REPLEVIN-AFFIDAVIT— AMENDMENT.-Where, in action begun before a justice under the statute in relation to the claim and delivery of personal property, plaintiff failed to aver that the property "had not been seized un er any process," etc., and amended the affidavit in the circuit court, it is held that the amendment could not be allowed. Opinion by HOUGH, J.— Watkins v. Price.

CATTLE TRESPASS-DAMAGES.-A land owner who leaves an abandoned well or water tank open upon his own land is not liable to the owner of cattle that may fall therein and be drowned. The browsing of cattle upon uninclosed lands is not a legal right; it is at most a license, and such cattle are technically trespassers. Opinion by HOUGH, J.-Hughes v. H. & St. Joe. R. R.

CONSIDERATION CONTRACT. - Forbearance, or an agreement to forbear absolutely, or for a definite time, or for a reasonable time, is a good consideration for a promise to pay the debt of another, or for the promise of the debtor to pay additional interest. But a petition which undertakes to set forth such a consideration must set it forth in precise and definite terms, and if the time of the forbearance is stated only generally and indefinitely, the petition is bad on demurrer, 4 Maine, 387. Opinion by HOUGH, J.-Glascock v. Glascock.

LAND AND LAND TITLES-ACTION FOR FAILURE OF TITLE.-Plaintiff bought and paid for and received deed for land of defendant, which was swamp land within the meaning of the act of Congress Sept. 28, 1850, and had been sold by the county as such before plaintiff's purchase. Plaintiff secured a re-conveyance and sued for receission and repayment of purchasemoney, and obtained judgment. No actional or constructive eviction being shown, the damage must have been nominal in an action for breach of covenant of seizure if it had been brought. There being no fraud or misrepresentation alleged, plaintiff must rely on the covenants in his deed. 1 Johns. Chy. 213; 2 Johns. Chy. 517; 5 Johns. Chy. 79; 1 Dana, 305. There can be no recission of an executed contract except upon actual fraud. 6 Johns. Rep. 543; How. 159. Opinion by HOUGH, J.-Hurt v. H. & St. Joe. R. R.

TRUSTEE'S DEED-RECITALS-EXTINGUISHMENT OF TRUSTEE'S POWER.-A deed made by a trustee (under a deed of trust), in which there is no provision that the recitals of his deed when made shall be prima facie evidence, is not admissible in evidence without proof of the execution of it, and proof of the truth of the recitals therein. 62 Mo. 130; 60 Mo. 386. An affidavit by the trustee is not evidence. Section 7 of the statute in relation to advertisements does not apply; the trustee should have been called as a witness. It was competent for defendants to prove that the trustee's power had been extinguished before the sale by the payment of the debt, and it was error to refuse such testimony. It was competent to prove that part of the property seized as appurtenant to the engine, mill, etc., was not part of it when the deed of trust was made, and it was error to refuse the testimony to that purport. Opinion by HOUGH, J.-Hancock v. Whybark.

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.

22. PERSONALTY LIABLE TO EXECUTION FOR THE

PURCHASE PRICE-CONSTRUCTION OF MISS I STATUTE.-The Missouri act of 1874, page 118, sec. 1, under head of executions, reads as follows: "In all cases of the sale of personal property, the same shall be subject to execution against the purchaser on a judgment for the purchase price thereof, and shall in no case be exempt from such judgment and execu tion for the purchase price as between the vendor, his assignee, heir or legal representative, and purchaser." Now, was it the intention of the legislature to create a lien upon the personal property for the purchase price of the same, that would enable the vendor, or his assignee, to follow the property into the hands of third parties that bought before judgment, but with knowledge that the purchase price was not paid? Or was it the intention of the legislature to carve out that much of the general exemption law and make the said property liable to execution for said purchase price only when found in the hands of the first vendee at the time of obtaining the judgment? H. & W.

23. THE EXAMINATION OF ACCUSED PERSONS.-R killed E. Before E died he made an affidavit stating the facts, before a Justice of the Peace, which showed that the killing was murder. Upon the trial this affidavit was offered in evidence as dying declarations, and excluded by the court. Upon the trial the defendant was allowed to testify, and threw the whole blame on E; no one but those two were witnesses of the shooting. Does not this case show that there ought to be some modification of the statute which allows a defendant to testify in his own behalf? B.

