it. 3. A party served with notice of taxation of costs against him should appear before the taxing officer and object to items claimed by the opposing party which he regards as erroneous, but which do not exceed the jurisdiction of the officer to allow, if he wishes afterwards to urge such objection before the court. Opinion by COLE, J.-Latimer v. Morrain, imp.

REPEAL OF STATUTES-RIGHTS OF ACTION UNDER REPEALED STATUTES.-1. After the repeal of ch. 273 of 1874 (the Potter Law) no recovery could be had in any action then pending under the penal provisions of that act, either by virtue of sec. 33, ch. 119, R. S. (Dillon v. Linder, 36 Wis. 334) or by virtue of the clause in the repealing act (ch. 57 of 1876) which provided that nothing therein contained should "in any manner effect any litigation" then pending in any of the courts of this State, or of the United States. 2. To save pending actions for statutory penalties, or pending prosecutions for statutory offences, upon the repeal of the statute, an express saving of all penalties incurred or offences committed under it, whether in the course of prosecution or not, is essential. Opinion by RYAN, C. J.-Rood v. The C. M. & St. P. R. R. Co.

facts, there being no question of law reserved. Opinion by WORDEN, J.-State v. Hall.

MORTGAGE-HUSBAND AND WIFE-EVIDENCE.-1. Suit to foreclose a mortgage on the separate real estate of the wife, given to secure a prior indebtedness of the husband. The wife answered that the mortgagees had procured her husband to represent to her that the mortgage was for a new stock of goods, and not for the old indebtedness, and that she was thus induced to execute them; that the mortgagees then refused to furnish the new stock as they had agreed to do. Held, that so far as the wife was concerned the consideration of the mortgage had wholly failed. 2. The husband was a competent witness to prove the handwriting of letters, it being material to his own defense in the action, although his evidence on this point might enure to the benefit of his wife; and the handwriting having once been proved, the wife could used the letters as evidence in her own behalf without again proving the handwriting by some witness other than her husband. Opinion by Howк, J.-Haskilt et al. v. Elliott et ux.

Associate Justices.

MARCUS MORTON,

Associate Justices.

WILLIAM C. ENDICOTT,

66

OTIS P. LORD,

66

66 SAMUEL E. PERKINS, INSANE PERSON REVIEW OF JUDGMENT.-1. A person, under guardianship as an insane person can not have the question of his sanity inquired into on his own application; neither can he appear in court by next friend, but the application must be made by some other person. 2. A complaint to review proceedings is defective if it does not set out a complete record of the proceedings sought to be reviewed. Opinion by NIBLACK, J.-Meharry v. Meharry.

DEED TO HUSBAND AND WIFE DESCENT.-1. Where land was deeded to husband and wife, as joint tenants, the survivor to take the whole, and afterwards the wife obtained a divorce for misconduct on the part of the husband, and, on the death of the husband, his heirs at law brought suit for partition: Held, that upon the death of the husband the title to the entire property vested in the wife, by the express terms of the deed, and the heirs of the husband inherited nothing from him. Opinion by PERKINS, J.-Lash v. Lash.

BANKRUPTCY SUITS BY ASSIGNEES JURISDICTION OF STATE COURTS.-Under the bankrupt act, as it stood in 1867, an assignee might sue in a state court to collect a claim due the estate of the bankrupt, but section 711, of the revised statutes of 1874, changes the rule; said section vesting exclusive jurisdiction of all matters and proceedings in bankruptcy in the federal courts. Such a suit is a proceeding in bankruptcy, within the meaning of the law, and can only be brought in the federal courts. Opinion by WORDEN, J.-Sherwood v. Burns et al.

APPEAL BY THE STATE IN CRIMINAL CASES.-Appeals by the state, in criminal cases, where the defendants are acquitted, are provided for by statute, but it was intended to allow such appeals upon some matter of law only, and not upon matter of fact. The purpose of such appeals was the correction of any errors of law that the court below might fall into by deciding against the state, the decision of the supreme court thus furnishing a rule for the guidance of the courts in future cases. No appeal, therefore, will lie in such cases on an agreed statement of

AUGUSTUS L. SOULE,

PROBATE APPEALS.-All inferences of fact and questions of discretion, as well as of law, involved in a decree of the probate court, making an allowance to the petitioner as the widow of an intestate, are open to revision on an appeal to the supreme judicial court. But the decision of the single judge on questions of fact, can not be reversed, unless it is clearly shown to be erroneous. Wright v. Wright, 13 Allen 207; Allen v. Allen, 117 Mass. 27. Opinion by COLT, J.-Slack v. Slack.

