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Held, 1, that the widow took the fee in the one-third; 2, that she took at least an estate for life in the other two-thirds, with a power to convey the fee and to receive the proceeds; but the conveyance having been made, she was entitled to receive the remaining proceeds and to use them at her discretion for her support; 3, that no trust was created in favor of the children. Opinion by SOULE, J.-Gibbons v. Shepard.

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BURGLARY IN CHURCH-INDICTMENT— DESCRIPTION.-1. In an indictment for burglary in a church, (74 Ohio Laws, 248) the ownership of the church must be averred. 2. An averment in the indictment that the burglary was committed in the "Saint Bridget's Church and Meeting House," is merely descriptive of the church, and has no reference to ownership. Judgment reversed. Opinion by GILMORE, J.-Wilson v. State.

PRACTICE-MODIFYING JUDGMENT-PETITION FOR REHEARING-BILL OF REVIEW.-1. Proceedings to modify a judgment prosecuted under section 535 of the code of civil procedure to correct an irregularity in obtaining a judgment or order, must be commenced within three years after the judgment or order was made. 2. The remedy by petition for rehearing authorized by section 56 of the act of 1831, directing the mode of proceeding in chancery, being inconsistent with the code of civil procedure, was not saved to suitors by the sixth section of the act of March 14, 1853, 1 S. & C. 383, "to amend an act relating to the organization of courts of justice and their powers and duties," passed February 19, 1852. 3. The remedy by bill of review does not exist in respect to an action commenced and prosecuted under the code. Motion overruled. Opinion by BOYNTON, J. Okey, J., having been of counsel, did not sit.-Corry v. Campbell.

EMINENT DOMAIN- DAMAGES - APPROPRIATION. -In an action to recover compensation for land appropriated by a municipal corporation to public use, the same rule applies for assessing compensation as is applicable where the assessment is made by a jury in a special proceeding instituted, under the statute, for the purpose. 2. A municipal corporation is authorized to appropriate an assessment in land abutting on a street, for the purpose of making a sloping fill in order to afford lateral support to the street. Such appropriation does not divest the owner of his dominion over the property subject to the easement.

He may

still use it for all purposes not inconsistent with the special purpose of furnishing the necessary support to the street. 4. Where such an easement has been appropriated, the land owner is entitled to be compensated for all the rights of which he has been deprived; but where he still retains substantial rights in the property, he is not entitled to be allowed the value of the lands in fee simple. Opinion by WHITE, C. J.-Dodson v. City of Cincinnati,

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66

T. Q. ASHBURN,

NUISANCE INJUNCTION-WHEN GRANTED.—1. On the petition of a land owner, complaining that certain steam power and machinery operated by another on adjoining land, is a nuisance, an injunction should not be granted, unless a clear case of nuisance and irreparable injury be made out. 2. When a party, who complains that a business lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction. Judgment reversed. Opinion by ASHBURN, J.-Goodall v. Crofton.

REMOVAL OF CAUSES-WHEN APPLICATION TO BE MADE-CONSTRUCTION OF STATUTE.-1. A person not a citizen of the state, in a court whereof he is sued, can not, under the 12th section of the judiciary act of Congress, of 1789, remove the suit to a Circuit Court of the United States, by reason of the citizenship of the parties, unless his petition for removal shows that the plaintiff was, at the time of the commencement of the suit, a citizen of such state. 2. Facts which are affirmatively shown by the record need not be averred in such petition for removal. 3. The act of Congress, of March 3, 1875 (U. S. stat. at large, 18, p. 470), so far as citizenship is concerned, makes the right of removal to depend on the parties being citizens of different states at the time of the application. 4. Under the act last named, the application for removal may be made by either party, at or before the term of court at which, under the laws of the state and the rules of practice, the cause would first regularly stand for trial, on its merits, upon issues which have been joined between the parties by their pleadings. Judgment reversed and cause remanded, with instructions to order its removal. Johnson, C. J., dissented as to the last proposition of the syllabus. Opinion by SCOTT J.Phænix Life Ins. Co. v. Saettel.

