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which are susceptible of knowledge. Representations which are mere expressions of opinion, judgment or estimate, or intended as expressions of belief only are not suficient to support the action. Safford v. Grout, 120 Mass. 20; Litchfield v. Hutchinson, 117 Mass. 195. 2. In the case at bar the evidence tended to show that in January, 1876, the defendant went to the plaintiff to buy wool, and after some conversation as to his business condition and credit, agreed to go home and pre. pare a statement of his affairs; that in the February following, he again called upon the plaintiff, took out a memorandum book, apparently to read it, and said, “I want to tell you how I stand. I could pay every dollar of indebtedness of mine, including the mortgages on my real estate, and not owe on that real estate more than $15,000 to $20,000.” It appeared that he had a large and valuable real estate. Held, that the representation might be intended as a statement of a fact, or as the expression of the opinion or estimate which the buyer has of the value of his property. The court can not say as matter of law that it should be intended in the latter sense. It was properly left to the jury before whom was all the evidence disclosing the circumstances and condition of the defendant and his property. Opinion by MORTON, J.-Morse v. Shaw.
QUERIES AND ANSWERS.
[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 depart. ment-i.e, we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecatively during the year, and correspondents are requested to bear this in mind when sending answers.]
SOULE, J.-Congregational Society of Auburn v. Walker.
INJURIES BY BITE OF Dog--DUE CARE REQUIRED OF INFANT.-In an action brought under Gen. Sts., ch. 88, $ 59, to recover damages for an injury to the plaintiff, a boy of thirteen years, from the bite of a dog kept by the defendant, an instruction by the court to the jury that “if the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog and did thereby incite the dog to bite him, he may nevertheless recover if the jury think he was in the exercise of such care as would be due care in a boy of his years," is not erroneous. Carter v. Towne, 98 Mass. 527; Munn.v. Reed, 4 Allen, 431; Lynch v. Smith, 104 Mass. 52; Dowd v. Chicopee, 116 Mass. 93; Meibus v. Dodge, 38 Wis. 300. Opinion by MORTON, J.-Plumley v. Birge.
LIF£ ESTATE-UNEXECUTED POWER.-A testator gave to his wife “all my estate, both real and personal, that shall remain after the payment of my debts and funeral charges, for her comfortable support and maintenance during her life, with full power to dispose of the same as she may find needful for that purpose,” and after her death to S. In a writ of entry by one claiming the estate under the will of the widow against S., it was held, that the widow took under the will of her husband only an estate for life with a power to sell, and that power not having been executed in her lifetime, the devise over to S. took effect upon her death. Stevens v. Winship, 1 Pick. 318; Learned v. Bridge, 17 Pick. 329. Per CURIAM.-Smith v. Snow.
SEVERAL CONTRACTS—BREACH.—The plaintiff sold at public auction twenty parcels of land. They were separately described in the advertisement and separately sold. Each lot stood by itself, and the defendant having bid off four lots numbered 1, 3, 4 and 17 respectively, signed a separate memorandum of the purchase of each, stating the price and binding himself to the terms of the sale. Held, that the purchase of each parcel was a distinct contract, and the failure of the plaintiff to tender a deed in season of lot 17 did not discharge the defendant from his obligation to perform his contracts made respecting the other lots. Van Ess v. Schenectady, 12 Johns. 436; Emerson v. Heelis, 2 Taunt. 38; Roote v. Ld. Dormer, 4. B. & Ad. 77. Opinion by ENDICOTT, J.-Wells v. Day.
NEGLIGENCE-MASTER AND SERVANT.-In an action of tort to recover damages for injurie received, it appeared that the plaintiff was engaged in cleaning the outside of a carding machine. In rubbing the moveable board which formed a part of the frame, he pressed it in at the top and was injured. This board was kept in place by wooden buttons on the outside held with screws. The only evidence in the case which tended to show the cause of the board's giving way, was that the button at the bottom intended to keep it in its place had become loosened. Held, that in entering the defendant's service, the plaintiff assumed all the ordinary risks of his employment, including those arising from the negligence of his fellow-gervants. The only negligence the jury would be justified in finding upon the evidence, to be the cause of the plaintiff's injuries, was negligence of a fellow-servant in not tightening the screw which held the loosened button. For such negligence the master is not responsible, it being admitted that he employed competent and suitable servants. Opinion by MORTON, J.-Smith v. Lowell Manuf. Co.
