Landon, for a balance alleged to be due on settlement of accounts. The complaint alleged that on June 16, 1877, there was a settlement of mutual accounts between decedent and Landon, and there was found to be due the decedent $57. The decedent died intestate in July, 1877. The defendant admitted the indebtedness, but averred that on April 10, 1877, at request of decedent, he signed a note jointly with him, which note he was compelled to pay August 10, 1877, and that in September, 1877, he filed a claim against the decedent's estate for the amount thus paid, which claim was allowed by the court. Defendant asked that so much of his judgment as was necessary might be set-off against the plaintiff's claim. A demurrer to this answer was overruled. Plaintiff replied that the defendant's judgment was not a preferred claim against decedent's estate, and that said estate was insolvent. A demurrer to this re

ply having been sustained, there was judgment in favor of the defendant. Held, that to entitle a defendant to plead a set-off to an action against him by an executor or administrator, his cross-demand must have been been an existing demand against the testator or intestate at the time of his death. It is not necessary that the cross-demand thus existing in favor of the defendant should have become due at the time of the testator or intestate's death; it is sufficient if it became due and payable in time to be pleaded as a setoff in the same manner as if the testator or intestate had lived to bring the action. Waterman on Set-off, § 97; 3 Barb. 166. The contingent liabllity which Langdon incurred when he signed the note as surety of Ruter did not constitute. in any proper legal sense, an existing demand against Ruter at the time of his death. 6 Ohio, 35; 2 Hill. (N. Y.) 210; 20 Johns. 137; 8 Wend, 530; on Set-off, 197. The court erred in overruling the demurrer to the answer. Reversed. Opinion by NIBLACK. J,-Convery v. Landon.

December Term, 1878.

[Filed October 21 and 28, and November 4, 1879.]

DEED EVIDENCE OF DELIVERY-ESTOPPEL.-1. Although there may have been no manual delivery of a deed, nor anything said, in terms, about its delivery, yet the fact of delivery may be found from the acts of the parties preceding, attending and subsequent to the signing, sealing and acknowledgment of the instrument. 2. Where real estate is conveyed by a husband to his wife, through the intervention of a trustee, the destruction of the unrecorded deeds by the husband, with the assent of the wife and the trustee, will not of itself estop the wife, as against the grantor's heir, to claim the land under such conveyance. Judgment reversed and cause remanded. Opinion by OKEY, J.-Dukes v. Spangler.

FORGERY-INDICTMENT-RECEIPT.-1. Where, in an indictment for uttering a forged receipt, the instrument set out is not prima facie a receipt, such intrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt. 2. An averment that the instrument set out was a receipt does not have the effect to change its prima facie character. Nor will the character of the instrument be changed by an averment that by the rules of the bank where the instrument was used, it was upon its face a receipt. It should be shown how or in what way, the instrument, if genuine, would, under the rules of the bank, have the operation and effect of a receipt. Judgment reversed

and cause remanded. Opinion by WHITE, J.-Henry v. State.

BOARDS OF EDUCATION No POWER TO LEASE PUBLIC SCHOOL HOUSE.-Under the act of May 1, 1873, entitled "an act for the reorganization and maintenance of common schools' (70 Ohio Laws, 195), boards of education are invested with the title to the property of their respective districts in trust for the use of public schools, and the appropriation of such property to any other use is unauthorized. 2. A lease of a public school house for the purpose of hav ing a private or select school taught therein for a term of weeks, is in violation of the trust; and such use of the school house may be restrained at the suit of a resident tax-payer of the district. Judgment reversed. Opinion of MCILVAINE, J.- Weir v. Day.

