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.]

QUERIES.

12. PARTNERSHIP - DISSOLUTION — COVENANT TO "ACCOUNT."-Upon a dissolution of a partnership, one partner sells his interest to the other, and having been the sole manager, covenants to "account" to his late copartner for all property belonging to the late firm which had come to his hands during his management of the business. Does the promise to account imply a promise to pay or make good to the purchasing partner any deficiency that a true account between the managing partner and the late firm may show to exist?

'H.

13. A TRAINS HIS DOGS TO STEAL MEAT and bring it home. These dogs, let out at night by A, carry off meat from B's counter and bring it home. Is A indictable for larceny? Cambridge, Mass.

14. A ESTABLISHES SEVERAL HIVES OF BEES in the

garret of his house in a city. A knows that these bees will feed themselves by depredations on the neighboring groceries. It turns out that they do; and the open cases of sugar in several adjacent groceries are covered by the bees, whom no ingenuity or care can repel. They infest the shops and crowd the shelves, devouring everything sweet which they can seize. They return to A's house laden with their spoils, and A reaps from this a valuable crop of honey. Is A indictable for the larceny of the sugar? Cambridge, Mass.

ANSWERS.
No. 3.

(6 Cent. L. J., 159.)

I fail to see the parallelism of the case referred to (12 Ind. 241) in Mr. W. H. Bainbridge's answer in 6 Cent. L. J., 220, to question No. 3. I believe it to be a well settled principle of law, that the order of a court, if void for any reason, as for want of jurisdiction, etc., affords no protection to persons or officers acting under, by virtue of or with reference to said order, and are therefore just as liable as if said order had not existed; exactly the case referred to by W. H. B. But would it not have assumed a different phase had the person been indicted, convicted and sentenced under and by virtue of a law afterward declared unconstitutional, and the party had been confined in the state prison, and had labored for the commonwealth instead of laboring for a private person who may have leased said prison or paid for said labor for the purpose of speculation or any other purpose? Suppose that had been the case in 12 Ind., 241, against whom would he have brought suit for labor? Could he have sued the state of Indiana? We think not. He would have been dependent upon the mercies of the legislature; and even then I look forward to the possible declaration of the unconstitutionality of an act to relieve, for such acts would engender endless applications for relief by those who might fancy themselves aggrieved upon like grounds. F. M. Urbana, O.

No. 6.

(6 Cent. L. J., 179).

The remedy of the debtor is by injunction, to restrain the plaintiff from further prosecution of the suit in Indiana. The assignee should not be entitled to any greater right than the assignor had, and so far as

the question relates to the original parties, it has been decided in the case of Snook, et al. v. Snetzer, 25 Ohio St. 516. In May 1876, Mr. Abraham Epstein, a merchant of Aurora, Indiana, went to Cincinnati and before a justice brought suit to recover a debt owed him by Jas. Farrin, an employee of the Ohio & Mississippi Railroad at Cochran, same county and State. A writ of garnishment was served on the O. & M. R. R., whereupon Mr. Farrin brought suit in the circuit court in Lawrenceburg to enjoin Epstein from further prosecuting his case in Cincinnati, his grounds being that both parties to the suit were residents of Dearborn county, Ind., and the O. & M. R. R. was located in that county as well as in Ohio, so that Dearborn county was the proper place to bring the suit. Furthermore, not being a resident of Ohio, he had no benefit of the Ohio exemption law, and the suit being taken out of the place of his domicil deprived him of the benefit of the Indiana exemption laws as well. On these grounds alone Judge Roberts sustained the injunction. See also: Engle v. Scheurman, 40 Ga., 206; Dehon v. Foster, 4 Allen, 545; 7 ib., 57; Vail v. Knapp, 49 Barb., 299.

A court of equity will interfere in a proper case to prevent the prosecution of a suit in a foreign court when it has jurisdiction of the parties, even after suit has been commenced in the foreign court-and to secure to an individual the benefit of the laws of the state in which he resides. High on Injunctions, sec. 60; Great Falls v. Worster, 23 N. H., 470; Bank, etc. v. Rutland, 28 Vt., 470; Hays v. Word, 4 John, Chy., 123; 2 Storys Equity, sec. 900, "Where by the law of the domicil of the payee of a chose in action, and where the same is made, or made payable, either in express terms or by construction of law, the same is not attachable by process of foreign attachment." Story on Conflict of Laws, sec. 400. The law of Ohio should govern. WM. STONE ALBERT.

