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was brought to recover a balance on a promissory note, and the defendant answered that he had paid usurious interest, and demanded judgment by way of recoupment against the plaintiff, and the plaintiff then dismissed his action, held, that the defendant's counter-claim was no longer available under the law, and a judgment rendered thereon in his favor, against the plaintiff, was erroneous. In recoupment, a defendant can only use his claim in diminution of the plaintiff's cause of action, and can not, as in set-off, recover the excess of his claim over that of the plaintiff. Opinion by Howк, J.-Holcroft v. Mellott.

MORTGAGE-PURCHASER FOR VALUABLE CONSIDERATION-EQUITY OF WIFE.-One who takes a mortgage to secure a pre-existing debt, the time of payment not being extended and no securities being surrendered, is not a purchaser for a valuable consideration, and such a mortgagee can not set up his mortgage as against parties having prior equities adverse to such mortgage. So far as the cases of Work v. Brayton, 5 Ind. 396, and Babcock v. Jordan, 24 Ind. 14, hold a different doctrine, they are overruled. In this case Richard Hill executed to Reid a note and mortgage for a precedent debt; Reid assigned the note and mortgage to Gray, who brought this action of foreclosure. The wife of Hill answered by way of counter-claim, that the mortgaged property was purchased by her husband with her money, and the deed taken in his name without her knowledge or consent, and that the equitable title was in her. The court held that Gray could not set up his mortgage against the prior equity of Mrs. Hill in the land. Opinion by WORDEN, J.— Hill et al. v. Gray.

ABSTRACT OF DECISIONS OF SUPREME COURT OF OHIO.

December Term, 1877-Filed December 18, 1877.

HON. JOHN WELCH, Chief Justice.

gage debtor and wife, the assignees in insolvency were made parties defendant, and pleaded in defense the fact of the assignments, their qualifications, the giving of the required notice to creditors, and that they were actively engaged in the execution of the trust. Held, that the facts alleged did not oust or affect the jurisdiction of the court. Opinion by BOYNTON. J.-Dyer v. Garlough.

LIEN OF JUDgment RenDERED IN FEDERAL COURT -LIMITATION.-1. A judgment rendered in the Circuit Court of the United States has the same lien on the lands of the debtor within the district that is given to a judgment of the state court within the the limit of its territorial jurisdiction. Sellers v. Corwin, 5 Ohio, 398, approved. 2. The words "lands and tenements of the debtor," as used in section 421 of the code, include a vested remainder held by the debtor under a legal title. 3. Where a judgment creditor, within the life of his judgment lien, commences an action to enforce his judgment against the lands of the debtor and to marshal the liens thereon, and, after decree, finding his lien and directing a sale of the property, subject, however, to a further order adjusting priorities and for distribution, is properly made a defendant in another action in which a sale is made, such judgment creditor does not lose his right to share in the distribution of the proceeds, by reason of the fact that, during the pendency of the last action, five years elapsed from the date of the last execution issued on the original judgment. Motion overruled. Opinion by MCILVAINE, J. -Lawrence v. Belger,

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Associate Justices.

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NO APPEAL LIES FROM THE DECISON of the probate court setting aside or refusing to confirm a sale made by an assignee for the benefit of creditors. Opinion by WHITE, J.-Miller et al. v. Assignees of the J. F. Sieberling Co.

SUIT ON PROMISSORY NOTE-PLEADING.-A person, other than a payee, who brings an action against the maker, on a note payable to the order of the payee, and frames his petition under section 122 of the code, without giving a copy of an indorsement by the payee, is not entitled, under such petition, to the protection given to a bona fide indorsee for value and before maturity, although the note when offered in evidence appears with the name of the payee indorsed thereon. Judgment of the district court and the court of the common pleas reversed, and cause remanded to the common pleas for a new trial. Opinion by MCILVAINE, J.Tisen v. Hanford.

ASSIGNMENT FOR BENEFIT OF CREDITORS-DOWER -1. The power given to an assignee in insolvency, by the 5th section of the act S. & S. 359, regulating the mode of administering assignments in trust for beneefit of creditors, to sell and convey the real estate assigned, does not enable such assignee to extinguish by sale the inchoate right of dower of the wife of the assignor, in the assigned property. 2. A mortgagor of real estate, whose wife joined in the mortgage, releasing her dower interest in the property mortgaged, made, before the maturity of the mortgaged debt, an assignment, under the statute, of all his property in trust for the benefit of his creditors. In an action brought to foreclose the mortgage against the mort

AUGUSTUS L. SOULE,

MOTION TO DISMISS.-A motion to dismiss, which relates to matter of form and not of substance, can not be made for the first time in the superior court on appeal from the district court. Stat. 1864, Ch. 250, § 2; Green v. Com., 111 Mass. 417; Com. v. Legassy, 113 Mass. 10. PER CURIAM.-Com v. Lewis.