COUNTY COMMISSIONERS-WHEN AUTHORIZED TO SUE IN OWN NAME-ACTION TO RECOVER BACK-1. The capacity of county commissioners to sue is not limited to the cases enumerated in section seven of the "act establishing boards of county commissioners and prescribing their duties." In the cases enumer ated in section seven they are not only authorized but required to sue. 2. Where a cause of action in favor of the county arises out of a subject-matter within the control of the board of county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode. 3. Where work has been done on account of the county, under an agreement with the commissioners, and has been accepted and paid for, no action lies at the suit of the commissioners, in the absence of fraud or mistake, to recover back the money thus paid. 4. In such action, where it is averred in the answer that the work was done on account of the county, in pursuance of a contract with the commissioners, the presumption is that the contract was duly entered into. If the alleged contract is sought to be impeached by the reply as being void as against the county, for non-compliance with the requirements of the act of March 9, 1866, relating to the duties of county commissioners (S. & S. 86), the reply ought to show that the subject-matter of the contract is within the purview of that act. Whether if the contract were shown to be made in contravention of the act last named, it would make any difference as to there being no right to recover back the money, quære. Judgment affirmed. Opinion by WHITE, J.-Comrs. of Hamilton Co. v. Noyes.


[[Filed at Ottawa, October, 1879.] ¦

PRACTICE-CHANGE OF VENUE-AFFIDAVIT MUST BE FILED CHANGE OF VENUE ON CONDITIONFAILURE OF DEFENDANT TO PERFORM CONDITION. -This was an action of debt on an appeal bond. At the time to which the summons was returnable, but before a default was taken. the appellants filed a motion for a change of venue, but without petition or affidavit. On June 18th, the court entered an order with the following words: "All pleas to be filed by to-morrow morning," and on the 19th of June defendants were defaulted for want of pleas. Immediately thereafter appellants filed a petition accompanied by affidavit for a change of venue. The court made an order June 22d changing the venue on condition that appellants should pay to the clerk the costs of such change by Friday, June 29th. This was not done, and on June 29th the court made an order vacating the order changing the venue for non-compliance with its terms. The appellants then moved to set

aside the default entered against them on June 19th, which the court overruled, and entered judgment against appellants. DICKEY, J., says: "Appellants did not in the first instance proceed properly to obtain a change of venue. The application should have been made by petition verified by the affidavit of the petitioner. The default of appellants entered on June 19th were properly entered, for no pleas had been entered, and no sufficient application for a change of venue had been made. ** Appellants having failed to pay the costs of changing the venue within the time limited by the court, the order granting the change of venue became as against appellants void by operation of the statute. Sec. 13, ch. 146, Rev. Stat. of 1874. The motion to set aside the default was not based upon an affidavit of merits." Affirmed.-Little v. Allington.

PRACTICE APPEAL FROM APPELLATE TO SUPREME COURT - FORCIBLE DETAINER DOES NOT INVOLVE TITLE TO PROPERTY.-This was an action of forcible detainer brought before a justice of the peace in Cook county. A judgment was recovered against defendant, who appealed to the superior court where, on motion of appellant, the appeal was dismissed. A motion to set aside the order dismissing the appeal was overruled, and the case was removed to the Appellate Court, where the judgment of the superior court was affirmed, and an appeal to this court was granted and perfected, and the question is presented whether the statute regulating practice in the Appellate Court authorizes an appeal in such a case to this court. The Court say: The 91st section of the practice act, as amended in 1877, provides that 'in all criminal cases and in all cases where a franchise or freehold, or the validity of a statute is involved, and in all other cases where the sum or value in the controversy shall exceed $1,000,' &c., appeal shall lie to this court. Nor is it perceived that it conflicts with the provisions of section eight of the act establishing the appellate court in the class of cases to which this belongs. It specifies the cases in which appeals lie to this court from the superior court, but it does not embrace this case. It will be seen that appeals to this court from the circuit, superior or city courts in this class of cases, are not embraced in either of these sections. A proceeding in forcible detainer does not involve or call in question the title to land. In such a proceeding the title can not be called in question or tried, but simply to try and determine whether the lease of the tenant has determined and whether the landlord is entitled to possession of the premises and the tenant withholds them from him." Appeal dismissed.-McQuirk v. Burns.

