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tiff. From this defendant appealed. SHELDON, J. ! belonged to G, deceased, who, in her lifetime, execusays: “The court below appears to have been satisfied ted a deed, to plaintiff, and defendant claimed title defrom the affidavits (although upon information and be rived through N, one of the defendants, also grantee lief as to the usury), that defendants, upon some of 8, who conveyed to him (W) prior to the execution terms, should be let in to make that defense. The

of the deed to plaintiff, on question as to the validity of question presented on the record is whether the order

deeds plaintiff assails W's deed, on the ground of want made by the court below, prescribing the terms upon

of consideration; consideration expressed in the deed wbich the defendant should be admitted to plead such was one dollar, and at the time of the conveyance de

efense, is in accordance with the law and practice in fendant agreed to furnish his grantor, G, certain fruit cois state. The order made must have been upon the, trees. Held, that the agreement of itself was a contheory that this was an application to the equitable sideration sufficient to support the deed, even if dejurisdiction of the court, and the court would compel fendant failed to perform his agreement. Opinion the party applying to do what was equitable.” After by ADAMS, J.--Gray v. Lake. reviewing the law and authorities on the subject, the court say: "We are inclined to hold that, agreeably to the practice which has been recognized by this court, no terms of the kind should have been imposed.” Re



March Term, 1878.

Hon Horace GRAY, Chief Justice.


June Term (Des Moines), 1878,


WILLIAM C. ENDICOTT, Associate Justices.



Associate Justices.


-A trial of a challenge to the array of the petit jury PRACTICE — SERVICE.-1. Code, sec. 2600, which

by the court, and not by a jury or triers appointed for provides that if the petition be not filed by the date

the purpose, offered the defendant no ground of exfixed in the notice, and ten days before the term, the

ception. By the common law, a challenge to the array action will be deemed discontinued, is imperative. And

might be tried either by the court itself, or by such where original notice recites that the petition will be on

officers or persons as it might designate. Lloyd v.

Waller, 2 Rol. R. 363; 2 Hale P. C. 275; Bac. Ab. file, the 20th of November, and it was filed November 22d, it is not complete service. 3. The language of the

Juries, 312; 7 Dane Ab. 331. And in this commonstatute, section 2600, is imperative. and the appear

wealth, as elsewhere in New England, all challenges ance of the defendants cannot be presumed as a waiver

have been usually tried by the court. Samuel Dexter, of the defect caused by the late filing of the petition.

arguendo, in Burden v. Burden, 5 Mass. 61, 71; 7

Dane, Ab. 334; Com. v. Knapp, 9 Pick. 496, 499; State Opinion by BECK, J.-Cibula v. Betts Mantg. Co.

v. Jewell, 33 Me. 583; State y. Howard, 17 N. H. 171. ATTACHMENT-EVIDENCE.-Plaintiff caused an at

191; State v. Clark, 42 Vt. 629; State v. Potter, 18 tachment to issue against the goods of defendants, on Conn. 166, 171. Opinion by GRAY, C. J.-Com. t. the ground that defendants were about to dispose of Walsh. their property with the intention of defrauding their

EMBEZZLEMENT-OBTAINING PROPERTY BY FALSE creditors. One of the defendants being called, was

PRETENSES-LARCENY.-If a person honestly receives asked: “Were you, at or prior to May 24th, 1876, dis

the possession of the goods, chattels or money of an• posing of your property for any purpose, or for what

other upon any trust, express or implied, and after purpose?" "I was disposing of my property for the

receiving them fraudulently converts them to his own purpose of paying my debts; was making extra efforts,

use, he may be guilty of the crime of embezzlement, too." Held, that where an action is brought to set

but can not be of that of larceny; except as embezzleaside a sale as being fraudulent against creditors, the

ment is by statute made larceny. If the possession of party charged, when called as a witness, may testify to

such property is obtained by fraud, and the owner of bis intent when the evidence tends to establish only the

it intends to part with his title as well as his posses. fraud. Opinion by SEEVERS, J.-Sely v. Belden.

