suit with leave to set the same aside, etc. Held, A guarantor is neither an indorser nor a surety. 2 Pars. Notes and Bills, 117. His undertaking is his own separate and independent contract; it is not a joint agreement with his principal, and he can not be sued with him. Central Savings Bk. v. Shine, 48 Mo. 463: McMillan v. Bulls Head Bk.. 32 Ind. 11; Allen v. Forsyth, 11 How. Pr. Rep. N. Y. 218. It was improper, therefore, to render a judgment against both defendants. Nor could any judgment have been rendered in this action against Ringo alone. As he was not jointly liable with defendant, Hector, and did not reside in the county where action was brought, and was not served with process in said county, the court acquired no jurisdiction over his person. It was not necessary, therefore, for defendant, Ringo, to appear and plead to the jurisdiction of the court, as was done in Capital City Bk. v. Knox, 47 Mo. 333. Judgment was properly set aside. Affirmed. Opinion by HOUGH, J.-Graham v. Ringo.

SEPARATE ESTATE OF WIFE-WHAT WORDS NECESSARY TO CREATE-POWER TO CHARGE BY EXECUTION OF NOTE BY WIFE TO HUS RAND.-T., a feme covert, held real estate by deed, in which in the premises only were the words "to her sole and separate use." Granting clause of deed, as well as habendum, was merely "to the said party of the second part, her heirs and assigns forever." She executed in blank to -order of her husband, in ordinary form, a promissory note, which was delivered to him in that condition, blanks filled by him for amount and date, and then discounted at plaintiff's bank. In an action to subject her said separate estate to payment of note: Held, 1. That technical words, or a particular form of phraseology, are not necessary to create a separate estate of a married woman; that it is sufficient if, from the words employed, the intention to create such an estate be un- questionably evident, and it is immaterial that the words "to her sole and separate use " occur neither in the granting nor habendum clauses of the deed. Equity looks to the intention, and will glean it, if possible, from the four corners of the instrument, and will not allow such intention to fail by reason of a mislocation of the words designed to impress the estate conveyed with a particular character, and thus effectuate a specific purpose. 2. A feme covert, in regard to her separate estate, is treated in equity as a teme sole, and can execute a note in blank, and be as much bound thereby as if she were discovert. 3. While, at law, husband and wife can not contract with each other, and a note made by wife to husband would be a nullity, yet in equity, they can so contract, and become debtor and creditor with each other with like effect and responsibility, as regards equitable contemplation and rights, as if they twain had never become one flesh. Affirmed. Opinion by SHERWOOD, C. J.-Morrison v. Thistle.


April Term, 1878.

HON. J. V. CAMPBELL, Chief Justice.

the mortgaged property, and need not, in the first instance, make proof that he will be injured unless he resort to the land whereon there is a double incumbrance; but it is for the junior incumbrancer to set up in his answer and establish facts showing that the rule should be applied. Cooper v. Bigley, 13 Mich. 463; Sibley v. Baker, 23 Mich. 512; Brinkerhoff v. Martin, 5 Johns. Ch. 320; Post v. MacKall, 3 Bland. 484; Aldrich v. Cooper, White & Tudor's Eq. Cases, p. 232, et seq. Opinion by MARSTON, J.-Detroit Savings Bank v. Truesdail.

PERPETUAL USE OF WATER-NO PARTICULAR EsTATE NECESSARY.-Water has value as a distinct inheritance, and a right to the perpetual use thereof need not be dependent on lands to which it is appurtenant. Cases seemingly to the contrary are generally where the facts confine the use not only to special places, but also to specified purposes. In many instances the right to use and dispose of water may not only be more valuable than any land which is occupied for its gathering and disposal, but it is also of special value to be taken to a distance and parcelled out among several users or occupants. Its ownership can not be confined to a right in the nature of a license, and is as much a title or interest of a real nature as land itself. Hathaway v. Mitchell, 34 Mich. 164; Hurd v. Curtis, 7 Metc. 94; Pettee v. Hawes, 13 Pick 328; Cary v. Daniels, 5 Metc. 236; Goodrich v. Burbank, 12 Allen, 459; Owen v. Field, 102 Mass. 90; Emerson v. Mooney, 50 N. H. 315. Opinion by CAMPBELL, C. J.-Hall v. City of Ionia.

