MICHIGAN SUPREME COURT ABSTRACT.

OCTOBER, 1881.

De

EVIDENCE IN ACTION BY MERCHANT FOR FALSE ACCOUNT BY TRAVELLING SALESMAN — EXPENSES OF OTHER SALESMEN NOT COMPETENT. - Plaintiff employed defendant as his travelling agent to make sales and collections for a salary and expenses borne. fendant continued in this employment from 1871 to 1878. The course pursued by mutual acquiescence and asseut was for the defendant to make trips occupying a few days and on his return report a gross sum as paid for expenses and hand over the remainder. About the middle of 1875 the plaintiff informed him that his expenses were regarded as too large, and in the next year they footed up a little less. Plaintiffs did not call at any time for a revision of charges or suggest any suspicion against their integrity. In 1879, after the employment had ceased, this, action was brought to recover what it was claimed that defendant had received from plaintiff by reason of being allowed fictitious additions to his expenses for moneys that he had not expended for travelling purposes. At the trial plaintiff proposed to show by a number of travelling men upon the route mentioned, what the expenses of travelling that route were for the different years involved and by merchants who had travellers, that the expenses were less than those charged by defendant. This evidence was not admitted. Held, no error. While the collateral facts are often relevant and proper it is necessary to regard their relation to the question to be settled. There must always be some known and ordinary connection between the facts proposed and the facts to be proved, and the former must have some fair tendency to establish the truth of the latter, and when the collateral facts consist of the conduct of strangers the law usually applies the maxim of res inter alios acta, because there is no such general connection between such acts and the matters to be established as will justify an inference such as may properly be relied on in judicial investigations. But whether then foreign facts are or are not the acts of strangers, if they are incapable of affording any reasonable presumption or inference as to the final subject, they ought not to be admitted. They are likely to lead to multiplication of issues and to cause confusion and misjudgment. 1 Greenl. on Ev., § 52; 1 Stark. 79, 80, 81, 82; Stephens, art. 10. Illustrations of the doctrine referred to are numerous. The following citations are among them: Holcombe v. Hewson, 2 Campb. 391; Jackson v. Smith, 7 Cow. 717; Wilmot v. Richardson, 6 Duer, 328; Murray v. Smith, 1 Duer, 412; Lewis v. Smith, 107 Mass. 334; Aldrich v. Inhabitants of Pelham, 1 Gray, 510; Collins v. Inhabitants of Dorchester, 6 Cush. 396; Lincoln v. Taunton Manufacturing Co., 9 Allen, 181; Gouge v. Roberts, 53 N. Y. 619; Lake v. Clark, 97 Mass. 346; Odiorne v. Mickley, 2 Gall. 51-53; Brewster v. Dennis, 21 Pick. 237; Furneaux v. Hutchins, Cowper, 807. Linn v. Gilman. Opinion by Graves, J.

NOTICE OF TITLE TO REAL ESTATE BY POSSESSION.-Notice of title under an unrecorded deed may be implied from possession held by the person having such deed. But in order that possession may have this effect and supply the place of registration, it must be open, manifest and unequivocal, and be under the unrecorded conveyance, and not under or referable to some other condition or transaction. Its characteristics must be such as to indicate a right which would be in keeping with the import of the unrecorded conveyance and not such as to lead to inference of right based or dependent on something different. Woodward v. Sartwell, 129 Mass. 210; Brown v. Volkening, 64 N. Y. 76, Page v. Waring, 76 id. 463; Meacham v.

Williams, 48 Penn. St. 241; McBane v. Wilson, 8 Fed. Rep. 734. Consequently when a husband living with his wife on premises belonging to her received title from her thereto and continued to occupy such premises in the same manner, not recording the deed, held that this was not sufficient notice of his title to the premises to a subsequent purchaser. Atwood v. Bears. Opinion by Graves, J.

NEW JERSEY SUPREME COURT ABSTRACT.

JUNE TERM, 1881.*

BOUNDARY LINE-WHERE ESTABLISHED BY USAGE.— Until reliable marks can be found to indicate where the statutory boundary line between towns should be run, the safest guide will be the line as hitherto practically adopted by the people in the locality. The practical location of a public boundary for a considerable time has been held to establish it, though not in accordance with that called for by the acts creating it. Hanson v. Russell, 8 Foster, 111; Hamilton v. McNeil, 13 Gratt. 389; Missouri v. Iowa, 7 How. 660; Kellogg v. Smith, 7 Cush. 375. A fortiori, where the line called for by the legislative acts cannot be traced, the line as practically located will be presumed to be the true one. Freeholders of Union v. Freeholders of Essex. Opinion by Van Syckel, J.

