superannuation In those where the legislatures elect, terms vary greatly from two years in Vermont to twelve in Virginia. The Vermont practice has been to elect judges every session even annually when the sessions were annual. The provisions for the inpeachment of judges have not been materially changed, but many states now permit the Governor to remove judges for reasonable cause, on the address of two-thirds or three-fourths of both houses of the leg. islature. New Hampshire, one of the states which retains the gubernatorial appointment of judges, has just refused to sanction an amendment prohibiting the removal of judicial and other commissioned officers (upon the address of the legislature) "for political reasons."

The Central Law Journal.

SAINT LOUIS, NOVEMBER 1, 1878.

CURRENT TOPICS.

The question as to what constitutes an appropriation of land by a railway company, under the statutes allowing corporations to appropriate land, was raised in the recent case of Beale v. Pennsylvania R. R., 6 W. N. 137. The Pennsylvania Railroad Co. filed a petition which set forth that, under its charter and the supplements thereto, it had located a new line of road, and prayed for the appointment of viewers to assess the damages due the owners of the land through which it passed. These were appointed and filed their report. The railroad company objected to its confirmation as to certain of the property holders, on the ground that the route of the portion of the proposed new road running through their land had been altered, and the court thereupon set aside so much of the report as assessed the damages on their land. The rest of the report was confirmed. On appeal, the Supreme Court of Pennsylvania held (reversing the judgment of the court below), that the company's location of its new road was an appropriation of the ground marked out, and vested a right to damages in the owners thereof that no subsequent alteration of the route could destroy. In Redfield on Railways, 3d ed. p. 240, the law is stated rather differently than in the present case, as follows: "Where the charter of the company provides that, after the appraisal of the land for its use, 'upon the payment of the same,' or deposit (as the case may be), the company shall be deemed to be seized and possessed of all such lands; they must pay or deposit the money before any such right accrues.' The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction, and without compliance with it they may be enjoined by a court of equity, or prosecuted in trespass at law for so doing. The right of the land-owner to the damages awarded is a correlative right to that of the company to the land. If the company has Vol. 7-No. 18.

6

no vested right to the land, the land-owner has none to the price to be paid." This view is based on the cases of Stacey v. Vt. Central Railway, 27 Vt. 39; s. c., 1 Redfield R. W. Cases, 247; and Bloodgood v. Mohawk & Hud. R. R. Co., 18 Wend. 10. See 6 Weekly Notes, 139.

IN Blecker v. Johnston, recently decided by the New York Court of Appeals, the effect of an omission of a party to testify in his own favor was in question. Plaintiff sued defendants, who were partners, for his services as clerk, and testified to an oral agreement made with one in the presence of the other. One of the defendants testified on their behalf, that he made the engagement on certain terms; the other defendant was not called. The trial court held that where the evidence is the testimony of parties to the suit, it is their duty to present their own testimony, if it be shown that they could have testified directly to the very point in controversy; and that when such a witness was within reach, and his evidence could be procured, the jury had a right to infer that his non-production is caused by the fact that his evidence would not be beneficial.

They laid some stress upon the fact that according to plaintiff's testimony both the defendants took part in the conversation, but laid it down as a general rule that whenever the production of any evidence that may be stronger or more conclusive-of additional and more credible or cogent witnesses or instruments of evidence bearing on a controverted fact, by which the testimony might be made more apparent is withheld, the imputation of weakness may well be suggested against the party who, without excuse, withholds such testimony, and a presumption indulged to the prejudice of his cause. The Court of Appeals, in reversing this judgment, hold that although the non-attendance of the absent defendant might have been a proper subject of remark, and the jury, if they thought his absence suspicious, might take a less favorable view of the testimony on the part of the defense, this was the extent to which plaintiff was entitled to any benefit from the circumstance; and it was error to charge that defendants were bound to produce him, and not having done so, the jury might infer that his evidence might be prejudicial to them. They, in effect, apply the

principle that such omission can not supply the place of evidence, but is only a circumstance to be considered in weighing evidence that is actually adduced. The omission to call another witness is not an omission to produce the best evidence. His testimony would be simply cumulative, and the omission does not necessarily imply fraud, or a design to suppress the truth. They accordingly ordered a new trial.

