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act is wholly void. It is insisted that the said act not only prohibits the introduction of diseased cattle into this state, which is conceded may be done, but that it prohibits the importation of all cattle in the act designated, whether they are or are not diseased. It is assumed by the legislature in the act in question that all Texas or Mexican cattle are liable, at certain seasons of the year, to communicate disease to and among the native cattle of the state, when brought to this state during the prohibited season. In fact, it was known to be the usual and natural result, that when such cattle were brought into this state at the prohibited season, the Texas or Mexican fever followed them whereever they went. It was not only-under such circumstances-inconvenient, but impossible to select or pick out the particular animals in a herd which were capable of propagating said disease. On the contrary, it was and is believed to be dangerous to the safety of our native cattle to permit any Texas or Mexican cattle to be brought into the state during the prohibited season of the year, whatever their apparent health might be. It, therefore, became necessary to prohibit the introduction of all Texas or Mexican cattle into this state at certain seasons of the year, or to abandon the breeding of native cattle by the citizens of this state. The legislature, under such circumstances, assumed, and had a right to assume, that it would endanger the rights of the citizens of the state for the prohibited cattle to enter the state at certain seasons of the year.

“The right of a state to enact such police regulations as are necessary to protect her citizens from contagious and dangerous diseases, and to protect their property from calamity or destruction, can not be denied. Such regulations by a state are in no sense an attempt to regulate commerce among the states. Such police powers were never delegated to Congress; and, indeed, could not be without a total surrender on the part of the state of the power to protect or preserve her own citizens. Congress is not to be looked to by the citizens of a state for such police regulations as will protect themselves and their property from disease and consequent destruction. These police regulations reside in the legislative power of the state, and their exercise is not in conflict witb the provision of the constitution referred to. And it makes no difference that such regulations, when adopted by the state for such a purpose, should incidentally, in some slight degree, affect the commerce carried on between citizens of different states.” Lewis v. Boffinger, 19 Mo. 13; The City of St. Louis v. McCoy, 18 Mo. 238.

The Supreme Court of Missouri affirmed this decicision in Surface v. H. & St. Jo. R. R. Co., 60 Mo. 216, and in same cases reported in 63 Mo. 452. Such, also, was the ruling in Illinois. See Chicago & Alton Rail. road v. Gassaway, Chicago Legal News, January, 1875, page 147; Yeazel v. Alexander, 55 III. 255; Stevens v. Brown, Ib. 289; Somerville v. Marks, Ib. 371.

These cases are summarily disposed of by the Supreme Court, with the assertion that the state courts “have refused to inquire whether the prohibition did not extend beyond the danger to be apprehended, and whether, therefore, the statutes were not something more than exertions of police power.” How unjust this assertion is to the Supreme Court of Missouri, will be seen from the opinion of Judge Vories, supra.

We repeat that the decision in Han. & St. Jo. R. R. Co. v. Husen is induced by ignorance of the facts upon wbich the Legislature of Missouri acted, and the result will be the adoption of those summary and violent remedies by the people of our border counties, which every good citizen must deprecate, no matter how great the evil to be prevented.

G. G. V. JUDGE BLATCHFORD succeeds Judge Johnson as Circuit Judge of the Second Federal Circuit.


October Term, 1877. SET-OFF – LEGISLATIVE CONTROL-STATUTE ALLOWING SET-OFF PASSED AFTER JUDGMENT OBTAINED.-I. The extent to which mutual obligations may be set-off against each other, when no right of third parties interfere, is wholly within the power of legislative action. 2. To what extent tbis right of setoff may be asserted against judgments, and what class of obligations may be so set-off, and the mode of doing it, may be regulated by the legislature. 3. A statute, therefore, as that of North Carolina, passed after the bank or its commissioners had obtained a judgment, which authorizes the defendant to set-off against it the circulating notes of the bank procured after the judg. ment, is, as between the bank or its commissioner and the defendant, valid, and does not impair the obligation of the contract sued on or of the judgment. But if the rights of creditors of the bank, or any one else interested in the judgment, were such that they would have a right to have the judgment paiel in lawful money, the case would be different. Blount v. Windley. In error to the Supreme Court of North Carolina. Opinion by Mi. Justice MILLER. Judgment affirmed.

