to prepare an affidavit showing a meritorious defense. This was granted, but upon failure of defendant so to do his plea was stricken from the files, and judgment rendered for plaintiff. From this defendant appeals. The court, CRAIG, J., delivering the opinion, say: "Had appellant desired to test the sufficiency of his affidavit of merits, he should, in the first instance, when the motion was made to strike from the files his plea, have abided by the affidavit, and excepted to the ruling of the court. His failure to do this, and obtaining leave to amend upon terms, must be regarded as a waiver of the right to insist upon the sufficiency of the affidavit on appeal, see 84 Ill. 18. Where a defendant files with his plea an affidavit of merits, as required by sec. 37, R. S. 1874, page 779, the court has no power to require an affidavit setting up in detail the defense; but where a defective affidavit of merits is filed, and leave is asked to amend, then the court may, in its discretion, impose terms. Here the appellant, by asking leave to amend, conceded the affidavit to be defective, and the court did not exceed its power in requiring a meritorious defense to be disclosed as a condition to allowing the amendment." Affirmed.-McKichan v. Follett.

feiture, forfeiture was waived. Opinion by COOLEY, J.-Pennsylvania Fire Ins. Co. v. Kittle.

OVER-PAYMENT-MONEY HAD AND RECEIVED PLEADING.-1. Where there has been a bargain for the sale of lands at a price measured by the cost, which the vendor falsely over-stated, the over-payment may be recovered on a count for money had and received. 2. A declaration which states facts that present a sufficient cause of action in assumpsit, may be considered as so grounded, although its frame shows the pleader to have intended it as a count in tort. Opinion by COOLEY, J.-Barnard v. Colwell.

JUDICIAL ORDER FOR PAYMENT- TIME.—A judicial order for the payment of money should require it to be paid within a time fixed after the order shall be served. If it is not so drawn, but requires payment to be made within a certain number of days, it should be construed to mean so many days after service. So held, of an order for payment of temporary alimony in a divorce suit. Opinion by COOLEY, J.-Davis v. Davis.

- 1.

--

SECOND INSURANCE-FORFEITURE WAIVED. In an action on a policy containing a clause of forfeiture for second insurance, evidence that the insured obtained such second insurance because she had been advised that the first insurance was invalid, is irrelevant In breach of contract the motive is immaterial. 2. Where the agent, knowing of the additional insurance, called upon the insured to go on and make out her proofs, and required her to be at the trouble and expense of correcting them without giving her to understand that the company would rely upon the for

ABSTRACT OF DECISIONS OF SUPREME JUDICIAL COURT OF MASSACHUSETTS.

BANKRUPTCY DEBTS NOT DISCHARGED BY. Where the defendant obtained possession of a check by the fraudulent representation that he wished to examine it, made with a fraudulent purpose to cheat and defraud the plaintiff, and having thus obtained it kept and converted it to his own use, with the same fraudulent purpose, in an action of tort to recover for the conversion, it was held, that the demand was within the class of debts excepted from the operation of a discharge in bankruptcy. Opinion by SOULE, J.Burnham v. Noyes.

LEVY ON MORTGAGED ESTATE. - 1. A mortgaged estate may be levied upon and set-off by metes and bounds in the same manner as if it were not so incumbered, provided the creditor is content to take it subject to the incumbrance. 2. The fact that the creditor in such a case was mistaken in his assumption that the mortgage had been paid off, and, therefore, failed in his attempt to contest its validity, would have no effect to defeat the levy on land not included in the mortgage. Opinion by AMES, J.-Pettu v. Peppard. FORGED BONDS

· ACTION TO RECOVER MONEY PAID FOR.-In an action of contract to recover the amount paid by plaintiffs to defendant's firm for certain United States bonds, purporting to be, and sold to the plaintiffs as genuine bonds, which bonds were afterwards discovered to be forged and counterfeit, it was: Held, 1. That, under the special facts and circumstances of the case, the action might be maintained without returning the counterfeit bonds to the defendant; and, 2, that it was not a prerequisite to the plaintiff's right to sue that they should first repay to the United States the money which they had received upon the redemption of the bonds. Opinion by ENDICOTT, J.-Brewster v. Burnett.