EXEMPTION FROM ARREST OF WITNESS BEFORE LEGISLATIVE COMMITTEE.-A resident of another state, while in attendance as a witness in his own behalf, before a joint committee of the legislature, having petitioned for the allowance of a claim made by him against the commonwealth, and intending to return home without unnecessary delay, is exempt from arrest or civil process. Opinion by GRAY, C. J.-Thompson's Case.

CRIMINAL LAW-STATEMENTS MADE IN PRESENCE OF ACCUSED.-A and B were jointly indicted for the larcency of a watch. The defendants, after their arrest, were searched in the station. The watch was found upon A. The officer then, in the presence and hearing of B, asked A how he came by the watch; he replied, B gave it to him. B said nothing. Held, that B, while held in custody, had a right to keep silence as to the crime with which he was charged, and the circumstances connected with it, and was not called upon to reply to or contradict any statement made in his hearing. No inference against him was warranted by his failure to deny the truth of what A said to the officer. Com. v. Kenny, 12 Met. 239; Com. v. Walker, 13 Allen, 570. Opinion by SOULE, J.-Com. v. McDermott.

MOTION IN ARREST of Judgment-LEGALITY OF

COURT.-A motion in arrest of judgment, overruled in the court below, to which exception was taken, sets forth, "that it does not appear from the record that the complaint was heard and adjudged at a criminal term of the police court of Haverhill, or at a term of the court held for the transaction of criminal business." Held, that under the Stat. 1869, Ch. 385, requiring that police courts shall be held for the transaction of criminal business daily, and, Stat. 1877, Ch. 74, providing that the police court of Haverhill shall be held for civil business on the first and third Wednesdays of each month, etc., it appearing by the record that this case was tried on Wednesday, May 9, 1877, before said police court, a court required by law to be held on that day for criminal business, it is to be presumed that such a court was held in obedience to the requirement; and as this case was within the jurisdiction of such a court, and as the record recited that it was heard and adjudged in the police court of Haverhill on that day, it is to be presumed that it was then engaged in the transaction of criminal business. Opinion by ENDICOTT, J.-Com. v. Brown.

WARRANT-RESISTING OFFICER.-Where a building was occupied in separate tenements by A. and B., and a search warrant authorized an officer to enter and search the house occupied by B., the officer is not justified in entering the tenement occupied by A., and the latter has a right to resist his entry, using reasonable force; and the fact that the officer believed that the portion of A's tenement which he attempted to enter was in the occupation of B., can not affect the rights of A. Com. v. Leddy, 105 Mass. 381, distinguished. Opinion by MORTON, J.-Com. v. Newton.

LARCENY EVIDENCE.-The defendant was indicted for larceny of a horse and two wagons. It appeared in evidence that he took and sold them without authority from the owner, absconded and kept the money obtained from the sale. The defense was that he was authorized by the owner to sell to any purchaser he could find, and on this point there was conflicting evidence. If he was authorized to sell, or honestly believed he had the right to take and sell the property, his subsequent flight and wrongful appropriation of the money, would not justify the jury in finding him guilty of larceny. But if he was not authorized, and the taking and selling was without right or color of right, then evidence of his subsequent conduct was competent to show the intent with which he took and sold the property. Opinion by ENDICOTT, J.— Com. v. Hurd.

AGENCY-INSTRUCTIONS-RATIFICATION.-The defendant sold for the plaintiff, under certain instructions, ten bonds of the U. P. R. R., and invested the proceeds in unregistered bonds of the I. C. R. R. The instructions contained in plaintiff's letters, expressed a decided wish to have his money put into registered bonds, and, after considering the subject at some length, and giving no definite instructions, he concluded by saying: "I shall feel under many obligations if you will kindly make such sale and purchases of bonds as your good sense dictates." Held, that the defendant was not limited to an investment of registered bonds, but that if he used his best judgment, acting fairly, prudently and in good faith, and made as safe an investment as he reasonably could, he would not be liable. Held, further, that it was for the jury to say whether the plaintiff, having learned the facts, by failing to object for two years or more, had ratified the sale and purchase. Opinion by ENDICOTT, J.-Matthews v. Fuller.