INDIAN COUNTRY - LIABILITY FOR ACTS COMMITTED UNDER MISTAKE-MEASURE OF DAMAGES.-1. All the country described by the first section of the act of June 30, 1834, 4 U. S. Stats. 729, as Indian country, remains Indian country so long as the Indians retain their title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by agt of Congress. 2. Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves in time of peace than civilians for wrongs committed under orders emanating from a source which is itself without authority in the premi. ses. Henee a military officer seizing liquors supposed to be in Indian country when they are not, is liable to an action as a trespasser. 3. The difference between the value of the goods so seized, at the place where they were taken and the place where they were returned to the owners, is the proper measure of damages. Bates v. Clark. In error to the Supreme Court of the Territory of Dakota. Opinion by Mr. Justice MILLER. Judgment affirmed.

VALIDITY OF STATE LEGISLATION ALTERING CORPORATE CHARTERS.-By a general act of the legislature of Ohio, passed in 1851, provision was made for the consolidation of railroad companies, and it was declared that “such new corporation shall possess all the powers, rights and franchises" conferred upon the corporation of which it was made up. Subsequently, a constitution of the state went into effect, which declared that “ no special privileges shall ever be granted, that may not be altered, revoked or repealed,” and that corporations could only be formed under general laws which might be altered or repealed. Thereafter, two railroad companies, which were formed previous to 1851, consolidated themselves and formed a new corporation. Held, that the consolidation destroyed the old eorporation, and the new corporation was subject to the provisions of the constitution, and the law under which it was formed might be altered so as to abridge the powers of such corporation. Shields v. The State of Ohio. In error to the Supreme Court of Ohio. Opinion by Mr. Justice SWAYNE. Mr. Justice Strong dissenting. Judgment affirmed. Reported in full, 17 Alb. L. J. 105.

ACKNOWLEDGMENT OF EXECUTION OF DEED REQUISITES OF CERTIFICATE.-"The law of Tennessee requires deeds for the conveyance of lands, 'in what manner or form soever drawn,' to be acknowledged


by the maker or proved by two subscribing witnesses, ABSTRACT OF DECISIONS OF SUPREME at least.' Code, secs. 2005–2038. When the instrument

COURT OF MISSOURI. is acknowledged, the prescribed formula, omitting the caption, is, ' Personally appeared before me, clerk (or

October Term, 1877. deputy clerk) of the county court of said county, the HON. T. A. SHERWOOD, Chief Justice. within-named bargainor, with whom I am personally

WM. B. NAPTON, acquainted, and who acknowledged that he executed


Associate Justices. the within instrument for the purposes therein con

JOHN W. HENRY, tained.' Sec. 2042. If the acknowledgment be taken without the state, by one of otficers designated in sec. CRIMINAL LAW-EVIDENCE - PRACTICE.-On the 2043, the same formula must be followed. Bone v. trial the state introduced a witness, and afterwards Greenlee, 1 Cold. 29; Mullins v. Aikins, 2 Heisk. 547. read in evidence the deposition of this same witness, There was no statutory provision in Teunessee as to wbich had been taken on a preliminary examination the execution or acknowledgment of deeds by corpo- before a justice of the peace. Held, that this was error rations. In such cases the officer affixing the seal is the for which the judgment must be reversed. Opinion party executing the deed within the meaning of the by HENRY, J.-State v. Lee. statutes requiring deeds to be acknowledged by the INSURANCE-LIMITATION.- A condition in a policy, grantor. Lovett v. The Steam Mill Association, 6 and in the charter of a life insurance company, that no Paige, 60. In the formula we have quoted both the acti should be maintained on the policy by reason of phrases 'personally appeared' and with whom I am any loss, unless the same be instituted within twelve personally acquainted,' are found. It has been held by months after the date of such loss, is a valid condition; the supreme court of the state, that the latter means and the refusal of the trial court to give an instruction more than the former, and that personal knowledge is based upon such condition is error for which this court indispensable. But it bas been also held that a sub