TORT-RISKS ASSUMED BY EMPLOYER.-In an action of tort to recover for personal injuries received ly plaintiff, a railroad engineer, by striking against a sig

nal post while leaning out over the edge of his locomotive, in order to see a signal given by the conductor, it appeared that the posts were placed three feet and eight inches from the track, and were two feet and a half from the outside of a passing locomotive; that the abutments of numerous bridges, buildings and other structures on the line of the defendant's road were the same distance from the track; that these facts were known to plaintiff, though he testified that he had not, previously to his alleged injury, noticed this particular post, though it was visible for nearly half a mile in either direction: Held, that the injury was a risk which the plaintiff assumed by entering into defendant's employment. Opinion by ENDICOTT, J.— Lovejoy v. Boston & Lowell R. R.

ALIMONY-INCREASE OF ALLOWANCE.

Alimony made to a wife on a decree for divorce from the bonds of matrimony by reason of the fault or aggression of the husband, under the statute of this state, is to be based upon the circumstances of the parties at the time of the divorce, and is not to be modified by subsequent changes in these circumstances. The court has no power, on subsequent application stating circumstances thereafter arising, to increase or diminish the allowance given in the original judgment. Opinion by HORTON, C. J. Reversed. Valentine, J., concurring: Brewer, J.. not sitting.-Mitchell v. Mitchell.

MORTGAGED PROPERTY-REPLEVIN-PRACTICE.1. R mortgaged to S cerrain lands on which was a grist mill and in which mill were certain fixtures. Afterwards R, for the purpose of defrauding S, severed said mill fixtures from the mill and sold and delivered them to K, who purchased and received the same for a like purpose. Held, that said mill fixtures belonged to R until he sold them to K, and that they never became the property of S, and that neither S nor any person claiming under him can maintain replevin against R for them. 2. A mortgagor of real estate has the right to the possession of the mortgaged property, and a right to remove timber, wood, sand, earth, coal, stone or anything else therefrom, and to sell the same, unless it unreasonably impairs the mortgage security. When it impairs the mortgage security, the remedy of the mortgagee is not at law, but in equity, not replevin to recover the property severed from the realty, but generally injunction to restrain the commission of the waste upon the realty. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-Vanderslice v. Knapp.

CASE MADE- PRACTICE USURY NEGOTIABLE NOTE.-1. Where due notice of the time and place of settling and signing a case made for the supreme court has been given to the adverse party, such party can not ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case may be earlier than the case could properly be settled and signed. Nelson v. Becker, 14 Kas. 509, 510, and cases there cited. And where the judge of the court, in the absence of the adverse party, and without any objection from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the su

preme court will, in the absence of other irregularities, treat the case as valid. 2. A finding made and entered in the case made by the judge while settling and signing such case, showing that such notice had been given, is sufficient evidence, prima facie, to prove the fact that such notice was given. Haynes v. Cowen, 15 Kas. 637, second syllabus, and opinion of Brewer, J., pp. 645, 646. 3. The defense of usury can not be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. Day v. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 326; authorities cited in brief of couusel for plaintiff in error in this case. The judgment of the court below will be reversed and canse remanded for further proceedings. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Gross v. Funk.

BOOK NOTICE.

THE LAW OF SURETYSHIP AND GUARANTY, as administered by courts of countries where the common law prevails. By GEORGE W. BRANDT, of the Chicago bar. Chicago: Callaghan & Co., 1878.

A book which is sure to become popular, and is likely to have a large sale; which will be found of practical value, aud is certain of being one of the first volumes turned to whenever a question on the law of suretyship and guaranty presents itself to the judge or practitioner for solution, the work before us can hardly claim for itself the name of treatise, nor for its compiler the title of author. Yet, as a compilation of the law on this subject, it is really excellent. The work of collecting the cases has been thoroughly and systematically performed. The arrangement of the chapters and sections has been made with a distinct appreciation of the valuable time so often consumed in the search for a subject in a badly arranged digest. No less than 5,000 cases are cited, and the points decided in them clearly stated. Whoever has occasion to turn to the law of suretyship and guaranty will find in this book every decided case on the particular question he wishes to have answered, and will find them easily.

