crime of bigamy. 3. An incomplete record of divorce proceedings in Utah is inadmissible in this state to prove that the defendant had been divorced by a court of competent jurisdiction, or that the defendant believed she had been lawfully divorced by the Utah court. 4. In bigamy the felonous intent is not an element in the crime which may be rebutted by evidence. A person may be guilty of the crime of bigamy who, in good faith, believed he or she had been lawfully divorced. Opinion by LINDSAY, C. J. Judgment reversed.-Davis v. Com.

FORMER RECOVERY-PLEADING.-When a matter is finally determined by a competent tribunal, it is considered at rest forever. And this principle embraces not only what was actually determined, but every other matter which the parties might have litigated in the cause. Opinion by Howк, J.—Richardson v. Jones.

STATUTE OF LIMITATIONS.-Where a party gave to another an altered note in payment of a debt, and the latter brought an action for damages within six years after he had notice of the alteration of the note: Held, the action was not barred by the statute of limitations; that the cause of action did not arise until the plaintiff discovered the fraud that had been practiced upon him. Opinion by PERKINS, J.—Bisher v. Paulus. MORTGAGE-FORECLOSURE EQUITY OF REDEMPTION.-The holder of three notes, secured by a mortgage on real estate, payable at different times, after having foreclosed the mortgage on the note last due, can not again foreclose it for the two notes first due, as against the purchaser of the equity of redemption who purchased after the first foreclosure subject to the mortgage debt, he having no notice that the notes first due had not been paid. The mortgagee must include all his notes in one foreclosure suit, and if he fails to do so a subsequent action to foreclose is barred. Opinion by WORDEN, J.-Minor v. Hill.

RIGHTS OF RIPARIAN OWNERS ON LAKES.-The title of riparian owners to the thread of non-naviga. ble rivers in this state, is settled. 54 Ind. 471. This rule applies to non-navigable lakes, as well as rivers, when they lie within the congressional surveys. Any title in the owner of the land which can be maintained to the margin of the lake, will extend to the thread or middle of the lake, within the congressional surveys. A title to land acquired by twenty-five years' adverse possession, as against persons not under disability, is as effectual as if it was derived by patents from the United States, or by any other muniment of title. Opinion by BIDDLE, C. J.-Ridgeway et al. v. Ludlow.

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TRESPASS BY COW-LIABILITY OF OWNER, — Appellee was fined by the mayor of the city of Goshen for the injury by his cow of a shade tree belonging to a private citizen. Held, that a man can not be held criminally for a trespass voluntarily committed by his cow, under the ordinance of the city, which provided that "it shall be unlawful for any person wantonly to injure, or cause to be injured, any private or public property, or shade or ornamental trees, etc., planted in any street or public ground of said city." The cow, not being a moral agent, was incapable of acting on the motive necessary to constitute the offense under the ordinance. But if this was a civil suit, the ordinance (or any other law) would not authorize the city

EFFECT OF COMMUTATION OF SENTENCE.-1. Under the fifty-eighth section of the act of April 7, 1856 (S. & C. 850), commutation of the punishment of a lunatic convict by the Governor was valid and took effect without the acceptance or assent of the convict, and could not be defeated or invalidated by the convict's rejection or refusal of it when restored to reason. 2. The words "for the time being," in that section of the statute, refer merely to cases of reprieve or suspension of execution, and not to cases of commutation. 3. Commutation is not a conditional pardon, but the substitution of a lower for a higher grade of punishment, and is presumed to be for the culprit's benefit. Judgment reversed, and the convict remanded to the warden of the penitentiary. Opinion by WELCH, C. J.-In re Victor.

INDICTMENT-VARIANCE-PERJURY-DRUNKENNESS.-1. Where a party to a judicial proceeding is described in the indictment as Curtis Pratt, which was his true name, it is not error to admit in evidence a transcript in which the same person is described as Curt Pratt, the variance, under section 91 of the criminal code not being material. 2. Where a charge of perjury is based upon testimony given in reference to a past transaction, evidence that the accused was greatly intoxicated " at the time such transaction occurred, is a circumstance proper to be submitted to the consideration of the jury in determining whether the accused knowingly testified falsely. Judgment reversed and cause remanded to the court of common pleas for a new trial. Opinion by GILMORE, J.-Lytle v. State.

