ing rendered without any actual notice to the wife, is void absolutely and entirely for want of jurisdiction in the court to render such a judgment. 2. And where the judgment in such a case does not appear to be void upon its face, it may be shown to be void, in Kansas, by evidence aliunde. 3. A wife may commence and maintain an action in Kansas for alimony without having been a resident of the state for the whole of the year next preceding the commencement of such action. 4. Upon a motion, in such an action, for alimony pendente lite (including suit money), the merits of the action are not involved any farther than is necessary for the purpose of ascertaining whether the plaintiff is or is not prosecuting her action in good faith. Her petition should state a cause of action; and it should then be made to appear, prima facie, by evidence, or by the admissions of the parties, that the parties were husband and wife, that the wife needed alimony pendente lite, and that she was prosecuting her action in good faith; and evidence might also be introduced to show the pecuniary and social condition of the parties, and the probable expenses of the litigation, for the purpose of determining the amount of alimony (including suit money), to be allowed pendente lite. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-Litowich v. Litowich.

66

EXEMPTION BURIAL PURPOSES. TAXATION Large tracts of land, separated from the cemetery proper by a highway, and though platted and recorded, used only for pasture, stables, and to supply sand, etc., to the cemetery, can not be regarded as subservient to burial uses" under the charter, and, therefore, exempt from taxation. The pretense of holding 400 acres of land as subservient to 90 or 100 acres in actual use, would be an imposition on the public, and not supported by a reasonable construction of the charter. Opinion by CRAIG, J.-People v. Graceland Cemetery Co.

ATTORNEY-PRIVILEGED COMMUNICATIONS-INSTRUCTIONS.-An attorney, consulted in regard to suit on a note, but not employed, subsequently, in a deposition, disclosed facts which he learned in the consultation. Held, that the communications were privileged, and that if, in utter disregard of his professional obligations, he saw fit to disclose them, it was the duty of the court to protect the client against the effect of such evidence. Instructions giving prominence to facts relied upon have been condemned by a number of decisions of this court. They are so unfair, prejudicial, and so certain to mislead that they can not be tolerated. Opinion by CRAIG, J.-Horp v. Goewey. LIMITATION IN EQUITY-MONEY DEMAND-TRUST. -1. When courts of law and of equity have concurrent jurisdiction, a claim barred at law by the statute of limitations, would be barred in equity. When the jurisdiction of equity is exclusive, the limitation ap

LIABILITY.-Robert

plies, if the remedy sought is analogous to a remedy at law. The statute applies in such cases by analogy. 2. A bill seeking to have an absolute deed declared a mortgage, and for an account of the surplus over the mortgage debt, the land having been subsequently conveyed by the alleged mortgagee, is purely a money demand, though growing out of an equitable right to redeem, and is analogous to the action of account or of assumpsit, and not of ejectment, and is subject to the same limitation as the former. The remedy should have been pursued within five years, the time prescribed by the statute for the recovery of money. A mortgagee in possession is a constructive trustee, only for the purpose of a remedy and to prevent injustice. In case of a direct and implicit trust, the statute of limitations will apply from the time the trust is disavowed. It may be that if the bill had been to redeem, compensation might have been decreed. Opinion by SHELDON, J.-Hancock v. Harper. ADMINISTRATOR-ACCOUNT Groch, at his death, was largely indebted to Stenger, whose claim was partly secured by chattel mortgage upon a quantity of brick. Otto Groch was appointed administrator, with Allen, the defendant, as his surety. When the bricks were sold, a large amount of the proceeds came into Allen's hands, as collected; Stenger sued as for money received to his use, and recovered judgment for $500 against Allen. Otto Groch died, and Allen succeeded to the administration of Robert Groch's estate. This action was then brought against him on the bond of Otto Groch, charging a failure by Otto Groch to account for money received in Robert Groch's estate, whereby Allen, as surety, was liable. Plaintiff asked to have the jury instructed that if Otto Groch received $1,200 as belonging to Robert's estate, and in a suit between Stenger and Allen, who held the money, the former obtained a judgment for $500, the rest would belong to Robert's estate, and must be accounted for in due course of administration. This the court refused, and the refusal was held error. In this action, Allen can be charged only as surety on Otto Groch's bond; it can only called in question Otto Groch's doings as administrator. For his acts since he became administrator himself, he, Allen, can only be held in an action against him as administrator and his surety. Opinion by CRAIG, J.-People, etc., v. Allen.