TITLE TO LAND ABUTTING ON TIDE-WATER"SHORE."-By the law of Massachusetts, the proprietors of lands abutting on tide-water have a title in the shore or flats to low water-mark, where the tide does not ebb more than one hundred rods, and may cover

upland and flats, either separately or together. The strict legal meaning of the word "shore," is doubtless the land between ordinary high water-mark and low water-mark; and such is its common meaning as a definition of a boundary, when used by itself and uncontrolled by other expressions in the deed or instrument of conveyance. But it may be shown, by a consideration of the whole instrument, and of monuments referred to therein, to have been used untechnically and without legal accuracy as importing low water-mark. Anc. Chart. 148; Storer v. Freeman, 6 Mass. 435; Jackson v. B. & W. R. R. Co., 1 Cush. 575, 579; Saltoustall v Long Wharf, 7 Cush. 195; Doane v. Wilcutt, 5 Gray, 328; Wiles v. Patch, 13 Gray, 254. Opinion by GRAY, C. J.-Hathaway v. Wilson.

ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

66

July Term, 1877.

HON. ALBERT H. HORTON, Chief Justice.
D. M. VALENTINE, Associate Justices.
46 D. J. BREWER,

CONSTITUTIONAL LAW-TAXATION.-1. Sections 3 and 4 of "An act to regulate taxation on the change of boundry lines," approved March 3, 1873 (Laws of 1873, p. 267), are constitutional and valid. Sedgwick county v. Bunker, 16 Kansas, 498. 2. That clause of section 1, article 11 of the constitution, which provides that "the legislature shall provide for a uniform and equal rate of assessment and taxation," discussed and construed. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Commissioners of Ottaroa County v. Nelson.

ACTIONS AGAINST RECEIVERS - TAXES. - 1. S., a county treasurer, filed his petition in the district court against a railroad company and B., the receiver of said company appointed by the circuit court of the United States, to recover the taxes levied upon said company for the year 1874. The petition alleged the appointment of the receiver and his possession and control of the road. Without, so far as the record discloses, the issue or service of any process, the company and receiver filed a joint answer in which they admit that a portion of the taxes are properly chargeable against the company, and consent that judgment may be rendered against them in this action for that amount, and also allege the appointment of the receiver by the United States circuit court, that he is not amenable to the process of the district court, and pray that as to him the suit may be dismissed. The district court decided that it had jurisdiction, and rendered judgment against the receiver. Held, no error. 2. While it may be conceded that a court appointing a receiver may draw to itself all controversies to which the receiver is a party, or which affect the property under his control, yet it does so only by direct action upon parties by way of injunction or proceedings as for contempt, and the appointment in no manner affects the ordinary jurisdiction of other tribunals. 3. An allegation, therefore, in an answer that the defendant is a receiver duly appointed by another court raises no question as to the jurisdiction of the court, in which the answer is filed. 4. Under the general tax law the valuation of real estate is fixed in the first place by the assessor and not by the owner, and may thereafter be changed by the board of equalization at a regular meeting of which legal and public notice is given, and, by the law of 1874, the assessment and valuation of railroad property was to be the same as that of other property. Opinion by BREWER, J. Affirmed. All the justices concurring St. Joe & Denver City R. R. Co. v. Smith.