SUBSCRIPTION IN AID OF RAILROAD-EVIDENCEORIGINAL PROPOSAL TO BUILD-NATURAL OBSTACLES AS SHOWING ROUTE INTENDED-USE OF OTHER COMPANY'S TRACK. Held, 1. In an action upon an instrument referring to a proposal to build a railroad between two specified points, and binding the signers to give their notes in aid thereof, evidence of what the proposal was is admissible, since the instru ment must have been signed in view of it, in the absence of the articles of incorporation (for no company had been organized at the time of the subscription), which might have definitely fixed the line of the road and concluded the parties. 2. Since an agreement to build a road between two points ordinarily leaves a choice of routes open, and since parties may subscribe solely in view of the adoption of some particular route the location of a large body of water, or other practically insurmountable obstacle, may be shown as a reason why the contemplated road was not intended to start at a particular point and run in a particular direction, but was designed to use for some distance the track of another company; and to such use there is no legal objection, provided the material points aimed at can thereby be more easily reached. Opinion by MARSTON, J.-Detroit L. & L. M. R. R. Co. v. Starnes.


May Term, 1878.







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GRANTOR AND GRANTEE EFFECT OF ADVERSE POSSESSION.-A conveyance of land, though by the rightful owner, while it is in the adverse possession of another claiming the ownership thereof, is absolutely void as to the party in possession and his privies.

Such deed does not vest the right to entry upon the land as against the party in possession, nor can the grantee maintain an action in his own name to recover the land from the party thus in possession. But such deed is good as between the parties thereto and authorizes the grantee to bring an action in the name of the grantor, against the party in possession, to recover the land, and the recovery will inure to the benefit of the grantee. 2 Hill, 526; 37 N. Y. 502. The code, by providing that every action must be prosecuted in the name of the real party in interest, does not preclude the bringing of such an action in the name of the grantor, for the grantor is the real party in interest, as against the party in possession of the land. Opinion by WORDEN, J.-Stuple v. Downing.

DEED-REFORMATION OF, AS TO MARRIED WOMEN.-When a married woman has attempted to convey her real estate, but the conveyance is defective for want of compliance with the requisites of the statute, a court of equity will not lend its aid. In such a case, the court will not require her to make a conveyance in accordance with the requirements of the statute; this would not only contravene the policy of the law, but would require her to make such a contract as she herself has not made. Nor is there in such a case any contract that can be enforced by way of specific performance, because the feme covert is incapable of making such a contract except in the manner prescribed by statute. 27 Conn. 104. But where a married woman has sold land and received the purchase-money, and has executed a deed with her husband, intended to convey such land, in all respects in accordance with the statute, and perfect, except in the description of the land sold, the mistake in the description may be corrected as against her and her heirs. It would be grossly unjust for her to retain the purchase-money and also the land. Opinion by WORDEN, J.-Hamer v. Medsker.


REPORT OF THE EXAMINATION of Law Students for admission to the Illinois Bar, in the Appellate Court of Illinois, First District, at the April term, 1878. Containing all the questions propounded by the examiners; the answers of the students; the remarks of the presiding judge; the final determination of the court; together with the rules of court regulating the admission of attorneys. Vol. IV. By MYRA BRADWELL. Chicago: The Chicago Legal News Co., 1878.


