occasion to occupy it exclusively. It would be unjust to say that the public, by this acquiescence under such circumstances, acquired a title to part of the land. The owner of land must do some act or suffer some act to be done from which it can be fairly inferred he intended a dedication to the public." See also Warren v. President, 15 Ill. 236. Reversed and remanded.Kyle v. Town of Logan.

JUDGMENT

INJUNCTION NEGLIGENCE. - This was a bill in equity to enjoin and set aside a judgment rendered by default against appellant. The action in which the judgment was rendered was in trespass for damages done to certain docks. There is no dispute as to the fact of the trespass, and some consequent damage. The only question at issue is as to the question of fraud in obtaining the judgment, which, it is admitted, was excessive. The complainant here claims that the injustice of the judgment is so gross in the respect of the vast difference between the amount recovered and the amount of the rightful claim as to evince fraud or mistake in the obtaining of the judgment, and upon that ground of itself it should be relieved against. The complainant also attempted to show that the attorney of the plaintiff, in the suit at law, promised that he would do nothing further therein, and that, because of reliance thereon, appellant failed to make defense to the suit, and that he knew nothing of the judgment obtained until some time afterwards. SHELDON, J., says: "The principle governing in such cases is, that any fact which proves it to be against conscience to execute the judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment." Held, that complainent was guilty of negligence, and hence could not obtain relief. Affirmed. Dickey, J., dissenting. -Walker v. Shreve.

violation of his duty, yet, as it did not show any bias or prejudice for or against either party that would affect the verdict, it was not sufficient cause for a new trial. 4. Although a bill of exceptions states that it contains all the evidence offered on the trial, yet, if on examination it shows that material evidence or documents referred to are omitted, the reviewing court will not reverse the judgment on the ground that the verdict is against the evidence. Opinion by ASHBURN, J.—Armleder v. Lieberman.

WILLS LIMITATION OVER- CONSTRUCTION.-In one clause of his will, a testator bequeathes to M L, a married woman, living with her husband, a specific sum of money. In a subsequent clause, it is provided that if M L shall die leaving no child of her own, then the money shall be equally divided between the testator's living children, the issue of his own body. Upon final settlement of the estate, the executor had funds sufficient to pay all the legacies, but refused to pay M L, claiming the right to hold the amount during her life, to be placed at interest for her benefit. Assuming that the limitation over to the living children of the testator, in the event that M L shall die leaving no child of her own, is valid, and not void as being incon. sistent with the first clause: Held, 1. That as the bequest over is upon uncertain contingencies that may never happen, namely, the death of M L, leaving no child of her own, with living children of the testator surviving her, the children of the testator, if they take at all, do so by way of executory devise, and not as legateès in remainder. 2. M L takes the bequest absolutely and is entitled to the possession thereof. Her estate, if the limitation over is valid, is liable to be divested by the happening of the contingency named, and no estate or interest vests in the possible legatees until such contingencies happen. 3. Upon final settlement of the estate before the death of M L, and in the absence of any provision of the will making it the duty of the executor to hold and manage said legacy, she is entitled to receive the same. 4. If such limitation over is valid, the children of the testator and not the executor, in the absence of a trust reposed in him, are the proper parties to an action or proceeding to protect their contingent interest, if any necessity for such action arises. Judgment reversed. Opinion by JOHNSON, C. J. Ashburn, J., not sitting.-Lapham v. Martin.

over

ABSTRACT OF DECISIONS OF THE SUPREME COURT OF IOWA.

June Term (Des Moines), 1878.