THE Supreme Court of Vermont, in the late case of Whitney v. First Nat. Bank of Brattleboro, held that national banks are not responsible for the safe-keeping of special deposits made according to usage, for the accommodation of depositors, though made with the knowledge and acquiescence of their directors. -such deposits not being authorized by the national banking act, under which such banks are authorized. See, also, Wiley v. First Nat. Bank of Brattleboro, 47 Vt. 546; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Weckler v. First Nat. Bank, 42 Md. 581. In Leach v. Hale, 31 Iowa, 7 Am. Rep. 112, the cashier advertised that the bank would convert 7-30 United States Government bonds into 5-20 bonds without charge. The plaintiff deposited in the bank 7-30 United States bonds to be converted into 5-20 bonds, and thereafter made a demand for the return of one or the other class of bonds, which was refused. The court held that the bank was not a mere mandatary, or bailee, acting without compensation, but was liable to the depositor for the value of the bonds, on its refusal to deliver them on demand; and that the business of receiving one class of United States bonds to be converted inso another, is within the scope of the powers conferred upon national banks by the act of Congress under which they are organized. The court say: "The transaction, in the light we are now considering it, amounts to the deposit of certain securities, with an undertaking to return those of a different class, and was within the scope of the business of the bank." In National Bank v. Graham, 79 Penn. St. 106, the facts were the same as in the principal Vermont case, but the court reached a different conclusion. The court held that the mere act of the cashier in receiving the plaintiff's securities would not subject the bank to liability; but if the deposit

"The

was known to the directors, and they acquiesced in its retention, a contract relation was created by which the defendant should be held bound." See, also, Scott v. Nat. Bank of Chester, 72 Penn. St. 471; Coffey v. Bank, 46 Mo. 140; Foster v. Essex Bank, 17 Mass. 479. In the principal case it is said: powers of national banks being enumerated in the act of Congress by which they are created, the maxim expressio unius est exclusio alterius, if applied in the interpretation of this act, would prohibit national banks from entering into such a contract of bailment as the one in question, as a depositary, unless it is an implied power, necessary to carrying on the business of banking. We do not think it is. On the other hand, it would be hazardous for banks to possess and exercise this power; and it is no more incidental to them than to an insurance company or a manufacturing company, or any other corporation, to receive and keep in their vaults special deposits of securities and other property of great value, for safe keeping, without compensation, for the benefit of depositors, and thereby have resting upon them the liabilities of such depositary or bailee."

THE FIFTH VOLUME OF THE AMERICAN DECISIONS.*

The decisions in the fifth volume of this valuable series cover a period of three years, from 1810 to 1813, and embrace twenty-one volumes of reports from eleven states, viz: Massachusetts (7 and 8 Mass.), Connecticut (5 Day), New York (6, 7 and 8 Johns), Pennsylvania (3 and 4 Binney), Maryland (3 Harris & Johns.), Virginia (2 and 3 Munford, 1 Va. Cas.), North Carolina (2 Murphey), South Carolina (3 Brevard, 3 Desaussure), Kentucky (2 Bibb), Tennessee (2 Overton, 1 Cooke), and Louisiana (1, 2 and 3 Martin). Nearly two hundrad cases are reported, of which we have selected the following as being among the most interesting to lawyers.

In Gilbert v. Williams, 8 Mass. 51, where n attorney was sued for a loss caused by his disregarding the instructions of his client,

*The American Decisions, containing all the cases of gencral value and authority decided in the courts of the several states, from the earliest issue of the state reports to the year 1869. Compiled and annotated by JOHN PROFFATT, LL. B. Vol. V. San Francisco: A. L. Bancroft & Co., 1878.