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that his wife never acknowledged the mortgage. The court, through WALKER, J., after discussing the evidence offered to prove the defense, say: "But from the evidence in the case, it does not matter whether Mrs. C signed or acknowledged the mortgage, or whether the acts were without her knowledge, as it appears from the evidence that the homestead was abandoned. Plaintiff in error had removed to and was residing in another county at the time he testified. Again, he testifies that he voted in Mason county. An intention entering into and forming a large element in fixing a person's residence, this act is almost conclusive in character. Nor is there any evidence tending to overcome this strong and almost irresistable conclusion. This case falls within the rule and is governed by the cases of 37 Ill. 230; 43 Ill. 169; 44 1ll. 474. In fact, there is less ground for holding there is no abandonment in this case than in those. We entertain no doubt that plaintiff in error abandoned the mortgaged premises as a homestead, and is precluded from asserting the right against this right or a sale under it. The homestead having been abandoned, it is immaterial whether plaintiff in error knew the fact that the mortgage contained a clause releasing it at the time of its execution, or whether his wife signed or acknowledged the mortgage." Affirmed.- Cobbs v. Smith'

REPLEVIN BOND-OFFER OF DEFENSE- RECITAL. -Appellee as constable levied a distress warrant on some property of A, and had received an execution for their sale. B, the appellant here, claimed the property, and a trial of his right was had, resulting in a judgment against him. He appealed and gave to the constable a replevin bond for the return of the property. The appeal was dismissed, and the constable demanded the property or the payment of the execution under which it was held. B refused to do either. Thereupon the constable brought suit for the use of the plaintiff in execution on the replevin bond, and recov ered a judgment for the amount of the execution. B and the sureties appealed to this court, and among other grounds urge a reversal, because the court below prevented them from making proof of facts claimed to constitute a defense. WALKER, J., says; "Appellant offered to prove that there was no consideration for the bond; that the consideration had partially failed; that it had entirely failed. The offer was general, not specifying what the witness wonld state or the specific facts he could prove by the witness. In such a case, the offer should be to prove facts that would show a want of, or a total or partial failure of consideration: not as the offer was made here to prove a mere conclusion of law. Had the facts been specifically stated, it might have appeared that they would not tend in the slightest degree to establish either defense. An offer was made to prove there never was any such case before the justice of the peace, as that recited in the bond. Appellants were estopped by their solemn admissions in the bond from making the proof." Affirmed.-Lucas v. Beebe.

BOND-SURETIES-LIABILITY CLAUSE OMITTED.This was a suit on a bond in the following words: "Know all men by these presents, that we, A as principal, and B and C as sureties, are held and firmly bound unto D in the sum of *The condition

of this obligation is such that whereas the abovenamed A has made, signed and executed a certain contract with the above-named D (then follows the contract); then this obligation shall be void, otherwise to be and remain in full force and virtue." etc. The only question which arises here is, whether an action can be maintained on the bond against the sureties. The court, through CRAIG, J., say; "As has been suggested, the bond must receive a reasonable interpretation, but in order to arrive at the intention of the parties at the time the bond was executed, we must re

sort to the language used by them in the obligation which they executed. A court of law has no right to presume contracting parties intended to insert in a written contract a provision different from that which the plain language used would indicate, and then give a construction to the contract which would be legitimate if the contract contained the supposed omitted provision. Such a practice would, in effect, be making contracts for parties which courts are powerless to do, as was said in 25 I, 233. The condition of the bond contains a bare recital that a certain contract had been made by which certain things were to be done, and concludes by saying 'then this obligation shall be void; otherwise to remain in full force.' It needs no argument to show that the parties who executed the bond incurred no liability. Had the condition after reciting the contract contained a clause usually inserted something like the following: 'Now if the said A shall well and truly keep and perform the agreement aforesaid,' etc., the liabilities of the parties would have been fixed." Affirmed.-Fitzgerald v. Staples.

BOOK NOTICES.

THE PRINCIPLES OF EQUITY. A Treatise on the System of Justice administered in Courts of Chancery. By GEO. TUCKER BISPHAM. Second Edition. Philadelphia: Kay & Brother. 1878.

In the first volume of this JOURNAL, in a review of the first volume of this work, we said: "Our examination satisfies us that, all things considered, it is probably the best book to be first placed in the hands of American students of equity law. It should procede, in a course of reading, the more elaborate works of Story, Spence and Daniell. It has its value also to practitioners, in the great attention which the author has bestowed upon the recent equity decisions of the House of Lords and Chancery Courts of Great Britain. This is a marked feature of the work, and gives it an especial value, as many of these decisions are of general and great importance, and have not yet found their way into the text-books in common use." And these remarks apply still more forcibly to the second edition now before us. Its plan and arrangement have not been altered; the sections are numbered as formerly, and the order of the chapters retained. But extensive and valuable additions have been made to several of the chapters-to those on the rise and progress of the High Court of Chancery, on the Maxims of Equity, on Equitable Assignments and Notice. New cases and illustrations have been added, and uo recent changes in the law have been overlooked.

