The statute of limitations applicable to this case was revised, and the former limitation was repealed, and this statute had begun to run before the revision and repeal. Hence, it did not cease to run. By this saving section all the limitations, with all their provisos and exceptions which were in force and had begun to run before the revision, are continued in force as to all offenses alleged to have been committed before the revision and repeal of the same. The indictment should have been quashed." Judgment reversed.-The People v. Garrison.

DAMAGES-ASSAULT AND BATTERY-REMARKS OF COUNSEL-ATTORNEYS.-Action for damages for an assault. Plea not guilty. Verdict for plaintiff in court below. Appealed from. One ground of complaint is that the court refused to stay proceedings on motion, until appellee should pay the costs of a former action for the same cause of action which had been dismissed. Held, that this presented a question for the discretion of the circuit court and can not properly be reviewed in this court. It is insisted that a new trial should be granted for the reason, as alleged by appellants, that appellee's counsel, with the permission of the court and against objections of appellants, in his opening speech to the jury, stated "that in a former trial of the case the defendants had suborned their little son to commit perjury

and that appellant had committed perjury in his affidavit for a change of venue." DICKEY, J.: "Were this true it would indeed be good cause for reversing the judgment. Unfortunately for the success of this objection the charge is not sustained by the transcript of the record. The extract above is copied from the abstract prepared and filed by appellants attorney. It is much to be regretted that such a discrepancy is ever encountered. To incorporate in the abstract matter not found in the record is ever reprehensible. If done inadvertently it indicates culpable negligence. If done to mislead the court it is sheer dishonesty." Because the damages were excessive the case was, however, reversed and remanded.-Hennies v. Vogel. ACCOUNT-GUARDIAN · EXECUTOR.- This was a proceeding instituted by wards to compel their guardian to render an account. The guardian appeared and presented an account, which was rejected. The court, from testimouy, found the amount due and entered an order requiring the guardian to pay within a certain time. From this judgment of the county court the guardians appealed to the circuit court. While the appeal was pending, the guardian died, and, on motion of the wards, his executor was made a defendant to the proceeding. The executor came into court and made a motion to abate the proceedings as against him, which motion the court allowed, and rendered judgment against the wards for all the costs. To reverse this, the wards appealed. CRAIG, J., after discussing the nature of the remedy herein sought, and declaring that a proceeding against a guardian under the statute had never been regarded as a suit at law or in equity, in the sense this term has been used, says: "We perceive no reason, nor are we aware of any principle which would authorize the county court to proceed by citation against the personal representative of a guardian. If a guardian should die with money in his hauds belonging to his wards, his estate could be reached by an appropriate action, and the sureties on the bond would be liable to suit in a proper action, nor should a different rule prevail in this case, because the guardian died pending an appeal." After discussing that question CRAIG, J., says; “We are therefore of opinion the wards had no greater rights from the fact the guardian died pending an appeal than they would have had had the guardian died while the proceeding was pending in the county court before a decision had been rendered." Upon

this point the decision was affirmed, but for minor errors the case was reversed and remanded.-Harvey v. Harvey.

LEASE-CONSTRUCTION.-Appellee being the owner of a building in Chicago, let a part of the same to the United States Government, and, having permission to let the fifth floor to other tenants, subject to the right of the government to require the fifth floor to be vacated at any time. In this condition appellee leased the fifth floor to D on the 12th of August, 1873, by a lease to run until September 20th, 1876, at the rate of $2400 per annum, and accepted in payment of the rent (for the whole term) the conveyance to him by D of certain lands, which were taken at the price of $5700. The lease contained the following: "If said D shall be required by the United States Government to leave and vacate said premises before the termination of this lease, a proportionate allowance of rent shall be made to said D by said F for the time his occupancy of said premises shall be abridged from such cause; and in case said premises shall be destroyed by fire, so as to be rendered untenentable, a proportionate allowance of rent shall be made to said D by said F for the time said premises shall thus remain untenantable, and such allowance may be paid by said F in said lands in Dunklin County at the same price paid by F, at the election of said F." Dassigned the lease to appellant who occupied until required to leave by the United States Government. Thequestion submitted to this court relates to the kind of payment F is bound to make. He insists he had a right to pay in lands, while appellant demands payment in cash. DICKEY, J., says: "The case must turn upon the construction of the words of the lease. Appellent insists that the provision for payment in land applies only to the second contingency. This position can not be sustained. It seems plain to us that when the parties say "such allowance may be paid * in land," they meant such allowance from whatever cause arising. Affirmed.-Osborn v. Farwell.

