tract as stated in defendant's offer: Held, that these letters constituted a valid contract of sale. V. LOOMIS, Mich., 69 N. W. Rep. 85. CORNING Estoppel. The 105. SALE Election of Remedies plaintiffs having, in a previous suit, judicially af firmed the legality and validity of a sale of goods to the defendant for the purpose of obtaining a judgment against him for the price, and sustaining an attachment against the goods as his property, cannot be heard, in a subsequent suit against the same defendant, to deny the existence of such a sale on the ground of fraud and deception on the part of the defendant, as vendee, for the purpose of defeating the prior and ranking attachments of other creditors, and recover. ing the goods themselves, notwithstanding the former suit has been in the meanwhile withdrawn.-LowENSTEIN V. GLASS, La., 20 South. Rep. 890. 106. SALE OF STOCK - Reservation of Dividend.-One who sells stock, reserving the dividend that may be declared at a certain date, cannot claim the stock divi. dend then declared, but only the cash dividend.— KAUFMAN V. CHARLOTTESVILLE WOOLEN MILL Co., Va., 25 S. E. Rep. 1003. 107. SALE OF TRUST PROPERTY-Notice.-A purchaser of stocks wherein the holder is designated merely as "trustee," without a specification of the trust of a designation of the beneficiaries, whether he seeks information from the trustee, and is deceived, or does not, is not, in absence of fraud on his own part, chargeable by the word "trustee" with notice that the sale is unauthorized and in fraud of the beneficiaries, if, by a reasonably careful investigation of the records or other proper sources, he could not discover the true state of the case.-GRAFFLIN V. ROBB, Md., 85 Atl. Rep. 971. 108. SPECIFIC PERFORMANCE - Oral Contract. It is settled law that if one, induces or knowingly permits another to perform in part an oral agreement for the sale of land, on the faith of its full performance by both sides, and it clearly appears that such acts of part performance were done in pursuance of the contract, that damages recoverable in law would not adequately compensate the plaintiff, and that fraud and injustice would result to him if the agreement be held void, then, on the principle of equitable estoppel, a court of equity is authorized to compel specific performance by the other party, in contradiction to the positive terms of the statute of frauds.-BENNETT V. DYER, Me., 35 Atl. Rep. 1004. 109. TELEGRAPH COMPANIES - Cipher Messages. A telegraph company's liability for delay in delivering a cipher message whose importance is not disclosed is limited to the amount paid for its transmission.FERGUSSON V. ANGLO-AMERICAN TEL. Co., Penn., 35 Atl. Rep. 979. 110. TRESPASS Measure of Damages.-The measure of damages recoverable in an action of trespass for an injury to realty, by the inadvertent removal of part of coal, is its value as a part of the realty, and not as a chattel after its removal.-WARRIOR COAL & COKE Co. V. MABEL MIN. Co., Ala., 20 South. Rep. 918. 111. TRIAL-Remarks of Counsel.-Statement of counsel in argument, that defendant's name, "Union," implied that it had bought up all the compress companies in the State, and was a monopoly, not being authorized by the evidence, is ground for reversal, in a case closely balanced on the facts in evidence. - UNION COMPRESS Co. v. WOLF, Ark., 37 S. W. Rep. 877. 112. TRUST-Proof to Establish.-Property voluntarily conveyed by a deed absolute on its face, by a brother to his sister, because of his dissipated habits, and his fear that he would squander it or lose it to creditors, cannot be recovered back, in the absence of evidence of an express trust of such conclusive character as to establish the trust beyond reasonable controversy.GUNTERT V. GUNTERT, Tenn., 37 S. W. Rep. 890. 113. VENUE Action against Corporation. In an ac. tion against a corporation for breach of contract it ap peared that defendant's principal place of business was in S county, but that it had an office in K county where the contract was prepared, and was signed in duplicate by plaintiff, and forwarded by defendant's agent to the main office for approval and signature; and that, after it was signed by defendant, said contract was returned to the agent in K county, and by him delivered to plaintiff: Held, that the contract was made in K county, within Const. art. 12, § 16, allowing a corporation to be sued in the county where the contract is made.-IVEY V. KERN COUNTY LAND CO., Cal., 46 Pac. Rep. 926. 114. WILL-Conditional Legacy-Assignability.-The right to a legacy payable to the legatee "personally when he shall come for it" becomes absolute on a personal demand made by the legatee, and the legacy is then assignable.-IN RE MARTIN'S ESTATE, Penn., 35 Atl. Rep. 989. 115. WILLS - Conditions and Restrictions.-In an action to construe a will, where there is nothing to prevent the application of the rule that if a testator intends one thing, and yet declares the opposite by the terms of his formal and final expression of intent, the latter must control, it is proper to exclude evidence to show the personal intent of testator, as distinguished from the intent which the will exhibits on the point at issue.-MERSMAN V. MERSMAN, Mo., 37 S. W. Rep. 909. 116. WILL Interest on Legacies.-A will devising legacies to various legatees upon certain conditions provided that the legatees should notify the executors of the acceptance of the legacies within six months after notification. Notice of a certain legacy was not sent to the legatee until more than a year after the death of the testator, but within the six months limited the legatee notified the executors of the acceptance of the conditions: Held, that the legatee was entitled to interest after the lapse of the year from testator's death, and not merely from the acceptance of the legacy.