LIQUOR NUISANCE-HUSBAND AND WIFE.-Indictment for maintaining a liquor nuisance. The evidence tended to show a sale of several glasses of ale by the defendant's wife, in his presence. The tenemant in question was a dwelling-house owned by the wife. Held, that the dwelling-house being the domicil of the family, as such it was under the legal control of the defendant, who was the head of the family. Com. v. Wood, 97 Mass. 225; Com. v. Kennedy, 119 Mass. 211. The statutes which have been passed to enlarge the rights and privileges of married women have made no change in the law in that respect. Com. v. Barry, 115 Mass. 146. Prima facie the husband is able to prevent the wife from making an illegal use of the family dwelling-house. Opinion by AMES, J.-Com. v. Carroll.

LIQUOR NUISANCE-EVIDENCE.-In an indictment for keeping a liquor nuisance, it appeared that the defendant occupied certain premises, consisting of a front room, used as a grocery store, and a rear room, used as a kitchen; that the officer searched the premises and found in the kitchen table drawer a quart flask of whisky, under the table a three quart jug of whisky, in the kitchen closet a measure, funnel and glasses; and in the cellar, under the kitchen, a bottle of brandy, in a pit covered with boards and dirt. Held, that the circumstances under which the liquors were found, and the fact that they were apparently concealed, were proper for the consideration of the jury as tending to indicate guilt. It is impossible to say that there was no evidence to au

thorize the verdict. Opinion by AMES, J.-Com. v. Gallagher.

ARBITRATION.-1. Where the parties have submitted their case to arbitration, and a majority of the arbitrators have made an award, which is according to the submission and unobjectionable upon its face, it is prima facie binding and conclusive upon the parties, and the burden is on the plaintiff if he seeks to avoid it. 2. It is the right and duty of the chairman to express his opinion of the law, and it is exclusively within the discretion of each associate arbitrator to decide how far he will rely upon that opinion. 3. It is also clearly within the discretion of a majority of the arbitrators to determine how long they will continue the discussion of the case. 4. The fact that two of the arbitrators became excited during the discussion, furnishes no reason for setting aside an award deliberately made by the majority. Opinion by MORTON, J.Roberts v. 0. C. R. R. Co.

PROMISSORY NOTE - STATUTE OF LIMITATIONS ATTESTING WITNESS.-Action on a promissory note, signed by the defendant and payable to the plaintiff. The defense was that the note was barred by the statute of limitations. The plaintiff called one Hickey, whose name purported to be on the note, as an attesting witness, and who testified that he was formerly an office boy of the plaintiff; that at the date of the note he was eleven and a half years old; that the name looked like his handwriting; thought it was; had no recollection whatever about it, and if he had signed it must have seen the defendant sign it, or have known that he signed. Held, that the burden of proof was upon the plaintiff to show that the note in dispute was signed in the presence of an attesting witness, but this was a question of fact to be submitted to the jury, if there was any competent evidence to prove that fact. Drury v. Vannevar, 1 Cush. 276. Held, further, that the case at bar should have been submitted to them with proper instructions. Opinion by MORTON, J.-Tompson v. Fisher.

QUERIES AND ANSWERS.