PRINCIPAL AND AGENT-ADMISSION BY CREDITOR. -A statement by the plaintiffs in a petition in bankruptcy by them against A, that he owed them the debt now sued on, is not conclusive against their right to maintain this action against a subsequently discovered principal of A, but should be submitted to the jury with all the evidence in the case. Raymond v. Crown & Eagle Mills, 2 Met. 319. Per CURIAM.-Gardner v. Bean.

LARCENY DESCRIPTION OF PROPERTY — BANK BILL.-1. In an indictment for larceny, where all the articles alleged to have been stolen are of one kind, the allegation may be "divers," "divers and sundry," or "a quantity," without stating any special number, with an averment of the aggregate value of the whole. Com. v. Sawtell, 11 Cush. 142; Com. v. O'Connell, 12 Allen, 451; Com. v. Hussay, 111 Mass. 433; Com. v. Green, 122 Mass. 333. 2. An indictment, therefore, which alleges that the defendants did steal, &c., “divers promissory notes of the amount and of the value

Associate Justices.

-

PROMISSORY NOTE FRAUD-INNOCENT HOLDER -AGENCY.--1. The maker of a note, by fraud procures an accommodation indorsement upon it, transferring it, before due, to a creditor, in payment of a pre-existing debt, the creditor giving time and surrendering collaterals. Unless complicity in the fraud, or knowledge of it at the time of taking the note, is proven against the creditor, the paper in his hands can not be impeached. 2. A creditor demands security of his debtor, who, to obtain it makes fraudulent representations to the one who becomes surety. The creditor is ignorant of these representations and innocent as regards the debtor's conduct. No such relation of agency exists, as will make the creditor responsible for the debtor's acts. Judgment reversed. Opinion by WRIGHT, J.-Kingsland et al. v. Jones et al. NUISANCE- INDICTMENT-WITNESS - RELIGIOUS BELIEF.-1. Under an indictment charging a violation of section 4 of "An act to provide against the evils,' etc., S. & C. 1431, it is not necessary to show that the nuisance existed at the time the proceedings were commenced. It will be sufficient to show that it existed, in fact, at some time during the period named in the indictment. 2. No one is rendered incompetent to be a witness on account of religious belief, nevertheless, every one offered as a witness in a court must take an oath or affirmation before giving testimony. 3. A person who believe in the existence of a Supreme Being, who will, either in this life or the life to come, inflict punishment for false swearing, may be sworn as a witness. 4. A witness can not be cross-examined as to any fact which is collateral and not material to the issue, merely for the purpose of contradicting. 5. Answers, elicited from a witness on cross-examination, as to his religious belief, or his previous declarations in relation thereto, being collateral and not material to the issue, will not serve as a foundation to call witnesses to contradict him. Judgment reversed. Opinion by ASHBURN, J.-- Clinton v. State.

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.

38. IF A, BEING IN IOWA, shoot across the state line

In Coombe's case, 1 Leach, 432, the prisoner, a smuggler, was indicted for the murder of the master of one of the King's sloops. He had fired at him from behind a house on the shore, some 200 yards from the sea, and the deceased was on board his ship, about 100 yards from the shore. The prisoner was convicted in the court of admiralty, but the question was reserved for the consideration of the Court of Exchequer Chamber, whether the prisoner had been properly tried by the admiralty jurisdiction, or whether he ought not to have been tried in the common law courts. The conviction was unanimously affirmed, the court holding that the offense is complete where the death happens and not at the place from whence the cause of the death proceeds.-ED. CENT. L. J. ]

39. WILL-EVIDENCE-DECLARATIONS OF DECEASED THAT HE HAD MADE WILL.-A man dies: no will is found. Can a will be established alone upon the evidence of witnesses detailing conversations of the dead man, that he had a will making a given disposition of his estate? No witness proves the existence of the will; no one ever saw the will. The question involved considerable interest at our bar, and we desire to see the various opinions of your patrons. Lebanon, Ky.

see.