PRACTICE JUDGMENT FOR AMOUNT ABOVE JURISDICTION OF JUSTICE-REMITTITUR-INDEFINITE JUDGMENT.-This was a suit brought before a justice of the peace on a promissory note. Plaintiff obtained judgment, and defendant appealed to the circuit court. On the trial there plaintiff obtained a verdict and judgment for $205.79. A motion for a new trial was entered and plaintiff remitted $5.79, and the motion was overruled and a judgment entered ordering that plaintiff recover the amount of the verdict less the amount remitted by plaintiff, &c. fendant appeals to this court and urges two principal objections to the judgment rendered: 1st. That it is for an amount beyond that claimed by the indorsement on the summons and above the jurisdiction of the justice of the peace. 2nd. That it is so uncertain that it must upon that reason be reversed. WALKER, J., says: "As to the first objection see the cases of Tindal v. Meeker, 1 Scam. 137, and Micheltree v. Sparks, 1 Scam. 198. In regard to the second poin


urged by defendant, we fail to perceive any uncertainty as to the amount. We apprehend that no person on reading it would say it was uncertain, but all would say it was for $200 and costs. It says it is for $205.79, less the sum of $5.79 remitted as aforesaid, which is a statement that it is for $200. But it is urged that the case of McCausland v. Wonderly, 56 Ill. 410, must control this case. This we regard as a misconception of the facts of the two cases. In that case the plaintiff expressed a willingness to remit $600 of the verdict, but a remittitur was not entered. So that case can not be held to govern this. The case of Rothberger v. Wonderly, 66 Ill. 390, is referred to as an authority on this question. That case was like the one first referred to and can not control this. The case of Farr v. Johnson is also referred to by appellant. In that case a written remittitur was filed, but a judgment was rendered for the full amount of the verdict, 'subject to the aforesaid remittitur.' Thus it will be seen that the language of that judgment and the one under consideration is different. We think there is a well-founded distinction between these cases, those referred to being uncertain and indefinite in the judgment rendered. We are unable to see that Linden v. Monroe, 33 Ill. 388, has any bearing on the question." Judgment affirmed.-Guild v. Hali.

MECHANICS LIEN CROSS-BILL BY DEFENDANT TO RECOVER DAMAGES NOT ALLOWABLE-CLAIM BY DEFENDANT MUST BE MADE IN SEPARATE SUIT.This was a petition under the statute to enforce a mechanic's lien against the property described in the petition. Incidentally, the petitioners ask for the production of the building contract, in the possession of the defendants, to use in the suit as well as a common law proceeding between the parties. Defendants filed an answer, alleging that they have sustained damages in amount greatly in excess of any sum due petitioner, by reason of the non-completion of the building within the time specified in the contract. They also filed a cross bill, in which they recite the principal facts stated in the answer, and ask for a personal decree in their favor against petitioners, and ask also to have the common law suit commenced against them by petitioner, enjoined. Plaintiff demurred to the answer and cross-bill. Court below sustained demurrer. SCOTT, J., says: "Proceedings to establish a mechanic's lien are against the property to be affected. Such proceedings are strictly statutory, and without the aid of the statute can not be maintained. Whatever defense defendants have may be made in the answer, and whatever defeats the lien puts an end to the whole proceeding, and the petition must be dismissed. In case it shall appear that petitioner is entitled to no lien to be enforced against the property, he will be entitled to no relief whatever. The party will be remitted to his appropriate action at law. It is not denied, if any defense exists, defendants on their answer could defeat the lien sought to be enforced against their property. The object of what is termed a cross-bill here, is not alone to defeat the lien which petitioners are endeavoring to establish, but to have-a personal decree against petitioners for the damages they say they have sustained by reason of the non-fulfillment of the building contract, and to have certain suits pending at law growing out of the same subject-matter perpetually enjoined. This we do not think can be done. The defense to the common law actions, whatever it may be, can be made in the court where the same are pending, and there can be no reason for assuming jurisdiction on that ground. Demurrer properly sustained." Affirmed.-McCarthy v. New.