7. CONSTITUTIONAL LAW-" TRIAL BY JURY"PATENTS.-In trials at common law the jury is the only proper tribunal to assess damages-compensatory and exemplary. The only modes of reviewing facts found by a jury, which are known to the common law, are the awarding a new trial by the court where the issue was tried, or a venire facias de novo by an appellate court for some error of law. Parson v. Bedford, 3 Pet. 446. The United States Const. Art. VII, preserves the right of jury trial in all suits at common law (i. e., not of equity or admiralty jurisdiction, Parsons v. Bedford, above) and declares that "no fact once tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law." How does sec. 4919 of U. S. Rev. Stat. accord with these authorities? That section provides that in actions at law for the infringement of a patent, where the verdict is for the plaintiff, the court may enter judgment for any sum not exceeding three times the amount of the verdict. P. & R. 8. A WIFE BEING THE OWNER OF GENERAL REAL PROPERTY, jointly with her husband, conveyed the same in trust to secure the payment of a certain sum of money, which was paid except a small balance, after which the wife died. The husband and an only child, by a former husband, survived her. There was no issue of the marriage to the latter husband. The trustee sold the property within less than nine months after the death of the wife. The creditor purchased and secured a deed from the trustee, and, on the same day, conveyed the property to the husband, and

the husband remained in possession. The heir, after he arrived at majority, instituted an action to set aside the sale and to redeem, and made the husband, creditor and trustee parties defendants, upon two charges: 1st, that the property was sold within the time prohibited by statute; 2d, a fraudulent combination between the husband and the creditor. A general finding by the court, in favor of plaintiff, and a decree setting aside the sale and permission to redeem. Redemption made. The decree contained the further order that the title of the husband to the property be divested, and vested in the plaintiff. The judgment and decree were appealed from, and the appeal is still pending. The right to the possession was not in issue nor adjudicated. The heir now brings an action of ejectment. Can it be maintained. X.

[Yes. Upon the ground, 1st, that the heir could, without redeeming, at any time after the death of the ancestor, either prior to or subsequent to the sale, have maintained an action of ejectment, the sale having been made within the time prohibited by the statute, and therefore invalid. 2. The application to redeem, and the decree allowing the same, in no wise affected the right of plaintiff to the possession, consequently the pending appeal, therefor, is immaterial. J. M. D.

NOTES.

THE two bills for re-organizing the federal courts, respectively introduced by Senators Conkling and Davis, and now pending in Congress, are dissimilar in their main features. The Davis bill provides for the appointment of an additional circuit judge in each of the circuits of the United States, while the Conkling bill provides for additional district judges, who are not to be assigned to any particular district, but are to hold district or circuit courts wherever they may be directed so to do by the circuit judge.

THE House of Representatives has done some remarkable things this session, and among them is the passage of a bill providing that when a woman shall have been a member of the bar of the highest court in any state or territory, she shall, on application, be admitted to practice before the United States Supreme Court. What is the reason that legislators will not consent to leave to the courts the decision of the question as to who shall and who shall not practice before them? Has the character of the bar improved since the legislature commenced to meddle with the privileges of the courts? The history of legislation in New York on this subject ending only last year in the restoration to the highest court of the state of the right to make its own rules for admission to practice, is a sufficient answer to this question. The truth is that our courts so rarely exercise the prerogatives which they possess, that in popular estimation they are regarded as possessing none at all. When a member of the Missouri legislature gravely proposed last session that the judges of the Supreme Court should solemnly certify in each case decided by them that they had "thoughtfully read" all the pleadings and "carefully studied" all the authorities submitted by counsel, he was simply laboring under the popular idea. Had this bill been passed it would certainly been followed by others prescribing by statute everything that could concern a judge from the color of his coat to the tone of his voice. That this will go from bad to worse is certain unless other courts in the country shall follow the example set by the Supreme Court of Wisconsin and refuse to submit to legislative dictation, when insolent, oppressive and dangerous. We have said this much in regard to the regulation by the legislature of admission to the bar. As to this particular bill it is hardly likely to pass the senate. There are a few old fogies in that