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DECREE GRANTING INJUNCTION—APPEAL-BILL IN EQUITY.-1. An appeal may be taken to the district court, under section 5 of the act of April 12, 1858, as amended May 15, 1868 (S. & S. 589), from a decree of the court of common pleas granting a perpetual injunction restraining the defendant from obstructing and from continuing obstructions already placed upon an alleged road in which the plaintiff claimed a special use, although the plaintiff also claimed, in his petition, damages occasioned by such obstructions. 2. Such an action is in the nature of a bill in equity for injunction and, incidentially, for an account, in which neither party is entitled to demand a trial by jury. Judgment reversed and case remanded. Opinion by MCILVAINE, J. Converse v. Hawkins.

LARCENY-EVIDENCE-IMPEACHMENT OF WITNESS -1. An erroneous instruction to the jury is not a ground for the reversal of the judgment, where it clearly appears from the record that the party objecting thereto was not prejudiced thereby. 2. The wrongful taking and carrying away of the property of another, without his consent, with intent to conceal it until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny. 3. Whether or not testimony adduced tends to establish a fact, is a question of law. 4. A witness called to impeach another, by showing statements inconsistent with those testified to, may himself, the proper foundation being laid therefor, be contradicted, by showing statements made by him out of court, incon-

PRIVILEGED COMMUNICATIONS · DISCHARGE OF JURY IN CRIMINAL CASE - RECORD EVIDENCE OF MARRIAGE.-On the trial of a defendant charged with the crime of bigamy, the defendant testifying in his own behalf, was required by the court to answer, on cross-examination the following question: "If he had not been consulted or advised by his counsel in regard to obtaining a copy of a decree of divorce alleged to have been granted prior to the second marriage?" against the objection of the defendant, that the communications between himself and his attorneys were privileged. Held, the court erred, as the defendant had not referred to any consultation or advice in connection with his attorneys in his direct examination, and that the communications were privileged. Held, also, that all communications which an attorney is precluded by statute from disclosing, his client can not be compelled to disclose against his objection of privilege. 2. On a criminal trial for bigamy, the court being satisfied that the jury could not agree, discharged them in the absence of the prisoner and his counsel, after they had been together for deliberation from 4 o'clock p. m. to 6 o'clock a. m., and had the record show that the discharge of the jury was granted, after it had been made to appear to the court that the jury could not agree upon a verdict, and thereafter overruled the motion and plea of the prisoner, interposed for his release and discharge, on account of the action of the court. Held, that the motion and plea were properly overruled. 3. The books of record of marriage licenses, kept by the probate judges of the several counties, are evidence of all matters required by the statute to be contained therein. Sections 6, 7 and 11, chapter 61, General Statutes, 562. Opinion by HORTON, C. J. Reversed. All the justices concurring. -State v. White.

KILLING OF STOCK BY RAILROAD Co.-EVIDENCE -TENDER.-1. In an action under the act relating to the killing and wounding of stock by railroad companies (Laws of 1874, p. 143), the plaintiff alleged in the petition, among other things, that the defendant railroad company killed a heifer belonging to him; but the evidence showed, among other things, that the railroad company wounded the plaintiff's heifer only, and that the plaintiff himself afterwards knocked her in the head and killed her. The evidence and the verdict of the jury showed, also, that the heifer would have died from her said wounds if she had not been knocked in the head, and that the plaintiff knocked her in the head merely to stop her sufferings. Held, that the variance between the allegations of the plaintiff's petition and the proof was not fatal, and that the court below did not err in allowing the plaintiff to recover under such allegations and proof. 2. In such action, the court instructed the jury that, if they found for the plaintiff, they might find for the full value of the heifer. There was no evidence tending to show that the heifer was worth anything after she was killed, and the jury find, though awkwardly, that she was worth nothing after she was killed. The jury found a verdict in favor of the plaintiff, and assessed his damages for the injuries done to the heifer at $18.00. This, from the evidence, was her full value. The court rendered Judgment in favor of the plaintiff for this amount.