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.]

1. CAN PROBATE COURTS order the sale by guardian of ward's real estate for re-investment? Wagner's Statutes, p. 677, Sec. 34; Act of 1877, Sec. 2; Laws of Missouri, p. 229; Constitution (Myer's Ed. p. 45), Art. G. 6, Sec. 34.

2. PRACTICE-REFERENCE TO MASTer-ReportAPPEAL.-A certain cause in equity was brought in the United States District Court in and for the District of Iowa, and was referred to a master in chancery," to report the facts, his conclusions of law, and make a recommendation of decree, and report all of the evidence," all of which the master did. The court, on excepons, set aside the conclusions of law and recommendation of decree, and the cause being submitted to the court on evidence reported by the master, the court confirmed the facts reported by the master, and rendered an entirely different decree from that

recommended by the master, from which the defeated party (the plaintiff) has appealed to the Circuit Court of the United States. Will you please answer, through the columns of your valuable journal, the following questions of practice in such cases: 1. Have parties the right in the Circuit Court to introduce additional evidence, or must the cause be submitted on the evidence that was introduced in the District Court? 2. Has the Circuit Court the power to order another reference of such an appealed cause? W.

3. WHAT REDRESS HAS ONE WHO HAS BEEN CONVICTED AND SERVED HIS SENTENCE UNDER A STATUTE AFTERWARDS DECLARED UNCONSTITUTIONAL? What redress, if any, has a person who has paid a fine and served a term as convict under a law that, after he has paid its penalty, is declared void as being contrary to the constitution, by the supreme court of his state, or of the United States? Has the question ever been raised in any of our courts of last resort? If a man has been ruined financially to defend himself and pay heavy fine, besides being deprived of his personal freedom, and having the odium of a convict fastened on his name, under an act of the legislature which proves to be no law, it were hardly right for the state to give him no redress; at least to the extent of refunding his fine. If he would have no redress, the pretty maxim laid down by the Iowa Supreme Court: "For the state to know of an injury and to redress it are inseparable," would have more pretension than substance. Meitz v. Soule, Ketsinger & Co., 40 Iowa, 236. J, [An appeal to the legislature is the only redress we know of-ED. CENT. L. J.]

4. ACTION BETWEEN PART OWNERS OF BOAT POWER OF STATE COURTS- CONFLICT OF JURISDICTION. In an action of account between part owners of a steamboat, enrolled and licensed according to the acts of Congress, and for sale of the boat the plaintiffs being unwilling to continue part owners, have the state courts power to decree a sale of the boat? Will there or not be a conflict of jurisdiction between the state and federal courts, under the act of 1789, giving federal courts original and exclusive cognizance of all civil causes of admiralty and maritime jurisdictfon, reserving only the common law remedies to suitors where the common law is competent to give them?

BOOK NOTICE.

B.

THE AMERICAN DECISIONS. Compiled and Annotated by JOHN PROFFATT L L. B., author of a Treatise on Jury Trial, etc. Vol. 1. A. L. Bancroft & Co., San Francisco. 1878.

This is the first volume of a series of reports intended to contain all the cases of general value and authority decided in the courts of last resort in the several states of the Union from the earliest period down to the year 1869, at which time the well-known series called the American Reports, edited by Isaac Grant Thompson, Esq., of the Albany Law Journal, commences. In the present series it is proposed to omit all mere practice cases, as well as those construing local statutes of no general interest and those relating to topics which are obsolete. It is estimated that on this plan the contemplated series can be completed in about seventy-five volumes and that these in connexion with the American Reports above mentioned, will be for the usual needs of the practitioner a satisfactory substitute for a complete set of the State Reports, now numbering hundreds of volumes. This enterprise has its origin in the necessity that exists for some publication which will place the judicial reports of this country within