SALE-FRAUDULENT REPRESENTATIONS-LAW AND Fact.-1. Where the plaintiff
' seeks to avoid a sale upon the ground that he was induced to make it by false and fraudulent representations madle by the defendant, the burden is upon bim to show that the defendant knowingly made false representations of matters of fact
QUERIES. 18. WHERE AN ASSESSMENT YEAR BEGINs on the first day of August, 1875, and the rate of taxation was fixed and the assessment completed in all respects, except the meeting and action of the board of appeals, before the present constitution took effect, would the constitutional rate apply to and control the rate of taxation for said year?
19. PATENT FOR LAND ISSUED AFTER DEATH OF PARTY-PURCHASER AT ADMINISTRATOR'S SALE.By special act of Congress, T is given the right to select a certain quantity of land anywhere in the territory of Michigan. The act provides that when the land is selected, it shall be surveyed, and a patent shall be is. sued as in other cases. T selects the land and some years afterwards dies, no patent having been issued, T's estate goes through administration, and the land is sold by the administrator, under the authority of the probate court, to pay creditors. After the sale some three or four years, the heirs of T procured a patent to be issued, running to T. Rev, Stat. of the United States, $ 2448, provides that where the patent is issued in the name of the deceased person, the title shall vest in and enure to the benefit of the heirs, assignees or devisees, the same as though it had issued in his lifetime. T died intestate. The heirs, after procuring the patent to be issued as above stated, convey to L. Now, what sort of a title has the purchaser at the administrator's sale, legal or equitable? Can the purchaser maintain ejectinent at common law?
20. DOES THE LIMITATION ACT OF MISSOURI run against unassigned dower? If so, does it begin to run at the death of the husband, or at the end of one year from his death,
M., M. & L.
(6 Cen!. L. J., 238.) No one can be compelled by the government to become a purchaser, or even to take a gift. In order that the patent of the government may take effect as a conveyance, so as to bind the party to whom it is executed, and transfer the title to him, it is essential that it should be accepted. The acceptance by the grantee of a conveyance, where no personal obligation is imposed, will always be presumed in the absence of express dissent, whenever the conveyance is placed in a condition for acceptance. The deed of the government-that is its patent-is in a condition for acceptance when the last formalities required by law of the officers of the government are complied with. These formalities consist in passing the instrument under the seal of the United States, and in recording it in the records of the land office. The record stands in the place of the offer or delivery in the case of a private deed; the instrument is thenceforth held for the grantee. See opinion of Mr. Justice Field in Leroy v. Jameson, 3 Sawyer, C. C., 369.
ED. A. BELCHER. Marysville, Cal.
ters, and 1,927 sections. Eight thousand cases, mostly American, are cited about 14,000 times, under different topics. A synopsis of the more material provisions of the statutes of the several states is given. The doctrines pertaining to mortgages at common law and in courts of equity, aside from statutory regulation, are stated, and, in connection therewith, the statutory modifications. A very considerable space is properly devoted to the foreclosure of mortgages, and, as incident to this, the appointment of receivers and the decree, sale and application of the proceeds. The treatise concludes with a most complete and exhaustive view of the subject of power of sale en pais, so frequently given in mortgages and deeds of trust. This work, as a whole, leaves little to be desired, unless it may be that tbe author has not specially discussed the subject of Railway Mortgages, which we think fairly falls within its scope. It is desirable on the ground of convenience, if for no other reason, to have the doctrines pertaining to this important topic grouped by themselves.
Without going into greater detail, let it suffice to say that this treatise gives satisfactory proof of the learning of the author, and of the very marked and minute care which he has given to its preparation. It will not fail to find favor with the profession, and to secure their approving judgment. From an American stand-point it would seem to be a most comprehensive and thoroughly practical work, and one not likely to disappoint the expectations which our high estimate of it may raise.