The work is divided into twenty-three chapters, and sub-divided into numerous sections. In the chapters are discussed, in the order given, the contract of guaranty; the statute of frauds; the liability of the surety or guarantor generally, and when the principal is discharged or not originally bound; continuing guaranties; cases where the surety on a general obligation is liable only for limited time or act; the liability of accommodation parties to negotiable instruments, and of the blank indorser of another's obligation; the notice and demand necessary to charge a guarantor; the rights of the surety or guarantor against the principal, and against the creditor and third persons, and between each other; contribution; subrogation; the discharge of the surety or guarantor by payment, by the giving of time, by alteration of the contract, by misrepresentation, concealment, fraud and non-compliance with the terms upon which he became bound; the discharge of the surety or guarantor by the creditor relinquishing security for the debt, and negligently losing securety for the debt; obligations given in the course of the administration of justice; bail; sureties on official bonds; statutes relating to sureties and guarantors; evidence. This, it will be readily seen, covers the whole ground, and collects the law on this subject in a broader way than has been attempted by any previous writer. There is nothing original in the work; nothing that the reports have not been preserving within their covers for months or years, according to the age of the decisions, has been able to find its way into these pages. Nowhere, so far as we have been able to discover, is a single opinion ex

pressed, which, if anyone cared to search, could not be found in the previous judgment of some English or American judge. In short, the work, except in form, is a digest, though an excellent one at that. This will be readily seen by selecting a section at random from the first few pages. In the work, for example, we have the following:

§ 4, WHEN MARRIED WOMAN MAY BECOME SURETY BY VIRTUE OF STATUTE.-When statute says party shall not be received as surety, he is nevertheless bound if he is received as such. A married woman can not, unless enabled by statute, become surety for her husband or a stranger. (1.) She can not bind herself nor her separate property, either at law or in equity, by such a contract. The contract is absolutely void at law, and equity will not charge her separate estate where she has received no benefit. (2) In many states by statute a married woman may hold, manage and contract with reference to her separate property, the same as if she were unmarried. She can not, however, by virtue of such a statute become a surety. The intention was, by such statutes, to remove her disabilities for her interest, and not to enable her to contract onerous obligations from which she derived no benefit. (3.) But where a statute provided that a married woman might contract the same as a feme sole, it was held that she might lawfully mortgage her homestead for an existing debt of her son. (4.) So where a statute provided that the "contract of any married woman made for any lawful purpose * (should) be valid and binding and * * (might) be enforced in the same manner as if she were sole," it was held that a married woman might become a surety, the contract of suretyship being a lawful contract and, in that case, for a lawful purpose. (5) A statute providing that attorneys shall not be received as bail in a criminal case is constitutional, (6) but such a statute is only directory, and if an attorney signs as bail he is bound, notwithstanding the prohibition of the statute. (7) Where a statute provided that bail should be a resident of the state, a non-resident who was accepted as bail was held bound, (8) A statute provided that an administrator should take notes with two sureties for certain debts due estates. A note in such case was taken with only one surety, and he was held liable, it not appearing that any fraud or imposition had be practiced on him. (9) (1) Fireman's Ins. Co. v. Cross, 4 Rob. (La.) 508; Gosman v. Cruger, 7 Hun, 60.

*

(2) Yale v. Dederer, 18 N. Y, 265; Perkins v. Elliott, 8 C. E. Green (N. J.), 526.

(3) Athol Machine Co. v. Fuller, 107 Mass. 437; West v. Laraway, 28 Mich. 464.

(4) Low v. Anderson, 41 Ia. 475.

(5) Mayo v. Hutchinson, 57 Me. 546.

(6) Johnson v, Com., 2 Duvall (Ky.)' 413.

(7) Sherman v. State, 4 Kas. 570: Jack v. People, 19 Ill. 57; Holandsworth v. Com., 11 Bush. 617.

(8) Com. v. Ramsey, 2 Duvall (Ky.), 386. (9) Reynolds v. Dechaums, 24 Tex. 174.