sion, the offense is that of obtaining property by false INDICTMENT-THREATENING TO KILL-PRACTICE.

pretenses, provided the means by which they are ac1.-Where an indictment sets forth that the defendant quired are such as, in law, are false pretenses. If the did willfully, maliciously, verbally threaten to kill and possession is fraudulently obtained with intent, on the murder Zenana Staats and T. S. Woods it is sufficient, part of the person obtaining it, at the time he receives and does not allege a legal conclusion. The words of the it, to convert the same to his own use, and the person defendant bear out of the gist of the offense, which is parting with it intends to part with his possession found in the intention of the defendant to thereby con merely, and not with his title to the property, the ef. vey a threat. 2. An indictment does not necessarily fense is larceny. Opinion by LORD, J.-Com. 0. charge two offenses where it alleges that a threat was

Barry. made against two persons. 3. Where the defendant

SLANDER-VARIANCE-DESCRIPTIVE ALLEGATIONS. ebarged in the indictment with making the threat,

-1. To sustain a count which alleges that the defendasked the court to instruct the jury that the charge

ant accused the plaintiff of the crime of larceny by could not be established by proofs of acts other than

words spoken of and concerning the plaintiff, subwords spoken, or written, or printed communication:

stantially as follows: “He (meaning the plaintiff) is Held, that the instruction was properly refused, be

a rascal, a villain and a thief,” the plaintiff must prove cause it was erroneous and prejudicial to the defend

that the defendant accused him of said crime by words ant. Opinion by BECK,J.-State v. O'Malley.

substantially like those alleged. Payson V. MaDEED-CONSIDERATION, --In an action to set aside a combes, 3 Allen, 69. And it is not sufficient to prove onveyance where it appears that the land formerly | accusations of description and fraud which did not

interest law of 1869-70, the error can not be corrected by a court of chancery in a suit brought to enjoin the judgment. Opinion by FREEMAN, J.-Jones v. Whitehead.


impart and could not be understood as charging said crime. 2. The allegation in a count for slander: "That said false and malicious accusations were made to the Trustees of B. U., and members of the B. U. A.,” is material. If the plaintiff alleges a publication generally, the fact may be proved by any person who heard the words. But if he adds any allegations which narrows and limits that which is essential, it becomes descriptive, and must be proved as laid. Chapin v. White, 102 Mass. 139; Davis v. Hawley, 112 Mass. 137. And the fact that the person to whom the accusation is made happens to be one of such trustees or members is not sufficient, there being no evidence that the publication was made to said trustee or members as a body. Opinion by MORTON, J.-Perry v. Porter.

To the Editor of the Central Law Journal:

A card having been published in this Journal by me in reference to the publication by W.J. Gilbert, of St. Louis, of a book styled "Thompson's Tennessee Cases," I desire to state to the public that since the publication of my card, Mr. Gilbert has adjusted the controversy between us, respecting the publication of that book, in an honorable manner, and that the further sale of said book has been suspended. Respectfully,

SEYMOUR D. THOMPSON. St. Louis, July 31, 1868.




April Term (Jackson), 1878.

ROBT. MCFARLAND, ) " PETER TURNEY, Į Associate Justices.


[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 departmenti. 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. 46. CAN A JUDGE OR JUSTICE OF THE PEACE sit in judgment in a cause where his domestic servant is a party, or is interested in the result of the litigation? Ithaca, N. Y.

M. K.

47. A CATHOLIC PRIEST borrows money to improve the school-house connected with the church under his charge, and gives a note of the church by himself as pastor. Who, and how do you sue on such note?

N. H. E.

LANDLORD'S LIEN.-The act of 1875, ch. 116, gives the landlord a lien on the crop of his tenant for necessary supplies of food and clothing furnished, without any written contract therefor. Opinion by SNEED, J.--Lerois v. Mahon.