HON. JAMES H. ROTHROCK, Chief Justice.
66 WM. H. SEEVERS,

MISCONDUCT OF JURY VERDICT BILL OF ExCEPTIONS.-1. Where there has been irregularity or misconduct on the part of the jury, which might affect its judgment, or improperly influence the verdict, a new trial should be granted. Where, however, it clearly appears that no improper effect could arise from the alleged misconduct, the verdict should stand. 2. A separation of the jurors, after the jury has retired to the Jury room to consider of the verdict, induced by a sudden alarm of fire in the near vicinity of the jury room, is not, of itself, such misconduct as will vitiate the verdict made on reassembling. 2. A juror separated from his fellows, and privately asked an attorney, in no way connected with the case or parties thereto," how are we to get along without those books or papers," saying, "they have not let us have them," to which the attorney replied in substance, you must do the best you can; he could give him no advice; that the juror could send up and have the court advise them. Held, although such conduct on the part of the juror was a

66

JAMES G. DAY,

66

JOSEPH M. BECK,

STATUTE OF LIMITATIONS.

Associate Justices.

- A personal action which is barred by the statute of limitations of any state where the defendant has resided, can not be maintained in this state, even though the cause of action arose here. Opinion by ROTHROCK, C. J.Davis v. Harper.

LOST NOTE - WHEN SPECIALLY INDORSED - INDEMNITY.-Where a lost note was indorsed: "Pay Cashier First National Bank, Ottumwa, Iowa, or or. order:" Held, that the maker bad no right to demand indemnity upon payment, and that a tender conditional upon such indemnity did not stop the accruing of interest. Opinion by ROTHROCK, C. J.- Dudman v. Earl.

EVIDENCE-CONTRACT.-In an action to recover upon a building contract, the plaintiffs' alleged per

formance of the contract in accordance with its terms. As a defense, certain alleged deviations by plaintiff's from the specifications in the contract were set up. Held, that evidence that such deviations were authorized or waived by defendants was inadmissible under the pleadings. Opinion by ROTHROCK, C. J.-Fauble v. Davis.

STATUTE OF LIMITATIONS WHEN ACTION ACCRUES-CLERK OF COURT.-A right of action against the clerk of a court for accepting an insufficient stay bond accrues at the expiration of the stay, and not when the bond is taken. Argument: While the act upon which the liability arises is committed when the bond is taken, yet no right of action or claim exists against the surety accepted until the stay expires, and any damage to the judgment plaintiff is, until that time, contingent upon the failure of both principal and surety to then pay the judgment. Opinion by SEEVERS, J.-Steele v. Bryant.

CORPORATION STOCKHOLDER SUBSCRIBER TO STOCK.-Where a person signed a paper purporting to be a subscription to the stoek of a railway company, and the paper was delivered to the company: Held, that it constituted an agreement between the parties, and the subscriber became thereby a stockholder in the absence of any provision of the company requiring payment as a condition of membership. Citing Chester Glass Co. v. Dewey, 16 Mass. 94: Spear v. Crawford, 14 Wend. 20; Vawter v. O. & M. R. R. Co., 14 Ind. 174. Opinion by ADAMS, J.-Waukon & Mississippi R. R. Co. v. Dwyer.

42. INTER-STATE COMMERCE-LICENSE.-Since the case of Welton v. State of Missouri, 3 Cent. L. J. 116, it has been thought that the license question as to foreign (other states) commercial travelers was at rest. It seems that in New Orleans and other southern cities licenses are required of traveling agents of northern manufacturers of furniture, etc., who go from place to place and house to house and offer their manufactures for sale to dealers by photographic representations of their wares. Is there any new light on that subject? S.

Lawrenceburg, Ind.

43. CHANGE OF VENUE-FORECLOSURE-REQUISITES OF DECREE.- Under the statute of Indiana, which provides for changing the venue of causes, a suit to foreclose a mortgage, in the county where the land is situated, is sent to an adjoining county, and a decree finally rendered in said county foreclosing the mortgage. If this decree does not state that the court acquired jurisdiction over the subject matter by virtue of the change of venue to said court, is it a valid decree? And if a sheriff sells the mortgaged property on the decree so rendered, does the purchaser acquire any title to the property so purchased thereby? And can that decree, or the sheriff's deed under it, be collaterally attacked, when offered in evidence in a suit in ejectment, by the holder of the sheriff's deed against the defendants. H. J. E. Indianapolis, Ind.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