Now, in a digest, this section would appear in a somewhat different form, but with scarcely any alteration in diction. There it would be presented thus:

MARKIED WOMAN can not, unless enabled by statute, become surety for husband or stranger. Firemans Ins. Co. v. Cross, 4 Rob. (La.) 508; Gosman v. Cruger, 7 Hun, 60. Cannot bind herself nor her separate property by such a contract; at law it is void, and equity will not charge her separate estate where she has received no benefit. Yale v. Dederer, 18 N. Y 265; Perkinsv. Elliott, S C. E. Green, (N_Y.) 526. Statutes permitting, to contract as if sole do not allow her to become a surety. Such statutes remove her disabilities for her interest, but do not enable her to contract onerous obligations not for her benefit. Athol Machine Co. v. Fuller, 107 Mass. 437; West v. Laraway, 28 Mich. 464. Though she may mortgage her homestead for debts of her son. Low v. Anderson, 41 Ia. 476.

Statute providing that the contract of any married woman for any lawful purpose "shall be valid, and be enforced as if she were sole," gives her power to become a surety. Mayo v. Hutchinson, 57 Me. 546.

CONSTITUTIONAL LAW-ATTORNEYS.-Statute providing that attorneys shall not be received as bail in a criminal case, constitutional. Johnson v. Com., 2 Duvall, (Ky.) 410. SURETYSHIP-STATUTORY DISABILITIES.-Statute pro

viding that attorneys shall not be received as bail in criminal case, merely directory, and if an attorney is received as bail, he is bound, notwithstanding, Sherman v. State, 4 Kas. 570; Jack v. People. 19 Ill. 57; Holandsworth v. Com. 11 Bush. 617.

So as to non-resident when statute provides that bail shall be a resident. Com. v. Ramsey, 2 Duvall, (Ky.) 386. So as to single surety when statute requires two. Reynolds v. Dechaums, 24 Tex. 174.

It was one of Dr. Johnson's sayings that as the law became older and decisions multiplied, there would exist fewer reasons for investigating the principles upon which the precedents rested. Mr. Brandt might very happly have placed this dictum of the old literary autocrat upon the title page of his book, as he no doubt had it in mind when examining and arranging his subject. Of its truth no one who is familiar with the decisions of our courts can have much doubt. And it is probable that this will continue to be true until the precedents shall have so increased in number and shall have become so conflicting and irreconcilable that to follow them will be impossible, and to go back again to that reason which is said to be the foundation of all law shall be the only escape from chaos. In the present state of things, then, the book before us deserves to be greeted with approval, and its compiler is entitled to the thanks of the profession for his labors in the field he has chosen. His book will be little read but it will be often referred to. It will be found in almost every library, as are Bouvier's Law Dictionary, and the United States Digest, which, though never purchased on account of the literary style or legal opinions of their compilers, are yet a necessity to every lawyer.

NOTES.

BENJAMIN T. THOMAS, some time a justice of the Supreme Judicial Court of Massachusetts, died at his home in Beverly, on the 27th ult., aged sixty-five years. He was appointed to the supreme bench in 1853, upon the resignation of Mr. Justice Fletcher, but held the office only six years-Cornelius L. Allen, a judge of the Supreme Court of New York for the fourth district, from 1851 to 1859, died at Salem, in that state, on the 30th ult., in his seventy-eighth year-A correspondent of the Albany Law Journal calls attention to the enterprise of the Chicago Legal News, in publishing in its issue of September 14, 1878, the case of Insurance Co. v. Brame-(see CENT. L. J., February 15, 1878, p. 122)-a case which, among those in the last volume of Otto's Reports, has been in the hands of the profession for several months. "Now let us have republished," says the writer, "some of the good old cases, Marbury v. Madison; In re Dred Scott, etc., etc."-The New York correspondent of the Cincinnati Gazette, speaking of J. Fenimore Cooper's notorious libel suits, says that James Watson Webb and Thurlow Weed are the only editors now living whom he sued, and adds: 6. Cooper sued each of them for criticising his books, and obtained a small amount of damages. Even Greeley was also mulcted for a similar critique. Cooper, however, was the greatest sufferer. He lost the respect which his genius might have commanded, and his life was evidently shortened by the vexation which he had inflicted on himself. He always summed up his cases, which he did in so masterly a manner that it commanded general admiration. In fact, Cooper was the finest speaker in the record of American authorship, and I shall never forget one of his pleas which it was my privilege to hear. He died poor, for his books became unpopular, and every suit he gained impaired his literary capital. This was his weakness, and he had to suffer its consequences."