will reverse the judgment. Amesbury v. Bowditch M. stantial compliance with the statute is all that is re- F. Ins. Co., 6 Gray 596; Hartford F. Ins, Co. v. Gray, quired. Johnson v. Walton, 1 Sneed, 258; Fall et al. 1 Blatch. C. C. 280; Ketchum v. Prot. Ins. Co., 1 Allen v. Roper, 3 Head, 485; see also Farquarson v. McDon- 136, 187; Wilson v, Ætna Ins. Co., 27 Ver. 99; Keim v. ald, 2 Heisk. 401; and such is the rule laid down by Home Mutual, 42 Mo. 38. Opinion by NORTON, J.this court, Carpenter v. Dexter, 8 Wall. 526. The cer- Glass v. State Ins. Co. tificate here in question sets forth: 'Before me,' etc., SHERIFF'S BOND-ACTION ON AGAINST COLLECT“personally appeared Ex-Norton, the president of the

OR AND SURETIES-QUIETU8. — In an action on the Paducah & Mempbis Railroad Co., and Henry L. Jones,

bond of a sheriff and collector, for revenue collected the secretary of the same company, who are person

and not paid over, the plea was that the collector had ally known to me to be such, and,' etc. 'Personally

settled with the county court, and received a quietus, acquainted with,' and to know personally are equiva

etc. Replication that the amounts collected for county lent phrases. Upon looking into the paragraph just

fund, road fund, school fund, etc., had been omitted in quoted, two points are found to be salient. It is cer

said statements by fraud or mistake, and that the coltified (1) that the parties named appeared in person.

lector had never paid over the same. A motion to strike (2) That they are personally known to the commis

out this replication was sustained by the circuit court. . sioner to be the incumbents of the office specified.

Held, that the court erred; that the quietus granted to He might have known them to be the latter by inform

the collector was a mere receipt; that the replication ation derived from various sources, without personal

was sufficient; that settlements between a county court knowledge upon the subject. Such knowledge is inde

aud a collector were not judgments. 45 Mo. 76; 60 Mo. pendent and complete in itself. It might exist with or

402; 62 Mo. 388. Opinion by NORTON, J.-State to use without other information. Personal knowledge to of Bates Co. v. Smith et al. the extent certified neressarily included the personal identity of the officers, as well as the incumbency of their offices. A defect of such knowledge as to either point would be inconsistent with the language

ABSTRACT OF DECISIONS OF ST. LOUIS used and falsify the certificate. It can hardly be

COURT OF APPEALS. doubted that the paragraph was meant to cover both

November Term, 1877. points. It is a reasonable and necessary construction to give it that effect. Indeed, it involves no straining

[Filed February 19, 1878.) to hold that the phrase ó personally known to me to be HON. EDWARD A. LEWIS, Chief Justice. such,' applies proprio vigore, to those named, alike

ROBERT A. BAKEWELL, } Associate Justices. individually and officially; in other words, that the

CHAS. S. HAYDEN, certifier meant that he personally knew them to be such individuals and such officers. The certificate was PURCHASE UNDER EXECUTION ISSUED UPON MEevidently drawn with studied deliberation. It seems

CHANICS LIEN REFUSAL OF OWNER TO ALLOW to have been intended to meet the requirements of the PREMISES TO BE REMOVED-MEASURE OF DAMAGES. law, both as to proof of execution and acknowledge Plaintiff purcbased under execution issued upon a ment without proof. In the latter aspect, we hold the mechanic's lien, for work done on mortgaged preme certificate to be sufficient. In the former, we have, ises, under a law which directs that the person enfore. therefore, no occasion to consider it.” Kelly et al. v. ing such a lien may have such building sold under ex. Calhoun et al. Appeal from the Circuit Court of the cution, and the purchaser may remove the same within United States for the Western District of Tennessee.

