express direction from the appellant as to the application of the payment made, the appellee had the right to elect for himself the application of the payment. Howk, J.: "The eighth instruction did not contain a full and correct statement of the law applicable to the case. It is not necessary that the application of the payment should be made by an express declaration of the debtor, for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it. A direction may be evidenced by circumstances as well as by words. A payment may be attended by circumstanoes which demonstrate it. 7 Wharton, 14. Where, as in this case, the payment made would exactly pay the sum due on one of the bills, and such payment would largely overpay the sum due on the other of said two bills, these are circumstances which, in the absence of express direction, the jury might well consider in determining whether or not it was the intention of the debtor, in making such payment, to apply or appropriate the same on one of said two bills which it would exact ly say." Judgment reversed.-Adams Express Co. v. Black.

RESULTING TRUSTS-ADVANCEMENT-MARRIED WOMEN.-Action by a divorced wife against her former husband, to recover and quiet the title to certain real estate. The defendant answered that he had purchased the real estate with his own money, but had the patent issued to his wife, because he had already taken as much land in his own name as the government would sell to one person. In a second paragraph of answer he relied upon an express promise of the wife, at the time of the purchase, that the property should be his. Demurrers to both paragraphs of answers were sustained. NIBLACK, C. J.: Prior to the act concerning trusts and powers, of 1852, it was a recognized rule of law in this state, that where, upon the purchase of real property, the conveyance of the legal title was taken in the name of one person, while the money was paid by another, a resulting or presumptve trust immediately arose in favor of the person paying the purchase money. If, however, the person in whose name the conveyance was taken was one for whom the party paying the purchase money was under a natural and moral obligation to provide, no such resulting trust arose, but, on the contrary, the transaction was regarded prima facie as an advancement for the benefit of the grantee in the conveyance. (Hill on Trustees, 97 and 98; Washb. on Real Prop., 2, 170.) To make the declaration of an express trust effectual, the person declaring it must be capable of making such a declaration. In the case at bar the plaintiff was a married woman, the wife of the defendant at the time the alleged declaration of an expressed trust was made by her. She was, therefore, incapable of making such a declaration. (2 Washb., 205.) Judgment affirmed.

F, in 1868, formed a partnership, and carried on the lumber business. The name of the appellant did not appear in the firm-name, nor is it shown that he was known as a partner. They carried on the business some months, and then appellant withdrew. Appel. lees had no dealing of any kind with the firm while it existed, and had no knowledge of appellant's connection therewith. Sometime in 1870 appellees began to sell lumber to F, and so continued for sometime. This is a suit against both of the brothers, as partners, for a balance due. The proof showed that appellees had no knowledge of the existence of the firm while the partnership existed, and knew nothing of either of the partners until nearly a year after the partnership ceased. The court charged the jury that appellant, as an out-going partner, was chargable fer subsequent debts, unless there had been public notice of the dissolution, or notice thereof had acutually come to appellees before they gave the credit. Held, erroneous. DICKEY, J., said: "The duty of a retiring dormant partner to give notice of the dissolution of the partnership, is a duty which he owes to those who, before that time, had some knowledge of his connection with the firm. To stranges having no such knowledge, he owes no such duty. As to them, he can only be charged as a partner (when in fact he was not), by showing that he in some way mislead them." See 37 Ill. 81. Reversed. Nussbaumer v. Hipple.