Washington D. C.

TREASURE-TROVE.

DURING the trial of a case where Rufus Choate had borne patiently an unfriendly interruption and bitter taunt, some one who was near asked him why he endured such treatment and why he did not retort. "I shall retort," he said, "by getting the case." And he got it.

LORD THURLOW, who was as sententious and caustic as in debate, in discoursing of the difficulty he had in appointing to the Chief Justiceship, described himself as long hesitating between the intemperance of Kenyon and the corruption of Buller, but finally preferring the former. Then, as if afraid lest he had for a moment been betrayed into anything like unqualified commendation of any person, he added, correcting himself, "Not that there was not a damned deal of corruption in Kenyon's intemperance."

IN the last century the Temple Gardens were a famous and favorite resort for promenading. Dr. Dibden says, "Toward evening it was the fashion for the leading counsel to promenade during the summer months in the Temple Gardens. Cocked hats and ruffles, with satin small-clothes and silk stockings, at this time constituted the usual evening dress. Lord Erskine, though a great deal shorter than his brethren, somehow always seemed to take the lead, both in place and in discourse, and shouts of laughter would frequently follow his dicta."

WRITING of Brougham, Charles Sumner says: "I do not remember to have met a person who swore half so much." He "abused Miss Martineau most heart

ily," and said she was “a great ass" on questions of policy and government. He recommended Sumner to write a book to avenge his country of Basil Hall. He told Sumner that O'Connell was 66 a damned thief." When Sumner took leave of him, he exclaimed, "Oh, God! must you go?" The late Duke of Gloucester, he said, was “a damned bore and a fool." On one occasion Sumner found him in his study with a printer's devil on one side and his private secretary on the other, and "mirabile dictu! he did not use an oath."

MR, BISHOP's statement in his new work on Contracts, 404, that "a consideration in the law of contracts must be a thing, in some sense, of pecuniary value," is strongly combatted by one of our contributors, who says: "If I promise a man $10.00 in consideration of his not eating any dinner to-day, Mr. Bishop must admit that this a valid obligation on me. If the man does not eat any dinner I am bound to pay him the $10.00, and the consideration for my promise is his abstaining. But is "not eating a dinner," "capable of being reduced to a money value?" The truth is that money value has nothing to do with the consideration, which is always the doing, or promising to do, something not illegal, at the request of the promisee, which you are not already under a legal obligation to him to do. Why, if a man, at my request, burns my best coat on my promise to pay him $5 for so doing, I must pay him if he does it, and not only have I received nothing capable of being reduced to a money value, but have lost my best coat, and hence have lost something capable of being reduced to a money value, though, perhaps, not a very great one."

In the case of Adair v. Swinburne, says Twiss, in his Life of Lord Eldon, an issue had been directed out of the Court of Exchequer, to be tried at Durham, upon a question of very great importance to coal owners. Lord Eldon had been counsel in the proceedings in the Exchequer, and was chosen by the other counsel to lead the cause; there was a special jury of gentlemen of the county well acquainted with the subject of colleries. The cause was tried before Justice Buller, and when Lord Eldon rose to reply, Justice Buller said: "Mr. Scott, you are not going to waste the time of the court and the jury in replying? You have not a leg to stand on." Scott said, "My Lord, in ninety-nine cases out of an hundred I would sit down upon hearing the judge so express himself; but so persuaded am I that I have the right on my side, that I must entreat your Lordship to allow me to reply; and I must also express my expectation of gaining the verdict." The verdict was in his favor, and Buller afterwards sent for him, told him he had come to the conclusion that he, Buller, was entirely wrong, and expressed regret for having tried to stop the argument. Eldon says, "This cause raised me aloft."