The volume now contains 650 pages, including the index. The typographical work is good. Mr. Bispham's work must-if it has not already-soon take its place as pre-eminently the American law students' hand-book on the Principles of Equity. It may, we think, be said with truth that it will fill the place in the libary of the student here that is filled in England by the scholarly and incomparable work of Mr. Snell. Greater praise than this no text-book on Equity can have.

INTRODUCTION TO AMERICAN LAW, designed as a First Book for Students. By Timothy Walker, LL.D., late professor of law in the Cincinnati College. Seventh Edition. Revised by HON. M. F. FORCE. Boston: Little, Brown & Company. 1878.

It is now over forty years since Walker's American Law was first offered to the public. At that time the only works, of general scope, on the subject of American Law, were Hoffman's Legal Outlines, the last edition of which appeared in 1848, Hoffman's Course of Legal Studies, the last edition of which appeared in

1836, and Kent's Commentaries. The latter was not designed as a first book of law; it presupposes some elementary knowledge, both of terms and principles. Judge Walker's work was the first attempt to give a comprehensive but simple outline of the whole body of American, as distinguished from English, law, adapted to the use of first beginners; covering so much of Blackstone as is retained in this country, omitting what is inapplicable, and adding what is peculiar to our jurisprudence. The result was a masterly exposition of American law, at once thorough and elementary; in style, clear and simple; in scope, comprehensive enough to show all the various branches of our law as a whole, and in their bearing on, and relations to, each other. In 1874 appeared the sixth edition of the work, edited by J. Bryant Walker, the author's son, whose valuable notes give the result of the decisions down to that time. The present (seventh) edition is edited by the Hon. M. F. Force, one of the judges of the Superior Court of Cincinnati, whose notes, though few in number, are excellent. Walker's American Law is in use in a number of law schools, and is, we think, without it its equal in legal literature as a first book for the use of students.

QUERIES AND ANSWERS.

W.

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75. PROBATE SALE-PRACTICE.-1st. Is it essential to the continued validity of an order of sale of real estate, made by a probate court to pay debts of a decedent, that the administrator should report (whether he sells or not) at each succeeding term of the court, and get the order renewed? In other words, is it necessary that the probate court should renew the order of sale at each succeeding term of the court, in order to continue its validity? 2d. Can an administrator de bonis non sell the lands of his decedent under an order of sale obtained by his predecessor, the former administrator. If so, is it necessary that the order should be renewed to the administrator de bonis non. Marshall, Mo. SUBSCRIBER.

ANSWERS:
No. 71.

[7 Cent. L. J. 359.]

1. The chancery court has no jurisdiction; the remedy is at law. 2. Money had and received might be maintained against B. See 6 Taunt. 110; 14 Ala. 415; 9 Ala. 803; 5 Pick. 193; 7 Pick. 133; 4 Ib. 449; 11 Ala. 263; 32 Ala. 524: 39 Ib. 293; 1 Hill, (N. Y.) 240. 3. But trover for the wrongful act of B would lie: he converted the note; plaintiff may waive the tort and sue in assumpsit for money had and received. 1 Chitty. pp. 100, 101, 107; 12 Vt. 212; 25 Wendell, 423; 7 Id. 198; 10 Johns. 175; Parsons on N. & B. (Ed 1876) vol. 2, p. 266, and note w. and p. 293 top and note; 27 Ala.

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The authorities are clear that an action of trover could be maintained in a case of this kind, and under all the circumstances surrounding this transaction I should resort to this form of action to enforce the rights of my client. Vide, 3 Johns. 235; 4 J. & Sp. 459; 20 N. Y. 76; 48 Barb. 581. I am also inclined to the belief that equity jurisdiction would attach herein on the ground of fraud. that being one of the favorite objects of equity jurisprudence-even under our statute forbidding a resort to equity where the remedy at law is plain and adequate. C. E. H. Point Pleasant, W. Va.

NOTES.