ASSUMPSIT-LEGALITY OF A CUSTOM NOT FOR THE JURY-VISITOR BOUND BY RULES OF BOARD OF TRADE WHEN TRADING THEREON.-This was an action of assumpsit brought by appellee against appellant, the Chicago Packing Co., upon a sale and delivery by appellant of 200 barrels of mess pork to appellee. The plaintiff avers that the sale, delivery and payment therefor, and further avers that a portion of the pork was unsound. On the trial instructions were given by the court, to which the appellant takes exception. The first one given submitted to the jury the question whether the custom on the board of trade that the buyer of produce taking it without inspection takes the same at his own risk, is or is not one "intended to relieve a person from the obligations of common honesty and fair dealing," or is or is not "in contravention of public policy." Held, erroneous. DICKEY, J., said: "Whether a given custom does or does not exactly, is or is not universally recognized in the locality in question are matters of fact for a jury; but whether a given custom be valid or invalid is always a question for the court." Exception was also taken to the action of the court in refusing an instruction to the effect that a visitor on the board of trade trading with the members is bound by the rules and regulations of said board, Held, that the refusal to give such an instruction is erroneous. DICKEY, J., said: "A party visiting the board of trade on a visitor's ticket, and who when there undertakes to exercise the rights of a member of the board, and permits another to deal with him as such, is estopped to deny that he is a member, and thereby relieve himself from the responsibilities which would rest on members of the board dealing in the same manner." Reversed. Chicago Packing Co. v. Tilton.

DAMAGES INJURY TO PROPERTY BY MISUSER OF PUBLIC STREET.-This was an action brought by appellee against appellant, a city, for injuries to his residence situated on grounds adjoining a street, in which appellant erected water works near to his residence for the use of the city, by which the use of the property of plaintiff was rendered less valuable. By the use of the engine for generating steam, smoke and soot are cast upon plaintiff's residence so as to interfere materially with its comfort. In the court below judgment went for the plaintiff. The appellant (the city) insists on appeal that owning the fee to the public streets in

*

the city, "appellant is not confined to the mere right to pass over and upon them * but had lawful right to erect and operate these works without responsibility to the adjoining proprietor for any injury necessarily resulting therefrom. Held, that the plaintiff should recover damages. DICKEY, J., said: "Property may be dedicated to the public for a great variety of purposes. It may be for the purposes of a street; it may be for pleasure grounds; it may

be for burial purposes: it may be for the location of water-works. Where a person buys a city lot bordering upon a tract of ground set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the use of the property for the purposes of the dedication. If his lot borders upon a tract set apart for a place of burial, no matter how disagreeable it may be to live in such position, he takes it subject to that disadvantage. If he buys his lot adJoining a street he takes it subject to the right of the public to use the street for all the appropriate purposes of a street. And this is so whether the fee of the street be in the municipal corporation, or in the state, or in the adjoining proprietor; for the fee in such case is held for the use of the public as a street with all its incidents. But it is not conceived that the erection of a water tank in the center of the street occupying one-half of the width thereof and the erection and operation of a steam engine in connection therewith, even for the purpose of supplying the city and thr residents thereof with water, is one of the uses of a street as such, for which the ground may be appropriately used under a dedication thereof as a street. The owner of a lot adjoining a street does not take the same subject to any such easement." Affirmed.-City of Morrison v. Hinckson.

TORT-DAMAGES-BURDEN OF PROOF.-In an action to recover damages for injuries occasioned to the plaintiff's intestate by a fall from a defectively constructed platform, the plaintiff is only entitled to recover such damages as he proved were sustained by his intestate; and while as an abstract proposition of law, the suffering endured by the intestate from the time he fell until he struck the ground might be an lement of damage, yet, in the absence of evidence, whether any mental terror or distress was so suffered by him is wholly a matter of conjecture, and the plaintiff can therefore recover nothing on this account. Opinion by MORTON, J.-Kennedy v. Standard Sugar Refinery.

OBSTRUCTION OF NAVIGABLE WATERS-RIGHT OF WAY.-In a petition for a sheriff's jury to assess damages, the petitioners claimed, among other things, "that by long use, adverse, continuous and public, and under claim of right, and exceeding twenty years, they had acquired a right of way and passage through the Easterly docks to their dock and wharf which had been obstructed by the respondent railroad company and that they had a right in law to recover damages

for such obstruction." Held, that the right of way claimed being covered by navigable water, the plaintiff had no other rights therein than those of the general public. Navigable waters are great highways, and no individual can acquire a private right therein any more than a continuous use of a street by a man from his house to his place of business for any term of years gives him a private right of way over the soil of the street. Opinion by LORD, J.- Thayer v. New Bedford R. R. Co.