40. IN SUIT FOR A DIVORCE the plaintiff alleges that her husband has been convicted of a felony, and is imprisoned in the State penitentiary, which the 'records show. Is it necessary, (under the Kansas statutes) to have personal service upon the defendant to insure the validity of the decree. J. K. O.

41. HOMESTEAD LAW.-The statutes of Illinois provide: "That every householder having a family shall be titled to an estate of homestead to the extent in value of $1,000, in the farm or lot of land and the buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided." (Hurd's Statutes, 1877, ch. 52, sec. 1.) "But no property shall, by virtue of this act, be exempt from sale for non-payment of taxes or assessments, or for a debt or liability incurred for the purchase or improvement thereof." (Ibid sec. 3.) The same articles of personal property which are, by law, exempt from execution, except the crops grown or growing upon the demised premises, shall also be exempt from distress for rent." (Ibid ch. 80 sec. 307. In that State A. leases a lot of B. for a term of years, on which the tenant erects a dwelling in which he and his family reside. During the term B. issues a distress warrant for rent in arrear and levies it upon the house, the value of which is less than $1,000. Is the house exempt from this process? X.


37. We have been requested to say that the query No. 36 (9 Cent. L. J. 339) was incorrectly stated. It is correct down to the word "adopted." From there A and B should be transposed, and it should read "A was duly naturalized fifteen years ago. Can B sue etc." On referring to the copy of the query as sent us, we find that the mistake was that of our correspondent.-ED. CENT. L. J.


The Governor of California has appointed F. P. Stoney, I. S. Belcker and A. C. Freeman, commissioners to draft such laws and amendments to the codes as in their judgment are necessary to make the system of codes and statutes conform to the requirements of the new Constitution of that State. Mr. Freeman is wellknown as a legal writer and as a contributor to this JOURNAL. -The St. Louis Court of Appeals have just held that slander is not an indictable offense in Missouri, in an opinion which we shall publish next week.- -This is the manner in which the judges went on circuit in Ireland a hundred years years ago. The judges were in .the saddle early on traveling days, and not unfrequently their wives rode on pillions behind them, At the appointed hour the bugle sounded; the high sheriff with a score of halber

men in livery, waited outside the judge's lodgings. The bar was collected, each barrister having his circuit library and clothes stowed away in the saddle bags on his servant's horse, while a couple of huge leathern bottles well filled with claret dangled at his horse's flanks. His flowing cloak, which in winter covered the horse and the rider, was in summer rolled in military style at the crupper of the saddle, while at the bow were the horse pistols, ready at any moment to protect his life, if attacked by the gentlemen of the road, or his honor, if wounded by real or imaginary insults. The sub-sheriff followed the bar at a short distance, and the whole of this moving mass dashed on at a brisk trot while a squadron of dragoons brought up the rear.

In one of the Western States a case was lately tried at the termination of which the judge charged the jury, and they retired for consultation. Hour after hour passed and no verdict was brought in. The judge's dinner hour arrived and he became hungry and impatient. Upon inquiry he learned that one obstinate juryman was holding out against eleven. That he could not stand, and he ordered the twelve men to be brought before him. He told them that, in his charge to them, he had so plainly stated the case and the law that the verdict ought to be unanimous, and the man who permitted his individual opinion to weigh against the judgment of eleven men of wisdom was unfit and disqualified ever again to act in the capacity of juryman. At the end of this excited harangue a little, squeaky voice came from one of the jurymen. He said: "Judge, will your honor allow me to say a word?" Permission being given he added: “May it please your honor, I am the only man on your side."