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errors are immaterial, the judgment will not be reversed therefor. 2. Where the court below commits errors, as in charging the jury, but the errors are not saved by any exceptions, the judgment will not be reversed therefor. 3. The court below refused to give the following instructions to the jury, to wit: "30. In weighing the testimony offered on behalf of the parties, the jury will consider that the plaintiff is deeply interested in the result of the suit, and will view his testimony with proportionate suspicion. 34. That parties to suits, and their immediate relatives, are by the law held to be more or less biased against the adverse party, and, in this case, the credibility of the plaintiff, his father, brother and sister, are directly in issue with the plaintiff, as interested, and the other as biased witnesses against the defendant." There was no ground upon which to base these instructions, except the mere fact of interest of the plaintiff, who was a witness, and the mere fact of relationship to him of some of the other witnesses. Held, that the supreme court can not say that the court below erred in refusing to give these instructions; the supreme court can not say that, as a matter of law, the evidence of a party must be viewed with "suspicion," nor can the supreme court say that, as a matter of law, relatives must be "held to be more or less biased against the adverse party." That while it is the duty of the trial-court, if asked to do so, to instruct the jury that they may take into consideration the interest or relationship of any witness in weighing his testimony, yet the court may very properly leave it to the jury to say whether such witness is biased or prejudiced or not, and whether his testimony must be viewed with suspicion or not. 4. Where the plaintiff was injured by the fall of a derrick while in the employ of a railroad company as a laborer in building a culvert, and it was shown on the trial that O. superintended the work in building said culvert for said railroad company, that he hired the plaintiff and all the other laborers on the work, and had the power to hire and discharge such laborers whenever he thought proper to do so, and although the materials and machinery for the work were furnished to O. by other and superior agents of the railroad company, yet that it was the duty of O. to inspect such machinery, to see that it continued in good order, and to report to his superiors so that they might furnish him other machinery if it became defective, and while he was using said derrick it became defective and he knew it, but nevertheless continued the work and continued to use it, and in consequence of such defect it fell and injured the plaintiff while he was at work for the company, and under the orders of O., held, that the plaintiff and O. were not mere fellow-servants of the railroad company, but that O., with reference to the plaintiff, was a superior servant or agent and the representative of the railroad company, and that the company is responsible to the plaintiff for his said injuries caused by the negligence of O. 5. The court below did not err in admitting evidence as to what O. said, or what was said to him prior to said accident concerning the insufficiency of said derrick; such evidence was proper for the purpose of showing that O. knew that the derrick was unsafe. Opinion by VALENTINE, J. Affirmed. All the justices concurring.—Kan. Pacific R. R. Co. v. Little.

NOTES.

IF I am asked a question of common law, I should be ashamed if I could not immediately answer it; but if I am asked a question of statute law, I should be ashamed to answer it without referring to the statute book.-Coke.

A NEW YORK paper says the will of the rich man of the future will read, "To the respective attorneys of my children, I give my entire estate and worldly goods

of all description. Personally to the children and my beloved wife I give all that remains." This instrument will satisfy the family and save the trouble of proving the old man insane.

HON. RICHMOND M. PEARSON, Chief Justice of the Supreme Court of North Carolina, while on his way from his home in Yadkin County, to attend at the sitting of the supreme court, was stricken with paralysis. He was conveyed to Winston, where he died on the night of the 5th inst., in the seventy-third year of his age. Mr. Pearson was elected a judge of the superior court of that state in 1836, and in 1848 was elected a judge of the supreme court. He served as associate justice for ten years, at the end of which period he was elected chief justice, a post which he continued to fill with increasing reputation to the day of his death. He leaves several children. One of them, Mr. Richmond Pearson, is a practising lawyer of this city.

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66

ON Christmas day, at his residence, in St. Louis, died, kichard Soule, aged sixty-five. Mr. Soule, at the time of his death, was preparing for the printer the completed manuscript of a Reference Manual for Lawyers," a volume of condensed legal bibliography, which will be of great service to the American bar. He was already well known to scholars by his "Dictionary of English Synonymes " and " Manual of English Pronunciation and Spelling," and by his labors upon Worcester's quarto dictionary, of which he was editor, under the supervision of Dr. Worcester, who was, at the time of its publication, too old to do active work. Mr. Soule was born in Duxbury, Mass., in 1812, and was graduated at Harvard College in 1832. While resident in Boston, he filled several public offices. A year or two ago he moved to St. Louis, where he has since resided with a son. He was personally known to many of our readers, and to most of them was well known through his works.

A WASHINGTON dispatch of the 6th inst., says: The United States Supreme Court will resume its session to-morrow, pursuant to holiday adjournment. The Credit Mobilier case will be argued before the full bench at some early date. The court, in view of the great importance of the Charleston city-tax cases, and of the fact that the bench was not full when they were argued about a month ago, has ordered them to be reargued early next month. The question brought before the court by these cases is, whether a city or other municipal corporation under a state law can impose a tax upon its own obligations in the hands of non-residents. The city of Charleston levied two per cent. upon its six per cent. stock, and directed its treasurer to withhold the amount of tax from interest due. Messrs. Murray and Jenkins, one a resident of Germany, and the other of Maryland, brought suit in state courts to recover amounts thus withheld from them, and a majority of the South Carolina Supreme Court sustained the validity of the city's action. This decision was appealed to the supreme court on the ground that the law imposing such taxation was an act impairing the obligation of a contract, and therefore a violation of the federal constitution. The cases attract great attention in financial and business circles, as it is perceived that the acknowledgment by the supreme court of the power thus claimed, to treat municipal debts due to non-residents as property liable to local taxation, may lead in many instances to their being taxed out of existence; or, in other words, to repudiation under the form of taxation. In a similar case, namely, that of the Cleveland and Ashtabula Railroad Co. v. The State of Pennsylvania, five of nine members of the supreme court held that the state could not tax non-resident holders of railroad bonds, but the result of the pending cases is considered extremely doubtful