SAINT LOUIS, OCTOBER 18, 1878.

66

CURRENT TOPICS.

In Wright v. Clark, 50 Vt. 130, the defendant who was sued for killing the plaintiff's dog attempted to justify the killing under a statute of that state (G. L. 627, § 3), which makes it the duty of the owner or keeper of a dog to cause a collar, with his name plainly written thereon, to be worn on the neck of the dog, and then provides: "And it shall be lawful for any person to kill any dog running at large off the premises of the owner or keeper, not having on such collar; and the owner or keeper of such dog shall recover no damage for such killing." It appeared that the dog in question was a hound, kept for hunting, and chained when not in pursuit of game, and that it was shot while engaged in a hunt, though some distance from its master. The court held that the dog was not running at large," within the meaning of the statute. See Russell v. Cone, 46 Vt. 600.-Another question raised in this case was this: The judge having charged that the jury might give exemplary damages if they found that the defendant shot the dog "intentionally and wantonly," it appeared that after the jury retired, they expressed their opinion that the act of the defendant was unintentional, but somewhat careless; that a discussion then arose as to the proper word to express that idea in their verdict, and as they were unable to agree, the officer in charge, by their direction, brought them a copy of Webster's Unabridged Dictionary, which they consulted in making up their verdict, and from which they took the word "wanton," which they used in the verdict. The court held that there was no error in this. "There is no analogy," said the court, "between the jurors obtaining a dictionary to ascertain the meaning of the language which they use in a special verdict, and giving them the general statutes by direction of the court, to hunt out for themselves the law relating to manslaughter. The jurors are to receive the law from the court. It is the duty and prerogative of the court to explain to the Vol. 7-No. 16.

them for determination. But the court is under no such duty, uncalled upon, to explain the meaning of ordinary words; neither is it necessarily error for the jury to inform themselves of the meaning of such words from the dictionary, when they have occasion to use them in writing special verdicts."

The case of Waters v. Stevenson, recently decided by the Supreme Court of Nevada, contains an exhaustive discussion of the subject of damages in an action of trespass for unlawful conversion. The plaintiff, upon whose lands the defendant had entered, under a mistake as to their extent, and had extracted ore from his mines, was held to be entitled to damages, but these damages were restricted, reversing the ruling of the court below, to the value of the ore as it lay in the mine before it was extracted. In Pierce v. Benjamin, 14 Pick. 361, the court say: The general rule of damages in actions of trover is, unquestionably, the value of the property taken at the time of its conversion. But there are exceptions and qualifications of this rule as plain and well established as the rule itself. Wherever the property is returned and received by the plaintiff, the rule does not apply. And when the property itself has been sold, and the proceeds applied to the payment of the plaintiff's debt, or otherwise to his use, the reason of the rule ceases and justice forbids its application. In all such cases, the facts may be shown in mitigation of damages." And in Baldwin v. Porter, 12 Conn. 484, it is said: "Both the rule and the exceptions proceeded upon the principle that the plaintiff ought to recover as much, and no more, damages than he has actually sustained, which, commonly, is the value of the property; and hence the general rule. No good reason, consistently, can be suggested why greater damages should ever be recovered than have, in truth, been sustained, except in those cases where the law permits, by way of primitive justice, the recovery of damages." The Supreme Court, in the case at bar, entered into a lengthy review of the cases on the point, viz; Kier v. Peterson, 41 Penn. St. 357; Martin v. Porter, 5 M. & W. 353; Morgan v. Powell, 3 Ad. & El., N. S. 281; Cushing v. Longfellow,

