of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. 4. Process from the tribunals of one state can not run into another state and summon parties there domiciled to leave its territory and respond to proceedings against them; and publication of process or notice within the state in which the tribunal sits can not create any greater obligation upon the non-resident to appear. Process sent to him out of the state, and process published within it. are equally unavailing in proceedings to establish his personal liability. 5. Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication, allowed by the law of Oregon and by similar laws of other states, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court and subjected to its disposition by process adapted for that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. 6. Whilst the courts of the United States are not foreign tribunals in their relations to the state courts, they are tribunals of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the state courts only the same faith and credit which the courts of another state are bound to give to them. 7. The term "due process of law," when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution to pass upon the subject-matter of the suit, and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff. In error to the Circuit Court of the United States for the District of Oregon. Opinion by Mr. Justice FIELD. Judgment affirmed.

LAND TITLES-EQUITY-FORGED DEED.-A party who seeks to set aside a conveyance purporting to have been made by himself, on the ground that it is a forgery, must establish the alleged forgery by clear preponderance of testimony. A party not in possession is not entitled to seek relief on such a ground in equity at all. If he is out of possession, he has a full remedy at law. 1 Sto. Eq. Jur., § 711, 11th ed.; Orten v. Smith, 18 How. 263; Polk v. Pendleton, 31 Md. 118, and cas. cit. Opinion by SHERWOOD, C. J.-Keane v. Kyne.

NEGOTIABLE PAPER-NOTE PAYABLE IN GOODS.A note for money 66 one year after date," "payable in merchandise to be taken during the year," is not payable in money after the expiration of the year, although the goods were not taken, if the maker continued in business at his customary place of business, and had "merchandise" more than sufficient to pay the note,

at all times since the date of the obligation, subject to the payee's demand therefor. By the the terms of the note no obligation is devolved upon the maker of the note, and the payee is the actor who must "take." 1 Par. Con., §§ 536, 535. Opinion by SHERWOOD, C. J.— Lakey v. Chadwick.

MANDAMUS-JUDICIAL DISCRETION.-Under secs. 23, 24, 25, 2 Wag. Stat., p. 1222, the payment of damages assessed under section 25, is optional with the petitioners for the road, and the question whether the road is "of sufficient public utility to justify the payment of the damages," "either out of the county treasury, or out of the road and canal fund," rests in the judicial discretion of the county court; and this discretion is beyond mandatory control. Where the court has previously ordered that the petitioners should pay for the road, and the applicant for the mandamus had moved in the county court for judgment on the verdict for damages, which motion was refused, no mandamus lies. Opinion by SHERWOOD, C. J.-Strahan v. County Court of Audrain county.

SCHOOL MORTGAGES-EQUITY-LACHES AND ESTOPPEL-PRACTICE.-Where a motion for a new trial is not incorporated in the bill of exceptions, (although contained in the transcript), this court will not consider it. Pacific R. R. v. Opel; Collins v. Bording, not yet reported. The plaintiff seeks to redeem his land sold under "a school mortgage," and bought by Saline county. The debt was due in 1860. The sheriff sold by order of the county court in 1864, and the county bought the land. In 1869 the agent of the county sold to defendant, Van Meter. This suit was brought in 1873. After Van Meter had completed his payments for the land, and had made valuable improvements, and after plaintiff had, in various ways, recognized the title vested in the county and in Van Meter, and after the decision of the court in Ray Co. v. Bortley, 49 Mo. 236, deciding that counties could not become purchasers at such sales-the plaintiff can not enforce his right to redeem, but is barred by estoppel and by his laches. 62 Mo. 573; 63 Mo. 48; Collins v. Rodgers 63 Mo. 515; 64 Mo. 576; 45 Mo. 273; 59 Mo. 422; 12 Mo. 333. Opinion by SHERWOOD, C. J.-Stevenson v. Saline Co.

PROMISSORY NOTE-SURETY-EXTENDING TIME OF PAYMENT.-A verbal promise made by the payee of a note to a surety, that he will proceed at once to collect the note from the principal, is not a waiver by the payee of his statutory right to a notice in writing from the surety. Giving time for a definite period on a note drawing interest, upon a promise to continue to pay the same rate of interest, is not such an extension as will release the surety. Opinion by PERKINS, J.-Chrisman v. Tuttle et al.