IN a private note to this journal, Mr. M. M. Bigelow, the author of "The Law of Estoppel," "The Law of Fraud," etc., says, among other things: "By the way, in an interesting and candid review of my book on "Fraud," the critic has fallen into a very curious delusion. He imagines (Southern Law Review, March, p. 927) that, in my division of the law of fraud, I have laid down the doctrine that fraud in law is presumptive fraud, a law which he shows that I have elsewhere contradicted. Such a proposition, though in a limited sense it might be true, would be highly absurd, and deserves the condemnation which the critic gives it. But how he could put such a statement into my mouth in the face of the very language which he quotes from my book, is odd. He quotes me correctly, in support of his criticisms, as saying that 'presumptive fraud is fraud in law,' not that fraud in law is presumptive

fraud-a very different thing. The critic nowhere doubts that presumptive fraud is fraud by inference of law, and he would be a bold man who should doubt that. Fraud in law, however, is often actual fraud, involving turpitude, as the critic observes; and it is so treated in many parts of my book."

NOTES.

The Nation says that one of the clauses in the new chapter of the Code of the State of New York, recently vetoed by the Governor, which embodies the "Civil Damage Act," enlarges the scope of the law so as to give an action for the breach of a contract caused by the sale of liquor-a principle never heard of before, and impossible to apply in practice.

WHEN, two years ago, in England, a couple of zealots recovered a penalty against an aquarium company, which exhibited fish on Sunday, for violating the act against the opening of places of public entertainments on that day, public opinion was so hostile to the revival of this ancient statute in this way, that Parliament passed an act by which the Crown was empowered to remit the penalties in whole or in part, the common informer notwithstanding. But this latter personage was not disheartened, and so the other day a Mr. Rolfe and a Mr. Girdlestone stepped forward to enforce the penalty "in respect of the Aquarium having been opened of the 15th of August, 1875." Mr. Rolfe recovered judgment first. Mr. Girdlestone, persevering, when met by the defense of "judgment recovered," prayed in aid the "Acte agaynst collusions and fanyed accions," 4 Hen. 7, c. 20. This venerable statute provides that, "if eny persone or persones herefter sue with gode feith eny accion populer, i. e., penal action, and the defendaunt in the same accion plede eny maner of recovere of accion populer, in barre of the said accion that thenn the playntyf in eny suche accion taken wyth good feyth, may avarre that the said playntyf was barred in the said accion populer by covyn," and that if the covin be found, the plaintiff shall have judgment. The "covyn" relied upon by Mr. Girdlestone was that Mr. Rolfe's action had been brought at the instance of the defendants against themselves, for the alleged innocent purpose of trying by experiment whether the government would remit the penalty in respect of any and what entertainment of which marine fish formed the principal ingredient. The court held that the covin had been found, and gave judgment for the plaintiff. "Covin," they say, "is a secret assent determined in the minds of two or more to the prejudice of another," which definition is not to be readily found in any of the books.

IN discussing the jury system, the Solicitors' Journal considers that whatever is done in the matterwhether we are to go forward or backward—it ought to be enacted that no civil action should be tried by jury as of right. There are, doubtless, some cases of very conflicting evidence, where the knot must be cut rather than untied, and a jury is found a useful implement for that purpose; and there may possibly be some other exceptional cases-some classes of libel cases, for instance-where their aid is desirable for the assessment of unliquidated damages; but, in the vast majority of actions, a jury is simply an expensive nuisance, greatly aggravating the length of a case, without in the least assisting in its determination. If they acquiesce-as they ordinarily do-in the summing up of the judge, the case would have been better, and much sooner, decided in the same way if they had been absent; if they refuse to be guided by him they are probably wrong,

not unfrequently led away upon some point of mere prejudice; and, moreover, the verdict is all but certain to be set aside, unless the judge refuses, though invited, to express his dissatisfaction. The saving of judicial time which would be effected by withdrawing all these cases from juries altogether would be enormous, if we take into account the fact that, under that system, the present absurd and cumbrous machinery of " new trials" would all but disappear. The case once heard and decided would, if the judgment were appealed from, be at once heard and decided again; and a successful appeal could be given effect to by a reversal of the judgment, not as now, by sending the parties back to renew the farce of setting before a jury a mass of evidence which they must deal with in a prescribed manner, under the penalty of having their verdict in turn set aside, and the dreary round begun again.