Held, that the court did not err in giving said instruction or in rendering said judgment. And further held, that the plaintiff, the court and the jury were, under the circumstances of this case, entitled to consider the case as though the railroad company had itself actually killed said heifer. 3. Prior to the commencement of the trial, the defendant offered to confess judgment for $20.00 and costs; but the plaintiff refused to accept the offer. Afterwards the plaintiff recovered a judgment for $18 00 as damages for injuries done to the heifer, and $25.00 for attorney's fees-total, $43.00, besides costs. What the attorney's services, rendered prior to said offer to confess judgment, were worth, is not shown. Held, that under the foregoing circnmstances, the court below did not err in rendering judgment against the defendant for all the plaintiff's costs. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-A., T. & Santa Fe. R. R. Co. v. Ireland. BILLS OF EXCEPTIONS RE-OPENING CASE FOR NEWLY-DICOVERED TESTIMONY.-1. A bill of exceptions can be settled and allowed only by the judge, and when it receives his signature it should be complete, and nothing left to be settled by the agreement, recollection or judgment of counsel, clerk or other person. 2. It is a record, and, like any other record, is not to be established by parol testimony, but must carry on its face the evidences of its own integrity and completeness. 3. While what is familiarly known as a skeleton bill, that is, a bill which provides for the subsequent copying by the clerk into it, and as a part of it some paper or document, is allowed; yet to make such a bill valid and complete, these rules must be regarded: (a.) The bill, in referring to such paper or document, must purport to incorporate it into and make it a part of the bill; a mere reference to it, although such as to identify it beyond doubt, or a statement that it was in evidence, is not sufficient. (b.) The document must itself, at the time of the signature of the bill, be in existence, written out and complete. (c.) It must be annexed to the bill, and referred to as annexed, or it must be so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill; and these means of identification must be obvious to all, so that any one examamining the record can know what document is to be inserted, or, after insertion, that the clerk has made no mistake. 4. Where, after all the testimony has been heard, but before the arguments have commenced, one of the parties ascertains, or has good reason to believe, that one of his adversary's witnesses has been compelled by such adversary to testify falsely against him, he is not obliged to wait until after the verdict, and then seek a remedy for the wrong by a motion for a new trial, but may immediately call the attention of the court to the matter and have it investigated, and, if true, the fact made known to the jury before retiring to consider of their verdict. 5. When the attention of the court is called to such a matter, it may investigate it openly in the presence of the jury, or in the first instance privately, and out of the hearing of the jury. The latter is the preferable course, unless the fact of such charge has in some way reached the ear of the jury, in which case it may be better that the jury should know the entire truth, rather than render a decision with a suspicion in their minds of something wrong. Affirmed. Opinion by BREWER, J.; Valentine, J., concurring; Horton, C. J., not sitting in the case.-A. & N. R. R. Co. v. Wagner.

AN English solicitor named Dinsdale is charged with having manufactured and disposed of fictitious leases to the amount of over a million and a half dollars. As there is no registry act in force in London, the swindle was not easily discovered.

BOOK NOTICE.

THE LAW AND PRACTICE IN BANKRUPTCY. A complete treatise of the law of Bankruptcy, being Title LXI of the United States Revised Statutes and Amendments, with the Decisions thereunder. By ALEXANDER BLUMENSTIEL. New York: Ward & Peloubet. 1878.

This, the latest work on the Law of Bankruptcy, extends to 757 pages, and contains the statutory provisions of the bankrupt law; a complete collection of all the American cases on the subject, and a full reference to all the important adjudications made in the English courts upon similar provisions in the English Act; an exhaustive statement of the practice under the bankrupt law, with all the forms, rules in Equity and general orders established by the Supreme Court of the United States. The table of cases, at the beginning of the volume, contains the names of no less than 1,600 adjudications. These, in the body of the book, are arranged under their appropriate titles, and, by the aid of a good index which the work possesses, both the subjects and the authorities are easily found. We do not hesitate to say that we believe Mr. Blumenstiel's book will be of much service to the practitioner in this department; though, whether he has succeeded in showing, as announced in the preface as the author's reason for undertaking the work, that the "supposed complications" in the working of the bankrupt law are 44 but imaginary," may remain a question of some doubt. The arrangement of the cases, and the different sections of the Act, and, in fine, the general plan of the work, suggest that, to call it either an Annotated Edition of the Bankrupt Act, or a Digest of the Bankrupt Law, would be a somewhat more appropriate title than the more dignified and highsounding one of Treatise. It is dedicated to Judge Blatchford, of the United States District Court for the Southern District of New York.