M. & P.

[We should answer this question most unhesitatingly in the negative. How dangerous the establishment of such a rule would be, and what a wide door it would open to successful perjury our inquirer must readily We know of no American case in point; at least none are cited by Judge Redfield in the last edtion of his work on Wills. In the goods of Ripley, 1 Sw. & Tr. 68, a resident of India had sent to his solicitor in England copies of a will and codicil, which he stated he had executed there. After his death, shortly after, in India, neither of the originals could be found, and application was made for the probate of the will and codicil, as contained in the copies sent to England. CRESSWELL, J., during the argument, said: "There is abundant proof of the contents of the will and codicil, but I have great difficulty as regards the proof of execution of these papers. The only proof before me is the statement and assertion of the deceased himself. Is there any precedent for granting probate of papers where there was no other proof of the execution of them?" Dr. Deane (petitioner's counsel); "I have not been able to find any exact precedent." Afterwards, in delivering judgment on the application, the learned judge said; "No instance could be found; but in the case of Doe v. Palmer, 16 Q. B. 747, a common law court refused to receive in evidence the declaration of a testator made after the execution of his will, that an interlineation in it was made before execution. If a declaration made after execution as to an interlineation could not be received, a fortiori, a declaration as to the actual making of a will could not be received. There being no other evidence as to the factum of the will, I am bound to refuse probate of the copy." In a case of great celebrity, decided in England about two years ago, the question as to secondary evidence of the contents of a lost will was discussed at great length by the Lord Chief Justice of England. See Sugden v. Lord St. Leonards, 24 W. R. 860. But in this case there was proof of the fact of this execution of a will, though the will itself could not be found. The court admitted the evidence of the daughter of the deceased of his declarations of its contents. "The question before us," said Cock

BURN, C. J., "is whether the statements made by a testator as to the provisions of his will can be received as evidence of the contents of a will known to have existed, but which, at his death, is no longer forthcoming. That, morally, such statements and declarations are entitled, where no doubt exists of their sincerity, to the greatest weight, can not be denied; and I am at a loss to see why, when such evidence is held to be admissible for the two purposes just referred to, it should not be equally receivable as proving the contents of the will. If the exception to the general rule of law which excludes hearsay evidence is admitted, on account of the exceptional position of a testator, for one purpose, why should it not be for another where there is an equal degree of knowledge, and an equal absence of motive to speak untruly? Could it be contended that, if the testator had given written instructions for his will, or had first made a draft of the will, and had endorsed on the back of it, 'This is the draft from which I copied my will,' the draft would not have been admissible to prove the contents of the will? Or suppose he had made a copy of the will endorsing it as such, is our law in such a state that such a copy would be inadmissible to show the contents of the lost will?" But the learned judge adds that there are cases in which the declarations of a testator would be inadmissible, and refers in this connection to the decision in re Ripley, supra, which he approves for the reason-which, it must be admitted, is a complete answer to our enquirer's question-that the exercise of the testamentary power, being conditional on the observance of the formalities prescribed by statute, a man can not, by his own mere assertion, establish that he has fulfilled the conditions necessary to the exercise of the right.-ED. CENT. L. J.]

ANSWER.
No. 35.

(6 Cent. L. J. 479.)

1st. Sec. 2307 Revised Statutes U. S. being part of the chapter on " Homesteads," provides for entry by minor orphan children of deceased soldier, and is subject to sec. 2291 in regard to proof and patent, which requires in the case stated that "the heirs" should make proof, and provides that they would then be entitled to patent. In re John Dillon, Copp's Land Laws, 245; Letter to A. F. Hubbell, Copp's Land Laws, 246; In re Andrew Johannessen, 4 Copp's Land Owner, 108. 2d. A patent in the name of a deceased person conveys no title; but by the act of May 20, 1836 (5 Stats. at Large, 31) this defect was cured and the title vested in the heirs of deceased patentee. Gallaway, Jr., v. Finley et al., 12 Peters, 264; 12 Condensed R. 724. The act of May 20, 1836, applies to patents that "May be hereafter issued," Sec. act in 1st Lester's Land Laws, 45.

NOTES.

THE life of the Hon. Sidney Breese, who died on Thursday last, at Pickneyville, Ill., may be said to have embraced the whole judicial history of his adopted state. Graduating from Union College, New York, in 1818, he went to Illinois in that year, and was admitted to the bar in 1821. The first of the long series of Illinois reports, which has now reached its eighty-second volume, is known as Breese's reports. He served as a major in the Black Hawk War of 1822. Three years later, or forty-three years ago, he was elected to the circuit bench, and six years after to the Supreme bench, which he only left to enter the United States Senate. In 1857 he was again elected to the Supreme Court, and he remained a judge of that court till the day of his death. He was an able jurist; in character inde

pendent, in mind active, in thought vigorous. He was indeed the Nestor of the bench, both in age and learning, and neither the profession of his state nor the people of his country will soon forget his name and his works. At the meetings of the bar throughout his state, resolutions of eulogy to the deceased jurist and of condolence to his family, have been adopted; that his judicial fame is not confined within the limits of his own state may be recognized in the meeting of the bar of this city on Wednesday last, when resolutions of like tenor were drafted and adopted.