BROKER-WHEN ENTITLED TO COMMISSION.-Where a person desiring a loan makes an application in writing, upon which is an indorsement authorizing a single broker to procure the loan, and the broker leaves copies of such application with a number of persons, one of whom, induced by such application, without the broker's knowledge lends the money, the broker is entitled to his commissions. Shepherd v. Heddin, 5 Dutch. 334; Vreeland v. Vellerlein, 4 Vroom, 247. Derrickson v. Quimby. Opinion by Reed, J.

EMINENT DOMAIN TELEGRAPH A PUBLIC USEIMPLIED RIGHT OF PUBLIC TO USE. —(1) The supplement of 1880 to the act in relation to telegraph companies, authorizing the condemnation of the right of way, is constitutional. The use contemplated by the supplement is a public and not a private use. Lumbard v. Stearns, 4 Cush. 60; Scudder v. Delaware Falls Co., Saxe, 729. "The term 'public use' is flexible, and cannot be confined to public use known at the time of framing the Constitution. All improvements that may be made, if useful to the public, may be encouraged by the exercise of eminent domain. Any use of any thing which will satisfy a reasonable public demand for facilities of travel, for transmission of intelligence or of commodities, would be a public use." Mills, § 21; Concord R. Co. v. Greely, 17 N. H. 47; New Orleans Tel. Co. v. Southern Tel. Co., 53 Ala. 211. (2) Companies in accepting the benefits of this law, lay themselves under obligation to the public to permit the use of their lines by all persons, under reasonable regulations. This obligation upon a company need not be imposed in express words; it may rest upon implication. Trenton, etc., Turnpike Co. v. American & European Commercial News Co. Opinion by Van Syckel, J.

The reporting of the Supreme Court decisions of this State, a work of great responsibility and importance, has always been well done by Mr. Marcus T. Hun, since his undertaking of the labor. He is becoming a veteran in the ranks, and experience has added facility to the accuracy and clearness which he has always brought to the task. This series is unquestionably the most important of its class in this country. The variety and interest of the questions coming before the New York Supreme Court are unequalled elsewhere. It is refreshing to contrast Mr. Hun's admirable work with that of Barbour, so long the vexation of our own lawyers and the contempt of others.

Judgment affirmed with costs-Peyser v. Wendt; Suders v. Rasmus; Smith v. Lapham; The Kings County Fire Ins. Co. v. Stevens; The Buffalo & Johnstown R. R. Co. v. Clark; Same v. Gifford; The Universal Life Ins. Co. v. Van Dyke; Richardson v. Draper, Miller v. Hallock; Adams v. Conover; Culver v. Rhodes, The Phonix Ins. Co. v. The Continental Ins. Co.; Spears v. The Mayor, etc.; Yates v. Burch; Whitworth v. The Erie Railway Co.; The N. Y. C. & H. R. R. Co. v. The Standard Oil Co.; Barton v. The City of Syracuse; Graves v. White; Ryan v. Wilson; Dusenbury v. Seeley; Mead v. Stratton, Hopkins v. Lane.· -Judgment affirmed - People v. O'Connell; The People ex rel. Vogler v. Walsh, police justice, and ano. — Judg ment affirmed, without costs of this appeal to either party- Young v. Guy; Same v. Same. Judgment reversed and new trial granted, costs to abide eventTabor v. Van Tassel; Rich v. The N. Y. C. & H. R. R. Co.; Foxhall v. Fletcher; Goillotel v. The Mayor, etc.

