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PUBLIC SALE.

OF UNOPENED PACKAGES BY EXPRESS COMPANY. - A sale of packages without opening them so that the contents can be seen is not a lawful sale within the meaning of the statute which provides that the property shall be "exposed." Adams Express Co. v Schlessinger, Leg. Gazette, June 12, 1874.

RAILROAD.

See CONSTRUCTION OF STATUTES, 1; EVIDENCE, 3, 4, 5.

SPECIAL ACT.

See CONSTRUCTION OF STATUTES.

STATE DECISIONS.

How FAR U. S. COURTS WILL BE BOUND BY.. Whether or not a married woman has power to mortgage her separate estate to secure a debt of her husband, is a question in the determination of which a federal court will be bound by the constructions of a state court, the question depending upon the construction of a state statute. Mitchell v. Lippincott & Co., Cent. L. J., May 28, 1874.

See CONSTRUCTION OF STATUTES, 2.

STATE SOVEREIGNTY.

TREATY STIPULATIONS. RIGHT OF STATE OVER ITS OWN TERRITORY. A treaty with a tribe of Indians living in Minnesota, made after the admission of the State to the Union, contained a stipulation in the following words:

"The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States."

Certain spirituous liquors, illegally introduced into the territory covered by the stipulation, were seized in pursuance of law and duly libelled. The court held, sustaining a demurrer, that the territory where the liquors were seized being an organized county in the State of Minnesota, without the consent of said State the stipulations of the treaty cited were inoperative to the extent of demanding the forfeiture. U. S. v. Forty-three Gallons of Whiskey, &c., Int. Rev. Rec., May 18, 1874.

TAXATION.

1. INTERNAL REVENUE. CONSTRUCTION OF ACT OF JUNE 30, 1864, as to WHOLESALE DEALERS. Where a manufacturer sells by sample at an agency he is not liable to be taxed as a wholesale dealer, as provided in section 79 of the act of June 30, 1864, and the amendatory act of July 13, 1866. Tucker v. Slack, Int. Rev. Rec., May 11, 1874. 2. TAX UPON CORPORATION. - REGULATION OF COMMERCE. Held, that a state statute that imposed a tax upon the earnings of a railroad

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DIGEST OF CASES.

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company, with a proviso that where the railroad lay partly in and partly out of the state, the tax should be proportioned accordingly, was not unconstitutional as being a regulation of commerce or otherwise, but was merely a tax upon the corporation. Minot v. P. W. & B. R. R., Chicago L. N., May 16, 1874.

3. TAXES WERE ASSESSED UPON DIVIDENDS declared by an insurance company on earnings which had accrued to the company between July 5, 1869, and June 30, 1870. Held, that the tax was valid. Stockdale v. Atlantic Ins. Co., Albany, L. J., June 13, 1874; Int. Rev. Rec., June 1, 1874.

RATION.

TRUST DEED.

See VOLUNTARY CONVEYANCE.

ULTRA VIRES.

SALE OF INTOXICATING LIQUORS. POWER OF MUNICIPAL CORPOA provision in the charter of a city authorized the common council to declare the selling, giving away, or keeping for sale of spirituous or intoxicating liquors in the city a nuisance.

An ordinance was passed which authorized a police magistrate, upon complaint that any person had liquor for sale to the amount of more than one gallon, to issue his warrant for the search of the person's dwelling, &c. Held, that the ordinance was ultra vires and void. Sullivan v. City of Oneida, Mo. West. Jur. June, 1874.

UNITED STATES.

LIABILITY OF THE UNITED STATES FOR FORGED OR FRAUDULENT BONDS CONSIDERED. - Under the act of Congress of April 12th, 1866, which authorized the secretary of the treasury to dispose of bonds, "the proceeds thereof to be used for retiring treasury notes, or other obligations issued under any act of Congress, but nothing herein contained shall be construed to authorize any increase of the public debt," the assistant treasurer at New York having purchased, for retiring, certain 7-30 treasury notes, not yet due, which, being sent to Washington, were returned as forged and counterfeit and not issued by the United States, suit was brought by the government to recover back the money paid for the notes. Evidence was given on the trial, insisted on by the defendants, as tending to show that the notes were printed from the genuine plates and sealed with the genuine seal of the treasury department. Held, if the notes were in fact wholly forged and counterfeit the assistant treasurer had no authority to purchase them, and the plaintiffs were entitled to recover.

The government is not estopped, by the purchase and payment, from recovering back the money, not only because the government is not, in general, bound by the negligence of its officers, acting under a limited authority, but also because the defendants could, by refunding the money, be placed in the same situation, as they were before the transaction..

The case bears no just analogy to the acceptance or payment of a forged bill of exchange, by the drawee thereof, in which case the holder acts in faith of the drawee's acceptance or payment, and is disarmed of his usual

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DIGEST OF CASES.

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recourse to prior parties. There the drawee is estopped from setting up a state of facts which would practically operate as a fraud on the holder.

The decision in the Bank of the United States v. Bank of Georgia (10 Wheat. 334), holding a bank concluded by receiving its own bank bills which had been fraudulently altered, and crediting them as cash, seems to have depended upon the special circumstances of that case.

Neither that nor other cases establish that an agent, having authority to retire genuine notes of his principal, not yet due, can conclude his principal by purchasing forged notes; still less that the government can be concluded by such an unauthorized act of a subordinate officer.

There is no material difference, in this respect, between this case and any other purchase, by an agent, where a mutual mistake of fact is discovered after payment of the consideration. Jay Cooke et al. v. U. S., Int. Rev. Rec., June 1 and 8, 1874.

VOLUNTARY CONVEYANCE.