(6 Cent. L. J. 279.) The solution of this query depends upon the statutory enactments of the several states. In Indiana, sec. 61 of the code provides: " When cross demands have existed between persons under such circumstances that one could be pleaded as a counter-claim, or set-off to an action brought upon the other, neither can be deprived of the benefit thereof by the assignment or death of the other, and the two demands must be deemed compensated, so far as they equal each other." Sec 62 of the act provided for the seulement of decedent's estates, requires all claims against the estate of a decedent, except judgments and mortgages which are liens on real estate, to be filed in the common pleas court, and confers exclusive original jurisdiction of all such claims upon said court. Sec. 109 of said lastmentioned act declares the order in which payment of claims against the estate of a decedent shall be made, and postpones general debts to the fourth class in said order. An administrator is not restricted to any particular court in bringing suits, but may resort to any court having jurisdiction. If, in a suit by an administrator of an insolvent estate before a justice of the peace, the defendant can plead by way of set-off a claim held by him against the decedent in his life-time, it would oust the exclusive jurisdiction given to the common pleas court, as to that claim, as a set-off is in the nature of a cross action, and requires the court to possess jurisdiction over it in order to adjudicate upon it, and also if allowed, violates the order of distribution prescribed by the statute, and in effect prefers such claim to the extent allowed. The supreme court, in Schoonever v. Quick, 17 Ind. 196, hold that by virtue of sec. 61, supra, it can be done. But that case originated in the common pleas, and the insolvency of the estate does not appear.
C. & B.
A DIGEST OF THE DECISIONS OF THE COURTS OF
LAW AND EQUITY OF THE STATE OF NEW JERSEY. From 1790 to 1876. Embracing all the Cases reported in the regular Reports of the State, and also in the Reports for the District and Circuit Courts of the United States for the District of New Jersey. By JOHN H. STEWART, Counselor-at-Law. In two volumes. Trenton, N. J.: 1876. George B. Adams, Law Bookseller, Philadelphia.
This digest of the decisions of the state and federal courts of New Jersey is prepared by the present state reporter, whose ability for the work of reporting, as shown in the volumes of his reports, we have frequently referred to in these columns. There has been no digest of the New Jersey reports published since 1844, consequently the present work must be of the greatest value to the lawyers of that state, and likewise of much use to the profession at large. The two volumes contain over 1,300 pages, an excellent index, a table of cases digested, and (a somewhat novel but commendable feature in a work of this charaeter) a table of New Jersey cases which have been approved, overruled or criticised by subsequent decisions in that and in other states. The reported cases in the different states are being gradually brought into such a shape that they can be found without great labor. In every extensive law library more than one good digest can now be found, and it is no small praise to say of Mr. Stewart's work that it is not excelled by any digest of state reports wbich we have yet seen.
A TREATISE ON THE LAW OF MORTGAGES OF REAL
PROPERTY. By LEONARD A. Jones, of the Boston Bar. Two Volumes. Boston: Houghton, Osgood & Co. 1878. This is, in some respects, the most elaborate and comprehensive work on the subject of Mortgages of Real Property that has yet appeared. It is strictly limited to mortgages of realty, and consists of forty chap
A RARE event, says an exchange, took place last month at the English Assizes, viz.: a conviction of felony on the testimony of an insane witness. The prisoner was charged with inciting an insane person to commit murder. The lunatic had intelligence enough to feign compliance with the proposals made to him, and to lead his inciter into the hands of the officers. The only testimony against the prisoner seems to have been that of the lunatic; but it was corrobo.
the act which deprived his act of its criminal quality."
rated by circumstances, and was so strong that the prisoner was compelled to withdraw his total denial, and admit inciting to robbery, denying that he suggested murder. He was convicteil of the graver suggestion on the sole testimony of the insane witness, and was sentenced to the extreme penalty of the law. Compare 3 Abb. New Cases, 229, and note, 17 Moak's Eng. R., 111, note.
A WESTERN subscriber, in answer to the strictures of our Texas correspondent, which appeared in our last issue, writes: "A correspondent is virtuously indignant because of a supposed infraction of section 10, article 1, of the Constitution of the United States, by the Supreme Court of Texas, in this, viz.. It seems that by the statutes of Texas, for some purposes, if not for all, a mortgage or trust deed on a homestead is void. Is this statute void as to contracts made after its passage, or is it void only as to those made prior? Correspondent leaves us in the dark as to what the scope of the statute is. I hold that article 10 of the amendments to the Constitution governs this class of legislation, and that if a law is made by a state which is fairly within its provisions, the federal courts have no more business with its construction than of an ordinary police order. If the power sought to be enforced is not found amongst those delegated to Congress, nor amongst those prohibited to the states, then it is left to the states and to the construction of the state courts. What would correspondent think if the federal courts should declare that no state had the power to appul usurious contracts in toto? What material difference is there between his Texas case and this one! The man that makes any kiud of a contract, contracts with a view to existing laws, and if he makes a con. tract prohibited by the laws whose folly is it?”