The Central Law Journal. oner indicted for a capital crime must be pres

SAINT LOUIS, JANUARY 25, 1878.

CURRENT TOPICS.

A BILL, introduced by Mr. Frye, of Maine, making all persons charged with crimes and offenses competent witnesses in their own behalf, in the courts of the United States, has been passed by the House of Representatives. It is in the following words: "In the trial of all indictments, informations, complaints and other proceedings against persons charged with commission of crimes, offenses and misdemeanors in the United States Courts, Territorial Courts, Courts Martial and Courts of Inquiry, in any state or territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him."The Queen's speech, delivered at the opening of the English Parliament, announces that the government intends to introduce during the session a bill "to simplify and express in one act the whole law and procedure relating to indictable offenses." This will be a considerable step towards the complete codification of the criminal law.-A bill is before

ent, it is well settled, at the arraignment: Jacobs v. Com., 5 S. & R. 315; Hall v. The State, 40 Ala. 698. And when the judge charges the jury: Wade v. The State, 12 Ga. 25; State v. Blackwelder, 1 Phillips (N. C.), 38; Wilt v. The State, 5 Coldw. 11; The People v. Kohler, 5 Cal. 72; Jackson v. Com. 19 Gratt. 656. And when the verdict is returned: King v. Ladsingham, T. Raym. 393; Dunn v. Com. 6 Barr, 384; Rose v. The State, 20 Ohio, 31; Sargent v. The State, 11 Id. 472. And, also, when the sentence is pronounced: Rex v. Duke, Holt, 399; 1 Salk, 400; People v. Winchell, 7 Cow. 521; Jacobs v. Commonwealth. But less strictness is required in cases not capital: Holmes v. Com., 25 Penn. St. 221; State v. Craton, 6 Ired. 164; Stephens v. The People, 19 N. Y. 549; Grimm v. The People, 14 Mich. 300; State v. Steeffle, 13 Ia. 603. The rendition of a verdict in the absence of a prisoner works only a mis-trial, and the verdict should be set aside and the defendant tried again: People v. Perkins, 1 Wend. 91; State v. Hughes, 2 Alabama, 102; Younger v. State, 2 W. Va. 579. And if present when the verdict is returned, but absent when sentence is pronounced, he is not entitled to a new trial, but only to a new sentence. If the former judgment is reversed on error for the prisoner's absence, he is simply remanded for sentence according to law: -The Cole v. The State, 5 Eng. 318; Kelly v. The State, 3 Sm. & Mar. 518. Neither the prisoner nor his counsel can waive, it is said, this right to be present: Nomaque v. People, Breese, 109; Prine v. Com., 6 Harris, 103. But in misdemeanors less strictness is required, and the trial may, by leave of court, often proceed and the verdict be rendered, and sentence of a fine be pronounced, in the defendant's absence. See United States v. Mayo, 1 Curtis C. C. 433; Sou v. The People, 12 Wend. 344; Canada v. Com., 9 Dana, 304; Warren v. The State, 19 Ark. 214; Holliday v. The People, 4 Gil. 111.

the Ohio legislature giving a first lien upon the
property of the corporation for supplies, ma-
terials and labor furnished to railroads.-

Canadian government w
soon pass an extra-
mural act, i, e., a statute providing for the
employment of peons, convicted of offenses
against municipal purpose.
1 ordinances, upon
the streets and rg, u
es and towns..

Single Now.

