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Etzler v. Evans, 296.
Eyermann v. Tamm., 334.
First Nat. Bk. of Rochoster v. Pier-
Jefferson Co. v. Hudson, 338.
Ottawa Co. v. Nelson, 59,
v. Scott, 478.
Cramer v. Kirkendall, 137.
Handy v. Handy, 435.
v. Lawson, 40.
v. Walcott, 40.
Haskell v. Jones, 241, 372.
Himrod v. Baugh, 87.
v. Simler, 336.
v. Crawford, 254.
v. Switzer, 375.
V. Spencer, 438.
Dahlberg v. St. Louis F. & M. Co.,
Gallooley v. State, 136.
v. Parmalee, 437.
Gazette Printing Co. v. Morse, 435.
Bk. y. Stumpf, 415.
v. Gibson, 18.
v. Kelly, 236.
v. Van Studdiford, 6.
in re, 365.
v. Wadsworth, 195.
Dame v. Canomff, 237.
v. Robinson, 317.
Davis v. Com., 78.
v. State, 40.
Dayton, &c., R. R. v. Miami Infirm
Dean v. McDowell, 468
Deaver v. Randall, 197
DeCamp v. Dobbins, 449.
Delaney v. State, 99.
Dement, ex parte, 11.
Dickenson v. Casey, 17.
Dickson v. Ind, Man. Co., 97.
Diebold v. Powell, 118.
Dillon v. Tobin, 285.
Dilworth v. Bradner, 195.
Dobbins v. United States, 113.
Dobson v. Dobson, 441.
Doehring v. State, 99.
Donnel v. White, 316.
Donohoe v. Mariposa L, & M. Co., 487.
Dorsey v. P. &C. Con. Co., 19.
Dougherty v. Bouavia, 435.
Doyle v. Harris, 1.
Dragos v. Whisner, 39.
Draper v Inhabitants of Hatfield,
Drea v. Carington, 436.
Eason v. State, 422.
v. Trowbridge, 418.
Edwards v. H. & St. Joe. R. R., 277.
v. Kearzy, 391.
Ellett v. Richardson, 478.
Elliott v. Shaw, 296.
Emerson v. Patch, 216.
English v. Ozburn, 141.
Erie R. R. v. Stringer, 376.
Essex v. Hays, 415.
Estabrook v. Gebhart, 297.
K— v. Raschen, 262.
v. Dunmeyer, 197.
Pickup v. F. & M. Marine Ins. Co.,
v. Eastern R. R., 337.
v. Louisville, 120.
Pratt v. Grand Trunk R. R. 56.
v. Pratt, 471.
Lawrence v. Belger, 58, 401.
v. Borm, 281.
Merchants Nat. Bk. of Toledo V.
Meyer v. Lindell Railway Co., 425.
Michigan Panelling Co. v. Parsell,
Mickle v. Hicks, 336.
Miller v. Assignees of Sieberling &
Miller v. Mosely, 98.
v. Patterson, 255.
St. Louis R. R., 335.
Minor v. Hill, 78.
Missouri & Kansas Trans. Co. v.
Mitchell, in re., 41.
Mix v. People, 277.
Mobile Life Ins. Co. v. Brame, 122.
Mobley v. Letts, 336.
Moore v. Board of Comrs. of Monroe
Moore v. Hall, 321.
v. Hopkins, 254.
v. Keep, 293.
The John T., 261.
Morrell v. Cowan, 114.
Morrison v. Kramer, 117.
Morse v. Shaw, 298.
Mound City Life Ins. Co. v. Twining,
Moynahan v. Wilson, 29.
Mulliner v. Florence, 308.
Murphy v. Lucas, 155.
Murray v. City Council of Charles-
Musser v. Krum, 397.
Mutual Benefit Life Ins. Co. v. Hig.
Myers v. Vanderbilt, 2.
Mynard v. L. B. & N. 'Y. R. R., 56.
v. State, 99.
Lytle v. State, 78.
McCarthy v. Kitchen, 358.
McCoy v, Wilson, 176.
McCrea v. Martien, 39.
McElhenney v. Klein, 478.
McGennis v. Hunt, 445.
McGuinness v. Boyle, 238.
Mckenzie v. Hesketh, 114.