The sixty-seventh volume of the New York Reports, says the Daily Register, exhibits an instance of very unsatisfactory reporting, and of a truckling attempt to shield from publicity the names of fraudulent but influential litigants. Among the cases reported in this volume is one entitled "Anonymous." The reporter not only hides the names of the parties, but does not even indicate the name of the court nor the judicial department from which the appeal comes. It is an important decision and of especial interest to a great banking and commercial community. On withdrawing the veil of "Anonymous," it will be discovered that the true title of this case is the well known one of "Washington Roebling and others, respondents, v. William Butler Duncan and others, appellants," and that the appeal is taken from the order of the general term of the Supreme Court of the first department (reported in 8 Hun., 502) affirming an order of the special term denying a motion on the part of the defendants to vacate an order of arrest granted on account of their fraudulent transactions. The decision of the Court of Appeals in ". Anonymous" affirms the order of the general term. No reasons of public policy, morality, nor of decency, justify, in the opinion of the writer, the reporter of the Court of Appeals in his exceptional way of entitling this case. If it is unpleasant to these influential defendants to see their names in the New York Reports, in connection with discreditable transactions, they should, nevertheless, like other defendants, suffer the consequences of their own fraudulent acts. It appears from the published reports of this case at special term, at general term and in the Court of Appeals, that the gilded hand of wealth and station could not touch the scales of justice, and the State reporter should be required to assign his reasons for concealing the names of parties thus branded by the judgments of the courts. No such sentimental and unworthy servility influenced the same reporter to throw the veil of" Anonymous" over the case reported in 64 N. Y., 625. where the same parties were plaintiffs.

A BILL introduced into the British Parliament by Mr. Herschell, Q. C., to abolish the action for breach of promise of marriage, has been received by the newspapers, according to the Solicitors' Journal, with "a chorus of approval." The Law Times, in a very able article on the subject, warns the framer of the bill that he must not expect to succeed without opposition, for, it says, the institution has many admirers and more readers. But, like other idols of a people or a class, this one stands condemned as an offense to good taste, and an exception to sound principles. As a tolerated custom, the action for breach of promise of marriage has long been extinct on the male side of the question. No well-advised man would venture to call a woman into court for not fulfilling her promise to marry him. Yet no difference can be pretended between the case of the woman and that of the man. There are, indeed, women who say that there is a difference-that a man can easily find a wife, and that his prospects are not blighted by a disappointment of this kind; but the women who say this are not the women to be listened to on such a question. These actions are confined not only to women, but to a peculiar class of womenscheming, enterprising, and anxious to hook a victim.

For the woman has suffered no loss, but rather gain, by a man breaking his word, for her interest can be only the same as his; and if it is best he should not marry her, it is equally best that she should not marry him, which is really the question at issue.

The moral obligation to fulfill a promise to marry is so great, that there can be no doubt it often prevails over considerations that should decide the other way. If a man finds on reflection that he was not justified in promising a happy home, for he had not the means of fulfilling that promise, or finds, on better acquaintance, that he was mistaken in his estimate of the lady, or that she was mistaken as to him, it certainly is advisable that he should not be held bound to what is more or less wrong. Even in the extreme case of a change of feeling, for no assignable reason but the merest caprice, or because the man has seen somebody else that he likes better, it has to be remembered that in the ceremony of marriage the man promises to love the woman, which, in this supposed case, he does not, and can not do. The woman who sues a man at law for breaking his promise, has to complain that he would not marry her, even when he had ceased to love her, and she, therefore, claims for a husband a man that does not love her, and tells her as much. Such a claim is almost revolting; but it really is the claim that is made in these cases. A lady of delicate feeling would rather die than make it, whether in private, or, still more, with all the glaring publicity of an assize court, amid the scowls and the sneers of an assembled county. When a promise is broken, both parties must feel that a great mistake has been made, and that now the less said or done about it the better. There will be more blame on one side than on the other, and society will award to each their due share. The offender, of whichever sex, does not go unpunished, for the broken word will never be forgotten, and nobody will ever listen to another promise made by such a person, without the reflection that he can not quite answer for himself, and is not to be entirely relied on. Vacillation, caprice, unsteadiness of principle or feeling, are scarcely less contemptible than formal breach of promise, and any sensible man or woman will beware of those who can not depend on themselves, and, therefore, can not be depended on by others.