EVIDENCE – IMPEACHING WITNESS. – A witness may be impeached by evidence of previous contradictory statements, though, in answer to the necessary preliminary questions, he disavows remembering that he made such statements. Acc. Janeway v. State, 1 Head. 130. Opinion by MCFARLAND, J.-Jetten 0. Brownsville Savings Bank.

PAROL EVIDENCE-WRITTEN CONTRACT.-The rule excluding parol evidence does not apply in cases where the original contract was verbal and entire, and part only of it was reduced to writing. Acc. Seinan v. Swart, 11 Hum. 308; 1 Greenl. Ev., $ 304. Opinion by FREEMAN, J.-Malone v. Davidson.

NEGOTIABLE PAPER— COLLATERAL. – Negotiable paper transferred as collateral security before maturity is subject to all equities then existing; and the maker is protected if before such transfer he has paid the note to the rightful holder. Distinguishing Gosling V. Griffin, mss. Jackson, 1875, which overrules Vallentine v. Howell, 5 Sneed, 441. Opinion by DEADERICK, C. J.-Richardson v. Rice.

IMPEACHING WITNESS-WEIGHT OF EVIDENCE. If a witness be attacked or impeached by other witnessses, his credibility is not to be determined by any rule as to weight of evidence; but it is in all cases to be left to the jury to determine to what extent they will give him credit. Acc. Kinchelow y. State, 5 Hum. 12. Opinion by FREEMAN, J.-Beaumont v. Chew.

JUDGMENT IN MAGISTRATE'S COURT. – An action may be maintained in the circuit court on a judgment obtained before a magistrate, notwithstanding execution has issued under such judgment and has been levied on land and returned into the circuit court for condemnation. The judgment is not thereby extinguished or vacated. Opinion by DEADERICK, C. J.Boyd o. Mann.

CORRECTING JUDGMENT – CHANCERY JURISDICTIOX.-Where the magistrate's court did not render its judgment for the correct rate of interest according to the stipulations of the contract under the conventional

48. BANKRUPTCY-FORECLOSURE-LIMITATION.--A has been adjudicated a bankrupt, and an assignee appointed. Previous to the adjudication there was a mortgage on the real estate of the bankrupt given by him, and which came due about the time of the adjudication. The mortagee obtained leave of the bankruptcy court to foreclose in the state court upon potice to the assignee. More than two years have elasped since leave to foreclose was granted, and no proceedings have been commenced on the part of the mortgagee to foreclose. Is the foreclosure of the mortgagee barred by § 2 of bankrupt act as amended? The section provides that “no suit at law or in equity, shall be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property or rights of property aforesaid in any court whatsoever, unless the same shall be brought within two years.” It has been held, I believe, that the section applies to the redemption of a mortage. Why, then, should it not be applied to foreclosure?


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pendently of all statutes, he can maintain any one of the three following common law actions: He can rescind the sale, and sue for money had and received; he can sue in trover for the value of the ink-stand; he can maintain detinue for it. 1 Pars, on Contr. (marg. pp.) 519, 526; Story on Sales, $$ 238, 300, 303, 303a; 2 Kent Com. (marg. pp.) 492, 493; Linde v. Whitehouse, 7 East. 571; Warren y. Leland, 2 Barb. (S. C.) 613; Stamps v. Bush, 7 How. (Miss.). 255: Ingersoll v. Kendall, 13 Sm, & Marsh. (Miss.) 611; George's Dig. Miss. Reps. 667.

J. D. GILLAND. Vicksburg, Miss.

No. 36.

(6 Cent. L. J. 479.) As to this query, “G” writes as follows from Indianapolis, Indiana: “The second answer to query No. 36, signed “C and B," Vincennes, Ind., published on page 39 of volume 7, of your journal, is doubtless good law but in the face of State v. Barbee, 3 Ind. 258, and at least two cases in 4 Ind. following the same, we would be pleased to hear from the gentlemen as to the authorities sustaining their proposition.”