THE Arlington estate case, Lee v. Kaufman, which, both from the historical interest of the property in dispute, its great value and the important question of law which arose at the outset, is one of more than ordinary interest and notoriety, was advanced a stage on the 15th inst. by the decision of Hughes, J., in the Circuit Court of the United States for the Eastern District of Virginia. The late G. W. Parke Custis, the owner in fee of eleven hundred acres of land, situated on the Potomac River, in Alexandria County, Virginia, and known as the Arlington estate, dying, in 1857, devised it to his only child, Mrs. Mary A. R. Lee, the wife of General Robert E. Lee, for life, and at her death to pass in remainder to her eldest grandson, G. W. Custis Lee, the plaintiff in this case, in fee. During the civil war this estate, with the Arlington mansion, was unoccupied by its owner, Mrs. Lee, who was then living; and the title did not pass to her son until 1873, the date of her death. On the 5th of August, 1861, the United States Congress passed "an act to provide increased revenue from imports to pay interest on the public debt, and for other purposes." On the 7th of June, 1862, it passed "an act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes." And on the 6th of February, 1863, it enacted still another law entitled "an act to amend an act entitled an act for the collection of direct taxes," etc., The first named law imposed a direct annual tax upon the United States of $20,000,000; and apportioned to Virginia the sum of $937,552; on which tax the assessment upon Arlington was $92.07. On the 11th of January, 1864, the whole estate of eleven hundred acres was sold for the payment of this tax by the tax commissioners of the United States for Virginia. The price bid by the government was $26,800. It was bought in by the tax commissioners, under authority of that clause of the act of congress of February 6th, 1863, which empowered the government at such a sale as this was, to purchase the lands which might be selected by the President "for government use-for war, military, naval, revenue, charitable, educational or police purposes." The United States at once took possession of the estate, and has held it ever since; no part of the purchase money which would have remained after deducting the tax, having ever been paid over either to the life tenant or the remainderman. The estate is now occupied by Kaufman, and about two hundred other persons. Against all these by name as defendants, the plaintiff, in April last, brought actions of ejectment. The defendants pleaded the general issue under the statute. The United States by Attorney-General Devens intervened, and upon suggesting upon the record that the United States was the owner of the property, moved to dismiss the suit on the ground that the court had no jurisdiction. The

plaintiff demurred, and upon the suggestion and demurrer, after lengthy arguments, Judge Hughes delivered an elaborate opinion, which we have just received, and which covers forty-three pages of a printed pamphlet.

The questions of law considered by the court were two: 1st, Whether the attorney-general's suggestion was of itself sufficient to defeat the jurisdiction of the court over the cause; and, 2d, Whether, supposing it has not that effect, the court may look into the grounds on which that officer intervenes and enquire into the strength of the government's title. The first question the court decided in the negative, and the latter in the affirmative; thus sustaining the plaintiff's demurrer. The court rested its decision upon four cases-Meigs v. McClung, Wilcox v. Jackson, Grisar v. McDowell, and Cooley v. O'Conner-all decided by the Supreme Court of the United States. The first of these in point of time, is that of Meigs, et al. v. McClung's lessee, 9 Cranch 11. The land in dispute was occupied by the United States as a military garrison. An action of ejectment was brought and the process was served on Meigs, the military officer of the United States in command at the garrison, The cause proceeded to judgment in the federal court below; and went up on writ of error to the Supreme Court of the United States. The cause was there heard, and Chief Justice Marshall delivered the unanimous opinion of the court, holding that the plaintiff might sustain the action. The question of jurisdiction does not seem, so far as the report shows, to have been raised. Wilcox v. Jackson, 13 Pet. 498, was also ejectment to recover Fort Dearborn at Chicago, a possession of the government occupied by its army officers for the purpose of a military station. The action was brought in a state court and was proceeded in there to a judgment. 1 Scammon (Ill.) 344. It was taken by writ of error to the Supreme Court of the United States; and that court heard the cause and proceeded to judgment upon it. In that case the decision of the state court against the government was reversed, and a judgment for the government given, by the Supreme Court. The judgment in each forum was upon the merits, and not upon the question of jurisdiction. The state court took jurisdiction upon the merits: and the Supreme Court reversed the state court upon the merits; taking no notice of the question of jurisdiction. In Grisar v. McDowell, 6 Wall. 263, the plaintiff claimed as seized in fee the presidio of the old pueblo of San Francisco, then occupied by the United States, and brought his action indirectly against the United States, who set up that the property was public property of the United States, reserved for military purposes. The defendant named was General McDowell, commanding the military post, and process was served on him. The circuit court entertained jurisdiction of the cause, and proceeded in it to judgment. It was thence carried to the Supreme Court of the United States, which proceeded in it to judgment. The report does not show that in either court the question of jurisdiction was expressly raised. Cooley v. O'Conner, 12 Wallace, 391, is the latest case. The action was ejectment. It was brought to recover a lot of ground in the town of Beaufort, South Carolina, owned by the United States. Process or notice of ejectment was served on the occupants, who were tenants of the United States. It was a case in which the United States was sued indirectly, in ejectment, for property claimed by the government. The claim, as in the case now at bar, was founded on a tax title obtained at a sale made durante bello, by direct tax commissioners of the United States, for delinquent taxes. The circuit court assumed jurisdiction of the cause, and the Supreme Court affirmed its judgment. The court considered itself bound by these authorities, both on account of their source and their applicability to the case before it.