McKinley v. Kuntz, 487,
McKown v. Furgason, 376.
McLain v. People, 227.
McMillan v. Baker, 358.
v. McCormick, 498.
McPherson v. Cox, 355.
McQuiddy v. War, 294.
Napoleon v. State, 457.
v. Norment, 357.
National Bk. of Madison v. Davis, 106.
National Fund Ins. Co. in re, 96.
Nave v. Sturgir, 396.
Neal v. Scruggs, 235.
Neely v. Buford, 316.
Neff v. City of Cincinnati, 156.
Newton v. Jennings, 297.
New York Life Ins. Co. v. Davis, 113.
Nichols v. Ela, 435.
Nicholson v. Caress, 117.
v. State, 478.
Norman v. Conn, 418.
North Western Life Ins. Co. v. Over-
North Western University v. People,
Norwich Prov. Ins, Co. in re,
Machinists Nat. Bk. v. Dean, 337.
Magen Furnace Co. v Boston Co. 499.
Maggi v. Cutts, 137.
Maitland v. Martin, 457.
Ma lory v. Sailing, 434.
Manhattan Ips. Co. v. Ellis, 255.
Manning v. Irish, 376.
Manville v. Felter, 40.
Marble v. Ross, 157.
Margerum v. State, 464.
Marshall v. State, 221.
Martin v. Paxson, 357.
v. Smith, 238.
v. Meharry. 198.
O'Brien v. Flanders, 97.
v. Waters, 118.
Oak Bridge Coal Co. v. Reed, 275.
Ohio & Miss. R. R. v. Hatton, 378, 389.
v. McCarty, 287.
Farmers' Ins. Co. v. Britton, 378.
Onthank v. L. S. & M. S. R. R., 36.
Osborn v. State, 99.
Ould v. Washington Hospital for
P. C. & St. L. R. R. v. Culver, 498.
v. Morton, 216.
y. Porter, 255.
v. Vandyke, 38.
Turner v. Atwood, 478.
Union Nat. Bk. v. Roberts, 318.
Pacific R. R. v. Stewart, 241.
Express Co. v. Keifer,
Shillaber v. Robinson,
Watkins v. Price, 338.
v. N. Y. & C. R. R., 201.
Williamson v. New Jersey, &c., R. R.,
Yeatman v. New Orleans Sav. Inst.
v. Willis, 141.
State Ins. Co., in re, 121.
Stearns v. Quincy Ins. Co., 306.
Steel v. Fife, 397.
Stevens v. Wheeler, 318.
Stickle v. Otto, 196.
Stickney, in re, 263.
Stillwell v. Walker, 406.
Stevenson v. Saline Co., 253.
Stewart v. Waite, 40.
Stockton v. Stockton, 216.
Stoddard v. St. L., K. C. & N. R. R.,
Stone v. Dysort, 438.
v. Merrill, 18.
Storey v. Early, 203.
son Co., 253.
Tainter v. City of Worcester, 408.
Tatum v. Curtis, 481.
Taylor v. De Bus, 356.
Taylor v. Parker, 18.
Teghtmeyer v. Mongold, 335.
Terrell v. Warren, 4.
Terry v. Anderson, 21.
Thomas & Sivyer, in re, 151.
Thompson v. St. Louis Ins. Co., 394.
Thompson's Case, 58.
Thorn v, Sweeney, 23.
Thornton v. Lewis, 397.
Thorpe v. N. Y. C. & H. R. R., 321.
Tisen v. Hanford, 58.
Toland v. Stevenson, 318.
Tomppert's Exrs. v. Tomppert, 66.
Tompson v. Fisher, 199.
Tonci ay v. Toncray, 81.
Torrey v. Nixon, 137.
Towner v. Nash, & Lowell R. R., 237.
Town of Grayville v. Whitaker, 97.
Jefferson v. People, 255.
Townsdin v. Nutt, 17.
Tranter v. Helphenstine, 301.
Trembly v. State, 437.
Trout v. Drawhorn, 38.
Trow v. Lovett, 156.
True v. Emery, 201.