THE different law schools in the west already announce the opening of their next sessions. The law school of the State University at Columbia has changed its opening day from the first Monday of October to the second Monday of September. The St. Louis Law School opens October 15th, 1878. Students will be admitted to the senior class, on examination, on October 10th and 11th, There are six scholarships open to students in this school. Outside of this state, the Law Department of the Wisconsin University will open on September 4th. The collegiate year of the Union College of Law at Chicago begins on September 11th, and lasts for 36 weeks. The Bloomington Law Institute opens September 12th. There are two prizes of $100 and to $50, respectively, open for competition by the students of this institution.

The criminal code under consideration in the English Parliament, permits the evidence of defendants in criminal cases in a somewhat modified form. The section altering the law in this respect is as follows: “The court shall inform the defendant, whether he is defended by counsel or not, that he may make any statement he pleases to the charge against him, and that it he does so he will, after he has made it, be questioned by the counsel for the prosecution; or, if there is no counsel for the prosecution, as the court may direct." An“habitual criminal ” criticises this provision in this language: “What, let me ask, will become of the defendant who, after this considerate invitation, declines to make any statement he pleases,'having, in fact, no statement that pleases him to make? What, again, is likely to happen to him if he is to be tormented with questions by the counsel for the prosecution, by the court, and by the jury--for even these amateurs are to be allowed to operate upon him, since it is said both the court and the jury. (with the permission of the court) may ask the defendant any questions which they might ask of a witness.' If the accused is stupid, and does not return ingenious answers to the interroga. tions of some juryman, he will most certainly be convicted, on the assumption that he has no reasonable explanation to give. But if a prisoner should reply with readiness or wit to some question laboriously concocted by the entire jury, and put with pompous satisfaction by the foreman, the retort of the twelve will take the form of a verdict of guilty-for it is easier to pardon a considerable injury done to another, than & slight inflicted on ourselves; and they who might take a lenient view of the picking of another man's pocket will avenge with ferocity any diminution of the estimate they have formed of their own abilities. It is, moreover, a serious objection to this part of the bill that it provides that “the defendant shall not be sworn as a witness,nor be liable to any punishment for making false statements, either before, during, or after his examination. The high value which is attached to all oaths is shown-like our passion for pounds, shillings and pence-by our constant use of them. All imprecation is, indeed, when rightly regarded, a kind of bet in which one backs one's assertion at the peril of one's hereafter, the odds being, of course, indicated by the number and forcibility of the esseVerations employed. Now, it is notorious that amongst the class from which juries are drawn no one would be believed who, upon his statements being challenged in the common formla, “Will you lay : quart about it?" should decline to this extent to support his opinion. But with what contempt would not he be received who should refuse, not only to bet, but to swear as well? It were some advantage if a prisoner having to explain were allowed to say, as of old, “I am innocent, and I'll pick up hot iron;” “I am innocent, and will undertake to kill the prosecutor, in proof of what I say;" “ I am innocent, if not, I will drown in a water butt." It were something, I say, it one might declare when accused, “I am not guilty; I will swear to it, and, if falsely, be imprisoned both for the false offense and the false oath.” But of what value to a prisoner is a statement made by him, when all the world knows that he runs no risk in the making of it, and that the law holds him so likely to speak untruly that it will not trouble to punish him for what it regards as inevitable perjury? There is a saying which Mr. Carlyle is fond of quoting in the original Germanthough he does not lay it to heart to the extent of observing it—that speech is silvern, but silence is golden; and I would ask of Sir Fitzjames Stephen why does he attempt this backward alchemy of turning our gold into baser metal? Why does he seek to catch the taciturn in a dilemma, and lead the loquacious into a spare?"

MR. JUSTICE MILLER's recovery is now said to be complete. There are, according to the San Francisco Call, some very rich lawyers in that city. Chief Justice Wallace, of the supreme court, was rich before be reached his present position. His fortune is roughly estimated at from $100,000 to 200,000. Ex-Judge 0. C. Pratt is thought to be worth a million or so. Eugene Casserly and Judge Hager are accounted wealthy. J. B. Haggin, who took to finance more than law, is reported to be worth $500,000 or $600,000. Lloyd Tevis, of similar taste, is worth about the same. Many others might be mentioned. - -Three judges of the New York Court of Appeals, viz.: Judges Earl, Miller and Hand, are in Europe- The first woman who has applied to the California bar for admission has been rejected for failing to pass a satisfactory examination.