PROMISSORY NOTE-LIABILITY OF GUARANTORS.-1. The contract of the maker and guarantors of a note are separate and distinct contracts, and do not constitute a joint cause of action. 2. The contract of guaranty is assignable and passes to the assignee of the note. 3. A delay of fifty-one days in giving notice to the guarantors of the non-payment of the note by the maker, did not discharge the guarantors, it not being shown that they were injured by the delay. Opinion by PERKINS, J.-Cole el al. v. The Merchants' Bank. INFANTS LIABLE FOR ASSAULT AND BATTERY.-An

"CIVIL DAMAGE" LAWS.-Separate actions were brought against different defendants, under the laws of 1870, 67 Ohio Laws, 103, for alleged injuries to a wife's means of support from the intoxication of her husband. The petitions in form were identical. Held, the fact that the plaintiff in one case received a sum of money in satisfaction and discharge of her cause of action was no defense in the other case, if, in fact, the intoxications were separate and distinct. Opinion PER CURIAM.-Miller v. Patterson.

- When an action

RES ADJUDICATE - ESTOPPEL. was prosecuted to set aside a contract on the ground of fraud, and to cancel an unmatured note given in pursuance of the contract, which resulted in a judgment affirming the validity of the contract and note: Held, that in a subsequent action on the note, the defendant is estopped, by the judgment in the former action, from setting up that the contract and note were executed by the parties under a mutual mistake. Opinion by MCILVAINE, J.-Bell v. McCollock.

it may have had some influence on the final results of the case. 4. Any attempt on the part of the prevailing party or attorney in the case to corrupt a juror, though it be not shown to be successful, is a good ground for a new trial. 4. Where it appears that during the progress of a trial, the prevailing party or his attorney has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it is clearly shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror. Judgment affirmed. Opinion by DAY, J.-Pitts., Cin. & St. L. R. R. v. Porter.

act

INSURANCE-STATUTE REGULATING FOREIGN COMPANIES.-1. The twenty-first section of "an for the incorporation and regulation of life insurance" (S. & S., 222) making it unlawful for any agent to act for a forign insurance company, in the transaction of its business, without procuring from the auditor of state a certificate of authority, etc., is a regulation imposed for the benefit of policy holders, and others doing business with such company, to be enforced by the penalties provided in said act. 2. Said section imposes a personal duty on the agent of such company, to procure such certificate, and file it with the recorder of the county, and a violation of such duty subjects him to a penalty; but his acts as such agent, within the scope of the authority conferred upon him by the company, are valid and binding, not only in favor of third persons, but as between principal and agent, notwithstanding his failure to procure and file such certificate. 3. In an action against such agent and his surities on a bond, given for the faithful performance of his duties, to recover money collected by him within the scope of his agency, and which he has failed to account for, his failure to comply with the provisions of said section is no defence in favor of such sureties. Judgment reversed. Opinion by JOHNSON, C. J. Scott, J., did not sit in this case.-Manhattan Ins. Co. v. Ellis.

ABSTRACT OF DECISIONS OF SUPREME JUDICIAL COURT OF MASSACHUSETTS.

March Term, 1877.

HON. HORACE GRAY, Chief Justice.

DOWER-RELEASE-1. A release of a wife's inchoate right of dower is a valid consideration for a conveyance of property to her. 2. Such conveyance will not be held fraudulent and void as to the husband's creditors, unless the amount of consideration received is so disproportionate to the value of the wife's contingent dower as to be unreasonable. 3. So great is the difficulty of estimating the worth of contingent dower rights; so uncertain and imaginary are the values which are the necessary elements of the computation, that the court will not pronounce the transaction fraudulent, from the fact that the wife insisted upon and received a sum greater than her dower, if the facts do not show mala fides in her or her husband. Judgment affirmed. Opinion by WRIGHT, J.-Sengree v. Welch. PRACTICE-JURORS-INTOXICATION.-1. Where no exception is taken at the trial to the charge of the court to the jury, a judgment will not be reversed, on error, upon the mere ground of error in the charge, without reference to the merits of the whole case. Where, however, the whole evidence is made part of the record, and it appears that the contract is contrary to law, the overruling of a motion for a new trial on that ground, may be reviewed on error, though no exception was taken to the ruling of the court. 3. The mere fact that a juror in a civil case drank intoxicating liquors during an adjournment of the court while the trial was in progress, is not a sufficient reason for granting a new trial, unless there be reason to suspect

2.

66

JAMES D. COLT,

66

SETH AMES,

66

MARCUS MORTON,

Associate Justices.