The Central Law Journal.

SAINT LOUIS, APRIL 5, 1878.

CURRENT TOPICS.

THERE is no lien, it was held in the United States Circuit Court for the District of Tennessee, in The John T. Moore, 7 Ins. L. J., 207, upon a vessel for the premium for its insurance by the owners for their own benefit. It is a contract with the owner for his own benefit. It does not aid the vessel. In case of loss the maritime liens upon the vessel are displaced, and do not follow the insurance money. The money goes to the owner for his own benefit,

and not to the lien-holder, who may insure his own interest. Thayer v. Goodale, 4 La. 222; Steele v. Franklin Fire Ins. Co., 17 Penn. St. 290; Turner v. Stetts, 28 Ala. 420; White v. Brown, 2 Cushing, 412; Stillwell v. Staples, 19 N. Y. 401; Stark v. Brown, 7 La. Ann. 342.

IN Provost v. Gorrell, 8 Pitts. L. J. 125, in the United States Circuit Court for the Eastern District of Pennsylvania, a verdict having been obtained by the plaintiff in the Circuit Court for the Western District, and a certified copy of the record being filed in the clerk's office in the Eastern District, he moved for an order directing the clerk to issue an attachment in execution upon the certified copy of the record filed in that court. MCKENNAN, Circuit Judge, said: "This is a new question of practice, and is not perfectly clear. It depends upon what is meant by 'similar remedies' in section 915 of the Revised Statutes. The act from which that clause is taken was passed in 1873, while section 985 is taken from an act passed in 1826. As by the latter act all writs of execution may be executed throughout the state (where the state is divided into several districts), it would seem more reasonable to suppose that the clause of the subsequent act of 1872 was meant to give to the plaintiff the additional advantage of the writ of attachment (whether as a writ of execution or not) where it had not before been enjoyed, in which case the meaning of the statute would be that the plaintiff was entitled to similar writs of attachment as in the state court, but not necessarily to a completely similar use of the writ, as is Vol. 6.-No. 14.

contended here. This we decide to be the meaning of the statute where, as here, the plaintiff has a complete remedy under section 915, combined with section 985, without discussing the question of its meaning where the latter section does not apply, as where the districts are in different states. Under this view, the plaintiff's lien on the defendant's real estate in the Eastern District depends not upon the certified copy he has filed here, but upon the original judgment he has obtained in the Western District, and goes back as to all real estate situated in that district to that date: for the right of lien depends upon the right of execution; and, as all writs of execution, which the plaintiff had a right to issue on his

judgment, might run and be executed in all parts of the state,' by section 985, this lien was equally operative from the same date upon real estate situated in all parts of the state. Massingill v. Downs, 7 How. 768."