CONTRACT

40. SALE REFUSAL TO Deliver RIGHT TO POSSESSION.-A's inkstand is on his table; B says, "I will give you a dollar for your inkstand." A says, "I accept, it it is yours;" whereupon B pays the money, the inkstand all the while remaining on the table, unmoved by either party during the negotiations. B steps out to his carriage to fetch his satchel to put the inkstand in. On his return, A refuses to let him take the inkstand. In whom is the legal title to the inkstand, and what action at common law independent of all statutes must B bring for redress? J. A. F. Dover, Del.

41. KANSAS STATUTE PERMITTING ADJOURNMENT OF TRIAL-CONSTRUCTION.-Section 81, Ch. 81, Gen. Stats. 1868 (Kansas), provides as follows: "The trial may be adjourned upon the application of either party without the consent of the other, for a period not exceeding thirty days, as follows: The party asking the adjournment must, if required by his adversary, prove, by his oath or otherwise, that he can not, for want of material testimony which he has been unable to procure, safely proceed to trial." Is the bare statement that the party "can not, for want of material testimony which he has been unable to procure, safely proceed to trial," a sufficient showing for a continuance?

B

ANSWERS.

No. 36.

(6 Cent. L. J. 479.)

The sheriff can hold 4 years under the new constitution. The provision applies to periods of time under the new constitution, and not to terms of office. Carson v. McPhetridge, 15 Ind. 329. E. H. C. C. Bloomfield, Ind.

The constitution of a state eo instanti it is superseded by a new one ceases to have any vitality for any purpose. From that moment the new one alone possesses power and vitality, and confers rights and imposes disabilities. If the new one contains no schedule making provision continuing or affecting any rights conferred or disabilities imposed by the old, then all such rights are lost, and all such disabilities are nullified at once, and in toto. And where such new constitution disqualifies the holding an office created by it by the same person for a longer period than it prescribes, such holding to work such disqualification must be exclusively under such new constitution. Vincennes, Ind.

BOOK NOTICES.

C. & B.

UNITED STATES DIGEST. A Digest of Decisions of the various courts within the United States. By BENJAMIN VAUGHAN ABBOTT. New Series. Vol. VIII. Annual Digest for 1877. Boston: Little, Brown, & Co. 1878.

When we say that this is the United States Digest for 1877, we have said everything that is necessary. The profession do not need to be reminded of its value; It has long ago become indispensible to the practicing lawyer, and its merits are too well known to require repeating here. The present volume comprises eightyone volumes of state reports, and thirteen of federal

court reports. In its typographical appearance it is equal to that of the previous volumes.

Messrs. Honeyman & Co., of Somerville, N. J., have published, in pocket form, an abridgment of the Revised Statutes of New Jersey, and of the Amended Constitution. It contains 367 pages and is neatly bound in black cloth. The press work is excellent, and it can not fail to be popular with the profession of that State. -The third volume of Mr. Blickensderfer's Review of Legal Studies (Chicago, E. B. Myers) is just issued. In this handy edition, the student will find an excellent digest of the principles of criminal law and of equity. The book also contains a table-full enough for the purpose of law terms and phrases, and a list of legal maxims. It is bound in flexible covers, and can be carried about in the pocket without inconvenience.

NOTES.

THE Governor of Illinois has appointed to the vacancy on the Supreme Bench caused by the death of Judge Breese, Judge D. J. Baker, of Cairo, at present one of the judges of the appellate court for the fourth district.