We fear that this book will do much mischief. 150 of its 159 pages been omitted, it would, then, we think, have been of some benefit to students preparing for admission to the bar of Illinois. It contains the questions asked by the examiners at the examination held in April last, and the rules of court regulating the admission of attorneys in that state. This information the intending applicant for admission to the Illinois bar will be pleased to find. But the remainder of the contents of the book-and the greater part of it can serve no good purpose whatever. The remarks of the presiding judge, that "the audience here is an intelligent one," but "all this whispering and conversation in low tones mut cease," and so on, can hurt nobody; but the evil which will follow the publication of the answers of the students, and the final determination of the court, must be obvious to all. The preface states that one of the objects of the publication of the book is "to give some idea of the amount of legal knowledge the student must possess, in order to pass safely through the ordeal" of the examination. This states it exactly. The student can not read the hundred pages of answers it contains, without

being impressed with the fact that a very small amount of legal knowledge is required in order to pass the "ordeal" of this examination. If he has been stimulated to active work and hard study by the idea that anything else will not do for the Illinois examiners, a perusal of this work will quickly dispel this delusion. It will be strange if, after reading it, he does not make up his mind to "take the chances," and let his studies go by the board.

We have neither the space nor the inclination to present any number of the answers of the students printed in this book. But, in order to show the kind of dish the publishers have placed before the Illinois law student, we select the answers of a Mr. Altgeld. Now we would premise that this student heads the list in alphabetical order; that his answers surpass all understanding; that he came within seven marks of passing the examination, although the other questions given he did not answer at all, and that there are other names on the list who did much worse than he and whose answers are, consequently, more misleading to the student than even his. "Define law in general" is the first question, to which Mr. Altgeld returns the answer (p. 24), "Law is a rule of action, applied indiscriminately to all kinds of action, Person and Real." "Define municipal or civil law" is the next question, to which the same candidate makes response, "Municipal law is a law of a state or city; civil law is the Roman law." Asked next how Blackstone defines the rights of natural persons, the reply is, "Personal rongs and private rongs," and to the further question, as to how he divides the relations of persons, we are treated to the following: "Public rongs are where the public is injured, are suffers; private rongs are such as are injuries to the person, are where the individual is the sufferer, the injured party." The other questions on the common law, the candidate, this report informs us, failed to answer, so we must pass to the law of real property. "What is the difference," asks Professor Hurd, "between an estate in lands and a title to lands?" The reply to this must remind the reader of the speeches which Mr. F's aunt was in the habit of making, to the consternation of the company and the terror of Little Dorrit. "And estate may be a life estate. Are an estate for years. An estate is the interest. A person may have lands and tenements. The title gives the person the right to possession." After this, we are content to pass by, without further comment, Mr. Altgeld's struggles with "corporial and incomporial hereditiments;" his definition of equity jurisprudence as "justice and equity to a ronged and injured person;" his reply as to the origin and history of the court of chancery, that "it had its origin in England, has existed for many years." For it is the maxims of equity which completely floor him. "They are derived," he states, "from England," and are as follows: "There must be a bill filed first, setting up all the facts and the parties to the action, and all the defendants, where they live, rzid, and etc." To several more questions this candidate returned no answer. Such is the "ordeal" which can place one within seven marks of the goal.

Again, what benefit can a student derive from reading over twenty or thirty answers to each question, many of them incorrect, and nearly all inaccurate? Will it not serve to confuse him? And is there any possible good to be got from such a method of teaching the principles of the law-giving the novice a score of wrong answers to one right one, and leaving him to extricate himself as best he can. The fewer copies of this book that are sold, the better for the standard of legal education in Illinois. The law student has our largest sympathy. Our warning may not have reached him in time. The evil may be already done. On the other hand, if our remarks shall prevent the book from reaching the hands of a single student in the state, we

shall not have written in vain. But,in any event, in the language of Mr. Altgeld, whose orthography he is asked to study, we can but consider the student to whom this book is offered as a very "ronged and injured person."