-WEBSTER V. WIGGIN, R. I., 35 Atl. Rep. 961. 117. WILLS-Life Estate-Remainder.-A testator devised a life estate to his wife, with remainder to his children who should be alive at her death, and provided that if any child should have died, leaving chil dren, such children should take the part the parent would have taken if alive. Pending the life estate, one of the testator's daughters died, leaving children who survived the life tenant: Held, that the daughter took a defeasible fee in remainder, which was divested by her death pending the life estate, and hence her children took as purchasers under the will, and not by descent.-DUNLAP V. FANT, Miss., 20 South. Rep. 874. 118. WILL-Testamentary Capacity-Delusions.-Er ror in an instruction in regard to testamentary capac ity that a sound mind is "a mind wholly free from delusion" is not cured by a subsequent statement that "a person whose mind is perverted by insane delusion with reference to one or many subjects, however unreasonable and absurd, may nevertheless make a valid will, provided the provisions of such will are not influenced by such delusions."-SHREINER V. SHREINER, Penn., 35 Ati. Rep. 974. 119. WILL-Vested and Contingent Remainders.-A vested remainder is an estate to take effect after another estate for years, life, or in tail, which is so limited that, if that particular estate were to expire or end in any way at the present time, some certain person, who was in esse and answered the description of the remainder-man during the continuance of the particular estate, would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency. A remainder is contingent when it is so limited as to take effect in a person not in esse, or not ascertained, or upon an event which may never happen, or may not happen until after the determination of the particular estate.WOODMAN V. WOODMAN, Me., 35 Atl. Rep. 1037. Central Law Journal. ST. LOUIS, MO., JANUARY 22, 1897. The law pertaining to the right of self-defense, has long been determined and is clearly understood by courts. Its application, however, to specific facts as they arise, often present perplexing problems. The solution of such a problem was happily accomplished by the Supreme Court of the United States in the recent decision of Rowe v. United States, wherein the law as to the right of selfdefense was administered in accordance with reason and justice. In that case there was evidence that defendant while in an hotel office with deceased, being provoked by insulting words of the latter, kicked him lightly and then stepped back and leaned against the counter, whereupon be was assaulted by deceased with a knife. It was held, reversing a judgment of conviction of manslaughter, that it should have been left to the jury to say whether the conduct of the defendant, after kicking the deceased, was a withdrawal in good faith from further contest; and that it was error to charge to the effect that if defendant kicked deceased, however lightly, he could not justify on the ground of self-defense the killing of deceased in resisting an assault, though such killing may have been necessary to save defendant's own life. The court said that if a person under the provocation of offensive language, assaults the speaker personally, but in such a way as to show that there is no intention to do him serious bodily harm, and then retires under such circumstances show that he does not intend to do anything more, but in good faith withdraws from further contest, his right of self-defense is restored when the person assaulted, in viola tion of law, pursues him with a deadly weapon, and seeks to take his life, or do him great bodily harm. In Parker v. State, 88 Ala. 4, 6, 7 South. Rep. 98, 99, the court, after adverting to the general rule that the aggressor cannot be heard to urge in his justification a necessity for the killing which was produced by his own wrongful act, said: This rule, however, is not of absolute and universal application. An exception to it exists in cases where, although the defendant as originally provoked the conflict, he withdraws from it in good faith, and clearly announces his desire for peace. If he be pursued after this, his right of self-defense, though once. lost, revives. 'Of course,' says Mr. Wharton, in referring to this modification of the rule, 'there must be a real and bona fide surrender and withdrawal on his part; for, if there be not, then he will continue to be regarded as the aggressor.' 1 Whart. Cr. Law, 9th ed. section 486. The meaning of the principle is that the law will always leave the original aggressor an opportunity to repent before he takes the life of his adversary." Recognizing this exception to be a just one, the court properly said, in addition: "Due caution must be observed by courts and juries in its application, as it involves a principle which is very liable to abuse. The question of the good or bad faith of the retreating party is of the utmost importance, and should generally be submitted to the jury, in connection with the fact of retreat itself, especially where there is any room for conflicting inferences on this point from the evidence." Both parties to a mutual combat are wrong-doers, and the law of self-defense cannot be invoked by either, so long as he continues in the combat. But, as said by the Supreme Court of Iowa in State v. Dillon, 74 Iowa, 653, 658, 38 N. W. Rep. 525, 528, if one "actually and in good faith withdraws from the combat, he ceases to be a wrong-doer; and if his adversary have reasonable ground for