CHIEF JUSTICE HORTON of Kansas, has been re-elected by a large majority to the position he now so ably fills. His term of office will be six years.-Attorney-General Devens has decided that a national bank cannot deduct as exempt from Federal taxation the bonds of the District of Columbia, which are issued under Federal legislation, and for the payment of which the United States is made liable.-The Commissioner of Patents reports 14,100 patents granted for the year ending June. Receipts, $734,888. Expenditures, $665,906; 1,505 trade-marks were registered.-The New York State Bar Association meets at Albany, on the 19th inst. The opening session will be held at Twed. dle Hall, at 8 o'clock on the evening of Tuesday the 19th, when the President's Address will be delivered by the Hon. John K. Porter, President of the Association; and the Annual Address by the Hon. Samuel F. Miller, Justice of the Supreme Court of the United States, on the subject "Legislation in this country as it affects the Administration of Justice in the Courts; what it has been-what it ought to be." The second Session will be held at 10 o'clock on Wednesday Morning, the 20th, at which will be read papers as follows: By Grosvenor P Lowrey, of New York, on "Telegrams-their inviolability against disclosure, subpæns and search warrant"; by Eliott F. Shepard, of New York, on "Equalization of representation in the United States Senate"; by Irving Browne, of Troy, Subject: "A Plea for the Non-Political Lawyer"; by Hon. James A. Briggs, of Brooklyn, State Assessor, on "Taxation-should it be confined to real estate"; by Hon. George Shea. of New York, Subject; "Some Thoughts on Henry Wheaton and the epoch to which he belonged"; and by W. M. Ivins, of new York, on" Jurisprudence and Political economy." The annual dinner of the association will be given on Wednesday evening.

-Robert Alexander Harrison, Chief Justice of the Court of Queens Bench, of Ontario, (Canada) died on the ult. He was born in Montreal in 1833, called to the 31st bar in 1855 and elevated to the bench in January, 1876. He was the author of many important legal works and publications, including: Robinson and Harrison's Digest of Cases decided in the Queen's Bench and Practice Courts, from 1823 to 1851 (Toronto, 1852); the Common Law Procedure Act, &c., with notes of decided cases (Toronto, 1858; new edition, 1870); The Municipal Manual for Upper Canada, (Toronto, 1859; new edition, 1867; new edition, 1876); A Digest of all cases dedecided in the several Courts of Error and Appeal, Queen's Bench, &c., (Toronto, 1863). The deceased Judge was for some years the editor of the Canada Law Journal.

ry.

The Central Law Journal. Y

SAINT LOUIS, NOVEMBER 22, 1878.

CURRENT TOPICS.

In Cook v. Commonwealth, decided by the Supreme Court of the United States at the present term, a statute of the State of Pennsylvania imposed a tax upon sales made by auction in certain counties in the state, discriminating in the amount to be paid in favor of domestic and against foreign goods. The law also required auctioneers to take out a license, to make reports of such sales, and to pay into the treasury the taxes on these sales. The defendant refused to pay the tax for which he was liable under the law, for the sale of goods which had been imported and which he had sold for the importers in the original packages. In the suit, in which judgment was rendered against him in the Supreme Court of Pennsylvania, he defended himself on the ground that these statutes were void, because forbidden by Sections 8 and 10 of Article I. of the Constitution of the United States. The Supreme Court of the United States has reversed this decision, holding the act in conflict with the Federal Constitution. "It is argued," say the court, "that the authority of the auctioneer to make any sales is derived from the state, and that the state can, therefore, impose upon him a tax for the privilege conferred, and that the mode adopted by the statute of measuring that tax is within the power of the state. That being a tax on him for the right or privilege to sell at auction, it is not a tax on the article sold, but the amount of the sales made by him is made the measure of the tax on that privilege. In support of this view, it is said that the importer could himself have made sale of his goods without subjecting the sale to the tax. The argument is fallacious, because without an auctioneer's license he could not have sold at auction even his own goods. If he had procured, or could have procured, a license, he would then have been subject by the statute to the tax, for it makes no exception. By the express language of the statute the auctioneer is to collect this tax and pay it into the treasVol. 7-No. 21.

From whom is he to collect it, if notu from the owner of the goods? If the tax was intended to be levied on the auctioneer, he would not have been required first to collect it and then pay it over. It was, then, a tax on the privilege of selling foreign goods at auction, for such goods could only be sold at auction by paying the tax on the amount of the sales." The court conclude that a tax on sales made by an auctioneer is a tax on the goods sold within the terms of the latest decision of the court on this question, (Welton v. State of Missouri, 92 U. S., 288, 3 Cent. L. J. 116,) and other cases. And when applied to foreign goods sold in the original packages of the importer, before they have become incorporated with the general property of the country, the law imposing such a tax is void as levying a duty, on imports.