a reasonable time. The owner of the premises, who Opinion by Mr. Justice SWAYNE. Judgment affirmed.

had purchased at the mortgage sale, subject to liens, refused to allow the building to be removed, but of

fered to pay the value of the materials, less the cost of MR. JUSTICE GRIER, of the United States Supreme taking the building down. The building was of such Court, was once trying a case in Pennsylvania. A a character that it could not be removed except by blundering jury returned an unjust verdict. As the piece-meal; Held,that the measure of damages for the clerk turned to record it, Judge Grier said, “Mr. Clerk, refusal of defendant to permit the removal was not the that verdict is set aside by the court. It may as well value of the building as it stood, but the value of the be understood that in this state it takes thirteen men to materials, less the cost of removal. Reversed and resteal a mau's farm.”

manded. Opinion by BAKEWELL, J.-Seibel v. Siemon.


responsibility as common carriers by giving a receipt to the consignor, such as was executed in this case, and claiming, in case of loss, that the express messenger ceased to be the agent of the carrier receiving the goods before they arrived at the end of the route. It may well be questioned, under the circumstances of this case, whether the second carrier was “another company” within the meaning of the receipt. That clauses contained in the receipt, which the shipper takes in the hurry of the business and from the necessities of his position, should be allowed to limit the commou-law liability of the carrier, seems an anomaly, and the courts are not likely to advance in the direction of upholding them. Affirmed. Opinion by BAKEWELL, J.--Schulter v. Adams Express Co.



DUTY OF RAILWAY COMPANY TO SOUND WHISTLE OR RING BELL OF LOCOMOTIVE- WHEN EXCUSED BY CONTRIBUTORY NEGLIGENCE OF PLAINTIFF.Though the law requires that the bell of a locomotive be sounded at certain points, yet when this is not done, one who is run over by the locomotive can not recover damages when it appeared that the proximate cause of the injury was his own negligence in standing in close proximity to the track, with his back to the locomotive, in a position to be struck by the bumper of the engine, whilst momentarily expecting the train, and knowing that it was about to arrive, and when, had he used his eyes and ears, he must have heard it whistle a minute before he was struck, and would have had it in full view for half a mile before the point of the accident; and when it does not appear that the officers of the company were guilty of negligence in not stopping the train before the collision. Reversed and remanded. Opinion by BAKEWELL,J.-Langan 0. St. L., I. M. & S. R. R.

LEASE-COVENANT FOR RENEWAL-EFFECT OF CONTINUING IN POSSESSION AFTER EXPIRATION OF TERM. -A lease for three years, at $7,000 per annum, payable monthly, contained a clause giving the lessee the privilege of renewal for ten years more, on the same terms. The respondent went into possession under the lease, and, at the end of the three years' term, continued in possession as before, paying rent for five years and eleven months, at the end of which period, respondent gave the lessor one month's notice that he would move at the end of the year; Held, that a new lease was not necessary at the end of the first term; that the lessee still held under the lease; the lessee, by bis acts, accepted the privilege of renewal and thus gave the lease an extended operation according to its terms. 2. When a contract in writing depends upon a contingency expressed in the contract, when the contingency happens, the minds of the parties meet and the contract need not be re-written. A lease so made is a contract in writing within the meaning of the landlord and tenant act. Reversed and judgment for plaintiff. Opinion by HAYDEN, J.-Insurance Law Building Co. v. National Bank of Mo.