The Central Law Journal. the purpose of protecting some property in
Portugal. The marriage was never consum
mated. In 1873 they returned to Portugal, SAINT LOUIS, JANUARY 4, 1877. and continued to reside there. By the law of
Portugal the marriage was invalid, first cousins CURRENT TOPICS.
being within the prohibited degrees of consan
guinity. The wife brought a suit in the EnThe conflict of judicial opinion in regard to
glish court, praying for a decree of nullity, on marriages between the white and black races
the ground that the marriage was void by the in Texas, which has been frequently referred
law of Portugal. On the hearing, Sir R. J. to in this journal (see 4 Cent. L. J. 588, 5
Phillimore held that the lex loci contractus must Cent. L. J. 2, 149), may be said to have ended prevail, and that, as by the law of England by the decision the court of appeals of that
the marriage was good and binding, the court state, in the case of Frasher v. State, i Tex.
was bound to uphold it. The petitioner apL. J. 132. The following propositions were
pealed, and the Court of Appeal has reversed declared by the court: 1. The statute of
this decision, holding that the petitioner and Texas, passed in 1859, making it a felony for respondent, as domiciled Portuguese subjects, a white person to marry a negro, is a valid ex
carried with them to England the incapacity to isting law, and is not in violation of the four
contract marriage with one another inflicted teenth and fifteenth amendments of the Con
on them by the law of Portugal; that the Enstitution of the United States, or the first sec
glish court was bound to recognize this incation of the civil rights bill. 2. Congress does pacity, and that a decree of nullity should be not possess the power, under the Federal Con
granted. stitution, to pass a law regulating and controlling the institution of marriage in the several In Doyle v. Harris, recently decided by the states of the Union. 3. Marriage is not a Supreme Court of Rhode Island, where a concontract protected by the Constitution of the tract for the sale of land provided for the payUnited States, or within the meaning of the
ment of the balance of the purchase-money" civil rights bill. It is a civil status, left to the at a time certain, and the court, from evidence discretion of the states, under their general which was conflicting, found that the time had power to regulate their domestic affairs. The been extended by agreement to a day certain, rights, obligations and duties arising from it
and the vendee did not then pay, nor did he are not left to be regulated by the agreement
claim that he had ever tendered the price and of the parties, but are matters of municipal demanded a deed, the court dismissed the regulation, over which the parties have no con
vendee's bill for specific performance. Potter, trol. 4. The objection that the statute fixes a
J., in delivering the opinion of the court, after penalty upon the white person alone, and none intimating that in this country the tender of a upon the negro, should be addressed to the deed by the vendee is unnecessary in order to legislature, and not to the judicial branch of put the vendor in default, said: "At law the the government.
vendee suing must show either a strict per
formance on his part, or a tender and refusal. A DECISION of much importance on the law of And in equity the party suing is not discharged the domicil as affecting contracts of marriage from performance any more than at law, exhas been announced by the English Court of cept in cases of accident or mistake on his Appeal, in Sottomayor v. De Barros. The case part, or laches or default on the other side. arose on a petition to declare the marriage of
He must show that he has not been in default petitioner with the respondent void. The peti- himself. Walker v. Jeffreys, 1 Hare, 341, tioner and respondent, Portuguese subjects | 348, 352; Voorhees v. De Meyer, 2 Barb. and first cousins, went with their parents to S. C. 37. Equity excuses actual performance reside in England, in 1858. In 1866, they in some cases where it would have been of no went through the civil form of marriage before
avail, as where a tender would have been rethe register of the district of the city of Lon
fused. Fry on Specific Performance, 8 619; don. They were both infants at the time of
Hunter v. Daniel, 4 Hare, 420, 433. So in the ceremony, and they went through the form
cases of accident or mistake, or justifiable exat the earnest solicitation of their parents, for
cuse, where the other party suffers no injury. Vol. 6.-No. 1.