The

AGREEMENT IN RESTRAINT OF TRADE. plaintiff and defendant were partners engaged in the manufacture and sale of stoves and tin-ware in D. They dissolved their partnership, and the defendaut gave the plaintiff a writing which, after reciting the consideration and terms of the sale of the defendant's interest in the assets and good-will to the plaintiff, provided: "and I hereby agree not to manufacture, or sell, or become engaged in said business, either for myself or others hereafter in the town of D, under the forfeiture of $1,000, to be paid to said plaintiff in case of a breach of these conditions:" Held, that naming a sum to be paid as liquidated damages does not in itself conclusively establish that the parties contemplated the right to do the act upon payment of the compensation; and that the object of this agreement was to secure absolutely to the plaintiff the exclusive right as against the defendant to pursue said business in D. Opinion by ENDICOTT, J.-Ropes v. Upton.

SHERIFF-LIABILITY FOR PROCEEDS OF PROPERTY ATTACHED.-1. Where a suit in which personal property has been attached and sold does not proceed to judgment, but the entry of "neither party" is made in it, prima facie the proceeds in the hands of the officer are to be delivered to the defendant in that suit; and that being the official duty of the officer, the sheriff, if the attaching officer is one of his deputies, is liable for the deputy's failure to perform it. 2. In the case at bar, while the proceeds were in the hands of the deputy, and the action pending, the defendant made and. delivered to the plaintiff a paper which, after reciting the existence of the suit, the attachment and sale thereunder, aud admitting the debt and that it was larger than the value of the property attached, provided that the defendant did "ratify and confirm said sale by said sheriff, and consent that the remaining property may be sold by the sheriff, and hereby sell. assign and transfer to said bank (the plaintiff) all of said personal hroperty attached and trusteed and the proceeds thereof, the same to be credited by said bank as part payment of any sum that I am owing it, and to be applied by said bank as part payment thereof:" Held, that it was the official duty of the deputy who made the sale to deliver the proceeds to the plaintiff, and that for the neglect of the deputy to do so, the sheriff would be liable. Opinion by LORD, J.-First Ward Nat. Bank v. Thomas.

MARRIED WOMAN-LIABILITY ON NOTE-INDORSEMENT. Since the Statute 1874, ch. 184, removing the civil disabilities of married women, except the power to make contracts with their husbands, a married woman would be liable upon her indorsement on a promissory note made payable to her by her husband, or by a firm of which he is a member; for an indorser, when sued upon the contract between him and his indorser, is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his own liability. Burrell v. Smith, 7 Pick. 291; State Bank v. Fearing, 16 Pick. 533; Prescott Bank y. Caverly, 7 Gray, 217; Erwin v. Downs, 15 N Y. 575. Opinion by GRAY, C. J.-Kimworthy v. Sawyer.

TORT-INJURY OCCASIONING DEATH.-In two actions of tort, which were tried together, it appeared

that the first case was brought by the plaintiff to recover for injuries to his intestate by falling through a hatchway a distance of about forty feet, and the second by the mother, the surviving parent of the deceased, for the loss of services arising from said accident. Held, that even assuming the defendant to have been negligent, yet as the death of the son was instantaneous, the plaintiff can not, either as his administratrix or his surviving parent, maintain her action. PER CURIAM.-Moran v. Hollings.

EQUITY-TRUST — MORTGAGE.-Where money has been stolen, and invested as a part of the purchasemoney of land, with the knowledge of the party to whom it is deeded, equity will charge the estate with a trust in favor of the owner of the stolen money to the extent to which it has been so invested; but such trust would be subject to the rights of the grantor, who has sold the land in good faith and taken back a mortgage in part payment of the purchase-money. Opinion by GRAY, C. J.-Nat. Mahaiwe Bank v. Barry.