The existing state of the law making a promise to marry a legal contract, defeats its purpose by encouraging long engagements and endless delays. A man promises to marry-hastily, perhaps, and without due provision-but if he and the lady honestly wish for "love in a cottage," there can be no reason why they should not try it. The parents, however, especially on the lady's side, do not like this, and insist on the young people waiting indefinitely for better or more certain prospects. His attachment is expected to stimulate his professional exertion, or to overcome his independence of feeling, and to drive him to seek a patron or cultivate some interest. A promise for an indefinite period to be fulfilled some time or other, when circumstances are more propitious than now, is even worse than an international treaty warranted to stand forever, under every possible change of circumstances. If people can not marry now there may be less reason; but there may be also greater reason why they should not marry five years hence. But it would always be far better that both should be at liberty to recognize the changes which time, separation, general society and other reasons are sure to bring about. But all these questions concern not the classes interested in these actions. We can not but be sorry to deprive people of one of their amusements. But good taste bas put an end to many other amusements not more exceptionable. Cock-fighting, bull-baiting, and the prize ring are things of the past in respectable quarters in this country, and it is quite time that the action for breach of promise of marriage should follow them.

SAINT LOUIS, MARCH 15, 1878.

CURRENT TOPICS.

Where an officer in his return of a sale of an equity upon execution declares that he published in a certain newspaper the notice which the statute requires to be given, it is held by the Supreme Court of Maine, in True v. Emery, 17 Am. L. R. 156, not competent for the debtor, or any one claiming under him, to contradict the officer's return by the production of such newspaper, showing the return to be untrue. "If," the court say, "it was admitted by the respondents to have been the notice in fact given, the point would have been open. But the respondents refuse to admit it, and rely upon the return of the officer, that he gave due and legal notice, as conclusive." The sworn return of the officer is conclusive. The rule is very general. The exceptions are very rare, and this case is not one of them. Blanchard v. Day, 31 Me. 494, 496; Grover v. Howard, Id. 546; Huntress v. Tiney, 39 Id. 237; Bunker v. Gilmore, 40 Id. 88; Dutton v, Simmons, 65 Id. 583; Pullen v. Haynes, 11 Gray, 379. In Sykes v. Keating, 118 Mass. 517, the officer's return set out that the notice of sale was of land on Union street in a city, and it was held that evidence that in the published notice of sale the premises were described as situated on Avon street was not competent to contradict the return. The remedy is against the officer for a false return.

THE Supreme Court of the District of Columbia, in Barton v. Barbour, 1 Month. Jur. 645, held, following the rulings of the Supreme Court of the United States, that a receiver could not be sued without leave of the court under whose authority he holds his office. McArthur, J., said: "The plea demurred to (that the defendant was a receiver, and that the plaintiff had not obtained leave to sue him from the court by which he had been appointed), would probably not be sustained in the state of Vermont, because the courts of that state appear to have decided that a receiver operating a railroad as a comVol. 6.-No. 11.

damages occasioned by any breach of his obligation while acting in that capacity. In Paige v. Smith, 99 Mass. 395, this doctrine is imputed to the courts of that state; and it is held that a receiver appointed there would by equally liable to an action in the courts of another state for a similar cause of action, instituted without the permission of the court appointing the receiver. In Kinney v. Crocker, 18 Wis. 74, and Allen v. The Cent. R. R. of Iowa, 3 Cent. L. J. 434, the same rule is asserted. With the exception of these authorities, it is not too much to say that the decisions in England and the United States are to the effect that it is requisite to apply to the court of chancery in which the receiver was appointed, when a suit is to be brought against him in his official capacity. This rule is established by so many authorities, that citation is scarcely necessary. The briefs of counsel are sufficiently full of such references. The possession of the receiver is considered that of the court, and it is therefore regarded as the duty of the court to protect the possession of its officer from the invasion of persons or suits at law. Any party may come into court and test the justice of any claim he has upon the fund, and he may be himself examined pro interesse suo. If he has a prior interest it will be protected, and he will be permitted to bring such suits at law as may be proper to determine any legal or equitable rights he may have upon the estate. The court of chancery having acquired jurisdiction of the subject-matter, will retain it for the benefit of those who may be found ultimately entitled to it. 2 Story's Eq. J., secs. 331 to 334; Parker v. Browning, 8 Paige, 388."