TRUST DEED MAY BE SET ASIDE IN EQUITY.—It appearing that a voluntary deed of trust, which did not reserve a power of revocation, the consideration of which was nominal, which was given without legal advice, and misunderstood by the grantor, was set aside and cancelled, notwithstanding that the grantor's infant children were beneficiaries under the deed. Runyon, Chancellor, writes: "In Villers v. Beaumont, decided in 1682, the lord chancellor said: If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this court will not loose the fetters he hath put on himself, but he must lie down under his own folly.' Recent cases, however, have narrowed the doctrine, and have held not only 'that the absence of a power of revocation throws on the person seeking to uphold the settlement the burden of proving that such a power was intentionally excluded by the settlor, and that in the absence of such proof the settlement may be set aside, but that equity will set aside the settlement on the application of the settlor where it appears that he did not intend to make it irrevocable, or where the settlement would be unreasonable or improvident for the lack of a provision for revocation. It is not necessary, how

ever, to rest a decision of this case adverse to the deed on so narrow a foundation as the mere absence of a power of revocation. The circumstances under which a voluntary deed was executed may be shown, with a view to impeaching its validity, and if it appears that it was fraudulent or improperly obtained, equity will decree that it be given up and cancelled. Garnsey v. Mundy, Am. Law Reg., June, 1874.

VOLUNTARY PAYMENT.

BY WIDOW FOR MEDICAL SERVICES. - A widow who voluntarily pays for medical attendance upon her deceased husband cannot recover the amount paid against his estate. France's App., Leg. Gazette, May 29, 1874; Leg. Int., May 29, 1874.

KOELGES v. GUARDIAN MUTUAL LIFE INS. CO.

Upon the trial of a case the plaintiff proved that a certain pamphlet had been issued but did not introduce it in evidence. In his address to the jury he was permitted to read from it, to which defendant objected. Held, that there was error and ground for reversal in the appellate court.

OPINION by GRAY, Commissioner. The issue on trial was whether the policy upon which the plaintiff sought to recover had been forfeited by reason of the failure of the assured to comply with its terms. The plaintiff proved the issuing of a pamphlet by the defendant, but did not offer it in evidence. The plaintiff's counsel in summing up, notwithstanding the objection by the defendant's counsel, that the pamphlet had not been offered in evidence, was permitted to read from it and state its contents to the jury, the judge holding that he might do so by way of summing up, to which the defendant excepted, and as a part of what the judge permitted to be done by way of argument, the counsel stated the contents of portions of the pamphlet, saying among other things, that it contained the words "non-forfeitable policies "upward of forty times. This was a manifest error on the part of the judge, and one of the character of errors which on the trial of causes often results in unjust verdicts. Permitting the pamphlet to be thus read and its contents stated was more in the nature of admitting its statements in evidence than a summing up upon the evidence legitimately before the court and jury. It is possible that the error did not result in harm to the defendants. When an error of this kind, persisted in by counsel, has the sanction of the presiding judge, it can hardly be supposed (considering the respect shown by jurors to the court) that what occurred did not prejudice the defendant, and may not, like any other error committed that way, have prejudiced the objecting party with the jury. It is for the party in whose favor the error is committed to show affirmatively that the verdict must have been as it was, notwithstanding the error.

We cannot say that the error was harmless, and must, therefore, reverse the judgments of the general term and circuit, and order a new trial. All concur.

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NOTES OF NEW BOOKS.

[No. 8.

NOTES OF NEW BOOKS.

MESSRS. ROBERT CLARKE & Co. of Cincinnati have ready volumes 1 and 2 of their republication of the Ohio State Reports. It is proposed to issue two volumes every month until the series is complete. The Ohio State and Ohio Reports, embracing all the published decisions of the Supreme Court of the State to the present time, are to be furnished at the unprecedentedly low price of $107.50, or $2.50 a volume.

THE SAME HOUSE announce a new and comprehensive Ohio Digest, by Hon. J. Bryant Walker and Clement Bates, which will be furnished to subscribers before publication at $12. The work is to be in two volumes and the price $15.

MEMORIES OF WESTMINSTER HALL, by Edward Foss. Messrs. Cockroft & Co. of Chicago offer a fine illustrated edition of this interesting work in two volumes. Price $7. MESSRS. SUMNER, WHITNEY & Co., of San Francisco, have recently issued a volume entitled California Citations, the name of which indicates its nature. It has been prepared by Robert Desty, Esq., and is printed in a most satisfactory manner, the type being well adapted to the character of the book. Like all works of its class it has a standard value, and merits the favorable consideration of the profession. Price $7.50. ADAMS'S AND DURHAM'S Real Estate Statutes and Decisions will be published by Messrs. Callaghan & Co., of Chicago, during the present month.

THE FOURTH VOLUME OF Bissell's Reports is announced as in press by the same publishers. Mr. Bissell's series is one of exceptional value to the practitioner in the Federal courts. A large number of the opinions it contains are by Judge Drummond, whose views are of great weight in every section of the country.

MESSRS. COCKROFT & Co., of New York, are prepared to supply the first volume of a new edition of Campbell's Lives of the Lord Chancellors. The volumes are illustrated by Speigle and others, handsomely printed, and will be issued monthly at $3.50 a volume. MESSRS. BAKER, VOORHIS & Co. have issued a pamphlet embracing all the U. S. statutes concerning bankruptcy, including the act of June 22, 1874. Price 75 cts.

A SECOND EDITION OF Flanders on Insurance will be published in the course of a few weeks by Messrs. Claxton, Remsen & Haffelfinger of Philadelphia.

THE FIRST NUMBER of the new series of the Psychological and Medico-Legal Journal has made its appearance. Dr. Hammond resumes the editorship, and the work is published by F. W. Christern, 77 University Place, New York. It is greatly to be hoped that the new series will meet with the success it merits. The first number is in every respect attractive. Subscription price $5.