REPLEVIN-SALE-ASSIGNEE IN BANKRUPTCY.-In an action of replevin of certain barrels of oil, it appeared that the plaintiff bought the oil at the solicitation of the vendor, to enable the latter to raise money for the purpose of paying the expenses incident to the commencement of proceedings in bankruptcy; that a bill of sale of the oil was written out and given to the plaintiff, by the vendor; and that the oil remained in the vendor's shop until after he had filed his petition in bankruptcy, and his assignee had been appointed, when it was replevied. Held, 1. That, as between the parties, the jury would be justified in finding that the property in the oil replevied passed to the plaintiff. Weld. v. Came. 98 Mass. 152; Morse. v. Sherman, 106 Mass. 430; Townsend v. Hargraves, 118 Mass. 325. 2. That the plaintiff was entitled to hold the property as against the assignee, whose rights were to be measured by those of the bankrupt. In re McKay, 1 Low. 345; In re Griffiths, 1 Low. 431; Goss v. Coffin, 66 Me. 432. Opinion by MORTON, J.-Dugan v. Nichols.

QUERIES AND ANSWERS.

81. GOODS DELIVERED TO RAILROAD-ACTION.-A ships goods to B by railway company, claiming to be the owner, and takes bill of lading in his (A's) name. While en route the goods are taken from the company by virtue of a replevin writ in suit of C v. B. Neither A nor railroad company is made a party to the replevin suit; B is sole defendant. Judgment is rendered in favor of C at the trial of the replevin suit. Can A now maintain an action against the railway company for failure to deliver the goods as per contract in bill of lading? Is not the railway company responsible for giving up goods on demand of the officer holding re-' plevin writ, the company not being a party to the suit? O. H.

NOTES.

A weekly literary magazine must, we suppose, be of as much more value (because yon have so much more of it) as is a weekly legal journal when compared with the monthlies. The remarkable success of Littell's Living Age is well attested by the fact that on the first of January next it begins its one hundred and fortieth volume. It affords the only satisfactorily complete compendium of a current literature which is now richer than ever before in the work of the ablest writers upon all topics of interest. It merits careful attention in making a selection of reading-matter for the new year. The more numerous the periodicals, indeed, the more valuable becomes a work like this which, in convenient form and at small expense, gives the best of all. Its importance to American readers can hardly be over-estimated, as no other single peri odical enables one, as does this, to keep well informed in the best thought and literature of the time, and fairly abreast with the work of the most eminent livliving writers.

[Correspondents in this department are requested to make their questions and answers as brief as possible. Long statements of facts of particular cases will be rejected Anonymous communications will not be noticed.]

QUERIES.

79. SUIT-MORTGAGE-EXECUTION.-Will some old head of Kansas inform me whether or not there is any legal obstacle in Kansas to suing on a note secured by mortgage (real or personal), and running an execution on the judgment on other property, and then foreclosing the mortgage to satisfy any balance; or running execution on the mortgaged property without foreclosure. YOUNG KANSAS.

80. EXEMPTION LAW.-A, a married man, and head of a family, buys of B50 bushels of wheat, sufficient to bread his family for six months, and pays for the same, but never has had possession, or has it been set apart for him by B. C, a creditor of A's, on execution against A, garnishes B, who answers: "I have property in my possession belonging to A," to wit: 50 bushels of wheat, A claims the wheat as exempt property; query: can he hold it under the exemption laws of Iowa? Or, in other words, must personal property be reduced to actual possession in order to entitle the owner to the exemption under the statute. J. J.

JUDGE LOWELL, of the United States District Court, is, it is said, to be appointed to the Circuit vice Judge Shepley. The annual meeting of the State Bar Association, of Illinois, will be held at Springfield, on Tuesday, the ninth day of January next. The number of bankruptcies filed under the late bankrupt law, from the time it went into operation, June 1, 1867, to August 31, 1876, was 103,005, of which 15,151 were in the Eastern States, 24,534 in the Mladle States, 22,780 in the Southern States, 40,097 in the Western States, and 433 in the District of Columbia.- -At the recent Social Science Congress, Mr. H. W. Boyd Mackay, of Exeter, read a paper on the method devised by him for the more perfect formularization of the law. He stated that he had, for many years, been engaged in analyz ing the judicial decisions and statutory enactments with a view to discovering some principle on which the objects generally regarded as desiderate might be simultaneously attained, and that he believed he had at last arrived at a solution of this problem. He pointed out that a digest should combine a perfectly scientific character with a perfectly alphabetical form, and should present, in detail, all the material facts of each abstracted case, and yet present them in such a manner as should render it unnecessary for the reader to pe ruse any of them but those bearing on the matter he might have in hand. In explaining how this purpose might be accomplished, he drew a parallel between law and the natural sciences, and pointed out that a much closer analogy exists between them than is generally suspected, and that his method might be advantageously used for the statement of any branch of sci