THE American Law Review for April prints two hitherto unpublished letters, written by Chancellor Kent to Edward Livingston, the first in the autumn of 1821, the second in the spring of 1826. The earlier let. ter is very brief, but the following passage is worth repeating: “I have held the office of Chancellor for seven years, and the court of chancery has the sole jurisdiction in cases of divorce. We divorce a vinculo for adultery only, and I apprehend there are about fifty such decrees on an average in a year. I at first thought there were many more, but I had confounded the more numerous cases of divorces a mensa, for cruel usage. The complaint in these latter cases can be made only by the wife. In cases of adultery I rather think the majority of cases are those in which the wife is the plaintiff. They are generally among people in the lowest ranks, and contain so much foul examination that I doubt whether there ever ought to be a divorce for adultery, except for adultery of the wife. I agree with eminent civilians on this point, and, on the review of the cases before me, I wish I had time to enlarge." The chancellor's second letter is devoted to s discussion of the features of Mr. Livingston's projected criminal code-the latter having been appointed in 1821 to prepare a penal code for the State of Louisi. ana. Some of his views are highly interesting. He “would humbly intimate that judges ought not to be required io record on their minutes tue reasons of their decisions, and that the publication of all important criminal trials ought not to be compulsory "-in opposi. tion to Mr. Livingston's suggestion. Of punishments for crime (his correspondent advocated the abolition of capital punishment) he writes: “I believe the punishment of death is the most awful and the most dreaded. I have no idea that I can be mistaken in this point. It is, therefore, the most effectual to deter by the force of example. I known it is very generally said that the law punishes not to avenge, but to prevent crimes; and yet I think it is impossible to contine all idea of punishment to mere prevention. I do not believe in the new theory in Europe, that crime is nothing but error, and that we are only to restrain and instruct and use gently and tenderly the murderer, the robber, the incendiary and the pirate, I am for whipping, contiscation and death as some little satisfaction to violated justice; and there are injuries which Nature can not forgive. She would cease to be Nature it she did.” In another place he says he is dead against abolishing death in certain cases. He does not favor the suggestion that trials for rape, seduction, &c., should be secret, as he thinks that we had better take our chances of the testimony than to violate
fundamental principle requiring the administration of justice to be open and public. The following passage on the competency of jurors is worthy of attention: “Your have reduced peremp. tory challenges to three and nine. I have nothing to object to this. If the juror has formed such an opinion of the case as to render him not impartial, in his owu opinion, he is to be challenged and set aside. I think that is the best test. It has always been very embar. rassing to be asking jurors whether they have found and expressed an opinion. Who has not, if the crime has become notorious? What judge has not? Yet they can try impartially upon the testimony to be pro• duced. If, however, the juror thinks honestly he can not try impartially, it is best to let him be set aside." Fortunately Chancellor Kent did not live to see the day when, in his own land, the test of a juror's qualitication for his office should have become what it is to-day; when all those qualities, which stimulate en: quiry and seek to obtain knowledge, should be lookod upon as barriers, and only ignorance and stupidity should be allowed to pass into the jury-box.