Exp. for ex parte, which occurs several times on nearly every page, seems to be a rather peculiar contraction, especially as we do not notice that in any instance, Inr. has been made to stand for In re.

NOTES.

AT a jury court held in Greenlaw, on the 18th of December, says the Scottish Journal of Jurisprudence, the newspapers report a curious scene. The learned sheriff of the county having been somewhat late in taking his seat on the bench, a juryman rose and said: "My lord, if I had been a minute late I would have been fined;" another juryman made a similar observation, and the public in the court-room applauded. The sheriff then ordered the court to be cleared, and the ballot for the jury was proceeded with.

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Is the practice of laudatory dedications coming into vogue again in the legal world? We observe that a recent legal treatise is dedicated to the Lord Chancellor 66 as a tribute of admiration for his unsullied integrity as a judge, profound knowledge as a lawyer, and exalted character as a statesman and legislator." This is intended as a highly complimentary series of phrases; but we rather doubt whether Lord Cairns will appreciate the admiration extorted by the remarkable fact that, as a judge," he does not take bribes; and the references to "profound knowledge as a lawyer," without any averment of power to apply such knowledge, and of “exalted character," without any notice of ability, are very unfortunate.-[Solicitor's Journal. AMONG the points of law decided in Vol. II, Reports of Surrogates Courts, New York, recently published, are that a tombstone is a proper item of funeral expenses, though the estate be insolvent; that a man sixty years old, who was accustomed to call regularly for an annuity

due him, having left his home afflicted with three incurable diseases, which his physician thought must kill him in three months, may be presumed to be dead in six months, not having been heard of in the meantime; that a marriage between slaves in Virginia, according to their customs, is valid in New York; that concealment by a man of the fact that a divorce obtained by him from his wife is invalid, whereby he induces another woman to marry him, is undue influence which will avoid her will made in his favor.-[American Law Review.

THE International Review for January-February, 1878, is a splendid number of this excellent magazine. It contains an article on Elements of National Wealth, by David A. Wells, and on Money and its Laws, by Prof. W. G. Sumner. Three papers by foreignersThe Second Harvest of Olympia, First Impressions of Athens and Imperial Federalism in Germany, are from the pens of Prof. Earnst Curtrus, Dr. Edward A. Freeman and Baron Von Holtzendorff, respectively. Sumner's Place in History, by Ben. Perley Poore, Modern Love, by Dr. Samuel Osgood, The Count of the Electoral Vote, by Alexander H. Stephens, a Sonnet on Thiers, by Whittier, and a sketch of Art in Europe, are the remaining articles. These, with a number of excellent reviews of recent books, American, English, French, German and Italian, offer an intellectual feast, such as can not be surpassed by the best and oldest of the English or American reviews. It is published by A. S. Barnes & Co., New York.

THE Washington correspondent of the Cincinnati Enquirer gives, in a recent issue, a racy sketch of the leading members of the bar of the Supreme Court of the United States. Sidney Bartlett, of Boston is, it is said, its leader, an old celebrated lawyer, who wins the Union Pacific railroad cases by such clear, lucid statements that they amount to mathematical demonstration. Mr. Evarts had a large practice before this court, but has personally resigned it while in office, though his firm yet argues many cases. Southmayd, Evarts' partner, is said to be a better lawyer than Evarts himself. Matt. Carpenter is said to have the most lucrative practice before the various courts-estimated at $50,000 to $60,000 a year. He is the most brilliant pleader before the Supreme Court, advancing, as old Senator Nye used to say, "almost to the line of genius." The judges on the Bench regard Senator Edmonds, of Vermont, as a very able lawyer. One of them said but yesterday, "He is one of our best lawyers-one of the most successful." He generally wins his causes, and, it may be said, stands next to Bartlett at present. Roscoe Conkling often argues railroad cases before the court, particularly Central Pacific cases, and makes a good impression. He is a man of care and pains, and the son of a United States judge. Senator Dawes at rare intervals appears before the august tribunal, and also ex-Senator Boutwell. The latter has an office-Commissioner to revise the Statutes -at $5,000 a year. The bill is said to have been passed by Boutwell for the benefit of Kenneth Raynor, but on his defeat for the Senate the thrifty New Englander had himself appointed. Philip Phillips, of Alabama, is a Supreme Court practitioner, and has the reputation of being very well read and well posted. Ben Butler has very considerable practice of all kinds here. It is said that Col. Craig, who was acquitted by the action of the judge on the charge of pressing a fraudulent claim during the present week, had to mortgage his great ranch in Colorado to insure Butler's fee. The late James T. Carlyle left a fortune as the result of his practice, and his two sons are in the district bar. The only judge on the bench, whose brother practices before it, is Field. David Dudley Field is a big man every way, though some say his heart would stand an enlargement.