ence.

SAINT LOUIS, DECEMBER 13, 1878.

CURRENT TOPICS.

The case of White v. State, lately decided by the Court of Appeals of Texas, decides a point of practice in criminal law, which deserves noting. The prisoner was indicted for murder and convicted of manslaughter. A motion in arrest of judgment was made on the ground that the conviction for manslaughter was barred by the statute of limitations. The court held that, this fact appearing, the motion in arrest should have been sustained, and the cause dismissed. "It is not necessary," said the court, "for a defendant relying on the statute of limitations, to plead it in bar. It devolves on the prosecuting power to show an offense within the statutory period. It will be seen by the verdict of the jury that the defendant was acquitted by the jury of the charge of murder, and we think the crime of manslaughter was barred by the statute of limitations at the time the indictment was found. This is a new question in this state, and we are called to pass upon it with but little aid from elementary works or adjudicated cases. The limitation of the time within which actions and prosecutions are to be brought is a creation of statute and does not exist at common law. In England there never have been any general statutes of limitations of criminal prosecutions, so that, says Mr. Chitty, 'instances have frequently occurred in which parties have been convicted and punished many years after the crime had been forgotten.' Some of the English statutes creating crimes contain a limitation clause. Bishop on Statutory Crimes, sec. 251." See Commonwealth v. Ruffner, 28 Penn. St. 259; State v. Robinson, 9 Foster, 274; McLane v. State, 4 Ga. 335; State v. Hussey, 7 Iowa, 409; People v. Van Santvoord, 9 Cow. 660; State v. Hobbs, 39 Me. 212; State v. Rust, 8 Blackf. 195; Steel v. Smith, 1 B. & A. 99; Rex v. Mason, 2 Term. 581; United States v. Watkins, 3 Cr. C. C. 341; Rex v. Fearnley, 1 Term. 320; United States v. White, 5 Cr. C. C. 73; Rex v. Saunders, 2 Strange, Vol. 7-No. 24.

Commonwealth v. Hutchinson, 2 Pars. 45.

In Langston, Admr., v. Aderhold, recently decided by the Supreme Court of Georgia, the plaintiff brought suit on a note, on the back of which was the following indorsement: "To avoid suit upon this note for the present, and to prevent any statutory bar, I hereby renew my obligation as security on the same, this September 19th, 1873; signed, H. D. Aderhold." Defendant set up as a defence, that he was induced by the representations of plaintiff, that the suit was not barred, to make the indorsement, in ignorance of the law and his rights, and that he was only surety on the note, and pleaded the statute of limitations. In addition to the foregoing facts it was proved that the principal on the note resided in Georgia, when the note was made, and afterwards removed to Tennessee. BLECKLEY, J., in delivering the opinion of the court, in speaking of the renewal of the indorsement after being barred by the statute of limitations said: "But the statute of limitations does not work a discharge. The statute goes to the remedy, and does not act directly upon the right. The right remains intact. A discharge is effective all over the world, but the operation of limitation acts proper is restricted to the particular state or country for whose courts they are enacted. That an action was barred by the limitation laws of one country or state, would not avail a debtor should he subject himself to suit in another jurisdiction. latter would administer its own limitation law, paying no attention to those of another state or country. * Here all the facts were known, and both parties acted honestly and in good faith. There was no misplaced confidence; the parties did not occupy confidential relations with each other, but dealt at arm's length; if the surety choose to act upon the opinion of the creditor instead of consulting other counsel, he cannot urge that he was mislead, where there was no intention to mislead." Certain it is, that the promise had for its foundation a moral right; it was valid in the forum of conscience. It is not that kind of a mistake of law against which equity would grant relief. It is not a mistake which would work an injustice to one party, in giv