Order of General Term affirmed and judgment absolute for respondent, on stipulation, with costsPaine v. Upton; Furquhar, President, etc., v. Crowell; Bacon v. Schoonhoven. - Order reversed as to appellant Pinckney, and the matter remitted to Special Term with instructions as stated in opinion— In re Pinckney v. Sherman.· · Order of General and Special Terms reversed and rehearing ordered, with costs to abide event - In re Upson to vacate, etc. Orders of General and Special Terms reversed and motion granted, with costs - Palmer v. Hussey.—Judgments of the General and Special Terms reversed and complaint dismissed, without costs to either party-The Trustees of Columbia College of the City of New York v. Thachor. Order of General Term reversed and judgment of Special Term affirmed, with costs - The Western Transportation & Coal Co. of Michigan v. Kilderhouse. Appeal from order granting attachment dismissed, and appeal from order denying motion to set aside service of summons affirmed, with one bill of costs The Atlantic & Pacific Telegraph Co. v. The Baltimore & Ohio Railroad Co. Judgments of the General and Special Terms reversed and judgment given to the plaintiff with costs, unless the defendants, within twenty days after filing remittitur in court below, pay the costs and serve an answer to the complaint-Strusburgh v. The Mayor, etc. Order affirmed without costs McBratney v. The Rome, Watertown & Ogdensburg Railroad Co. - Appeal dismissed with costs-DuBois v. The City of Kingston. -Motion denied, with costs-In the Matter of Richard Beckwith, a lunatic. Motion for reargument denied, with $10 costs-Parrott v. Sawyer.

THE

NOTES.

HE Criminal Law Magazine for January contains a leading article by Mr. Wharton, on Political Economy and Criminal Law. -The Kentucky Law Journal for January contains the following brief leading articles: Testimony of Parties in Criminal Prosecutions, by Z. F. Smith, Jr.; Admission to the Bar, by W. J. Hendrick; Popular Sovereignty, by R. M. Kelly; Divorce Laws, by R. H. Cunningham; The Wrongs of Married Women, by C. M. Harwood; Taxation for Collegiate Purposes, by Alex. P. Humphrey. — The Virginia Law Journal for December contains a leading article on Equitable Conversion and Reconversion.A late number of the Burlington Free Press and Times contains an interesting sketch of the late Chief Justice Pierpoint, which we suppose to be from the pen of Mr. E. J. Phelps. The writer says. "He was no case lawyer. With that sort of learning he did not attempt to keep pace, which consists only in triangulating from one case to another. He never travelled through a labyrinth of learning to absurd or unrighteous conclusions. The logical application of established legal principles was his resource, as it was his peculiar strength in dealing with all questions, however difficult or complicated. As a purely technical lawyer he did not greatly excel, but on the merits of a case he was rarely at fault. If wrong at all, it at least remained to be said, that if his views were not law, they ought to be." The chief justice was educated at the famous Litchfield Law School, founded by Judge Gould.

In Button v. Winslow, 53 Vt. 430, the defendant bought powder for a public celebration of the 4th of July, but neglected to state his agency as member of the executive committee. The court observed: "It is proper to make a great noise' on such an anniversary; but it is also most proper that the man who buys the powder should pay for it, unless he avows an agency that fixes the liability on another. And this we think is strictly legal."

The becoming mode of trying a case like that of Guiteau is a question raising difficulties, some of which are peculiar to the practice of American courts of law, and others would be shared by English courts in similar circumstances. In the United States a prisoner may have several counsel, each of whom will sometimes take an independent line of defense if he think it to the common client's interest; and this laxity of practice is, it seems, extended to the case where the prisoner is partly defended by counsel and partly by himself. In England, if a prisoner defends himself, he can only have counsel to advise him, or perhaps by a survival from the time when prisoners could have no counsel to argue points of law. Although, however, an English court would be free from the difficulty caused by the prisoner being also his own advocate, there would still be much embarrassment in dealing with a prisoner who is defended by counsel but who is alleged to be insane, and constantly interrupts the proceedings. A prisoner charged with felony cannot be tried in his absence, and physical coercion can only be used to prevent an escape. If the judge fail to impress the prisoner with the necessity of proper behavior, the only resource would be to commit him for contempt, and adjourn the trial or discharge the jury. The jurisprudence of neither country ought to necessitate so circuitous and perhaps ineffective procedure, but the judge ought to have the power to remove the prisoner and proceed with the trial if he is of opinion that justice cannot be decorously administered in the prisoner's presence. The possession of this power would go far to check extravagances. - London Law Journal

A

The Albany Law Journal.

ALBANY, JANUARY 28, 1882.

CURRENT TOPICS.