The Central Law Journal.

SAINT LOUIS, FEBRUARY 1, 1878.

CURRENT TOPICS.

AMONG the objections which are being urged against the examination of prisoners in criminal trials by those who are opposed to the change in the English law on this subject, is this, that although the conviction of guilty men might and possibly would be facilitated and, in some cases, the change would be to the advantage of the innocent, yet the general tendency of the change would be to increase the chances of conviction of innocent men. The prejudice, it is argued, which, in certain cases exists in the minds of the jury, and even of the judge, would be increased if the prisoner should be forced to tell everything. Charged, for instance, with the crime of rape, though innocent of the crime. it might be necessary for him to confess the guilt of immorality. Then there is the difficulty that a prisoner, especially if he be ignorant, may find it impossible to deal with the facts of a complex case. Το think under fire, is the mark of the highest type of a soldier; and the bar of a court room is certainly not the place nor the position of an accused person the situation in which a tale could be told calmly and without contradiction. Those who have watched the proceedings in the lower criminal courts remark the frequent occurrence of cases in which there would be

no chance of convicting but for the prisoner's contradictory statements, and that such convictions are always proper is not maintained. There is one point, however, which the English lawyers who are discussing this question at present have quite overlooked, viz., the protection which is thrown around the prisoner under our American statutes on this subject in making his testimony optional with himself and permitting no presumption to be raised against him for not taking advantage of his right. If the facts of his case are either so complex or so unfavorable that his explanation would weigh but little with the jury, or might possibly prejudice them, he may keep silent; if his simple story would clear him from all suspicion, he is at liberty to tell it.

IN Toncray v. Toncray, 1 L. R. 283, recently
Vol. 6.-No. 5.

decided by the Supreme Court of Tennessee, where a brother voluntarily undertook the maintenance of his sister, who had abandoned her father's house without his fault, it was held that no action would lie against the father for necessaries furnished by the brother to the sister. The parent is bound, by positive law, to protect, to educate, if able to do so, and to maintain his child during its minority, or until its voluntary abandonment of the parent's protection. But the duties of this relation are mutual and reciprocal. The parent is bound to provide for the child; but he is, on his part, entitled to the obedience, to the custody, and to the services of the child. If the authority of the parent is abjured by the child without any necessity occasioned by the parent, all legal obligation to provide for the child is at an end; and, in such a case, the parent can not be made liable for even necessaries furnished his child by a volunteer, except by his consent-Tyler's Inf. 101; Par. Cont. 254; Chitty Cont. 119; 2 Story Eq. Jur. 1399; Gordon v. Potter, 17 Verm., 350; Raymond v. Loyl, 10 Barbour, 483. In point of law, said Lord Abinger, a father who gives no authority and enters into no contract, is no more liable for goods supplied to his son, than a brother, or uncle, or a mere stranger would be. Mortimore v. Wright, 6 M. & Y.; Schoul Dom. Rel. 328, et seq. The English cases, says Mr. Story, seem to establish the proposition that the father can not be made liable for necessaries furnished his child by volunteers, except by his own consent, expressed or implied. 2 Story Eq. Jur. 1349, In the case of Gordon v. Potter, 17 Verm. 348, Redfield. J., states, the doctrine thus: "It is obvious that the law makes no provisions for strangers to furnish children with necessaries against the will of the parents, even in extreme cases; for if it can be done in extreme cases, it can be done in every case where the necessity exists, and the right of the parent to control his own child will depend on his furnishing necessaries suitable to the varying tastes of the time. There is no stopping place short of this if any interference is allowed." And it was held in Raymond v. Loyl, 10 Barb. 483, that a third person, who supplies an infant with necessaries, can not maintain an action against the parent therefor, unless the latter has expressly or impliedly contracted to pay the amount.