WILLIAM C. ENDICOTT,

66

OTIS P. LORD,

66

AUGUSTUS L. SOULE,

NEGLIGENCE-EMPLOYER AND EMPLOYEE-FELLOW SERVANT.-1. To maintain an action against his employer, by one who has sustained injuries by a fall from an imperfect staying, while at work as a mason erecting a wall, the plaintiff must establish some neglect of a duty on the part of defendant, arising out of the relation between them, which was the direct cause of the injury. 2. When, in such case, the defect was an imperfect "putlog," the employer, if he undertook to furnish it, will be liable, if wanting in ordinary care in its selection. But if the defendant employed competent men to take charge of the erection of the building, and of the staying necessary, and furnished suitable material therefor, he would not be liable if a fellow-workman, not under the superintendence of the defendant or his agent, selected a defective putlog, by the breaking of which the plaintiff was injured. Opinion by COLT, J.-Colton v. Richards.

time expired the exceptions were duly filed with the clerk. The last day of said extended time was the day of the annual fast. The presentment to the court was not made until the day thereafter. Held, that the question presented does not depend upon the rules which govern the computation of time, when the last of a certain number of days allowed by statute or by general rule of court happens to fall on Sunday or other legal holiday, but upon the construction of the special orders made by the judge in this case, which did not define the time by the number of days, but by a particular date. The plaintiff, having taken the objection before the allowance of the exceptions, has the right to insist that they were not presented to the judge as well as filed with the clerk within the time limited by the judge's order. Gen. Stats., Ch. 115, §7; Doherty v. Lincoln, 119 Mass. 208; Conroy v. Callahan, 120 Mass. 165; Walker v. Moors, 122 Mass. Opinion by GRAY, C. J.-Cooney v. Burt. EASMENT EXTINGUISHMENT OF REMEDY.-On Dec. 24, 1814, an indenture of two parts was entered into between the defendant and one F by which the defendant granted to F" the right and use of an open dock and passage way for ships, vessels, boats and floats of every description, with free ingress and egress for the same at all times to and from his and their said wharves and estates, etc.," and reciting "that no fixtures or buildings of any kind are to be erected within the bounds above described as said dock, nor any unnecessary obstructions or impediments permitted therein." In 1855 the plaintiff acquired all the title conveyed to F by the indenture, and has owned the same even since. The common dock, referred to by the indenture, lay between the wharves of the plaintiff and the defendant and was used by both parties, remaining open to the sea until 1869, when the city of Boston, under St. 1867, c. 234, built a street across the dock; and under St. 1869, c. 181, filled up the portion of the dock west of said street. After the filling, the defendant erected permanent wooden buildings upon the parcel in question, interrupting, thereby, the plaintiff's use of the same. Held, that the only easement acquired under the indenture, was of an open dock and common passage way for ships and other water craft; that all the covenants, including that against erecting fixtures and buildings of any kind within the bounds of the dock, were incidental to the easement; and that the laying out of the street and the filling up of the dock by the city, made the enjoyment of this easement impossible and thereby extinguished it. Hancock v. Wentworth, 5 Met. 446; Canney v. Andrews, 123 Mass.; Mussey v. Union Wharf, 41 Me. 34; 3 Touillier Droit Civil (5th ed.) 522. The plaintiff's remedy for the destruction of the easement was by application for damages against the city under the statute. Opinion by GRAY, C. J.Central Whart Co. v. Prop. India Wharf.

NEGLIGENCE-EXCUSABLE CUSTOM.-1. To support a recovery on the ground of negligence in not complying with an alleged custom in a certain business, it must be shown that the custom was general and wellestablished, or that defendant had knowledge of it. 2. There can be no recovery for damages occasioned by a pure accident occurring from the breaking of a tool in the hands of an innocent cause of the injury, and being used by him with proper care in the regular discharge of his duty, after taking the ordinary pre

cautions. 3. It is negligence to leave glass exposed in the lower floor of a building in course of erection, where workmen carrying and using tools are working upon and passing over the unfloored rafters over-head. Reversed and judgment for defendant. Opinion by BAKEWELL, J.-Boyd v. Graham.

LIQUOR LAWS - INDICTMENT - PRACTICE. — 1. A merchant's license does not authorize the sale of liquors in quantities less than a gallon, except in case of a druggist selling them for medicine. Under an indictment for selling in quantities less than a gallon without a dram-shop license, it is not necessary to show that the liquor was drunk on the premises. Error pointed out in reporter's syllabus of State v. Brosius, 39 Mo. 534. 2. Where the name of the accused, though appearing in the information, has been omitted in one sentence through neglect to fill a blank left for it in the form, the proper amendment may be made at any time during the trial, on such terms as to delay as shall work no injustice to the accused. If the accused can not safely proceed after an amendment, he must show cause by affidavit, and must apply for delay. Affirmed. Opinion by BAKEWELL, J.-State v. Krull.