ENGLISH judges, says the Solicitors' Journal have in the more recent cases, tooked with some jealously upon the evidence of experts upon questions of foreign law. One of the leading authorities upon the subject is The Sussex Peerage case, 11 C. & F. 85, where the House of Lords permitted the late Cardinal Wiseman, as a Roman Catholic bishop and coadjutor to a vicar apostolic in this country, to give evidence as to the matrimonal law of Rome. Lord Langdale based his decision on this ground: "He is engaged in the performance of responsible public duties, and connected with them; and, in order to discharge them properly, he is bound to make himself acquainted with this subject of the law of marriage. That being so, his evidence is of the nature of that of a judge." In Van Donckt v. Thelluson, 8 C. B. 812, the Court of Common Pleas allowed the law of Belgium, as to a promissorv note payable in that country, to be proved by a London hotel keeper, who was a native of Belgium, and had formerly carried on business at Brussels as a merchant and stock-broker. Mr. Justice Maule observed: 66 Applying one's common sense to the matter, why should not persons who may reasonably be supposed to be acquainted with the subject (though they have not filled any official appointment, such as judge, or advocate, or solicitor) be deemed competent to speak upon it? All persons, I think, who practice a business or profession which requires them to possess a certain knowledge of the matter in hand, are experts, so far as expertness is required." On the other hand, in Bristow v. Sequeville, 5 Ex. 275, the Court of Exchequer refused to allow the law of Prussia as to a question of stamp duty to be proved by a witness who had merely studied that law at the University at Leipsic. Mr. Baron Alderson inquired why, if the evidence were admissible," may not a Frenchman, who has read books relating to Chinese law, prove what the law of China is." This decision was followed not long ago by Sir James Hannen, in the Goods of Bonelli, 24 W. R. 255; L. R. 1 P. D. 69, who refused to decide a question of the testamentary law of Italy upon the affidavit of a gentleman who described himself as a "certified special pleader,” and “familiar with Italian law," there being nothing to show that his familiarity with the Italian law was obtained otherwise than by studying it in this country. And the same judge gave a similar decision last week in Cartwright v, Cartwright and Anderson, an undefended divorce suit, the marriage between the parties having been celebrated at Montreal. In order to prove the validity of the marriage according to the law of Canada, the counsel for the petitioner called Bompas, Q. C., who deposed that he was familiar with Canadian law, having practiced for many years in Canadian appeals before the Judicial Committee of the Privy Council, which is the final Court of Appeal for the Dominion of Canada. Sir J. Hannan declined to admit Mr. Bompas' evidence or to hold that an English barrister, by practicing before the Privy Council, becomes an expert as to any system of law in respect of which the Privy Council may be the final court of appeal.

SAINT LOUIS, JULY 12, 1878.

CURRENT TOPICS.

In National State Bank of Camden v. Pierce, recently decided by the United States Circuit Court for the Eastern District of Pennsylvania, it was held that a national bank located in New Jersey, but which received deposits in an office in Philadelphia, did not thereby become located in Pennsylvania, so as to be liable to taxation. The proceeding arose on a bill for an injunction to restrain the bank assessors of the state of Pennsylvania from returning an assessment upon the capital stock to the auditor-general of the state, and to have the assessment declared illegal. It appeared from the bill that the plaintiff was a national bank engaged in business in New Jersey; that for the convenience of persons in Philadelphia desiring to deposit money therein, it kept a clerk in an office in that city to receive deposits and deliver them to the bank in Camden, N. J., at the close of each day; that the defendants, who were the bank assessors of the State of Pennsylvania, had served on the plaintiff a notice of an assessment of a tax upon the entire capital stock of the bank; that said assessment, which was made under acts of the Assembly of Pennsylvania of April 12, 1867, April 2, 1868, and December 22, 1869, was contrary to law and void; that the plaintiff had taken an appeal from the assessment in due time, but the assessors refused to vacate or alter the assessment. It was insisted on the part of the defendants that a bank may be either of discount or deposit. If it performs the function of either in a place, it becomes located there. If it does business in two places, it must be taxed in both. CADWALADER, J.: "It is a criminal offense to carry on banking business in the way suggested in Pennsylvania without a license obtained in a particular manner, but that does not make the offender a bank located in Pennsylvania." MCKENNAN, J.: "We have decided, after full discussion, that even when a corporation carries on business in a state, it does not thereby Vol. 7-No.2.

farther and say that by similar conduct a corporation becomes located therein." An injunction was granted.