the means and reach of the body of the profession. The scheme is an excellent one, and if faithfully and properly carried out, it cannot fail to find favor with the bar. But we feel bound to say that the value of the series and the success of the enterprise will largely depend upon the manner in which the plan is executed. The difficulties are great, but, happily, they are not insurmountable. With nearly forty states, each with a judicial system of its own, with no commen head, we have on many subjects great conflict of opinion. There is in every state local peculiarities not based upon statute provisions, which are apt to escape the notice of lawyers and judges elsewhere. And yet there is a body of American common law which may justly be said to prevail throughout all the states, It will be a great satisfaction to lawyers and judges to see this embodied in one series of reports with an index so that the whole is mirrored before them. We feel so warm an interest in the successful execution of this enterprise that we hope the editor will take all the time necessary to do his work thoroughly. Indeed we are persuaded that no one person without assistance can possibly do all that the exigency requires. When the cases for a given volume from a state are selected they should be submitted to the Chief Justice or one of the Supreme Judges or some leading lawyer of the particular state in order to know and have noted whether any of them have been modified by subsequent decisions or legislation. It will pay the enterprising publishers to incur the necessary expense to do the work well, and it cannot be done as it ought to be without local assistance.

We do not wish these remarks to be construed as involving any reflection upon the work of the present editor. On the contrary we express our entire satisfaction with the present volume. The cases are judiciously selected and the annotations are brief, pointed and pertinent. We have scarcely a criticism of any moment to make. In the older reports the name of the Chief Justice delivering the opinion or of the Judges constituting the bench is frequently not given. This omission should be supplied whenever practicable. A few of the head-notes are to our notion too brief and abstract. The individuality of each case should, so to speak, be photographed in the headnotes-the more especially as these will doubtless be finally embodied in and made to constitute the General Index. The present volume shows what can be done. It contains the cases of general value found in 30 of the earliest American Reports, extending from 1764 to 1806. It has been refreshing to us to visit the springs and sources of our jurisprudence. We have not opened for a long time a book on the law which has given us more satisfaction than Mr. Proffatt's first volume. We have been struck with the learning and ability of the early judges, with their compact and logical judgments and their terse and forcible style. We commend this enterprise to the faD. vor and patronage of the Profession.

THE following passage of words once took place between Lord Justice James, when he was a vice-chancellor, and Mr. Karslake, Q. C. The Vice-Chancellor observed to Mr. Karslake, "You have told me that three times before. My custom is this: When a thing is told me once I make a mental note of it; when it is told me twice I begin to forget it; and when it is told me a third time my mind becomes a perfect blank on the subject." "Your honor," replied Mr. Karslake, Q. C., "I am obliged to you for the information. I will now tell it to your honor for the fourth time, in order that it may come on the perfect blank, and be made a mental note of as for the first time."

NOTES.

WE present this week to our subscribers of last year the engraving of Mr. Justice Samuel F. Miller, of the Supreme Court of the United States, already long promised and unavoidably delayed by the engraver. It is intended that this should be bound as a frontispiece to Volume 5, opposite the biographical sketch of that distinguished judge, issued with the last index.

THE Association for the Reform and Codification of the Law of Nations has received information that Prince Bismarck has, mainly from a suggestion emanating from the association, resolved to invite the different governments to join in a commission for the consideration of an international law on bills of exchange. The governments of Austria, Sweden, Italy, Switzerland and England have been invited to, and will participate in the convention. The London secretay has notified the American secretary, Mr. A. P. Sprague, in a letter in which he says: "A strong feeling exists that America also should join. Would you, therefore, at once take steps to ascertain the views of your government, and let me have the information as soon as possible, so that I may communicate with Berlin. You will, no doubt, agree with me that what is happening is highly satisfactory to us, and must be so to you." This being communicated to our state department, Mr. Evarts, on the 26 ult., replied, acknowledging the receipt of the information, and concluding: "In reply, I have to inform you that much interest is taken by the department in the subject upon which you write, and it is ready to receive and act upon an invitation if extended."