MARRIED WOMAN'S DEED CERTIFICATE OF ACKNOWLEDGMENT-EXECUTION— PRACTICE-IRREGULARITIES.-1. The certificate of acknowledgment of a deed by a married woman, conveying her own property, which says that she was made acquainted with the contents of the deed by the officer, and that, separate and apart from her husband, she acknowledged the same to be her act and deed, without any undue influence of her said —, states what is a substantial compliance with the law in these particulars, and, though informal, is sufficient. The word "husband” being omitted where no other word will supply the blank, will not make the acknowledgment bad. The policy of the law is to indulge the presumption that the officer did accurately what he imperfectly certified to; and courts will not disturb titles by minute criticism of the certificates of justices of the peace, where substantial compliance with the law is sufficiently set forth. 2. It is irregular to issue execution from the circuit clerk's office on a justice's transcript which shows that the execution was returned before the day. But a sale under such an execution is not null, and can not be collaterally attacked. 3. Where the defendant in an execution is correctly named in the body of the writ as Fordy Loftus, and afterwards mentioned in the mandatory part of the writ as the "said Henry Loftus," the error is immaterial, as the identity of person is apparent. 4. Where a deed bears a date subsequent to its acknowledgement, the date of acknowledgment may be taken to be the date of the deed. 5. Where a grant is for the benefit of the grantee, and the deed is made with his knowledge, and at his request, the delivery for record by the grantor will be taken to be a delivery to the grantee. Affirmed. Opinion by BAKEWELL, J.-Gorman v. Stanton.

WILLS-UNDUE INFLUENCE EVIDENCE. 1. The question of will or no will is one for the jury, under directions of the court. Where a will is made in favor of a religious institution by a patient dying within its wa'ls, the instrument being written by one acting as chaplain of the hospital, who is appointed executor, where the mind of the alleged testator is even slightly obscured by disease, fear of approaching death, opiates or otherwise, though, in the absence of proof of actual fraud, such a will is not void, it is looked upon with suspicion, and is very difficult to establish if attacked. And if, in addition to the fact that a controlling influence is shown to have been in a position to exert itself, the will is not in accordance with the law of descents, and passes over, without apparent reason, a natural heir for a stranger, and misdescribes the nearest relatives of the testator, a verdict against the will can not be set

aside as being against the evidence. Slight circumstances in such a case may furnish a sufficient legal warrant for an inference against the will, which the jury may draw if it choose, and which, if drawn, is fatal to the instrument. 2. In a case of a contested will, previous declarations of the testator in a will executed three years before are competent, as tending to show the intentions of the testator at that time. 3. A witness, on cross-examination, may be compelled to answer any question which tends to shake his credit by injuring his character, however disgraceful the answer may be to himself, except where it exposes him to a criminal prosecution. The extent of such cross-examination is in the discretion of the court. Affirmed. Opinion by BAKEWELL, J.-Mueller v. St. Louis Hospital Association.

BOOK NOTICES.

BOOKS RECEIVED.-Sawyer's United States Circuit Court Reports, Vol. IV. A. L. Bancroft & Co., San Francisco; Nevada Reports, (Hawley), Vol. XII. A L. Bancroft & Co., San Francisco; Bump's Notes on Constitutional Decisions. Baker, Voorhis & Co., New York; Moak's Digest of English Reports. Wm. Gould & Son, Albany; Jones on Mortgages, 2 vols. Houghton, Osgood & Co., Boston. **Publishers will confer a favor by marking the price of their books on the wrapper.

LEGAL MAXIMS, with Observations and Cases. Part I. One Hundred Maxims, with Observations and References to American Cases. Part II. Eight Hundred Maxims, with Translations. By GEORGE FREDERICK WHARTON, of the English Bar. To which is added in this edition, Part III, several hundred Maxims, with References to English Cases. New York: Baker, Voorhis & Co. 1878.