IN Weeks v. N. Y. & C. R. R., recently decided by the New York Court of Appeals, the plaintiff sued for the value of certain bonds stolen from him while a passenger on defendant's railroad. The car in which he was seated had been detached from the rest of the train, and had been left by the employees without any protection from outsiders. While thus situated several men entered it, and knocking the plaintiff down, robbed him of the bonds. which he carried in his pocket. On the trial he obtained a verdict for their value, which was reversed on appeal, the court saying:

"No authority has been cited, nor has any been found, extending the liability of a carrier of passengers or their baggage so far as to include a loss incurred under the circumstances shown in this case." The ground upon which the carrier was held not liable was that the property was not placed in its charge, nor had it notice of its existence. In the case of Tower v. Utica and Schenectady Railroad Co. 7 Hill 47, in Grosvenor v. New York Central Railroad Co. 39 N. Y. 34, the general principle was approved, rendering it necessary to support the liability of the carrier that the property lost should be placed in its custody. For that reason chiefly the passenger was prevented from receiving the value of the contents of his portmanteau which he had taken into his apartment with him, and carelessly left it there during the period of a temporary absence, Great Western Railway Co. v. Talley, 23 Law Times' Reports 413, and in the First National Bank v. R. R. Co. 20 Ohio 259, it was held to preclude a recovery for money carried upon the person of a passenger and destroyed by means of an accident to the train in the course of the journey. It was there said that the passenger" could not reasonably have supposed that the defendant by selling him a ticket, and agreeing to carry him and his baggage with due care, contemplated incurring a liability in respect to a large sum of money of which defendant had no knowledge, and which he was carrying solely for the purpose of transporting it from one place to another." Id., 280. And the same disposition was made of a claim for the loss of money carried to purchase clothing in Hiscox v. Narr. Railroad Co., 2 Conn. 281. Articles of merchandise, or samples of them, and large amounts of money are not on a mere passenger's ticket carried at the risk of the carrier. Jordan v. Fall River R. R. Co., 5 Cush. 69, and cases referred to in the opinion. Merrill v. Grennell, 30 N. Y. 594; Dexter v. Syracuse & Bing. R. R. Co., 42 N. Y. 326; Dunlap v. Int. S. Boat Co., 98 Mass. 371; Dibble. v. Brown, 12 Ga. 217. As to the obligation of the carrier to exercise the utmost diligence in maintaining order and guarding passengers against violence, see Putnam v. Seventh Ave. R. R., 55 N. Y. 108; Crocker v. Chicago & C. R. R., 36 Wis. 657; Balt. & Ohio R. R. v. Blocker, 27 Md. 277; N. O., St. L. & Ch. R. R. v. Burke, 4 Cent. L. J. 539.

THE decision of the English Court of Appeal, in the somewhat notorious case of Reg. v. Bradlaugh et al., reversing the ruling of Chief Justice Cockburn, who, on the trial, held the indictment good, although the words of the obscene publication, for which the defendants were indicted, were not set out, is in accordance with the general rule that the facts and circumstances which constitute an offense must be stated with such certainty and precision that a defendant may be enabled to judge whether they constitute an indictable offense or not, and that there may be no doubt as to the judgment to be given if he should be convicted. The English cases which most resemble this are Zenobio v. Axtell, 6 T. R. 162, where it was held that a declaration for a libel in a foreign language must set out the original words, and Reg. v. Lloyd, 2 East. 1,122, where it was held that a threatening letter must be set out in full. The American decisions SO far as the general rule is concerned are to the same effect, but our courts, in the case of obscene publications, have made an exception which the English Court of Appeal failed to adopt. "It can never be required," say the Supreme Court of Massachusetts, in Com. v. Holmes, 17 Mass. 336, "that an obscene book or picture should be displayed upon the records of the court, which must be done if the description in these counts is insufficient." So, also, in the Supreme Court of Michigan, in People v. Saradin, 1 Mich. 91: "There is another rule as ancient as that contended for by the counsel for the prisoner, which forbids the introduction in an indictment of obscene pictures and books. Courts will never allow their records to be polluted by bawdy and obscene matters." And Tighlman, C. J., in Commonwealth v. Sharples, 2 Searg & Rawle, 100, says: "I am for paying some respect to the chastity of our records." In Commonwealth v. Tarbox, 1 Cush. 66, it is said: "In indictments for offenses of this description, it is always necessary that the contents of the publication should be inserted; but whenever it is necessary to do so, or whenever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of libel; that is to say, the alleged obscene publication must be set out in the very words of which it is composed,