45. WILL-POWER OF SALE-PURCHASE BY EXECUTOR.-S died testate, leaving his widow, M, executrix, and his brother, G, executor. Among other provisions the will contained the following: "My executor and executrix are now empowered by me to sell and legally convey as much of my landed estate as may be necessary to pay all of my just debts." After giving to the widow one-third of the entire estate absolutely, the will further provides: "The balance of my estate I leave to my brother, G, and his daughter, L, to be divided equally between them." The widow renounced the provisions of the will, and dower was assigned her. G qualified as the sole representative of the decedent, and shortly thereafter sold the entire estate, except the dower, as necessary for the payment of testator's debts, and became the purchaser of the land himself. He then brought a suit in equity for the settlement of the estate, reporting as part of the assets the purchase-money of said land. He, of course, executed no bonds for the payment of the money, being himself both vendor and vendee. Eighteen months after the institution of this suit, and when a part of the purchase-money had become due, G moved the court to set aside his (G's) own sale and release him from the purchase, which motion testator's creditors resisted, the land having diminished in value, and the assets being barely sufficient to pay the debts. What power, if any, has a court of equity to set aside this sale and purchase, by the executor, upon his own motion? K. Bardstown, Ky.


Judge George F. Shepley, of the United States Circuit Court for the First Circuit, died on the night of the 21st inst. Judge Shepley was the son of Judge Ether Shepley, who died last year, and was born at Saco, Me., January 1, 1819. He was graduated at Dartmouth in 1837, and at the Dana Law School (Cambridge) in 1839. He was admitted to the bar in 1840, at Bangor. In 1844 he removed to Portland, and in 1848 he was appointed as United States District-Attorney for the state, a position to which he was re-appointed in 1853 and in 1857. Subsequently he devoted himself until 1861 to a very large general practice. In the latter year he became colonel of the 12th Maine Regiment, and during General Butler's expedition against New Orleans he was in command of a brigade. On the occupation of that city he was appointed military commandant and actingmayor. Shortly after he was commissioned as a brigadier-general of volunteers, and made military governor of Louisiana. In 1864 he commanded the military district of Virginia and North Carolina. He served with the Army of the James in the campaign of 1864-'65, and was appointed military governor of Richmond in April of the latter year. After the war he declined the appointment of Judge of the Supreme Court of Maine and continued his law practice. In 1869, however, he accepted the position which he held at the time of his death.

A correspondent in Lexington, Ky., in a paper criticising the decision of the Supreme Court of Indiana

in Helphenstine v. Vincennes Nat. Bank, 7 Cent. L. J. 27, as to the legal status of the 29th of February, says: "What, then, are the reasons for the requirement of due service of a summons upon the defendant, in an action at law or suit in equity before a court can entertain or act upon the matters involved in such litigation? Leaving out of view for the purposes of this article, the distinction between personal or actual and constructive service, it may be said that these reasons are two in number, though of very different degrees of necessity. It is not only expedient but necessary that the proceedings of a court should be regular, systematic and business-like, and that the records thereof should always be kept up to date, in a complete and intelligible form; so it is required that the officers of the court, more especially the clerk, should know what cases will come on for trial at any term, in order that he may have time to prepare, in a proper manner, the various dockets which the law requires him to keep. But by far the more important office performed by the service of summons a number of days before a court meets, is the primary one of giving the defendant due notice of the proceeding that has been begun against him, in order that he may have sufficient time to employ counsel, prepare his pleadings, marshal his evidence, and otherwise arrange his case for trial; for, the universal reason of man and all law, human and divine, have always held and taught that to take any judicial action affecting the life, liberty or property of any individual or corporation, without giving such person due notice of the proceeding likely to result in such action is the grossest injustice. For these reasons the law has always required a summons to appear and defend a suit to be issued from the proper office of the court and duly brought to the attention of the defendant therein, in a prescribed manner and a certain time, usually computed in days, before the court is to meet and act upon the case. These things being so, let us see why, upon any reasonable principle of law or logic, a summons served the prescribed length of time before a term should be held to have been insufficiently served merely because the 29th day of February is included in the said time. That day is not usually regarded or observed as a holiday; and, if it were, that would not seem, upon analogy, to make any difference; for, though service of process upon Sundays and certain other holidays would be irregular, one or two Sundays are certain to be included in every ten days' service, and yet are computed as part of that time; for instance a term of court very frequently begins on Monday, and service of initial process upon the second Friday preceeding is uniformly held sufficient, though two legal holidays, and perhaps more, are included in the ten days. If such service as that-where the Sunday laws moral principle, and need for rest prevent a man's using more than eight of the days for the preparation of his case-be sufficient, why is not a service so that merely includes the 29th of February, which is not a holiday, which is as long as any other day at that time of the year, and on which an ordinary days work can be done by the officers of the court, the defendant, his counsel, and all parties concerned? It can not be said that any party's rights are prejudiced by counting the 29th day of February, in the years in which it occurs, as a full day for all legal purposes. All people may be supposed to know when this extra day is to come in; and, as before said, as much work can be done by all engaged in litigation upon that day as upon any other of the month. Finally, it would seem from the foregoing reflections, that the rule cutting out the 29th day of February is merely technical, not founded in principle, and likely to cause injury to innocent people. Ought it not to be overruled by the courts, or if the doctrine of stare decisis be too strict to permit that, ought it not to be rectified by appropriate action of the legislative power?