AMONG the questions just reported upon by the commission, appointed by the British government, to consider the question of Extradition is whether a state should surrender its own subjects to a foreign state. The chief arguments against such a surrender are that a man should not be withdrawn from his natural judges; that the state owes to its subjects the protection of its laws, and should not, by handing them over to a foreign jurisdiction, deprive them of the guarantees of their own laws; that entire confidence can not be placed in the justice of a foreign state with regard to strangers: that it is a great disadvantage to a man to be tried in a foreign language, and where he is separated from his friends and from those who could testify to his character. For these reasons, it is contended that powers hould be given to try a man in his own country for a crime committed in another. On the other hand, it is argued, say the commission, that if offenses, committed by British subjects abroad, are to be tried in England, it would entail a change in the principles of our criminal law, which has never, save in a few exceptional cases, undertaken to control, for the purposes of police, the actions of British subjects in foreign countries; and, further, if a fugitive criminal ought to be tried in his own country instead of in that where the offense has been committed, it follows that any foreigner who violated the laws of the state in which he resides shall also be sent to his own country for trial and punishment. A person commorant in a foreign country owes obedience to its laws in return for the protection which they afford him, and he should be in no different position if he has fled without, than if he had remained within the jurisdiction of the laws he has violated. Extradition ought only to take place between nations which have mutual confidence in the impartial administration of justice by each other's courts. Without such confidence we should not surrender even a foreigner; with it we have no right to assume that the other state will break faith with us or will deal unjustly with one of our subjects. By refusing to deliver up our own subjects we allow criminals to escape unpunished. It is more convenient that a man should be tried in the country whose law he has broken; and by that law the punishment should be determined. The expense and inconvenience of bringing the witnesses to the country of the accused would be very great; and taking their evidence in a written form would be a most unsatisfactory mode of procedure in criminal matters, and

would be disadvantageous to the accused by affording him no opportunity for cross examination or inquiry into the character of witnesses. On the whole, the commission unanimously were of opinion that it is inexpedient that the state should make any distinction in this respect between its own subjects and foreigners; and stipulations to the contrary should be omitted from all treaties.

SOMEBODY in Pennsylvania, dissatisfied with the way the judges of that state arrive at their conclusions, announces the publication of a new series of reports, and presents some specimens of the fictitious cases to the profession, two of which the American Law Review, in its last issue, reprints. One of these, Silas Tompkins v. Commonwealth, is very amusing. The syllabus reads as follows: "1. A defendant may be convicted by poisoning on an indictment which charges a murder by a clasp-knife. 2. It is no objection to a conviction that it nowhere appears in the record that the judge before whom the case was tried was duly commissioned by the Governor. 3. It is not error to ask a prisoner, when called up for sentence, what he has to say why judgment should not be pronounced,' etc., instead of whether he has anything to say," etc. 4. The course of the administration of criminal practice can not be stopped for six cents." The opinion of the court is after this style: "The defendant below was found guilty of the gratuitous murder of a mother and her ten children, under circumstances of useless and offensive barbarity. We were quite prepared to hear his counsel arguing that the conviction was erroneous, and their client innocent. It is always so in aggravated cases. But with the innocence of Tomp. kins, we, as a court of error, have really nothing to do. Law is the hypothenuse of a right-angle triangle, of which logic and moral philosophy are the other two sides. Though it touches them each at one point, its general direction is quite distinct. Mistakes will happen, of course, in our judicial system, as accidents do on our railways; but we can do without neither the one nor the other. Each usually carries its passengers in safety; and when the wrong man is now and then hung or blown up, he must console himself with the reflection that he is a sacrifice to the necessities of society. With the law of this case alone it is our province to deal. We find here the usual parade of exceptions, and points and assignments of error, and a paper book encrusted with authorities like barnacles. Everything that the ingenuity of counsel could suggest has been done to confuse and complicate the design of the case, in the hope, perhaps, that the prisoner, concealed by the dust of argumentation, might escape in a sort of legal disguise. But the eyes of justice are too quick for that sort of thing, and we, as her ministers, will block any such game without remorse. * ** In the case of Sargent v. Coffin, 12 Mass. 315, it was properly decided that an erection on a navigable river was a nuisance; and in Smith v. Mildmay's Adm'r, 31 Ala. 410, it was held that notice to the indorser of a note of its dishonor might be waived. I need not refer to the rule in Shelley's case, 1 Rep. 88, nor to the well-known Woodworth Patent case of Wilson v. Barnum, 8 How. (U.S.) 253. These, and other decisions which it would be mere pedantry to cite, show that the plaintiff in error has no cause to complain of the charge of the court. The other errors are merely supernumeraries, joined to the principal characters in order to give them an air of fictitious importance on the stage. We shall do the prisoner no wrong by disregarding them. A criminal, at his trial, plays at pitch-and-toss with the law for his life, and, if he loses, he must pay the stakes. It is too late to contest here the minor points of the game, which ought to have been settled as it went on. Judgment affirmed."