We wish to give two sentences from the publishers' preface, and then to ask a couple of questions. "The publishers know of no book which gives so large a number (i. e., of maxims)," and "Mr. Wharton's work which, perhaps, is the most popular of its kind." Is it not true that Bouvier's Law Dictionary, (Philadelphia, 1870), under the title Maxims, gives no less than 1882 maxims, or nearly twice as many as does the work before us? Is not this a reprint of an obscure collection printed in England about thirteen years ago, which never obtained any reputation or circulation in particular, and which was completely superseded by the treaties of Mr. Broom and Mr. Wayner? We are assured that this is so, and that, consequently. there is a slight discrepancy between the preface and the facts.

This collection, however, will be useful. The Maxims in Part I are discussed and explained, and the cases in which they are referred to are cited. The second part contains the maxims and translations simply, but why the one hundred maxims in Part I have been repeated among the eight hundred in Part II it is difficult to say. Mr. Wharton's collection has been supplemented by the addition in Part III of several hundred maxims, taken from Abbot's New York Digest, which have been applied or commented on by the court of last resort, or other courts of general jurisdiction in the state of New York. Under the head of Maxims of Jurisprudence will also be found another valuable collection taken from the civil code prepared for the latter state by the commissioners of 1857-1865, but not acted upon by the legislature. The book contains in all three hundred and fifty-two pages, and is neat in appearance and handy for reference.

SUPPLEMENT TO THE OHIO DIGEST - containing all the Supreme Court and Supreme Court Commission Cases in Vols. 25, 26, 27, 28 and 29 Ohio State Reports, and Subsequent Decisions to January 29, 1878. By CLEMENT BATES, of the Cincinnati Bar. Cincinnati: Robert Clarke & Co.

Although not more than three years have elapsed

since the appearance of Walker & Bates' Digest of the Ohio and Ohio State Reports, this supplement to it will, we are confident, be gladly welcomed by the profession. Since that time the reports have appeared with double the usual frequency, owing to the existence of the Supreme Court Commission, in addition to the regular Supreme Court, so that there is abundant necessity for the present publication. The cases digested number something over six hundred, and include not only all of those reported in the published volumes from volume twenty-five to twenty-nine inclusive, but also all of those which will make up volume thirty, and about one-third each of those which will constitute volumes 31 and 32. This brings the decisions down to the first of February, 1878.

The cases that will appear in the yet unpublished volumes, 30, 31 and 32, are taken from the newspaper reports which print the syllabi of cases decided by the Supreme Court and Commission, as they are filed. These reports are, however, not less trustworthy than if taken from the published volumes, for by a rule of the Supreme Court of Ohio, in force since 1858, it is required that "a syllabus of the points decided by the court in each case, shall be stated in writing by the judge assigned to deliver the opinion of the court, which shall be confined to the points of law, arising from the facts of the case, that have been determined by the court. And the syllabus shall be submitted to the judges concurring therein for revisal before publication thereof; and it shall be inserted in the book of reports without alteration, unless by consent of the judges concurring therein." The inferior courts have uniformly interpreted this rule to mean, that the syllabus of a decision declares all that the case actually decides, and is controlling upon them, attributing to it a more binding force than to the opinion in extenso. Recognizing this fact, Mr. Bates has Leen able to give us a digest which includes all the decisions made up to within six weeks of the date of its publication. The same plan of arrangement, than which no better could be suggested, and the same fullness and accuracy which, in Walker & Bates' Digest, gave the profession in Ohio a digest excelled by none in any other state, are found in this supplement. Mr. Bates deserves the thanks of the profession for what he has done.

The printing, paper and binding of the book are such as to make it a pleasure to look at and handle. W.

We have received from P. W. Ziegler & Co., Philadelphia, the initial volume of the "Handy Law Series." issued by this firm. It is a pocket edition of the Law of Copyright, by Hugh M. Spalding, author of "Spalding's Treatise," etc. It is printed in small type, is of 150 pages, and contains the different sections of the United States Copyright Law, with all the adjudications under it, and constant references to the larger works on the subject. The necessary forms for obtaining a copyright and for proceeding for its infringement are given, and the little work will certainly find its way to the libraries of all interested in the subject-A Table of Cases in the Reports of the State of Connecticut, which have been cited, explained, limited, doubted or overruled in subsequent decisions: By George Sharswood, Jr., has been issued by T. & J. W. Johnson & Co., Philadelphia. In 200 pages the compiler gives, in alphabetical order, the results of his examination of over seven thousand cases in the reports of his state. The object of an undertaking like this is "to enable the practitioner whenever he meets with a decision to trace it through subsequent cases, and thus ascertain its authority-how far it has been relied on, qualified, explained, questioned and denied." Such works are always valuable to the profession.