THE laws of etiquette are proverbially difficult and complicated, even when they do not contradict one another; but what is to be done when they do? A case of this kind, says the Irish Law Times, which was recently in an Irish police court, illustrates excellently the difficulties which, in the complicated arrangements of modern society, demand solution at the hands of a police magistrate. A lady and her husband found themselves in a railway smoking-carriage, in which there was also a person who smoked. The lady's husband thereupon insisted upon opening the window. But the "right of the window" rested with the smoker, as being seated at the corner facing the engine; and he exercised that right by promptly shutting the window. Then followed violent and threatening language, a summons, and a fine, the latter falling, to his great disgust, on the defender of his wife's comfort. Now, the law was sufficiently clear, for the smoker, being in a smoking-carriage, had an obvious right to smoke, and the "right of the window," though not written law, is a matter of prescription descending from ancient coaching days, But the question of etiquette is more complicated. Admitting that a lady has no business in a smoking-carriage, does her voluntary presence deprive her of the prescriptive right of objecting to any practices of inferior male beings which may happen to annoy her? And,in the same way,does the "right of the window" hold to the contravening of feminine wishes? It is a difficult point to decide, but it is probable that if one should say that the lady was wrong in getting into the smoking-carrige, and that the smoker was wrong in refusing to make a concession to the lady's wishes, he would be pretty nearly right.

IN the New York Superior Court last week, in a case in which the value of a lawyer's services was in dispute, Freedman J., made the following pertinent remarks: "Now, to determine tue real value of a lawyer's services is always a difficult question. Lawyers constitute one of the learned professions, and as man

is constituted, they are as necessary as the law itself, and their office is founded in mercy and benevolence, though the popular notion may be to the contrary. A lawyer is the servant of his fellow man for the attainment of justice; and as all men, in all places and at all times, stand in need of justice, and have need of the advice of those who are learned in the law, and who give life and motion to justice, the profession of the law stands second in importance to none other. This is especially so at the present time and under our form of government. Questions of legislation, of corporate rights and franchises, church difficulties, family difficulties and personal difficulties of every kind are brought before the lawyer in the ordinary discharge of his vocation. Indeed, the whole machinery of affairs, from the most important to the most trivial, must come under his observation, and be in a measure regulated by his advice. To become proficient in the necessary knowledge relating to all these matters involves years of self-denial, close application and devotion, and a study of almost a lifetime. A lawyer's compensation is therefore not to be measured merely by the time he actually spends in the discharge of his duties. An advice given in a short interval, but founded upon years of previous acquaintance with the question involved, may, in an important case involving large interests, be worth quite a sum of money. On the other hand, if the services rendered are of a simple nature, and especially if they involve only performances which are usually or frequently done by clerks, but a small charge should be allowed for them."

THE Solicitors Journal says that the case of Usil v. Hales, in which Lord Coleridge and Mr. Justice Lopes have laid it down that a bona fide report of ex parte judicial proceedings is not actionable as libel, though likely to be cited as a leading case, and overruling, as Lord Coleridge said, what has been over and over again laid down by great judges, is really only a return to the old lines. In 1796, in Curry v. Walter, 1 Esp. 456, 1 B. & P.525, an action was brought in respect of "an account published in a newspaper called the Times," of an application for a criminal information. It was ruled by Eyre, C. J., and afterwards by the Court of Common Pleas, that the action did not lie. This ruling, which was very shortly reported, though approved in R. v. Wright, 8 T. R. 298, soon became a mark for judicial attack. Lord Ellenborough, in R. v. Fisher, 2 Camp. 563, and Lord Tenterden, in Duncan v. Thwaites, 5 D. & R. at p. 479, distinctly disapproved of it. Lord Campbell, in Lewis v. Levy, E. B. & E. 537, with characteristic caution, expressly left the point open. Lord Chief Justice Cockburn, in Wason v. Walter, L. R. 4 Q. B. at p. 94, with equal characteristic boldness, predicted that, if any action or indictment founded on an ex parte proceedings were to be brought, it would probably be held that the true criterion of the privilege was, not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected. A fifth Chief Justice has now verified this prediction in a case in which, we may remark, no "crime" was charged; and we suppose that, as far as authority goes, the point may be considered as settled. As for principle, there is, of course, an obvious difference between reports of proceedings ex parte and proceedings inter partes; but the difference in the individual injury is only one of degree, and proceedings ex parte seem to be within the rule of Wason v. Walter, and other casès too numerous to mention, that “the advantage to the community from publicity is so great, that the occasional inconvenience to individuals arising from it must yield to the general good."