SAINT LOUIS, JULY 19, 1878.

CURRENT TOPICS.

In England v. Walker, recently decided by the Supreme Court of Tennessee, it was held that the officers of the court and witnesses, being interested in the costs of a suit, may be heard to object to a compromise decree which would deprive them of judgment against a solvent party for such costs. TURNEY, J., delivered a brief opinion as follows: "In an action of replevin, Walker recovered judgment against England, the plaintiff, for $474.75, and costs of suit, amounting to about $800. England filed his bill to enjoin its collection. The parties entered into a written agreement of compromise of the chancery suit, in which Walker agreed to a decree as prayed for, that his judgment was fraudulent, and that he would pay all costs at law and in chancery. The officers and witness interested in the cause, filed what is called an affidavit and petition, in which they allege Walker is utterly insolvent and worthless, and that he and England fraudulently confederated to enter into the pretended compromise for the purpose of cheating and defrauding them of the costs, to which they are respectively entitled, and for which there is judgment against England, a solvent man, and asking to be made parties to the suit in chancery, with leave to contest the compromise, so far as their costs are concerned. The Chancellor allowed the petition to be filed, and refused a decree upon the basis of the compromise. His ruling was correct. The parties petitioning are alone interested in the costs, and it was for their benefit the judgment therefor was rendered. While the paper filed is denominated an affidavit, it is in substance an original bill stating clearly and distinctly the facts, which, if proven, will entitle the parties filing it to the relief sought, with a prayer for specific and general relief. It can make no difference that costs are mere incidents to suits. In this, parties can and do have as substantial and fixed rights as any other character of funds or property, and a Vol. 7-No. 3.

ties entitled to them against fraud.”

IN Gilbert v. Gaugar, 10 Ch. L. N. 340, just decided by the United States Circuit Court for the Northern District of Illinois, it was held that the statute of Illinois as to gambling in grain, which says "Who.oever cntracts to have or give to himself or another the option to sell or buy at a future time any grain, shall be fined

* and all contracts made

in violation of this section shall be considered gambling contracts, and shall be void," does not prohibit sales of grain for future delivery where the only option is as to the time of delivery within certain limits, and that if, by reason of an adverse market, customers direct their brokers to settle with purchasers before the maturity of the contract, they are liable for the differences paid by the brokers in their behalf as well as for commissions. The intent of the statute is to prohibit "puts" and "calls" only. Wolcott v. Heath, 78 Ill. 433; Pixley v. Boynton, 79 Ill. 351; Logan v. Musick, 81 Ill. 415; Corbett v. Underwood, 83 Ill. 324; Ex parte Young, 6 Biss. 53; Rumsey v. Berry, 65 Me. 570. "Lyon v. Culbertson, 83 Ill. 33, 5 Cent. L. J. 401, and Pickering v. Cease, 79 Ill. 328 would seem at first,' says BLODGETT, J., " to hold a different doctrine. But a careful examination of those cases shows that the court proceeded upon the fact found that neither party expected, at the time the contracts were made, to deliver any wheat, but only to adjust or settle differences. These two cases also differ from this in other important features. In both those cases the suits were directly between the parties to the contracts, and the court held them to be gaming contracts, because it was found as a fact that neither party intended to sell or buy the wheat, but only to speculate in differences, transactions which the court held were contrary to public policy, and therefore void. And while it may be well, as a matter of public policy, to prevent parties from gambling by refusing to enforce gambling contracts between them, yet it is at least doubtful whether they should be allowed to gamble at the expense of others, and not pay such others whom they employ to do the work, and who advance money for them.” Under the English acts for the prevention of stock jobbing, it is held that