The Central Law Journal. transportation furnished, and that the higher



In Duwell v. Bohmer, 10 Ch. L. N. 356, SWING, J. sitting in the United States Circuit Court for the Southern District of Ohio, has decided that the circuit courts of the United States have jurisdiction of a suit in equity to restrain the infringement of a trade mark, registered in accordance with the provisions of the Act of Congress, irrespective of the residence of the parties to the suit, and that the fact that both complainant and respondent are citizens of the same state does not deprive them of jurisdiction. The reported decisions. contain no case in which this question has been expressly determined.

The opinion of the Supreme Court of Florida in Johnson v. Pensacola & Perdido R. R., 18 Alb. L. J. 66, contains a learned and exhaustive examination as to the right of common carriers at common law (there being no statute in the state regulating freights and charges by railroad companies), to fix charges for services. The conclusions of the court were that as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he can not refuse A and accommodate B; that all, the entire public, have the right to the same carriage for a reasonable price, and at a reasonable charge for the service performed; that the commonness of the duty to carry for all does not involve a commonness or equality of compensation or charge; that all that the shipper can ask of a common carrier is, that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual, may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges can not be the measure of damages in any case, unless it is established by proof that the smaller charge is the true, reasonable charge, in view of the Vol. 7-No. 5.

charge is excessive to that degree. The obligations in this matter must be reciprocal. Where there is no express contract, the common law action by the carrier against the shipper is for a quantum meruit, and the liability of the shipper the shipper is for a reasonable sum in view of the service performed for him. What is charged another person, or the usual charge made against many others (the freight tariff) is matter of evidence admissible to ascertain the value of

the service performed. In every case the legality of the charge is established and measured by the value of the service performed, and not by what is charged another, unless what is charged the other is the compensating sum, in which event it is the proper sum, not on account of its equality, but because of the relation it bears to the value of the service performed, as an adequate compensation therefor. To sum the whole matter up, the common law is that a common carrier shall not charge excessive freights. It protects the individual from extortion, and limits the carrier to a reasonable rate, and this on account of the fact that he exercises a public employment, enjoys exclusive franchises and privileges, derived in the case of defendant here, by grant from the state. The rule is not that all shall be charged equally, but reasonably, because the law is for the reasonable charge and not the equal charge. A statement of inequality does not make a legal cause of action because it is not necessarily unreasonable.