26 Me. 310; Wild v. Holt, 9 M. & W. 671; Bennett v. Thompson, 13 Ired. 148; Smith v. Gondor, 22 Ga. 353; Chicago S. B. Dock Co. v. Dunlap, 32 Ill 210; Forsyth v. Wells. 41 Penn. St. 291; Maye v. Tappan, 23 Cal. 306; Galler v. Fett, 30 Cal. 485; Barton Coal Co. v. Fox, 39 Md. 3,; Robertson v. Jones, 71 Ill. 405; McLean County Coal Co. v. Long, 81 Ill. 359; Hilton v. Woods, 4 Eq. 438; Barnsley Canal Nav. Co. v. Twibill, 3 Eng. Railway Cases, 356; Chipman v. Hibbard, 6 Cal. 162; Stockbridge Iron Co. v. Cone Iron Co., 102 Mass. 86; U. S. v. Magoon, 3 McLean, 171; Weymouth v. C. N. R. Co., 17 Wis. 551; Single v. Schneider, 24 Wis. 300, 30 Wis. 570; Winchester v. Craig, 33 Mich, 207; Folsom v. Apple River Log Driving Co., 41 Wis. 608; Herdic v. Young, 55 Penn. St. 177; Lykens Valley Coal Co. v. Dock, 62 Penn, St. 232, and Coleman's Appeal, Id. 278. After reviewing these cases, the court, in the principal case, say: "A careful examination of the authorities has convinced us that there is a growing inclination among all courts, where it can be done, to apply the only safe and just rule in actions for damages, whether ex contractu or ex delicto, and that is, to give the injured party as near compensation as the imperfections of human tribunals will permit. This is the aim, the ideal, of the law, and it is the duty of courts to come as near it as possible in practice; and although courts differ as to the method of ascertaining the actual loss, as well as to what constitutes actual loss, still there is a refreshing unanimity of opinion that such loss only, when ascertained, ought to be compensated in the abgence of fraud, malice, or culpable negligence."

A DECISION of some personal interest to the profession has been made by the Supreme Court of Pennsylvania, in the late case of Thompson v. Boyle, the question being the measure of value of legal services. The action was brought by Boyle for professional services. He and one Minor were employed by the plaintiff in error to conduct his defense on an indictment for abortion. Thompson was found guilty, and an application was made for a writ of error by defendant's counsel and denied. An application was made for a pardon, and plaintiff attended before the board of

more.

pardons. Services were also rendered at plaintiff's request in the trial of another person, where a nolle prosequi was entered. For these services plaintiff and Minor each de manded $5,000. Defendant paid plaintiff $1,300 and Minor $1,000, and refused to pay Hence the action. On the trial the court refused to allow one Kaine, a witness and a member of the bar, to answer the following questions: 1. What was the usual compensation charged at the Fayette county bar for defending a prisoner charged in the quarter sessions with felony, where the time consumed in the trial was one day, and where a motion for a new trial and a motion in arrest of judgment were made? 2. What would the services of an attorney be worth to go before the board of pardons at Harrisburg, where the time consumed did not exceed three days in going and returning? The Supreme Court held that these questions were properly put; that the value of the services of a lawyer in a given case may be shown by the testimony of lawyers as to the value of services of counsel, under circumstances of general similarity to those under which the services in question were rendered. "It is true," said the court, "that no two cases are identical, and the amount of labor in the preparation and trial of one will never be precisely the same that may be required in the preparation and trial of any other. And it may be assumed to be equally true that the defendant derived all the advantage from the efforts of his counsel which the highest legal ability and skill could give. And yet, the fact remains that the case presented here is a demand of five thousand dollars by one of two counsel of a defendant charged with a felony, for services rendered upon his trial and in his application for a pardon. The same fee demanded by Mr. Minor would swell the amount to ten thousand dollars. The action was not upon any special undertaking by which the defendant had become bound. It was on a quantum meruit. If the fee demanded was such as any usage warrants, it is very clear that poor men charged with crime must defend themselves without professional aid. Whether or not the proceedings were so exceptional as to justify a charge transcending any known usage, would depend on facts to be found by a jury on evidence submitted to them. But professional employment in one