THE judgment of the Supreme Court of Pennsylvania, on the appeal of the governor and state officers from the attachments issued against them for refusing to appear before the grand jury at Pittsburg, to be examined in reference to the riots of last summer, is reported in full in the Pittsburg Legal Journal of the 23d inst. The attachments were set aside, a majority of the court holding that the governor, by virtue of his prerogative as commander-in-chief of the army and navy of the Commonwealth, is not answerable to the courts for the manner in which he discharges the discretionary duties confided to him, and that his subordinates or agents are not answerable to any one but himself. The Chief Justice dissents in a lengthy opinion, which is also reported in full in the same journal of the 16th inst. The precedents on this point appear to be few. In Thompson v. German Valley R. R., 22 N. J. (Eq.) 111, a subpoena duces tecum had been served on the governor of New Jersey, commanding him, by his individual name, to appear and testify before an examiner of the Court of Chancery, and bring with him an engrossed copy of a private statute, which had been passed by the legislature, and had been sent to him, as governor, for his approval. He refused to obey the subpoena, informing the court at the same time that he did not refuse out of any disrespect to the court or to the law, but because he thought his duty required him not to appear or produce the paper required, or submit his official acts, as governor, to the scrutiny of any court. After argument, Habriskie, Chancellor, said: "The governor can not be examined as to his reasons for not signing the bill, nor as to his action in any respect regarding it. But there is no reason why he should not be called upon to testify as to the time it was delivered to him; that is a bare fact that includes no action on his part. To this extent, at least, I am of opinion that he is bound to appear and testify. But I will make no order on him for that purpose. Such order ought not to be made against the executive of the state, because it might bring the executive in conflict with the judiciary. If the executive thinks he ought to testify, in compliance with the opinion of the court, he will do so without order; if he thinks it to be his official duty in protecting the rights and dignity of his office, he will not comply, even if directed by an order. And

in his case, the court would hardly entertain proceedings to compel him, by adjudging him in contempt. It will be presumed the chief magistrate intends no contempt, but that his action is in accordance with his official duty." Almost the same proceedings were had, and with the same result, in Gray v. Pentland, 2 S. & R., 23, and Beatson v. Skene, 5 H. & N., 838. In the celebrated trial of Aaron Burr, at the request of the defense a supœna duces tecum was awarded and directed to the President, requiring him to appear and bring with him a certain letter from General Wilkinson to himself. He refused either to appear or produce the paper required. Chief Justice Marshall said: (Trial of Aaron Burr, Vol. 2, p. 536, Hopkins & Earle, Philadelphia), "In no case of this kind would the court be required to proceed against the President as against an ordinary individual. The objections to such a course are so strong and obvious that all must acknowledge them. In this case how

ever, the president has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of the reasons for and against producing it, he himself is the judge."

IN THE United States Circuit Court, here, during the present term, in the case of Singer Manufacturing Company v. Saliers (law), an important question in practice, viz., the right

to have witness fees taxed where the evidence of the parties had been previously taken by depositions, was ruled upon by Dillon, J., as follows: The defendants took the depositions of certain witnesses who resided more than one hundred miles from the place of trial. Subsequently, on the trial, these same witnesses were produced by the defendant in court to testify, and did testify. The statutes of the United States provide, that if a witness resides more than one hundred miles from the place of trial, this is ground for taking his deposition and receiving the deposition when so taken. In this case, the witnesses lived more than one hundred miles from St. Louis, and, therefore, it was a proper case for depositions, and the depositions when taken could have been read. This would not preclude the party from actually summoning the same witnesses and having them here. It is often of the greatest importance to have a