COMMON CARRIERS -- CONDITIONS IN RECEIPT LIMITING LIABILITY-EVIDENCE.-1. A common carrier received a package directed to the town of J, and delivered a receipt stipulating that, if the package was delivered to any other express company, at any agency of defendant nearest to the town of J, the original carrier's liability should cease. Held, in an action against the carrier for loss of the package, that it was for the carrier to show that the agency at which the package was delivered to another express company was the agency of defendant nearest to the town of J. 2. Held, further, that a letter of the agent of defendant at the shipping-point, directed to “ Agent” at T, a point nearer to the town of J, than the point where tue package was turned over to the second express company, directing him to inquire for the package and reply on the same sheet, with the reply stating the loss of the package by fire, signed by the agent addressed, and an indorsement on the same letter by the agent who sent it, directing the shippers to present claim, invoice and receipt for settlement, were competent, as tending to show that defendant had an agency at T, and also tending to show that defendant, when informed of the circumstances of the loss, admitted its liability. 3. Semble, that if two express companies, running as common carriers over one continuous route, and dividing proffits, employ one messenger, who remains in charge of goods during the entire route, and who, by agreement between the companies, regarded as the agent of one company only, up to a certain point in the line, and as the agent of the other company thence to the end of the route, they can not relieve themselves of the



November Term, 1877.
HON. HORACE P. BIDDLE, Chief Justice.


Associate Justices. SAMUEL E. PERKINS, REPORT OF REFEREE.-A general referee must make a final report upon the whole case, upon which the court must render judgment. If not final the court should require the referee to perfect his report or finding before discharging him. Opinion by PERKINS, J. -Reid, et al. o. The State.

JUDGMENT IN TORT-RIGHT OF APPRAISEMENT.Under a judgment in tort the defendant is not entitled to the benefit of exemption; but such a judgment does not authorize the sale of property under it without appraisement, and an officer thus selling property without appraisement, renders himself liable for the abuse of his authority. Opinion by PERKINS, J.Smith, et al. v. Davis.

PROMISSORY NOTE-SEPARATE WRITING ATTACH. ED.--A note in the hands of a bona fide holder, without notice of the fraud and for a valuable consideration, is not affected by the separation therefrom of a written agreement, there being nothing on the face of the note to indicate that such writing had ever constituted a part of the note (75 Penn. St. 188). Opinion by PERKINS, J.-Cornell v. Nebeker.

MEASURE OF DAMAGES FOR BREACH OF COVENANT OF WARRANTY.--1. Where one conveys land to another by deed of warranty and subsequently the land is recovered of the purchaser by a third party, the measure of damages is not the value of the land at the time of its recovery from such vendee, but it is simply the purchase money with interest up to the time of the eviction by the grantee. 2. When a contract is executed in separate instruments, all the instruments must be construed together. Opinion by NIBLACK, J. - Wood v. Bibbins.

SALE — FALSE REPRESENTATIONS MEASURE OF DAMAGES.- Where the vendor of mules represented them to be sound, but they were in fact diseased, the measure of damages in a suit for the false representation would be the difference between the actual value of the mules at the time of the sale and the value they would have had if they had been as represented; and the fact that the plaintiff said nothing about their unsoundness, nor offered to return them, constituted no defense, if the defendant warranted them at the time of sale and they were in fact unsound. Opinion by Howk, J.-Ferguson v. Hosier.

SET-OFF.-Under the code a set-off must consist of matters arising out of a debt, duty or contract held by the defendant at the time suit commenced and matured at the time it is pleaded. It must be so held by the defendant that he could at the time maintain an independent action therefor as plaintiff. The party who pleads a set-off must be the real party in interest and an account assigned to a defendant merely to be used as a set-off in an action against bim, the defendant not being the bona fide owner of such account, will not be allowed as a set-off (10 Ind. 205; 28 Ind. 427). Opinion by HOWK, J.-Claflin v. Dawson.

PROMISSORY NOTE-RIGHTS OF SURETY.-A. executed his note payable to a bank in the sum of $4,000.00, with B. as surety thereon. In a suit by the bank against A, and B., the latter answered by way of counter claim that at the time the note was made A. was the owner of $4,000.00 of the capital stock of the bank and that it was agreed between them that if B. would execute the note as surety for A. the bank stock should stand as collateral security to protect B. until the note was paid, and that A. died without transferring the bank stock to B. Held, that B. was entitled to have the bank stock sold to discharge the note. Opinion by BIDDLE, C.J.-Mc Coy v. Wilson, et al.