A PRISONER incepared to

or a felony has no right to be personally present at the hearing of a motion for a new trial, and his absence will not invalidate a sentence subsequently passed upon him when le is present. This is held by the Supreme Julicial Court of Massachusetts, in Com. v. Castllo, reported 16 Am. L. R. 735, with a learnediote by Mr. Bennett. See Rex v. Gibson, 2 Sra. 968; s. c., Cunningham, 29; 2 Barnard, 42, 418. See, also, 1 Chit. Crim. Law, 659, 63; The Queen v. Caudwell, 17 Q. B. 503; State v. Rippon, 2 Bay, 99; Jewell v. Com22 Penn. St. 94, 101; Donnelly v. State, 2 Titcher, 601; Com. v. Andrews, 97 Mass. 54; Anon., 31 Maine, 592. A prisVol. 6.-No. 4.

THE Judges of the Superior Courts of Philadelphia have presented a memorial to the governor, asking to be relieved from the duty now imposed upon them by law, of making appointments to various city offices. There can be no doubt of the great impropriety of the legislature imposing such duties upon the judi

ciary. The executive and judicial branches of the government should be kept separate at any price; and if the legislature does not sufficiently comprehend the danger of such legislation, the courts may save themselves from the performance of extra-judicial duties by declaring such statutes unconstitutional. This has been done heretofore in several cases. In 1792 Congress passed an act authorizing and directing the Circuit Courts of the United States to receive and examine the applications of soldiers of the Revolution to be placed on the pension list, and certify them to the Secretary of War, but several judges refused to act. The Circuit Judges of New York, consisting of Jay, Chief Justice, and Cushing, Justice, held that the act was unconstitutional. "By the Constitution of the United States," it was said, "the government thereof is divided into three distinct and independent branches, and it is the duty of each to abstain from, and to oppose encroachments on either. Neither the legislature nor the executive, branches can constitutionally assign to the judiciary any duties but such as are properly judicial, and to be performed in a judicial manner." Hayburn's case, 2 Dallas, 409. The Supreme Court of New York also held that the act was unconstitutional, because it imposed duties upon the court which were not of a judicial character, or to be performed in a judicial manner. And it was further held, that, because the act imposed the duties upon the court, the judges could not act as commissioners, and their acts as such were unauthorized and void. See Chief Justice Taney's note to U. S. v. Ferveria, 13 Howard, 52. A similar question came before the Supreme Court of the United States in 1851. By a special act of Congress, the judge of the District Court of the Northern District of Florida was authorized to receive and adjudicate the claim of a Spanish citizen against the United States, arising under the treaty of 1819. Hayburn's case was referred to, and the opinions expressed by the judges of the circuit court approved. Chief Justice Taney, in delivering the opinion of the court, referring to the acts of Congress, said: "The powers conferred by these acts of Congress upon the judge, as well as the secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. * But it is not

judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States." United States v. Ferveria, 13 How. 40. See opinion of White, J., 22 Pitts. L. J., 129, refusing to appoint assessors, as required by a state act. The Supreme Court of Massachusetts, in the Case of the Supervisors of Election, 114 Mass., 247, declared that an act requiring them to appoint overseers, was unconstitutional, as that was not a judicial duty, and, in Minnesota, the supreme court of that state held that an act, empowering either house of the legislature to obtain the opinion of the supreme court, was unconstitutional. In Connecticut the same course has been followed. See Reply of the Judges, 33 Con. 586; contra, People v. Provines, 34 Cal. 520; People v Bush, 40 id. 344.

SEVERAL interesting cases upon covenants affecting, land have been recently decided in the English courts. In German v. Chapman, 26 W. R. 158, a deed contained a covenant not to use any building erected on the land "otherwise than as and for a private residence only, and not for any purpose of trade." The court of appeal granted an injunction restraining the erection of a building to be used as a school" or home for orphan daughters of missionaries, holding that the words "not for any purpose of trade," were words of addition, and not of limitation. Several previous decisons were Sim. N. S. 517,

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cited. Kemp v. S cited.

where the covenant

carry on any hatever, and it se for a girls' Keeling, 1 M. trade or busischool was deo use a house s not considered

trade, business, was held that usi school was a breacha & S. 95, the words ness whatsoever, cided to be within as a private lunatie as to be a breach of the covenant in Doe v. Bird, 2 A. & E. 161, because there the words "trade or business were xplained by an enumeration of particular trees, and by the general words "or any ofensive trade," showing that only trades conucted by buy'n Wickenden ing and selling were meant. v. Webster, 4 W. R. 562, 6 E. B. 387, the lessee was not to carry on any pblic trade or business whatsoever, and the hote was to be used as a private dwelling-house ly. There it was held that using the houses a school

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