SAINT LOUIS, MARCH 1, 1878.

CURRENT TOPICS.

IN Verry v. Burlington, Cedar Rapids & Minn. R. R., 12 West. Jour. 114, the declarations of a car-repairer of the defendant, made after an accident, and when the repairer was not engaged in the discharge of his duty, to the effect that he knew the car causing the accident was out of order, were held by the Supreme Court of Iowa not admissible in evidence against the principal-the railroad company.

The rule is that to make the declarations of an agent admissible against his principal, they must be part of the res gesta. The doctrine, it is said, is well settled that "when the acts of the agent will bind the principal, then his representations and statements respecting the subject-matter will also bind him, if made at the time, and constituting a part of the res gesta. Cov. & Lex. R. R. v. Ingles, 15 B. Mon. 637. "The declarations

and admissions of an agent are evidence against his principal only when they are made as to a business matter within the scope of his agency. and which is being transacted at the time." Lafayette & Ind. R. R. v. Ehman, 30 Ind. 83. . In the case at bar, Morse v. Connecticut River R. R., 6 Gray, 450, and C. B. & Q. R. R. v. Coleman, 18 Ill. 297, where the declarations were admitted, were relied upon by appellant's counsel, but the court held them not in point. In the former case the declarations were made by the conductor or baggage-master in relation to lost baggage, and "it was part of the duty of those agents to deliver the baggage of passengers, and to account for the same if missing, provided inquiries for it were made within a reasonable time." And in the latter the declarations were made by the president of the company in relation to a contract he had authority to make and adjust, and while endeavoring to effect the settlement of a dispute in relation thereto. There is no adjudicated case exactly like the one at bar, though the following are somewhat analogous: Pennsylvania Railroad Company v. Books, 57 Pa. St. 339; Lane v. Bryant, 9 Gray, 245; Dome v. Southworth Manufacturing Company, 11 Cush. 205; Bellefontaine Railroad Company v. HunVol. 6.-No. 9.

road Company, 17 N. Y. 131; Cramer v. City of Burlington, June term, 1877. (Ia.)

THE extent of the terms "breaking and entering," which are the well settled elements of the crime of burglary, is illustrated in the case of Johnson v. Commonwealth, 5 W. N. 49, recently decided by the Supreme Court of Pennsylvania. One Rolland, having, by artifice and a course of friendly and business dealing, gained the confidence of a bank cashier, called one evening with the defendant, a confederate, at the cashier's residence, in the bank building, and rang the door-bell. Being informed by the person who opened the door that the cashier had gone out, Rolland stated that his companion wished to transact some business with the cashier, and that they would call again later in the evening. On their return, about twenty minutes afterwards, learning that the cashier had come in, they were admitted without further remark, and thereupon committed an assault and robbery. Upon the separate trial of the defendant, under an indictment of both for burglary, the court held that the entry was a constructive breaking, and that, therefore, a conviction was proper under a count charging burglary by "breaking and entering." "When a person," said Paxson, J., "rings a door-bell of a house, the owner has a right to presume that his visitor calls for the purpose of friendship or business. If, in obedience to the summons, he withdraws his bolts and bars, and the visitor enters to commit a felony, such entry is a deception and fraud upon the owner and constitutes a constructive breaking.” See Rolland v. Commonwealth, 2 W. N. 226; Wharton's Crim. Law, Vol. 2, § 1539; Roscoe's Crim. Ev. 307; Bacon's Abridgment, title Burglary (a), 133; Chitty's Crim. Law, Vol. 3, p. 856; Ducher v, The State, 18 Ohio R. 317.

THE Corporation act of Oregon provides that if any corporation organized thereunder "shall, for any period of six months after the commencement of its business neglect and cease to carry on the same, its corporate powers shall also cease." In Wallamet Falls C. & I. Co. v. Kittredge, 1 San F. L. J. 259, decided in the United States Circuit Court for the District of