IN the United States District Court in this city, on the 30th ult., a decision of some interest was rendered by Judges Dillon and Treat, construing the United States statutes which make it a criminal offense to send certain prohibited matter through the mails. The defendant was indicted for having knowingly deposited in the mail a letter giving information where and of whom an article designed to prevent conception could be obtained. It was, however, in answer to a fictitious letter of inquiry sent to the defendant as a trap. The court held that this was not the “ giving of information” within the statute. Dillon, J., said: “The defendant doubtless intended to give the inhibited information, but the statute does not apply to a letter merely intended by the writer to give such information, but to a letter actually giving inforination.' He wrote no letter giving information, for the reason that there was no person in existence to whom the prohibited information in the letter would come. I place my judgment in this case upon the single ground that the sealed letter written by the defendant, addressed to a person who had no existence, which, on its face, gives no information of the prohibited character, and which is brought within the statute only by the fictitiou: letter of inquiry, is not the 'giving information’ within the meaning of the statute. At all events, it is not certain that Congress intended to punish such an act, and, therefore, upon the principle above mentioned that criminal statutes are not to be extended by judicial construction to cases not clearly and unmistakably within their terms, my jud:ment is that this prosecution, on the admitted facts, can not be sustained. It is a case of clear moral guilt, but not of legal criminality. There is no legal crime committed, although the defendant did not know of
are unanswerable. “If such a cause of acThe Central Law Journal.
tion,” he says, " exist, others do. If the
wife can sue the husband, he can sue her. If SAINT LOUIS, APRIL 19, 1878.
an assault was actionable, then would slander
and libel and other torts be. Instead of setCURRENT TOPICS.
tling, a divorce would very much unsettle all
matters between married parties. The private The Supreme Court of the United States
matters of the whole period of married existhas just rendered an opinion upon a consti
ence might be exposed by suits. The statute tutional question of no small importance. In
of limitations could not cut off actions, because this case, Pensacola Telegraph Co. v. Western
during coverture the statute would not run. Union Telegraph Co., it decides that, under
With divorces as common as they are now-athe power given to Congress to regulate oom
days, there would be new harvests of litigamerce among the several states, control may
tion. If such a precedent was permitted, be exercised over telegraphs, and the laws of
we do not see why any wife surviving her states, in confliet with congressional legisla
husband could not maintain a suit against tion on the subject, are invalid. Accordingly. his executors or administrators for defamaa law of Florida, giving an exclusive right to
tion, or cruelty, or assaults, or deprivations a company to maintain a telegraph line in a portion of that state, was held inoperative her husband'; and this would add
that she may bave suffered at the hands of against a company entitled to the privileges of
method by which estates could be plundered. the act of Congress of July 24, 1866, in re
We believe the rule which forbids all such lation to telegraphs.
opportunities for law suits and speculations
to be wise and salutary, and to stand on the In Abbott v. Abbott, 67 Me., the Su
solid foundations of the law.” preme Judicial Court of Maine hold that a wife, after being divorced from her husband, can not maintain an action against him for an In one of the inferior courts of Indiana, in assault committed by him upon her during the case of Tranter v. Helphenstine, an opincoverture. The court follow the ruling of the ion on a question of considerable novelty, English Queen's Bench, in Phillips v. Barnett, and which displayed an unusual amount of 1 Q. B. D. 436, 3 Cent. L. J. 412. In that study and research, was recently delivered by case, Lush, J., remarked: “Now I can not the presiding judge, Malott, J. The quesfor a moment think that a divorce makes a tion raised was: Has the 29th day of Februmarriage void ab initio; it merely terminates ary a legal existence? The Indiana statute the relation of husband and wife from the provides that the summons shall be served ten time of the divorce, and their future rights days before the first day of the term at which with regard to property are adjusted accord- the trial can be had. In this case the suming to the decision of the court in each case.” mons was served Feb. 25, and the jndgment Field, J., said: “I now think it clear that rendered by default on March 7. The dethe real substantial ground why the wife can
fendants insisted that, in consequence of the not sue her husband is not merely a diffi- 29th day of February intervening between the culty in the procedure, but the general day of the service of summons (Feb. 25) and principle of common law that husband and the first day of the term (March 6) at which wife are one person;" and Blackburn, J., the judgment was rendered, there was only stated the objection to be “not the tech- nine days' service, and that, consequently, the nical one of the parties, but because, be- court acquired no jurisdiction over the pering one person, one can not sue the other.' sons of the defendants authorizing the judgThe reasons given in the American case are, ment, citing Swift v. Toucey, 5 Ind. 196 ; however, much more forcible than the argu- Craft v. The State Bank, 7 Ind. 219; Kohler ments used by the judges in the earlier En- Montgomery, 17 Ind. 220; and Porter v. glish case. The objection of PETERS, J. Holloway, 43 Ind. 35. In the first of these who delivered the opinion of the court, to cases, a judgment had been rendered in a such an action being allowed to be maintained, Mayor's court on Feb. 24, 1852. The stat
Vol. 6.- No. 16.