PROMISSORY NOTE-INDORSERS- CONTRIBUTION.A, desiring to procure money, prepared a note blank as to payees, and signed the same together with B. He then procured C, D and E to place their names on the back of the note and afterwards had their names inserted in the note as the payees. The note was then discounted at bank, A receiving the money. B having paid the note, brought suit against C, D and E for contribution as co-sureties with biin for A. Held, the defendants must be regarded merely as indorsers, and as the legal effect of their contract could not be varied by parol, they were not liable to the plaintiff for contribution in the absence of an express contract to that effect or that they should be regarded as co-makers of the note. Opinion by WORDEN, J.-Armstrong, et al. v. Horshman.

the track is as to him no legal injury, and he can only recover for such injuries as arise from an improper use by the company of its privileges, not for diminution in value of his land. Opinion by COOLEY. J.-Grand Rapids & Indiana R. R. v. Heisel.

HOMICIDE-SELF-DEFENSE-IMPRESSION MADE ON BY-STANDERS.-Held, 1. That the right of an assailed party to self-defense does not depend upon his belief or disbelief, at the moment, that a call would bring some one else to interfere in his behalf, however it might bear upon the fact of the reality of his belief concerning his danger, and his necessity to use the given means of defense. Except in special cases, no private person is bound in law, even if called, to defend others. 2. It is admissible to show by witnesses of the homicide that the appearance and conduct of deceased were such as to awaken fear in them. The impression actually made upon them at the time is of force to give color to their verbal descriptions, and to convey to the jury with greater distinctuess and emphasis, the way in which the aggressor most probably appeared to defendant. Opinion by GRAVES, J.--The People v. Lilly.

Quo WARRANTO NOT ALLOWED FOR BREACH OF MUNICIPAL AGREEMENT-NATURE OF THE USE OF STREETS FOR GAS PIPES.-1. Leave refused to allow the filing of an information in the nature of a quo icarranto to deprive a gas company of the right of laying its pipes in the public streets, for an alleged violation of its contract with the municipality. The statutes contemplate that leave shall only be granted for a plain violation of the laws regulating the corporation; or for wrongs amounting to a surrender of its franchises; or for exercising franchises or privileges not conferred by law. 2. The permission to use streets for laying gas pipes, is not a state franchise, but a mere grant of authority, resting only in contract or license; and a violation of the contract must, like all ordinary wrongs, be redressed by the usual legal remedies. Opinion by CAMPBELL, C. J.-People v. Mutual Gas Light Co. of Detroit.

SLANDER-REPETITION OF CHARGES-OPINION OF OFFICER-EVIDENCE OF PUBLIC RUMORS.-Held, 1. That in an action for slander, in charging plaintiff with having burned his property to defraud insurers, proof of actual insurance is not necessary, the fact of insurance being immaterial. 2. Charges made to plaintiff himself, of the same slanderous nature as those counted on, are admissible in evidence in aggravation of damages, whether made to him alone or in presence of others. Leonard v. Pope, 27 Mich. 145. 3. Alleged frauds of plaintiff, against third persons concerning agreements regarding insurance, are irrelevant. 4. The opinion entertained by a public officer as to the cause of a fire, is inadmissible in an action of slander brought by one charged with causing it to defraud insurers. .5 The effect of evidence of public rumors against the plaintiff, on the subject of the slander, is properly contined to mitigation of damages. Opinion by CAMPBELL, C. J.-Fowler v. Gilbert.