Longworth v. Taylor; 1 McLean, 395, 400, The same rule applies to promissory notes. 402. He must perform or show a readiness Byles on Bills, 134; Story on Promissory to perform, or some default of the other party Notes, $ 11; Geary v. Physic, supra; Closson which excuses him. McNeil
McNeil v. Magee, 5 v. Stearns, 4 Vt. 11; Partridge v. Davis, 20 Mason, 244, 256 ; Fry on Specific Perform- id. 499; Brown v. Butchers and Drovers ance, § 608; 2 Eq. Ca. Abr. 33; Wood v. Bank, 6 Hill, 443. So a book account made v. Perry, 1 Barb. S. C. 114, 131. And the in pencil was held admissible in evidence as a defendant's negligence can not excuse the book of original entries. Hill v. Scott, 2 Jones, complainant. Fry on Specific Performance, s 169. In 1 Redfield on Wills, § 17, pl. 2, it is 608. And if the court finds that there was a said: “The English statute of frauds exsufficient excuse; that the condition of the par- pressly required a will of lands to be in writing. ties and the value of the property remains un- But it has been held that a will written in penchanged, and the same justice can be done, it cil instead of ink would be good.” Citing will grant relief. Longworth v. Taylor, 1 In re Dyer, 1 Hag. Ec. 219. That a will McLean, 305, 400, 402 ; opinion of Story, J., written in pencil may be valid was also ruled in in Taylor v. Longworth et al., 14 Pet. 172 ; Rhymes v. Clarkson, 1 Phil. R. 1; 2 id. 173. Doleret v. Rothschild, 1 Sim. & Stu. 590; In Main et al v. Ryder, 34 Leg. Int. 372, Crofton v. Ormsby, 2 Sch. & Lef. 583, 603; speaking of the signature of a testator, it was Benedict v. Lynch, 1 Johns. Ch. 370; Scott said that the manifest object of the act is to v. Fields et al., 7 Ohio, 2d part, 90, and cases permit a will to be signed as any other written there cited.”
instrument may be signed. The court con
sidered the authorities to establish that a valid The Supreme Court of Pennsylvania in Myers v. Vanderbilt, 34 Leg. Int. 455, has just
will may be drawn with the same materials decided a point of some interest on the law of
that will suffice for the drawing of any writ
ten contract. wills. Under a statute of that state declaring
As was well said by Mr. Justhat “every will shall be in writing” it holds
tice Coulter, in Hill. v. Scott, supra, they that a will written and signed in lead pencil is
abundantly prove that a writing in pencil is valid. The statute, said the court, did not
equivalent and tantamount to a writing in indicate the material on which it shall be writ
ink. The validity of a will written or signed ten, nor the instrument or materials with
with a lead pencil was referred to, but left unwhich it shall be impressed. In Blackstone's decided, in Patterson v. English, 21 P. F. Com., book 11, p. 297, it is said: “A deed must
Smith, 454, but the opinion of Mr. Justice be written, or, I presume, printed, for it may
Williams contains a strong declaration against be in any character or any language; but it
the propriety of writing or signing in that
manner. must be upon paper or parchment. For if it
The reason given against it, is the be written upon stone, board, linen, leather,
facility with which the writing may be altered or the like, it is no deed.” Blackstone does
or effaced. Mercur J.: “ There is force in this not prescribe whether the writing shall be in suggestion.
suggestion. No prudent scrivener will write ink or in pencil. He stops with declaring the
a will in pencil, unless under extreme cirsubstances on which it shall be made. Writ
cumstances. Whenever so written, any aping is the expression of ideas by visible letters. pearance of alteration should be carefully It may be on paper, wood, stone or other ma
scrutinized. Yet inasmuch as the statute is terials. The ten commandments were written
silent on the question, we can not say the with the finger of God on tables of stone: Ex
mere fact that it was written or signed in odus xxxi, 18. The general rule, undoubtedly pencil, thereby makes it invalid. It is nevis, that whenever a statute or usage requires a
crtheless a writing, known and acknowledgwriting, it must be made on paper or parch
ed as such by the authorities, and fulfills the ment; but it is not essentially necessary that requirement of the statute.” it be in ink. It may be in pencil. This view is sustained by numerous authorities, as ap
ULTRA VIRES. plied to contracts generally. Chitty on Cont. In a recent case in the House of Lords, 72 ; Jeffery v. Walton, 2 Eng. C. L. R. 385; Riche v. Ashbury Rwy. Carriage Co., L. R., 7 Geary v. Physic, 11 id. 214; Merritt v. Clason, Eng. and Ir. App. 653, Lord Cairns began 12 Johas. 102; Clason v. Bailey, 14 id. 484. his opinion by saying: “The history and pro