BILL introduced by Mr. Davis has passed both houses of Congress for pensioning Mr. Justice Hunt. Mr. Hoar, and we believe another senator, spoke in severe terms of reprehension of the judge for holding on to his office and drawing his salary for three years after he ceased to discharge the duties. We are glad the bill is likely to become a law, both for the sake of the judge and of the public. The judge was faithful while in health and his disability was not his fault, but he should have trusted the justice of the country, and not have crippled the court so ìong. Now the President

must fill his place, and there is one man above all others entitled to and peculiarly fit for the post. That man is Judge Blatchford. Certainly there is no judge now living in this State who has performed so much judicial labor, and none who has uniformly done better work. The public are little aware how much they are indebted to this veteran and able magistrate. We therefore submit his name to the President, the profession, and the public, as the fittest for this place, subject of course to the compulsion of instantly withdrawing it if there are any more candidates in Ohio to be heard from. We have no idea that Secretary Folger has any desire for the post.

We are sorry to be forced to qualify the word of praise we gave Mr. Scoville at his outset in the Guiteau case. Few men can talk so long as Mr. Scoville is talking without saying something foolish; but few men have the capacity to say such foolish things as Mr. Scoville has been saying. His case must indeed be weak, when he can find nothing better to urge than that Grant, Conkling and Arthur are responsible for this crime by his " poor insane client." This sort of twaddle will not commend Mr. Scoville or his client to the jury or the country. His personal attacks on the opposing counsel too have been in the worst taste. We strongly suspect that while he listens to Judge Porter's reply he wishes he had left out that clever ornithological comparison, and will conclude that the owl is properly

esteemed the emblem of wisdom, and that white he now scolds Mr. Davidge for bowing to the jury, he himself must bow to them in the end. Mr. Davidge too ought to be a little more choice of his epithets. New trials have been granted for an abuse of the public prosecutor's license, and when he calls Guiteau a "devil," he should remember what Othello said to Iago: "If that thou be'st a devil, I cannot kill thee." As for "Corkhill," we give him over.

The press continue their diatribes on the disorder of the court. Mr. Grinnell, the editor of the AmeriVOL. 25.--No. 4

can Law Review, has disabused us of the impression that the court-room has been disorderly. Undoubtedly however there is less formality and dignity there than is customary among ourselves. While courts of justice are not conducted as mere exhibitions of deportment, we could wish that some of our courts had a little more dignity. We would not go quite so far as the Montreal newspaper that blames Judge Cox for wearing a Tweed suit on the bench, but there is a desirable distance between spectators and bar, and between bar and bench, that is not always preserved in this country. Beyond this, in Guiteau's case there has been a most indecent laxity in his treatment by the officers. He has been exhibited as a spectacle for the curious, and has been allowed unnecessary and injudicious privileges. He regards himself, and justly, as a sort of lion. He has been encouraged in disturbing the court and insulting the country.

The prevailing inquiry now is, will the jury disagree? That, as Lord Dundreary observed, "is one of those things that no fellow can find out." The air is full of hints at the probability of such an event. Nobody of course dreams of acquittal. If there should be a disagreement, the prisoner had better be transferred for trial to New Jersey - if he can be. But there are four tremendous facts, all disclosed in Guiteau's own testimony, on which of course Judge Porter will dwell, and which ought to hang the wretch in an hour, namely: First, he knew the difference between right and wrong, because he struggled and prayed against the "inspiration;" second, however potent the "inspiration," it was not irresistible, because he twice refrained from killing the President when he had gone out to do so; third, he knew he was breaking the law and was in danger of summary mob violence, because he carefully, methodically and judiciously formed. all his plans to protect himself; and finally, he knew afterward that he had done wrong and that his pretended "inspiration" was a sham, because he felt remorse. If these four facts do not hang Guiteau then indeed "is hanging played out. Any man can pretend to be inspired by God, can rush out and kill anybody he chooses, can testify to his inspiration, and without a particle of evidence to. corroborate him, can go free. It would be a great satisfaction to us to be able to believe Guiteau irre

sponsible, but the evidence to the contrary is overwhelming. Indeed, a clearer case of responsibility was never shown in a court of justice.

A correspondent in another column opens a debatable question as to judges' salaries. We agree with him about the impropriety of judges riding on free railway passes, but we do not see what that has to do with the question. We agree with him about the undesirableness of having a corrupt judiciary, but we do not see what that has to do with the question. We agree with him that there are a great many men, earning smaller incomes, who are as fit for judges as those now on the bench, but we