DATE OF DELIVERY OF DEED-ADMISSION OF FORMER HOLDER IN DEROGATION OF TITLE-NOTICE OF SALE ON EXECUTION.- Where a deed of land, on which attachment had been levied, bore date some days earlier than the levy, but was recorded a few days later: Held, 1. That communications made on the premises shortly after the record, between the es. ecution debtor and his grantee, tending to show that in fact the deed was not delivered uptil after the levy, were admissible in ejectment brought by a purchaser under the execution sale, against a remote grantee of the execution debtor. Bower v. Earl, 18 Mich. 367; Norton v. Pettibone, 7 Conn, 319; Bridge v. Eggleston, 14 Mass. 245; Jackson v. Bard, 4 T. Rep. 230. 2. Want of notice does not invalidate a sheriil's sale of land made after levy of execution. The sheriff may be lis.



January Term, 1878.
HON. J. V. CAMPBELL, Chief Justice.


ISAAC MARSTON, Associate Justices.

B. F. GRAVES, SERVICE OF PROCESS ON SICK PERSON.-Service of process on a party in his last illness, and a short time before his death, by Javing a copy on his body while confined to his bed, without showing or explaining it to him, is void. PER CURIAM.- The People v. Midler.

JOINT TORT-FEASOR CAN NOT RECOVER ON RIGHT OF ACTION PURCHASED FROM INJURED PARTY.Parties forming a co-partnership cut logs upon certain lan 's, supposed to be owned by two of the members, and their title found to be defective, a third partner bought the lands from the real owners, taking also an assignment of the right of action for the unlawfully cut timber, and brought trover in his grantors' names against his former associates to recover its value. Heid, that the action could not be sustained. Opinion by COOLEY, J.-Upham v. Dickinson.

USE OF THOROUGHFARE FOR RAILROAD TRACKRiGiT OF ADJOINING OWNER TO DAMAGES.--In suit by an adjoining owner, against a railroad company, which has laid its track on a bighway or street without compensating him, the question of his owning the Boil in the highway is material. If he is owner, the laying of the track is as to him a legal injury, and he may recoved for whatever damages he has suffered from the unlawful appropriation, e. g., for decrease in the rental and market value of his premises; but if he does not own the fee in the street, the mere laying of

ble, but an innocent purchaser can not be prejudiced, the certificate of sale and deed being his evidence of title. Stafford v. Beach, 2 Doug. (Mich.) 150. Opinion by GRAVES, J.; Cooley, J., dissenting as to first point.-Cook v. Knowles.

INJUNCTION COMPLAINANT'S MOTIVE IN PURCHASING THE PROPERTY SUBJECT TO INJURY MAY BE CONSIDERED.-A costly stamp mill, for mining purposes, was erected on the banks of a stream, which, in necessary consequence, kept carrying down and depositing on the lands below, large quantities of sand. Afterwards, complainant, for speculative purposes, bought land below at a small price, expecting to force a sale upon the mill owner at a large advance, and, on a refusal, he applied for an injunction against depositing sand, and polluting the stream. Held, thatwhile complainant had sustained a legal injury, for which he was entitled to redress in damages; yet, considering the motives with which he had bought-he not wanting the land for a homestead or for business property, but for the money he could compel defendant to pay for it-the elements of irreparable injury, which alone would warrant an injunction, were wanting. Injunction denied. Opinion by COOLEY, J.; Campbell, C. J., dissenting, holding that the motives of the purchaser could not be inquired into.- Edwards V. Alloney Mining Co.

tion for two several contracts, and one of the contracts is for the performance of an illegal act, the whole is void. Lindsay v. Smith.

CRIMINAL LAW-“ CRUEL AND EXCESSIVE” SexTENCE.--The defendant was indicted and convicted of an assault and battery on his wife, and sentenced to five years' imprisonment in the county jail, and thereafter to give a $500 bond to keep the peace for five years more. Held, the sentence is “ cruel and excessive," and therefore unconstitutional. Such abuse of power by the judge below is reviewable here. Tbis court cannot affix the penalty, but will remand the case that the judge below, enlightened by this opinion, may affix a more moderate judgment. A motion in arrest of judgment can not be allowed here as the certiorari, like an appeal, vacates the judgment below. State v. Drire.