Ir a person inflicts upon another a dangerous wound-one that is calculated to endanger and destroy life-and death ensues therefrom within a year and a day, it is sufficient proof of the offense either of manslaughter or murder, as the case may be; and he is none the less responsible for the result, although it may appear that the deceased might have recovered if he had taken proper care of himself, or that unskillful or improper treatment aggravated the wound and contributed to his death. This doctrine was announced after an examination of the old authorities by the Supreme Court of Errors of Connecticut, in State v. Bantley, 17 Am. Law Reg. 447. See Roscoe Crim. Ev., 7th ed., 717; 1 Hale P. C. 428; 3 Greenleaf on Evidence, § 139; Rex v. Rews, Kelynge, 26. In Regina v. Holland, 2 Mood. & Rob. 351, the deceased had been severely cut with an iron instrument across one of his fingers, and had refused to have it amputated, and at the end of a fortnight lock-jaw came on, and the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon expressed the opinion that early amputation would probably have saved his life. Maule, J., held that a party inflicting a wound which ultimately becomes the cause of death, is guilty of murder, though life might have been preserved if the deceased had not refused to submit to a surgical operation. In Com. v. Pike, 3 Cush. 181, it was held that where a surgical operation is performed in a proper manner, and under circumstances which render it necessary, in the opinion of competent surgeons, upon one who has received a wound apparently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of the death, the party inflicting the wound will nevertheless be responsible for the consequences. In Rex. v. Johnson, 1 Lewin C. C., the deceased died from a blow received in a fight with the prisoner; a surgeon expressed an opinion that a blow on the stomach, in the state in which the deceased was, arising from passion and intoxication, was calculated to occasion death, but not so if the party had

been sober. Hullock, B., directed an acquittal, observing that when the death was occasioned partly by a blow and partly by a predisposing circumstance it was impossible to apportion the operation of the several causes and to say with certainty that the death was immediately occasioned by any one of them in particular. Of this case Roscoe remarks that it may be doubted how far this ruling of the learned judge was correct: Roscoe's Crim. Ev., 7th ed., 718. In Rex v. Martin, 5 Car. & P. 130, where the deceased at the time when the blow was given was in an infirm state of health, Park, J., said to the jury: "It is said that the deceased was in a bad state of health, but that is perfectly immaterial, as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it." In Commonwealth v. Hackett, 2 Allen, 136, it was held that one who has willfully inflicted upon another a dangerous wound with a deadly weapon, from which death ensued, is guilty of murder or manslaughter, as the evidence may prove, although through want of due care or skill the improper treatment of the wound by surgeons may have contributed to the death.

Bank of Owensboro v. Western Bank, recently decided by the Court of Appeals of Kentucky, is an interesting decision as to the liability to his principal of an agent who has acted negligently or has disregarded his orders. The plaintiff had authorized its agent to make a loan on a note with any good collateral security. The agent made a loan on Bank of Louisville stock security, which would have been good security had it been free from prior liens, but the existence of prior liens was claimed by the Bank of Louisville. The plaintiff, with knowledge of this claim, accepted the note and collaterals, and brought suit to compel the Bank of Louisville to make a transfer of the stock on its books to the plaintiff, and to subject it to the payment of the note. In this suit it was defeated, the priority of the lien of the Bank of Louisville being established.

money takes insufficient security the principal is not bound at his peril to accept and discharge the agent, or to reject the security, and look only to the responsibility of the agent, but may take the security and still hold the agent for the deficiency; and that the good faith of an agent in such a case does not exonerate him from liability to his principal. The doctrine, the court said, that if an agent has, by a deviation from his orders, or by any other misconduct or omission of duty, become responsible to his principal for damages, he will be discharged therefrom by the ratification of his acts or omissions by the principal, if made with a full knowledge of all the facts, is elementary. "But the instructions given in this case went further, and held that if the principal, at the time of accepting the note and collaterals, knew all the facts touching the loan and affecting the value of the security, which were then known to the agent, and with such knowledge received them and treated them as its own, the agent was discharged from liability. We have examined many authorities, both elementary and judicial, in which the doctrine of ratification, as between principal and agent, is discussed, but we have not found one which considered the good faith of the agent as an element in deciding whether or not there has been a ratification; but, on the contrary, whenever the good faith of the agent has elicited remark, it has been to the effect that it could have no weight in the decision of the question. 'Indeed, in all such cases the question is not whether the party (agent) has acted from good motives and without fraud, but whether he has done his duty and acted according to the confidence reposed in him.' Story on Agency, sec. 192. Nor do we find any authority for exonerating a delinquent agent from liability if he communicates to the principal all the facts known to him at the time and the principal ratifies the delinquency, and it afterward turns out that the facts as communicated were not the real facts of the case. In such a case the assumed condition is not that claimed to have been An examination of the cases will show that in every one in which the agent was held to be discharged from liability for deviations from orders or duty, the principal knew at the time of the ratification that the agent had not done his duty; whereas, in this case, as we have already seen, the appel

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