holding that he has so withdrawn, it is sufficient, even though the fact is not clearly evinced." In Whart. Hom. sec. 483, the author says that "though the defendant may have thus provoked the conflict, yet, if he withdrew from it in good faith, and clearly announced his desire for peace, then, if he be pursued, his rights of self-defense revive." The supreme court in the Rowe case concludes as follows: "We do not mean to say that the jury ought to have found that the accused, after kicking the deceased lightly, withdrew in good faith from further contest, and that his conduct should have been so interpreted. It was for the jury to say whether the withdrawal was in good faith, or was a mere device by the accused to obtain some advantage of his adversary. But we are of opinion that, under the circumstances, they might of fraud was denied, but the execution of the mortgage was admitted. The only question. presented for the determination of the court was, whether the statement in the original affidavit, that the defendant had disposed of its property with intent to defraud its creditors, had been sustained. The respondent contended that an insolvent corporation could not legally execute a mortgage to its own president of substantially all of its property, to the exclusion of its other creditors, even for a just debt. The court said that while this is correct as a legal proposition, still it does not follow that the execution of such a mortgage will constitute sufficient evidence of an actual intent to defraud creditors. have found that the accused, although in the wrong when he kicked or kicked at the deceased, did not provoke the fierce attack made upon him by the latter, with knife in hand, in any sense that would deprive him altogether of the right of self-defense against such attack. If the accused did, in fact, withdraw from the combat, and intended so to do, and if his conduct should have been reasonably so interpreted by the deceased, then the assault of the latter with a deadly weapon, with the intent to take the life of the accused, or to do him great bodily harm, entitled the latter to the benefit of the principle announced in Beard v. U. S. 168 U. S. 540, 564, 15 Sup. Ct. Rep. 962. 967, in which case it was said: 'The defendant was where he had a right to be when the deceased advanced upon him in a threatening manner and with a deadly weapon; and, if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life or to do him great bodily harm, he was not obliged to retreat nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon in such a way and with such force as, under all the circumstances, he, at the moment, honestly be-sembly only so far as such restraint is for lieved, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury." Upon this subject of what has been called "the duty to retreat" see editorial in 41 Cent. L. J. 185, discussing the recent cases of State v. Evans, decided by the Supreme Court of Missouri, and Page v. State, decided by the Supreme Court of Indiana. NOTES OF RECENT DECISIONS. INSOLVENT CORPORATION MORTGAGE TO PRESIDENT-ATTACHMENT.-In Trebilcock v. Big Missouri Mining Co.,68 N. W. Rep. 330, decided by the Supreme Court of South Dakota, an insolvent corporation had given a mortgage to its president of substantially all its property. A warrant of attachment was issued by a creditor, stating that the defendant had disposed of its property with intent to defraud its creditors. The charge MECHANIC'S LIEN-RIGHTS OF PROPERTYLIEN OF SUBCONTRACTORS CONSTITUTIONAL LAW.-In Palmer v. Tingle, 45 N. E. Rep. 313, the Supreme Court of Ohio argue that the inalienable right of enjoying liberty and acquiring property, guarantied by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare; that liberty to acquire property by contract can be restrained by the general as the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection, and benefit. The judgment of the general assembly in such cases is not conclusive, and while a valid statute regulating contracts is, by its own force, read into, and made a part of, such contracts, it is otherwise as to invalid statutes. Applying these principles it is held that the act of April 13, 1894, in so far as it gives a lien on the property of the owner to subcontractors, laborers, and those who furnish machinery, material, or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract are bound by the terms of the contract between him and the owner. verted question as to the cancellation of release of claim for personal injuries on ground of fraud: Lumley v. Wabash R Co., 76 Fed. Rep. 66, decided by the United States Circuit Court of Appeals, Sixth Circuit, and Louisville & N. R. Co. v. McElroy, 37 S. W. Rep. 844, decided by the Court of Appeals of Kentucky. In the first mentioned case it was held that if the surgeon of defendant railroad company knew that a release of damages by plaintiff, an ignorant man, was being bargained for by both parties upon the basis of his opinion as to the extent and character of the injuries and the probable time that plaintiff would lose from his occupation by reason thereof, it was his duty to give an honest opinion; and his failure to do so is ground for disregarding or canceling the release; that if both parties supposed that plaintiff had received certain injuries, the extent and character of which were considered and discussed with reference to the time which the injured party would probably lose in consequence thereof, and a release was given, specifically mentioning the particular injuries known and considered as the basis of settlement, general language following will not include a particular injury then unknown to both parties