MURDER --- SELF DEFENSE - THREATS — INSTRUCTIONS.-Where there is evidence tending to show that the killing was in self-defense, it is error to exclude evidence of the violent character of the deceased, if known to the prisoner. That they lived in the same neighborhood is some evidence tending to prove such knowledge. An instruction that if “the defendant had reasonable cause to apprehend, &c.,” is defective, unless it is added, “and did apprehend danger,” &c. As malice is a presumption of law it is a matter of law as to what facts are sufficient to rebut the presumption, the jury passing on the existence of the facts. It is a question of law like “suficient cooling time," "legal provocation," "deadly weapon,” &c. Where it is the duty of the judge to charge on the evidence that it is either a case of manslaughter or homicide in self-defense, it is error for him to leave the jury to pass on the question also whether it is murder. It is error to charge that “if the defendant believed himself in imminent danger of life," &c., without adding, “or of some great bodily harm." It is sufficient, if the assault made on the prisoner was felonious. A judge who presides at a trial in which human life is at stake does not fully perform his duty by merely stating to the jury, however correctly, principles of law which bear more or less directly, but not with absolute directness, upon the issues made by the evidence in the case. He is required, in the interests of human life and liberty, to state clearly and distinctly the particular issues arising on the evidence on which the jury are to pass and to instruct them as to the law applicable to every state of facts which, upon the evidence, they may reasonably find to be the true one. Opinion by READE, J.-State v. Humphreys et al.




282 January Term, 1878. Hon. W. H. N. Smith, Chief Justice.


Associate Justices. W. T. FAIRCLOTH, SATISFACTION OF JUDGMENT.—The acceptance by a judgment creditor of a promissory note upon a third person in satisfaction of the judgment, is a discharge of the judgment; although the note so received is for a less amount than the judgment. Currie v. Kennedy.

MURDER — MANSLAUGHTER. Where the prisoner looked through a crack in his house, and saw the deceased, whom he had before suspected, with his arms around his wife's neck, with attendant circumstances of a compromising nature, and ran around to the door and into the house, when the deceased came at him with a knife and he killed him. Held, though the deceased was not killed in the very act," it severely approximated it, and fine distinctions need not be made. This was clearly not murder, but manslaughter. Opinion by READE, J.-State v. Harman.

STATUTE OF LIMITATIONS-DISCHARGE IN BANKRUPTCY-REQUSITES OF NEW PROMISE.—Where a new promise is relied upon to take a cause of action out of the bar of the statute of limitations, such new promise, if the cause of action accrued since the adoption of the code of civil procedure, must be in writing. If, however, such promise is relied upon to remove the bar of a discharge in bankruptcy, it need not be in writing. In the latter case, the new promise itself is the cause of action, and the unpaid prior legal obligation, notwithstanding the discharge, is a consideration to support it. Kull v. Farmer.

ILLEGAL EXECUTORY CONTRACT AGREEMENT TO DISMISS INDICTMENT.-The doctrine that no executory contract, the consideration of wbich is contra bonos mores or against public policy, can be enforced, applies to an agreement to dismiss an indictment, private in its nature, as in this case, an indictment for a public nuisance in erecting a mill, and whether the suppressed indictment really charged an indictable offense or not. Where there is one entire considera


A COMPLAINT. To the Editor of the Central Law Journal:

The St. Louis law library is an institution of which the bar of this city may well be proud. It bas been gathered together by the slow accretions of forty years, at an expense of more than $60,000. Its shelves are loaded with volumes, covering the entire range of English and American law. Its facilities are enjoyed by some four hundred members of the St. Louis bar, by the judges of all the courts, and by non-resident judges and practitioners. In it authors have written useful books, and judges have constructed their most admired judgments. The politic liberality of the county, and now of the city, has always furnished it with the use of a ball, with heat and with ligbt, free of charge.

But this magnificent treasury of learning has long been rendered almost useless to many of its members, by a nuisance which the diligence of its directors and the discipline of its librarians have never been able to abate. This nuisance, I am pained to say, emanates,

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