ANSWERS.
No. 10.

(6 Cent. L. J., 238.)

In the case of Pierre Mutell, the patent remained in the land office for twenty-four years. Attorney General Crittenden, in his opinion in that case, said: "The patent, in the meaning of the act referred to, is granted to the patentee from its date; though he may never actually see or receive it, and is valid and effectual to pass the title to the land." Opinions Attorneys General, vol. 3, p. 653; see also Yosemite Valley case, 15 Wall., p. 87. A patent takes effect, or is issued," from the moment it is signed by the President and passes the great seal. Certainly, from the time it is recorded in the proper record. It has often been held that the recording of a deed by the grantor, even without the knowledge of the grantee, is a constructive delivery. So the giving of it to a third party for the grantee, to be delivered to him, is a delivery. See LeRoy v. Clayton, 2 Sawyer, p. 493, and cases cited. SALT LAKE CITY, UTAH.

No. 15.

S. J. JONASSON.

The issuing of patents to heirs, by the United States, and under the Revised Statutes of the United States, §2,448, which provides that where the patent is issued in the name of the deceased person, the title shall vest in and inure to the benefit of the heirs, assignees or devisees, the same as though it had issued in the lifetime of the party, and had died intestate, is but placing the legal title where the law of descent would place it, and the heir takes the title, subject to all equities existing at the time of the death of the party entitled to the patent. A deed from the administrator, where the land has been sold to pay creditors, conveys a perfect legal title. F. G. HENTIG.

TOPEKA KAS.

BOOK NOTICE.

NOTES OF CONSTITUTIONAL DECISIONS. Being a Digest of the Judicial Interpretations of the Constitution of the United States, as contained in the various Federal and State Reports, arranged under each clause of the Constitution; together with an Appendix, containing the Declaration of Independence and Articles of Confederation. By ORLANDO F. BUMP. New York: Baker, Voorhis & Co. 1878. In the place of this lengthy title, this work might fittingly be called "The Annotated Constitution." It consists to quote from the author's preface "of the Constitution of the United States, with notes under each clause and section, referring to all the cases in which it has ever been construed or applied, whether the cases arose in the federal or state courts. Where the cases, upon a particular subject, have been numerous, the notes have been arranged under appropriate subdivisions. The practitioner is thus enabled to tell at a glance whether there is any decision upon the particular point which he is considering." This extract exactly states the plan of this work. How faithfully the decisions have been collected may be inferred from the fact that the table of cases covers thirty-two pages in double columns. The book contains in all over four hundred pages, and is provided with an excellent index. In the appendix are the Declaration of Independence and the Articles of Confederation of 1776. Hereafter Mr. Bump's compilation will be the first book which one looking for a decision on a constitutional question will seek.

TREASURE-TROVE.

Two distinguished lawyers in Alabama formed a partnership after the war, and the junior stated to the senior that there were two things they must guard againstthe poor-house and the penitentiary. Very soon the junior collected a fee of $2,500, in a cotton case, which involved but little trouble, and counting out $1,250 to the senior, remarked that that did not look much like poor-house. "No," said the senior, "but it rubs the penitentiary d―d close."

A LEGAL rhymer, in the last number of the Washington Law Reporter, has done into verse the progress of a law student, in a style which Praed need not have been ashamed of. Two stanzas, describing the questions which are constautly occurring to the sadly perplexed mind of the student, are particularly good: What contracts can a minor make? What perfects an estate for years? Whom should he pay, who holds a stake? How as to licensed auctioneers? What kind of seisin causes dower? What title can sustain a trover?

Can infants execute a power,

Or take, unborn, remainders over?
May terms in terms be merged and sink?
Must burglary take place by night?
What makes habendum bad, d'ye think?
How do releases pass a right?
What raises an implied request?

Can notes be signed by folks demented?
When may I safely not protest?

When should a time-bill be presented?