--William T. McCoun, nearly fifty years ago a vice-chancellor of the State of New York, and afterwards a justice of the supreme court and a judge of the court of appeals, died on the 18th inst. He was in the 93d year of his age and was admitted to the bar of that state at the beginning of this century, when Alexander Hamilton, Thomas A. Emmet and Aaron Burr were its leaders. Another New York Judge who has passed away during the last week is John A. Loit, formerly a judge of the court of appeals and a member of the commission of appeals during its whole existe ence,

The Central Law Journal.


in Wisconsin the rule is declared to be the same. Brayton v. Chase, 3 Wis. 456. The case of Bean v. Quimoy, 5 N. H. 94, militates against the rule announced by the above authorities, but upon an examination of the case it will be seen that the court hold contrary to the common law rule, because of a statute of that state which in terms authorizes anyone to commence and manage any cause in any court when employed so to do by another.


The Illinois statute authorizing parties to appear before justices of the peace and conduct suits by their agents, does not transform • such agents into attorneys at law, so as to make privileged, communications made between a suitor and such an agent. This was decided by the Appellate Court of Illinois for the Second District, in the recent case of McLaughlin v. Gilmore. In Sample v. Frost, 10 Iowa, 266, it was held that communications relating to the subject-matter of a suit made by one of the parties thereto to a person supposed to be an attorney at law, with a view to engage him professionally in said suit, when such person was not an attorney at law, but was receiving business as one, and was expecting to be, and was admitted to practice at the next term of court, were privileged. The court quoted with approbation the case of Fountain v. Young, 6 Esp. 113, that “the person consulted must be of the profession of the law, and it is not enough that the party making the communication thinks he is.” In Holman v. Kimball. 22 Vt. 555, the defendant below offered in evidence the deposition of one Thomas Ab· bot, to prove admissions and communications relating to the suit made by the plaintiff to Abbot, while he was acting as the attorney and counsel for the plaintiff. It appeared that Abbot had an office and did business as a lawyer in Barton, where the plaintiff resided, and he was employed by the plaintiff to bring suit. Abbot's name was endorsed upon the writ as the attorney for the plaintiff, and upon the court docket in the supreme court upon appeal. Abbot had previously been a student in a law office and was pursuing his studies, but had an office and did business upon his own account. He had not been admitted to the bar as an attorney at the time above referred to, but was subsequently admitted. The court below excluded the depositions and the defendant excepted. The supreme court for this error reversed the judgment, holding that Abbot not being a member of the profession was not within the rule. So,

Vol, 7–No, 6.

In Cannon v. Villars, 26 W. R. 751, decided last month in the English High Court of Justice, one V, the owner of a house with a paved gateway under it and a yard behind, agreed to lease to C, a gas engineer, some ground behind the yard, with power to erect thereon workshops for his business, and it was provided that C should not obstruct the gateway, except for the purposes of ingress and egress. On the workshop being erected, the only access thereto for carts was through the gateway. It was necessary for C's business that carts and vans should have access to his workshop, and he complained that V blocked up the passage with certain empty vans of his own. V had been in the habit of doing this before the agreement had been made. C thereupon brought an action for the removal of the obstruction and for an injunction. The court held, that under the agreement, C had a right of access for vehicles to his premises and not a restricted right of footway only, and that he was entitled to an injunction. “ As I understand it,” said JESSEL, M. R., “ the grant of a right of way per se, and nothing else, may be a right of footway, or it may be a general right of way, that is, a right of way, not only for people on foot, but for people on horseback, people in carts, carriages and other vehicles. Which it is is a question of construction of the grant, and that construction will, of course, depend on the circumstances surrounding the execution of the instrument, so to say. Now, one of those circumstances is the nature of the locus in quo over which the right of way is granted. If we find a right of way granted over a metalled road, with pavement on both sides, existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the pass

tion necessar.