The

ing to another an advantage contrary to equity and good conscience; and although supported by but few authorities, the principle in law is an important one. See 9 How. 407; 2 Parsons on Bills & Notes. 631; 47 Ga. 273; Angell on Limitations, Secs. 66, 67; 7 Mass. 447; 2 Kel. 31.

In Martin v. Funk, recently decided by the New York Court of Appeals, B, who afterwards died intestate, sometime before her death deposited in a savings bank $500, declaring, at the time, that she wanted the account to be in trust for L, a distant relative. The account was so entered, and a pass-book delivered to B. B thereafter drew for her own use one year's interest on the deposit. L was not informed and knew nothing of the deposit. This was held to constitute a trust in favor of L which could be enforced against the administrator of B. The question, said the court, has been very much litigated, and many refinements may be found in the books in respect to it. Many cases have been found difficult of solution, not so much on account of the general principles which should govern, as applying those principles to a particular state of facts. It is clear that a person sui juris, acting freely and with full knowledge, has the power to make a voluntary gift of the whole or any part of his property, while it is well settled that a mere intention, whether express or not, is not sufficient, and a voluntary promise to make a gift is nudum pactum, and of no binding force. 50 Eng. Ch. 175, and cases cited. The act constituting the transfer must be consummated and not remain incomplete, or rest in mere intention, and this is the rule, whether the gift is by delivery only, or by the creation of a trust in a third person, or in creating the donor himself a trustee. Enough must be done to pass the title, although when a trust is declared, whether in a third person or the donor, it is not essential that the property should be actually possessed by the cestui que trust, nor is it even essential that the latter should be informed of the trust, In Minor v. Rogers, 40 Conn. 512, a somewhat similar deposit was upheld as a declaration of trust. The court said: "She retained possession therefore, because the deposit was made in her name, as trustee, and not because she had not given the beneficial interest of the deposit to the plain

tiff," and, in that case, the depositor had drawn out the deposit, and the action was sustained against her administrator. So in Ray v. Simmons, 11 R. I. 266, the facts were precisely like the case at bar, except that the cestui que trust was informed of the gift, and the court held the trust valid. In Richardson v. Richardson, L. R. 3 Eq. Cases, 684, it was held that an instrument executed as a present and complete assignment (not being a mere contract to assign at a future day), is equivalent to a declaration of trust. Morgan v. Malleson, L. R. 10 Eq. Cases, 475, was decided upon this principle, and is an extreme case in support of a declaration of trust. It appeared that the testator gave to his medical attendant the following memorandum: "I hereby give and make over to Dr. Morris an India bond, No. 2506, value £1,000, as some token for all his very kind attention to me during my illness." This was held to constitute the testator a trustee for Dr. Morris of the bond which was retained by him. These cases are commented upon, and the latter somewhat criticised in Warriner v. Rogers, L. R. 16 Equity Cases, 340, but Sir James Bacon, in delivering the opinion, substantially adheres to the general rule before stated. He requires only "that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration, should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest." This case was decided against the validity of the trust, mainly upon the ground that the memoranda produced, were upon their face testamentary in character. In Pye's Case, 18 Vesey, 840, money was transmitted to an agent in France to purchase an annuity for a lady. Owing to circumstances, which the agent supposed prevented its purchase in her name, he purchased it in the name of the principal. When the latter learned this fact, he executed and transmitted to the agent a power of attorney to transfer the annuity, but before its arrival the principal died. Lord Eldon held that a declaration of trust was established. Wheatley v. Purr, 1 Keen, 551, is quite analogous to the case at bar. A testatrix directed her brokers to place £2,000 in the joint name of the plaintiffs and herself as a trustee for the plaintiffs.