A novel action-it was said by the counsel on the argument to be without precedentwas the case of Hahn v. Smart, recently before the Queen's Bench Division of the English High Court of Justice. It was an action against a trustee in a liquidation in bankruptcy for maliciously preventing the debtor's discharge and fraudulently retaining his property. The plaintiff was a foreign merchant, who went into liquidation, and the defendant, an accountant, was appointed his trustee. The plaintiff complained that after a compromise had been accepted and paid, and when he was entitled to his discharge, the defendant, as trustee, had maliciously refused to call a meeting of the creditors for the purpose, had fraudulently bought up debts in order to get nominal creditors to oppose the discharge, whereby he had been prevented from obtaining his discharge or from carrying on business; and he claimed £1,000 damages, and also an account. The defendant in reply set up that all the proceedings to the liquidation, and the conduct of the trustee therein, were subject to the control of the Court of Bankruptcy, and were not within the jurisdiction of this court, and asked the court to set aside or stay the proceedings, as instituted without jurisdiction and without leave of the Court of Bankruptcy. The court, after lengthy argument, refused to

stay the proceedings, holding that if the trustee did acts which were illegal and wrongful, he was liable to be sued in a court of law, and was, of course, liable to pay the costs of such an action, which could not be payable out of the assets of the debtor, as the very ground of the action was the trustee's wrongful act. All that the Court of Bankruptcy had to do was to take care of and administer the property. If the trustee chose to brand the debtor as a swindler, the Court of Bankruptcy could give no redress, and the debtor could bring his action in the courts of common law. The application could only be supported on be supported on the ground that, however malicious and illegal the conduct of the trustee in a bankruptcy or liquidation, the debtor could not maintain an action, even for a personal injury to himself -at all events, without the leave of the Court of Bankruptcy; but such a view could not be maintained, and in such a case an action could be maintained with or without the leave of the Court of Bankruptcy, which, indeed, had nothing to do with such cases of complaint.

THE effect of illness caused by imprudence, as an excuse for the non-fulfillment of a contract for personal service, was considered in a recent case in the Exchequer Division of the English High Court of Justice, K— v. Raschen et al., 38 L. T. R., (N. S.) 38. The plaintiff was engaged by the defendants as a clerk at a yearly salary, and was to have one month's notice of dismissal. He served under the contract from the 2d to the 30th of July, when, being unwell, he obtained defendants' permission to absent himself until the 6th of August. He remained away, however, until the first week in September, when he returned and tendered his services, which the defendants refused; and they had, moreover, in.the meantime, namely, on the 20th August, given him a notice, by letter of that date, terminating the employment. They refused to pay him the amount claimed by him for wages during his absence, on the ground that he had, by his own misconduct, rendered himself incapable of per-. forming his duties, and, therefore, was not entitled to any remuneration. The illness under which the plaintiff was suffering arose from venereal disease. He thereupon brought an action for his wages from the 1st

of August to the 1st of September, but was non-suited in the court below. On appeal the non-suit was set aside and a verdict entered for the plaintiff. CLEASBY, B., said: I think prima facie illness is to be attributed to the act of God, and we are not justified in going back for any length of time, and entering into an investigation as to what may have been the cause of it. We ought not, I think, to extend the effect of disability arising from illness. The illness which rendered him unable to perform the duties for a time, came upon him unexpectedly, and we can not go back to the first causes and into the question of how it arose. The maxim, 66 causa proxima non remota spectatur," is applicable here. As to how precisely the disease arose, there may be various different opinions, and there might be the greatest uncertainty as to the cause or matter which originally brought it about. It was a misfortune which could not have been foreseen at the time the contract was made, and I think the plaintiff is entitled to say that it is a reasonable excuse for his absence from his duties. HAWKINS, J.-I am of the same opinion. If the plaintiff had been aware, at the time of the making of the contract, that he would be incapacitated by illness from performing his duties, I am not prepared to say that he could recover in this action. But there is nothing to show that he knew any thing of the illness which he subsequently suffered from until after the agreement had been entered into. There was no cross-examination on that point, and no question was put to get out of him, and there was no evidence to show that he had any suspicion of the misfortune which subsequently overtook him, or that he was aware that the seeds of the disease existed in him at that time. Now I base my opinion upon that fact, and, I think, under these circumstances, that he is entitled to the amount claimed. The misconduct alleged in the pleadings is his staying away without a reasonable excuse. How can it be called misconduct if a man stays away, on the advice of a doctor, in order to get himself cured? Now, in the present case, the plaintiff did not voluntarily and willfully refuse to serve, but was compelled to absent himself by an illness which came upon him during the time of service, and which was not the result of any misconduct that occurred after the agreement was made. As a