It is told of Lord Wensleydale that he was once called to visit a brother judge just convalescent after a severe illness. The two old lawyers talked together, and, it may be presumed, talked shop. The invalid was hippish and fretful," Ah," said Baron Parke, "I was wishing for you the other day in the Exchequer. There was

such a splendid special demurrer before us; it would have done you good to have heard it argued." Every one can sympathize with this, and understand the pleasure a well-trained lawyer will take, even in the technicalities of his own profession.

NOTES.

A BILL for the repeal of the law prohibiting the transmission of obscene matter through the mails is now before the house committee on the revision of the laws. It may or may not receive the support of Congress, and whether or not it should is a question about which opinions are likely to differ. It is charged, however, that the United States postal law, as to obscene publications, is in a state which is at once confusing, oppressive and absurd. We have heard repeated complaints on the subject from publishers; it is said that a strict construction of the law excludes medical treaties, copies of works of art, prints of statuary-articles such as have not been the objects of governmental interference since the days when the Puritan sheared the cavalier's tresses and closed the theatres' doors. Although the complaint is that the United States laws on this subject are too wide, the majority of our people, until the lately-revived Beecher business is expressly mentioned in the statutes, will continue to regard them as not wide enough in their operation.

THERE is a popular notion, says the Solicitors Journal, that a wife is taken for better or for worsethat is on her personal merits; but it should be known that this is a reckless and inconsiderate proceeding, to which the law can lend no countenance. Vice-Chancellor Malins has recently, in a case of Heneage v. Heneage, afforded a valuable exposition of the course which should be taken by prudent persons who contemplate entering into matrimonial contracts. They should bear in mind that the rule termed by the ViceChancellor caveat maritus applies to their case, just as caveat emptor applies to the case of the purchaser of an estate. "The principle," the Vice-Chancellor said, "upon which the court acted in reference to persons who were purchasers of estates was that facts ascertained subsequently to the purchase could not vitiate the contract; that was on the principle of caveat emptor. The same rule should apply to a person who had married without ascertaining facts which might easily have been discovered. This principle might be called caveat maritus. If the defendant had been so short-sighted as to trust implicitly to the plaintiff's statement as to her means without inquiry, he had only himself to blame." Hence, it will be seen that, just as the purchaser makes requisitions, and prosecutes inquiries, and demands evidence of all material facts and statements, so the intended husband should inquire and search until he has found out "every particular in relation to his future wife." This seems to open up a new branch of business to the equity bar.

JUDGING from the very large majority which was recorded in its favor in the United States Senate, the bill for the repeal of the bankrupt law will, we have little doubt, be passed during the present Congress. It may not be generally known that, during the parliament now sitting, the English government has introduced a new bankrupt act. The new bill proposes the abolishing of the existing system of bankruptcy procedure, and the substitution of a new system, the leading features of which may be summarized as follows: There is to be a uniform method of instituting proceedings in

bankruptcy, available alike to debtor and creditor. If the debtor petitions, a provisional order of adjudication will be forthwith made; if a creditor petitions, the provisional order will be made on proof of the petitioning creditor's debt, of the trading (where the debtor is a trader), and of the act of bankruptcy; but in no case of a non-trader debtor, only if "no ground is shown to exist which would render the making of a provisional order inequitable." A trader debtor may, within a specified number of days, show cause why the provisional order should not be revoked on the ground of the insufficiency of proof of the petitioning creditor's debt, or trading, or act of bankruptcy, or any ground "which would render the making of the provisional order inequitable." The administration of the estate will then proceed under the provisional order, the possibility of being adjudicated a bankrupt absolutely, and gazetted, being reserved as an awe-inspiring penalty in case the bankrupt should fail to file a list of his creditors without alleging a sufficient cause for not having done so, or should otherwise fail to conciliate his creditors. The course of proceedings in the administration of the estste is to be as follows: First (if the court does not think fit to dispense with it), a preliminary meeting of creditors is to be held in private, at which the creditors are to discuss and investigate the affairs of the debtor, and cousider any proposal made to them in reference thereto, the debtor being present to give information and submit to examination. Next, a first general meeting is to be summoned by the court and presided over by the registrar, at which creditors are to prove debts, to which the debtor is to produce a statement of his affairs, and by which a committee of inspection is to be appointed. This meeting may resolve either (1) to investigate further the affairs of the debtor, or (2) that the proceedings in the bankruptcy be stayed, and the estate administered under a deed of arrangement, or (3) that adjudication of bankruptcy be made. The resolution passed at this meeting must be confirmed by the court. The attorney-general, in introducing the bill, remarked: "The complaints made against the working of the act of 1869, were in the main well-founded. He would now briefly state the causes which led to the defects in that act. In the first place it was unjust, to a great extent, to honest debtors who had fallen into misfortune, but who had been straightforward in their commercial dealings, and too high-minded to resort to any unscrupulous tricks. This injustice arose from the circumstances that, under the present law, if there were a petition in bankruptcy against a man, he was adjudicated a bankrupt at once, and before an opportunity was given to his creditors of investigating his affairs thoroughly. Although he might ultimately be dealt with very leniently, yet the indelible stain of bankruptcy had been attached to his name; and to a sensative man the stain of bankruptcy was a source of grevious annoyance. The present bill proposes to remedy this evil. It would enact that the first result of a petition in bankruptcy should be to vest the property of the debtor, and to secure it for the benefit of the creditors. Thus the affairs and conduct of the debtor might be thoroughly investigated, and an order for adjudication in bankruptcy might in the first instance be provisional only. It did not necessarily follow that there would be any adjudication in bankruptcy at all.”