An

In Harrington v. Victoria Dock Co., 39 L. T. N. S. 120, recently decided by the English Court of Appeal, the validity of a contract involving a subsidy from one of the parties to the agent of the other was considered. engineer employed by the ship owner to advise and estimate on the repair of ships, stipulated with the contractors for a commission on the contract obtained by his influence thus secured. The action was by him to compel payment of his commission. The court dismissed the action. COCKBURN, C. J., said: "I will assume that the effect of the agreement was not to induce the plaintiff to do anything that was dishonest towards his employers. I assume that for the purpose of argument, but in no other way; for, unless upon the findings of the jury as they stand I were prepared to give judgment against the plaintiff, I should have been of the opinion that the case ought to be sent to a new trial, for I am not satisfied with the finding in favor of the plaintiff. But I think we can give judgment on the findings as they stand against the plaintiff; for I am of opinion that where a bribe or promise of a bribe is given to a person employed by another, and is given by some one who has contracted with the employer, in order to induce the agent to do something in contravention or derogation of his duty of loyalty and fidelity to his employer, that is a corrupt bargain-the man who takes the bribe or promise of a bribe, knowing that the object is to bias his mind,

dishonest,

SO as to induce him to be it is as between them a corrupt bargain, and it is unnecessary to inquire into its actual effect or operation. The tendency of it is undoubtedly to bias and influence the mind of the agent and lead him to be disloyal and unfaithful to his employer. It is intended to have that effect. The man who takes it does it with the perfect knowledge that it is intended to influence his mind so as to induce him to act unfaithfully towards his employer. To say this was not corrupt would be a contradiction in terms; and to allow trustees to enter into and enforce such a contract would be fraught with the most mischievous consequences. It does not matter whether the employer has been, in fact, damnified; it is enough that it was intended to be injurious to him; that is a corrupt object, and it vitiates the contract." See Fellows v. Northrup, 39 N. Y. 117; Cassard v. Hinman, 6 Bosw. 8; Holbrook v. Wilson, 4 Id. 64; Fulton v. Whitner, 66 N. Y. 548; Marvin v. Buchanan, 62 Barb. 468; 14 Daily Reg. 908.

The Court of Appeals of New York in a very lengthy opinion, concurred in by every member of the court, has affirmed the constitutionality of the statute of that state known as the civil damage law. Bertholf v. O'Reilly. 18 Alb. L. J. 389. This act, which gives to every person "who shall be injured in person or property, or means of support by any intoxicated person, or in consequence of the intoxication" of any person, a right of action against any person who shall, by selling or giving away intoxicating liquors, have caused the intoxication in whole or in part, also declares that "any person, owning or renting or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold thereon, shall be liable, severally and jointly, with the person or persons selling or giving intoxicating liquors aforesaid for all damages sus+ tained, and for exemplary damages." The action in this case was brought against the landlord under the latter part of the section. It was urged that the statute was unconstitutional for the reasons, first, as authorizing the taking of private property without "due process of law," as required by the constitution; and, second, because it creates a right

of action unknown to the common law, and subjects the property of one person to be taken in satisfaction of injuries suffered by another remotely resulting from an act of the person charged, which act is neither negligent nor wrongful on his part, but which may be in all respects in conformity with law. The court however holds that the legislature, having a right to regulate the traffic in intoxicating liquors, can impose such conditions as it wishes, and that the value of property is impaired does not render the act void. The right of the state to regulate the traffic in intoxicating liquors within its limits has been exercised from the foundation of the government, and is not open to question. The state may prescribe the persons by whom and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic and individuals against injuries committed by intoxicated persons under the influence of, or resulting from, their intoxication. The licensee, by accepting a license and acquiring thereby a privilege from the state to engage in the traffic, a privilege confined to those who are licensees, and withheld from all other citizens, takes it subject to any conditions which the legislature may attach to its exercise. He consents to be bound by the conditions when he accepts the license; and the state is the sole judge of the reasonableness of the conditions imposed. And the power of the legislature, as a part of the excise system, to impose the liabilities imposed by the act in question, upon licensed dealers, as a condition of granting the license, cannot be questioned. "It cannot be denied," say the court, "that the liability sought to be imposed by the act is of a very sweeping character, and may, in many cases, entail severe pecuniary liability, and its language may include cases not within the real purpose of the enactment. The owner of a building who lets it to be occupied for the sale of general merchandise, including wines and liquors, may, under the act, be made liable for the acts of an intoxicated person, where his only fault is that he leased the premises for a general business, including the sale of intoxicat

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