ute allowed an appeal“ within thirty days af- eight days;" citing only Ind. Dig. 763, In ter the rendition of judgment.” On March Porter vs. Halloway, supra, the question was 25, following, the defendant appealed the whether a bill of exceptions had been filed in cause to the Circuit Court. That court dis- time—the 29th of February intervening-and missed the appeal upon the ground that the the court simply adhered to the previous rulappeal was not taken within thirty days. This ings without discussing the provisions of was held error. In Jacobs v. Graham. 1 Blf. the statute of 21 Hen. III, confessing that 392; Ryman v. Clark, 4 Blf. 392, and that they did not know its exact language. Long v. McClure, 5 Blf. 319, the ancient common-law rule that when time is to be For the reason that the Indiana decisions on computed from an act done, the day on which
the subject rest upon the obiter dictum in Swift the act was done should be included, was v. Toucey, and that the statute 21 Hen. III had recognized and enforced.
In Hathaway v. never been examined by the supreme court in Hathaway, 2 Ind. 513, however, the ancient
any of the cases decided, the learned judge conrule was discarded and the present method sidered himself at liberty to look into the quesadopted, by which, in computing time in such tion independently of the ruling of the supreme cases, the day on which the act is done is ex
court. “First,” said the court, “as to the propcluded. In Swift v. Toucey, supra, the court osition that commercially, February has but below evidently adopted the earlier rule, and twenty-eight days. If it be true that, by the also included March 25, by which—count- rules of the law-merchant, February has but ing the day the judgment was rendered and twenty-eight days, it is reasonable to presume February 29—the appeal was held to have that, in some of the numerous and exhaustive been taken on the thirty-first day. The Su-works upon bills, notes and commercial law, preme Court, however, following the latter rule the rule would be found laid down as a part of held that the appeal was taken in time; since that law. I have pretty thoroughly examined by counting Feb. 28 and 29 as two days, the the English and American reports and digests, appeal was taken on the thirtieth day. This and have found no case holding that doctrine. fully disposed of the case. But in the course It is not found in the works of Kent, Story, of the opinion, Stuart, J., incidentally refers
Parsons, Byles or Daniels. In Edwards on to the statute of 21 Hen. III, de bissextili anno, Bills, 513, it is stated that February 28 and 29 and remarks: “This ancient statute, being count as one day; but the author cites only prior to 4 James I, made in aid of the com- the statute 21 Hen. III and a local statute of mon law, and not inconsistent with our institu- New York, in support of it. In Chitty on tions, would seem to be in force in this state.” Bills, a large number of British statutes are In Craft v. State Bank, supra, a note, exe- cited, but the statute 21 Hen. III is not even ecuted Feb. 25, 1848, at 90 days and payable referred to. But the learned author inferenat a bank in this state, was protested for tially controverts the doctrine declared in non-payment on Saturday, May 27—the last Kohler v. Montgomery. He says: day of grace, by counting Feb. 29 as one day, bill dated the 28th, 29th, 30th or 31st of Janfalling on Sunday, May 28. The court held uary, and payable one month after date, the that the note was not payable until May 29, time expires on the 28th of February in comsaying: “If the 28th and 29th days of Febru- mon years, and in the three latter cases, (Janary in the bissextile year are to be reckoned uary 29, 30 and 31), in leap year on the 29th.'" as one day, the demand was premature; oth- After a critical examination of the English erwise it was not. The question was consid- statute, the court decided that it was intended ered in Swift vs. Toucey, 5 Ind., 196, where it to settle the 66
year and a day” within which was held that they were to be counted as one time certain acts in the English pracday.” In Kohler vs. Montgomery, supra, tice were required to be performed; that the question involved was in regard to the day it dealt with the year as an entirety and had of presentment for the payment, as in the last no relation to fractional parts of the year, preceding case, and the court held the pres- whether expressed in days or months. “No entment premature by one day and summarily one would think,” said the court, “that the disposed of the case with this statement: statute in question required that the 28th and “Commercially, February has but twenty- | 29th days of February should be regarded as
• On a