THE following tradition of the origin of lynch law, which may be of some interest to our readers, we have received from Hon. J. J. Davis, of North Carolina: During the revolutionary war there lived in the state of North Carolina a tory or loyalist partisan leader by the name of Beard, whose bravery, grace of person and

bold exploits are preserved by tradition, even to this day. He had the rank of major, and operated in that portion of what was the old (now obsolete) county of Bute, comprised within the present limits of the counties of Warren, Franklin and Wash. Major John H. Drake lived in Wash, a few miles above what is now Hilliardston. He was an honored member of a numerous family, many of whose descendants still reside in that county and in Tennessee, and other states of the south and west. The Drakes were all whigs of that day, as distinguished from tories and loyali-ts. Beard had met the daughter of Major Drake, a beautiful and accomplished girl, and was captivated by her, and the tradition is that his handsome face and commanding style and figure were not altogether without impression upon her, notwithstanding his politics. Beard was in the habit of making excursions into the whig settlements, and in one of these, in which he was attended as usual by a band of loyalist associates, he went to the neighborhood of Major Drake with the hopes of getting an interview with the object of his affection, the pretty whig girl whom he loved in spite of her dislike for George III. He camped for the night near a mill called Drake's mill, on Swift creek. It became known to Major Drake and other whigs that he was in the neighborhood, and they organized a body of men, and early in the morning came upon the loyalist gang while at their breakfast, attacked them by surprise, and dispersed them in confusion. They fled, leaving their horses. Beard took refuge in some thick pines. The wigs pursued, some on foot, some on horseback. Britton Drake, a brother of the young lady, a man of powerful frame and great strength, armed with a rifle, was in pursuit of the enemy, when he came suddenly upon Beard, who was hid behind some small pines. Beard did not move till Drake, who was not aware of his position, came right upon him. Beard, armed only with a sword, sprang at Drake, who, being too near and closely pursued to shoot, clubbed his rifle, and felled Beard to the ground before he could use his sword. Beard was completely disabled, and, it was supposed, mortally wounded. Drake left him and went in pursuit of other fugitives, returning, after a short interval, to the place of encounter with Beard. It was found that he was not dead. After consultation, it was resolved that he should be carried to the headquarters of Col. Seawell, commanding some militia at a fort on Lynch Creek, in the county of Franklin, about twenty-five miles distant. He was tied on his horse and carried under guard. After making the militia camp, it was determined to organize a court martial and try him for some alleged violation of the usages of war; but, before the trial was commenced, there was a rumor that a body of Tories (and Beard seems to have been the idol of the Tories) was in pursuit to rescue him, and, apprehending a rescue, and dreading his power, too, in a moment of panic he was hung. The rumor proved to be unfounded, and, it having been suggested by a civil magistrate that it was illegal to hang a man without a trial, and that evil consequences might result, the body was taken down, the court martial was organized and he was tried, condemned and re-hanged. The tree on which he was said to have been hanged stood not far from Rocky Ford, on Lynch Creek. Many years ago it was a saying in Franklin, when a person had behaved very badly or meanly, "He ought to be carried to Lynch Creek," and it was a tradition that "lynch law" was derived thence. Webster defines it to be " a law punishing men for crime or offences by private or unauthorized persons without legal trial," and adds, "the term is said to be derived from a Virginia farmer named Lynch, who thus took the law into his own hands." While we should, perhaps, be ashamed of its parentage, we think the former tradition more prob. ably correct.