-There are many peculiarities in the Swedish procedure, some of which recall the original character of certain portions of our own system. The court of first instance in town is the council-house court, which consists of the burgomaster or mayor and his assessor. In the country it is the district court, constituted by district judge and twelve men (farmers or householders) specially summoned from the locality. These are not sworn, nor are they in any way recognized as judges of the charge. They merely act as witnesses of the proceeding, to preserve the principle of publicity. The judge alone decides. But if the twelve men unanimously differ from him, their decision prevails. The tribunals of the second instance are constituted of the high courts, of which there are three-one for the province of Svea, at Stockholm; for Gotha, at Jonkoping; and for Scania and Blecking, at Christianstad. The jurisdiction of these courts extends over all courts of first instance in their respective provinces, both in civil and criminal matters. They also act as courts of first instance in all charges of official misconduct brought against magistrates and other officials The final court of appeal, or highest court. holds its sittings in the Castle of Stockholm, and pronounces its judgments in the name of the King." Its members. styled councillors of justice, are sixteen in number and are divided into two divisions. In military cases two higher officers are added as assessors. The King has the right of taking part in the proceedings of this Supreme Court; when he doers, he has two votes. Should members of this Council of State or of the Supreme Court be charged with official misconduct, the Constitution provides that they are to be arraigned before a special court, called "Court of the Kingdom." But this court has never yet had occasion to exercise its functions. The jury is only employed in press


The Central Law Journal. stances of this character, the cause of the



In a recent case in Pennsylvania-Wayne County v. Waller, 7 W. N. 377, an attorney having been appointed by the court to defend a pauper prisoner sought to recover from the county compensation for his professional services, and for expenses incurred in preparing for trial. The Supreme Court held that the defendants were not liable. "In this State" said STERRETT, J., "we have always proceeded on the safe principle of requiring statutory authority-either in express terms or by necessary implication-for all such claims upon the public treasury. To hold that counsel appointed to defend insolvent prisoners may demand compensation from the county would be a departure from a time honored custom to the contrary, and it is not difficult to foresee the mischief to which it would lead. It is far better to let such cases rest on the foundation which has hitherto sustained them-human sympathy and a just sense of professional obligation. No poverty stricken prisoner is ever likely to suffer for want of necessary professional or pecuniary aid. It is but simple justice to the learned gentleman who brought this suit to say that, in their brief as well as orally, they disclaim any desire for remuneration beyond an amount sufficient to reimburse them for their actual cash outlay, but we find no warrant for sustaining their claim even to this extent." In Rowe v. Yuba County, 17 Cal. 63, it was said: "We are clear that the action can not be maintained. The court of quarter sessions is not authorized to create any charge against the county except in certain special cases of which the employment of counsel for parties under indictment is not one. Besides it is a part of the general duty of counsel to render their professional services to persons accused of crime who are destitute of means, upon the appointment of the court, when not inconsistent with their obligations to others and for compensation they must trust to the future ability of the parties. Counsel are not considered at liberty to reject, under circumVol. 9 No. 21.

defenceless because no provision for their compensation is made by law." To the same effect is Vise v. County of Hamilton, 19 Ill, 78, in which it is said: "The law confers on licensed attorneys rights and privileges, and with them imposes obligations which must be reciprocally enjoyed and performed. The plaintiffs but performed an official duty for which no compensation is provided." An opposite view has been taken in other States. In Hall v. Washington County, 2 G. Greene, 437 it was held that inasmuch as the Constitution of Iowa guaranteed to the prisoner a speedy trial and "the assistance of counsel for his defense," and as the court acted in obedience to the express mandate of a statute in assigning counsel, and the latter, as an officer of the court, was bound to serve-an obligation arose to pay a reasonable compensation for the services thus rendered, and consequently the county was liable. In County of Dane v. Smith, 13 Wis, 585, a somewhat similar conclusion was reached, the court remarking that the liability of the county resulted from the exercise of the power and duty of the court to appoint counsel, not because the court was authorized to contract for the county or its officers.