e grant of Carriages,

age, not only of foot-passengers, but of horse- having two small wheels and a movable casmen and carts. Again, if the right of way tor. The noise caused by the running of this were granted along a piece of land capable of vehicle over the carpet annoyed the plaintiff being used for the passage of carriages, and and his wife, who lived below, and he applied the grant was of a right of way to a place for an injunction to restrain the use of the which is stated on the face of the grant to be baby carriage as being a nuisance. No more intended to be used, or to be then actually noise was made in running the carriage than used, for the purpose which would necessarily was necessary. The court refused the injuncor reasonably require the passage of carriages, tion. “If," said the court, “ the rocking of it must be assumed that the grant of the right a cradle, the wheeling of a carriage, the whirlof way was intended to be effectual for the pur ing of a sewing-machine, or the discord of illpose for which the house was designed to be played music, disturb the inmates of an used or was actually used. If, on the other

apartment-house, 'no relief by injunction can hand, we find that the road in question, over

be obtained, unless the proof be clear that the which the grant was made, was paved only noise is unreasonable, and made without due with flag-stones, and that it was only four or regard to the rights and comforts of other ocfive feet wide, over which a wagon, or cart, or cupants. The situation of dwellers in apartcarriage ordinarily constructed could not get,

ments, whilst it has its advantages, must be and that it was only a way used for a field or in some respects less agreeable than that of close, or something on which no erection was,

those who occupy a whole house. They can there, I take it, you would say the physical

not expect the same quiet and repose. The circumstances showed that the right of way

man who lives in a hotel must not be surprised, was a right for foot passengers only ; it might

if roused from sleep by the heavy foot of include a horse under some circumstances, | some guest passing by his door at an unseasonbut could not be intended for carts or car

able hour. Nor ought the plaintiff to have riages. Of course, where you find restrictive

been surprised by the use of any ordinary words in the grant—that is to say, where it is

means which the defendant might employ to only for the use of foot passengers -stated in | lull his sick child to sleep. No man has a right express terms, or for foot passengers and to such immunity from noise that a neighbor horsemen and so forth, there is nothing to ar can not stir in his own room. There is nothgue, Prima facie the grant of right of way is ! ing in the affidavits to lead me to the concluto be construed as having regard to the nature sion that defendant, in having this carriage inof the road over which it is granted, and the stead of a cradle, made use of his apartments purpose for which it is intended to be used, which, in view of the plaintiff's right to quiet and both those circumstances may be legiti and repose, was unreasonable. It is probable mately called in aid in determining whether it that a cradle, swinging upon pivots in stationis a general right of way, or a right of way re ary standards, would have answered the purstricted to foot passengers, or restricted to pose as well as the carriage; and as it would foot passengers and horsemen or cattle, or a make no noise, good neighborship might suggeneral right of way for carts, horses, car gest the use of it. As matter of law, howriages, and everything else.”

ever, if the defendant himself was taken sick, and obliged to walk the floor all night through

pain, the plaintiff would have no right to insist The case of Pool v. Higginson, decided

that he should put on india rubbers. As has by the New York Court of Common Pleas last

been said, each case must stand by itself, and week, is a somewhat novel one. The plaintiff

where people indulge their inclination to and defendant occupied apartments in a class

be gregarious, they must not expect the quiof building known as French Flats, those of

etude that belongs to solitude.” The rule in defendant being immediately over plaintiff's.

cases of nuisance by noise seems to be that The child of defendant being sick and fretful to be enjoined by a court the objectionat night, the defendant was accustomed,

able sounds must not only be unpleasant, whenever it could not be soothed to sleep in

but unreasonable. Regard must be had to any other way, to draw it about in a small car- | the locality and the nature of the use of riage which was made to run over the carpet, the property which makes the noise, as well as

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