In Lowe v. Lowe, recently decided by the Court of Appeals, of Kentucky, the question arose as to the character of certain farming lands which had been purchased for the purpose of carrying on the partnership business of farming. After the death of one of the partners it was claimed by the widow that the land was impressed with the character of personal property, and that she was entitled under the statute to one-half of her deceased husband's share in the partnership lands. The court, however, decided against her. The doctrine of courts of equity, that real estate held by trading partnerships, purchased with partnership funds, and used for partnership purposes, is to be treated as personal property, is based on the assumption that the part

ners intended it to be so treated, and thereby converted it into personalty. The decisive question in these cases is, whether from the nature of the partnership business, the extent and character of the real estate owned by the firm, and the attending circumstances, the court can gather that it was the intention of the partners to treat the real estate as personalty. Cornwall v. Cornwall, 6 Bush, 369; Galbraith v. Gedge, 16 B. Mon. 631; Ripley v. Waterworth, 7 Vesey, 425; Thornton v. Dixon, 3 Bro. C. C. 190; Bell v. Phyn, 7 Vesey, 453; Randall v. Randall, 7 Sim. 271; Cookson v. Cookson, 8 Sim. 529. By the last English case cited, the doctrine of the courts on the subject has been thought to be so modified as to render it necessary, in order that partnership land may be converted into personalty beyond what is necessary for partnership purpeses, that there should be an express agreement to that effect. In his note to section 94 of Story on Partnership, Mr. Gray says: "The subject has often been alluded to in the American courts, and the books are full of dicta on the matter; but there seems to be but few cases, in which the point has arisen directly for decision between the widow or heirs on one side, and the personal representatives on the other;" and he cites the following list of cases in which it has been held that, in the absence of an agreement for an absolute conversion into personalty, the claims of the widow and heir must prevail: Wilcox v. Wilcox, 13 Allen, 562; Buckley v. Buckley, 11 Barb. 43; Goodburn v. Stevens, 5 Gill, 1; Hale v. Plummer, 6 Ind. 121; Summey v. Patton, 1 Winst. Eq. 52; Dilworth v. Mayfield, 36 Miss. 40; Piper v. Smith, 1 Head, 93. This seems to us to be the true doctrine, with this modification, that the agreement necessary to be shown may be either expressed or implied. If expressed, of course no difficulty can arise; but if no agreement be expressed, then the court is to decide on all the facts whether the partners intended their real estate to be treated as part and parcel of their capital stock, not only for the purposes of the partnership, but for all purposes. When such an agreement or intention is shown from the nature of the partnership business, the character and extent of the real estate involved, and the partners mode of treating and considering it, it should be held to be personalty, not only for partnership purposes, but for

purposes of distribution also. But in the absence of such facts and circumstances as wil warrant the court in finding that it was intended or agreed by the partners that their real estate should be regarded as personalty for all purposes, it should only be so regarded for the purposes of the partnership, and after these are answered, the surplus should be held to be real estate for all other purposes.


Three several articles upon this general subject have recently appeared in this journal, which display much diligence and research. See 6 Cent. L. J. 281, 412, 483. The conclusions reached, though different, seem quite reasonable from the particular standpoints respectively taken, or assumed.

One difficulty in the way of a satisfactory solution of the question considered is, as to the legal meaning of the word "willful,” as applied to acts of servants; and also, as to the rule governing the motives under which they have acted, as well as to the character of the employment.


Before we float further on the waves of this debate (as Webster on a memorable occasion said), let us see how far the elements, misunderstandings, or misapplications of terms have driven us from our true course. term "willful" seems to be compounded from the two words, will and full; the will predominating over reason; stubborn; not to be moved or persuaded by reason; refractory, as a stubborn mule or ass. Webster has it: "Governed by the will without yielding to reason; obstinate, perverse."

What constructions have the courts put upon the term "willful," as applied to acts of servants? It will be seen by authorities on this general subject that a discriminating line is drawn between cases where a servant assaults a passenger of a common carrier, and where an injury is done by the same servant to a stranger not a passenger.

Thus in Goddard v. Grand Trunk Railway Company, 57 Maine, 202; 2 Am. R. 39, the court, in an elaborate opinion, observes: "It may be true that if the carrier's servant willfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master's passengers." So that, an act which would be ad

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