of a character so serious as to clearly indicate that, if it had been known, the release would not have been signed; that the rule that damages resulting from one and the same cause of action must be sued for and recovered once for all is merely a rule of procedure, and does not prevent a recovery for part of the damages after the giving of a release for the other part, and that one seeking to recover part of the damages accruing from an accident is not bound to return money received by him on account of a release given by him of the other part of the damages. In the Kentucky case it was held that, an employee cannot avoid a compromise of a claim for personal injuries and recover on the original cause of action, on the ground that such compromise a procured by fraud, unless he repays or tenders back the consideration received by him thereon. The Kentucky court cites and approves the doctrine of Vandervelder v. Ry. Co., 61 Fed. Rep. 56; Ry. Co. v. Hayes, 83 Cent. L. J. 271; Stewart v. Railroad Co., 141 Ind. 61; Stone v. Ry. Co., 66 Mich. 83; Ry. Co. v. Harris, 158 U. S. 331; Mullen v. Railroad Co., 127 Mass. 86. The court admit that O'Brien v. Ry. Co., 89 Iowa, 644, and Railroad Co. v. Doyle, 18 Kan. 64, are antagonistic. The case of Girard v. St. Louis Car Wheel Co. (Mo.), 39 Cent. L. J. 302, wherein the question of return of consideration was fully discussed, is not noticed by the Kentucky court. Appended to the Girard Case last mentioned will be found an exhaustive note reviewing all the authorities on the subject.-39 Cent. L. J. 306. RECENT TELEGRAPH COMPANY LITIGATIONCIPHER MESSAGES-NEGLIGENCE-PROXIMATE CAUSE.-In Reed v. West. Union Tel. Co., 37 S. W. Rep. 904, the Supreme Court of Missouri holds that a telegraph company cannot, by contract, relieve itself from liability for negligence of its servants in the transmission of messages, overruling Wann v. Telegraph Co., 37 Mo. 472; that the distinction between negligence and gross negligence is not recognized in Missouri. It was shown in this case that the message was not transmitted as it was written by the sender, and that the addressee acted upon it as received. It was held, that a prima facie case of negligence was established, placing the burden on the company. It appeared also that the message was delivered to the company at an office in the State of Iowa, for transmission to a point in Missouri. It was held, that the contract was governed by the laws of Iowa relating to the liability of telegraph companies. Plaintiff's agent residing in Iowa delivered to a telegraph company a message addressed to plaintiff in Missouri, stating that certain real estate owned by plaintiff could be sold for $1,300 cash. The message, when received by plaintiff, gave the price offered as $1,900, and plaintiff immediately telegraphed her acceptance, and forwarded, deed by mail. Upon the receipt of plaintiff's answer accepting the price offered, the agent closed the contract of sale at $1,300. held that the negligence of the company would be regarded as the proximate cause of the loss of the difference between the price received and the market value of the lot. It was In Ferguson v. Anglo-Amer. Tel. Co., 35 Atl. Rep. 979, decided by the Supreme Court virtue, industry, and love of country than a permanent home around which gather the affections of the family, and to which the of Pennsylvania it was held that the rule as to the measure of damages confines the plaintiff's recovery in actions against the company for negligence to such as may fairly be sup-members fondly turn, however widely they posed to have been in contemplation of the parties at the time of making the contract. This being true, it follows as a logical and necessary sequence that, where the message as delivered for transmission is unintelligible, except to the sender or the addressee, and the company had no information otherwise as to its character and purport, nor of its importance and urgency, the party injured can recover of the company nothing more than nominal damages, or at most the price paid for transmission. And this is the rule which has been adopted by the English and American courts almost without exception." Many decisions of the courts of this country and England are cited as sustaining the rule above stated. The numerous decisions of the courts of many States will be found to be opposed to the decisions of the courts of only three States-those of Virginia, Georgia and Alabama. Florida has recently reversed an earlier case, and thus joined the majority of the States on this question. The reasons advanced in support of the decisions which support the contrary ruling have been various, the one most commonly applied being the rule of Hadley v. Baxendale, 9 Exch. 341. DO THE BENEFITS OF HOMESTEAD The construction of homestead laws has always been a matter of deep concern and interest to the profession. In some of our State courts, and we might say in nearly all, the construction has become more of a matter of sentiment than a true interpretation of law. There are two phases of these laws which have been before the courts for determination, one more particularly, in but few States; nor have our legal writers seen fit to discuss the one I deem quite important and the one upon which hinges the whole theory of the homestead laws and exemption clauses found in our constitutions. The weight of authority is with the theory that a family must exist before the benefit of the homestead law can be asked as a matter of right or law. Says Justice Tarbell in a Mississippi decision: "There is no greater incentive to may become dispersed." This reason 28 Cal. 66. Approved in McQuade v. Whaley. 31 Cal. 535. |