In Ware v. Railroad Company, lately decided by the Supreme Court of Maine, a judgment was recovered against the defendants as trustees. An execution was issued and placed in the hands of an officer, who made a demand on defendants to pay over and deliver to him "any goods, effects, and credits" belonging to one G, which they neglected and refused to do. The judgment creditor afterwards duly assigned in writing the judgment to this plaintiff. The defendants demurred. It was held that scire facias on a judgment might be maintained by an assignee; that it was a chose in action within the statute of that State of March 3, 1874, providing that "assignees of choses in action not negotiable, assigned in writing, are hereby authorized to bring and maintain actions in their own name." It is said in Jacobs' Law Dictionary title "Chose" that generally all causes of suit for any debt, duty, or wrong are to be accounted choses in action. In case

of the death of the plaintiff in the original action, scire facias against the trustee must be in the name of the executor or administrator. In Winter v. Kretchmar, 2 D. & E. 45, it was held that the assignees in bankruptcy might bring scire facias to revive a judgment. "I can not" observes Ashhurst, J., "distinguish

between a scire facias and an action brought

by the assignees of a bankrupt." "It has been held in a variety of cases," remarks Buller, J., "that scire facias is an action." In delivering the opinion of the court in Ensworth v. Davenport, 9 Conn. 392, Williams, J., says: "A scire facias is a judicial writ; but still it is an action." Fenner v. Evans, 1 T. R. 268. It may be pleaded to as an action. Grey v. Jones, 2 Wils. 251; Pultney v. Townson, 2 H. Bl. 1227; 2 Tidd, 1046. It may be released by a release of all actions. Co. Litt. 290. "Every scire facias is a new and independent action, referring to the former proceedings, but wholly distinct from them." Greenway v. Dare, 1 Halst. (N. J.) 305. In Murphy v. Cochran, 1 Hill (N. Y.), 339, a judgment was held to be a chose in action, and that assignees, under a statute authorizing them to bring actions in their own names, might sue out scire facias quare executionem non, to revive the judgment. But reliance was placed on the distinction taken in Adams v. Rowe, 11 Me. 89, that in trustee process scire facias against the trustee is not so much a new action as a continuation of the original suit, when it is used to carry into effect a former judgment against a party to it. But the court said: "It is conceded that scire facias against bail or indorsers on the writ would be new actions. But while it may be conceded that, in the trustee process, scire facias may well be considered in one view as a continuation of the original suit, yet it is difficult to see why it is not a new process, by which a new and different judgment is obtained against a defendant as principal who in the former one was merely a trustee. The judgment in the second action differs from that obtained in the first, and the same is true of the execution issuing thereon."


VI. APPELLATE PROCEEDINGS.-Continued. But it is said that it is necessary that these causes shall be more specifically assigned so that the appellate court may readily refer to the

particular error complained of or the particu

lar cause assigned, as the same is found in the record. But this argument is quite untenable for this reason. The universal rule in all appellate courts is that the brief of counsel shall designate the points relied upon specifically and refer to them by page and line, and an omission to do this is a waiver of the alleged error. And it is not sufficient simply to say the court wrongfully refused a new trial, the particular meritorious cause which was assigned and relied upon must be pointed out, and the foundation for it in the record must be shown by reference. For as to whatever relates to alleged errors which are reached by a motion for a new trial, it requires both the written causes and the assignment of errors to make a full assignment according to former precedents. So that this extraordinary technical particularity has really no necessity and no justification, and ought to be mitigated. And there is no reason why specific errors made grounds for a new trial should not be separately assigned and considered.

2. The amalgation of law and equity as we have seen resulted in adopting the chancery appeal with most of the features of the writ of error at law combined, constituting a mongrel practice conforming in some respects to both and in others to neither. It therefore seemed necessary to embrace in the system the bringing into the record of the case for review the whole evidence as in the chancery appeal, in all cases where the appeal is prosecuted to test any question arising upon the trial of the issues of fact, the method of thus placing the evidence in the record being by bill of exceptions. This is not usually a code requirement, but in the course of practice in many of the code States, notably in Indiana it has become almost an absolute necessity to have the whole of the evidence incorporated into the record by bill of exceptions in order to raise any question upon any ruling occurring at the trial, whether in the instructions given or refused, the admission or exclusion of evidence, or any other

« ForrigeFortsett »