ages by fire that is set out or caused by operating any such railway, and such damage may be recovered by the party damaged, in the same manner as set forth in this section in regard to stock, except double damages." It was contended by the counsel for the defendant that there could be no recovery for stock killed on the railroad without first showing negligence either in failing to fence or in running a train at a prohibited speed where no fence was required, and that as damages caused by fire set out in operating the road are to be recovered in the same manner, negligence must be shown in that case also. The court, however, instructed the jury that the liability for the escape of fire was absolute without regard to the question of negligence. BECK, J., speaking for a majority of the Supreme Court, said there were two answers to the argument of the counsel for the railway company. The first was that even though it be conceded that the existence of negligence was a necessary ingredient of a cause of action for the recovery for stock, the liability for damage caused by the escape of fire would still be absolute, for the reason that the law presumed that the escape of fire could be prevented, and hence to permit it to escape was as much negligence as to permit stock to run on the road by failing to fence, or the running of a train at a prohibited rate of speed. But it was said that a more satisfactory answer was that the right of action for injuries to stock did not depend on negligence. "There is," said the court, no violation of law in failure to erect fences, or in running at a greater rate of speed than is named; the rights of no one are involved thereby, and the companies exercise an undoubted right in refusing to fence, or in running their trains at a rate of speed exceeding eight miles an hour. Surely when an act is done which the law does not prohibit, which is in conflict with the rights of no one, and is done in the exercise of a right, it cannot be said to be negligence. This court has held that the liability of a railroad corporation for stock killed at a place where the right to fence existed, and the road was not fenced, exists without regard to the question of negligence."

66

These answers seem to us to be far from conclusive, and while the position taken by the defendant that to recover, the plaintiff

must show negligence in permitting the escape of the fire, is clearly untenable, still we think the right of action given by the statute is founded on negligence, and that no recovery can be had where the corporation was not in fault; but the statute seems to cast upon it the burden of showing that it was not in fault. In that view of the case, the instruction given by the trial court was erroneous. As we see it, this section of the code relates wholly to remedies. remedies. No right is created by it, except, perhaps, the penalty for neglecting to pay for stock within thirty days after notice, and that is given to make the remedy more effectual. We can not agree with the learned judge who delivered this opinion that the law imposes no obligation on a railroad company to fence its road at points where the fence would not interfere with the public convenience. In delivering the opinion of the court in McCormack v. C. R. I & P. R. Co., 41 Iowa, 193, this same judge said: "It is the duty of the railroad company to build a proper fence as required by law. When this duty has been performed it is liable, in case of destruction of the fence, for a failure to exercise reasonable and ordinary diligence and care in rebuilding it." Similar language was used by the same judge in delivering the opinion of the court in Latty v. B. C. R. & M. Ry. Co., 38 Iowa, 250. The authority to enact such statutes has always been referred to the police powers of the states. It is the duty of corporations as well as individuals to so use their own property as not to unnecessarily injure others. Railroad companies have the right, and it is their duty, to run their trains, but in doing so they must exercise care commensurate with the danger, not to inflict injury on others. If a fence is necessary and proper to guard against injuring live stock along the track, as well as for the protection of the passengers and property on the trains, then not to fence is negligence, regardless of any statutory requirement. Trow v. Vermont Central R. R. Co., 24 Vt. 488. "One who fails to use the best means within his reach to prevent the destruction of property, does not exercise the care of a man of common prudence." Per BECK, J., in Jackson v. R. R. Co., 31 Iowa, 178.

If the first portion of this section is given a literal interpretation, a company would be liable absolutely upon proof that stock had