when a broker had paid money on defendant's account, to compromise or settle differences for not delivering stocks, the broker could recover from the principal. Falkney v. Reynous, 4 Burr. 2069; Petrie v. Hanney, 3 T. R. 418; Knight v. Cambers, 15 C. B. 563, 80 E. C. L. 561; Jessopp v. Lutwyche, 10 Ex. 614; Rosewarne v. Billing, 15 C. B. N. S. 316; 109 E. C. L. 316. The learned judge, in the principal case, concludes his opinion as follows: "As early as 1857 the learned circuit judge of this circuit held that a contract substantially like the one under consideration was valid: Potter v. Viets, 1 Biss. 177. So in Lehman v. Strassburger, 2 Woods, C. C. 554, 1 Cent. L. J. 50, Judge Woods, of the fifth circuit, sustained a cause of action almost identical with this. But the most full and exhaustive discussion of the question which I have met is found in the case of Clarke, v. Foss, 10 Ch. L. N. 213, by the learned district judge of the Western District of Wisconsin, and the doctrine of that case fully sustains the plaintiffs' right of recovery in this case."

The Supreme Court of Ohio, in Davis v. Justice,31 Ohio,359, have given a somewhat unusual construction to the "civil damage" law of that state, holding that under the statute which provides that any person "who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication habitual or otherwise of any person," shall have a right of action against the person selling or giving away the liquor which caused the intoxication, damages resulting from the death of the intoxicated person can not be recovered. The reasons given by a majority of the court for this ruling are, that at common law actions for personal injuries abate by death, and can not be maintained by the executor or heir; that had the legislature intended a liability to arise. where the unlawful sale resulted in death, it would have expressed such intention in terms more unmistakable than those employed; that the act of March 25, 1851 (S. & C. 1139), giving a right of action where death has resulted from the wrongful act, neglect, or default of another, affords, and was intended to afford, the only remedy provided for all cases. where death ensues; and that the uncertainty

The

of estimating the value of human life, and the pecuniary injury resulting from its destruction, was the reason why the common law gave no remedy, and should control the court in the class of cases under consideration, where the legislature has not expressly enacted otherwise. The decision of the court is dissented from by BOYNTON, J., in an opinion which we can not help regarding as showing a better appreciation of the legislative intent in the passage of these statutes. After showing that the difficulty of ascertaining the amount to be recovered was not the reason of the common law rule, but that it rested on the ground that the act producing death was a felony which merged the civil liability, he says: "The judgment of the court seems to be founded on the mistaken notion that the action is brought to recover damages for the death of the husband. Such is not the case. wrongful act which constitutes the ground of the action, is the illegal sale of the liquor causing the intoxication from which the injury results. The death of the husband only affects the measure of damages. It destroys his ability to labor, and thereby diminishes the wife's means of support. If the husband had lost both his arms or legs, or become permanently insane, in consequence of intoxication, or had otherwise become permanently disabled to perform physical labor, and had survived, the result to the wife would have been precisely the same. Her injury, in either case, would consist in the deprivation of the means of support resulting from the loss of her husband's ability to labor. There is not the slightest foundation in reason or justice for an intention upon the part of the legislature to authorize a recovery for an illegal sale causing intoxication resulting in injury, where death does not follow, and to refuse damages where death results. Indeed, there is much more reason to award damages for the injury in the latter case than in the former. That the legislature intended to authorize a recovery in the one case and not in the other is an assumption not only not warranted by, but in clear contravention of, the express provisions of the statute. The argument that the wife has lost nothing, because a dead man can not labor, proves nothing. Neither can a man labor that has lost his limbs." The Supreme Court of New York, under a similar statutory provision in that state, have held that such an action will