ered res adjudicata. Equity relieves against a common-law judgment only upon clear proof of artifice and deceit by the prevailing party against his adversary, and the injured party must have been diligent in the assertion of his rights. Gray r. Barton, S. C. Mich., July 1, 1886: 28 N. W. Rep. 813.

2. REAL ESTATE-Adverse Possession - Destruction of Fence does not Interrupt.-A fence or inclosure is not an essential element of an adverse possession; and permitting a fence to become dilapidated, or even destroyed, during the interval between periods when necessary to protect the crops, does not, of itself, constitute an abandonment, nor interrupt the continuity of the possession. In delivering the opinion of the court, Somerville, J., said: "A fence or inclosure is not an essential element of adverse possession, but is only one of the many acts indicative of possession and claim of ownership. It is often very impor tant, it is true, to mark with precision the limits or boundaries of a possession, especially when the occupant is without color of title, which would answer this purpose. In a section of the country, for example, where fence-laws have been abolished, the absence of an inclosure would weigh but little, where a river constitutes a boundary line. The reason is that it would then be no index of an intention to abandon. It has often been decided in this country that the possession of an occupant may be adverse without either inclosure or improvements. Bell v. Benson, 56 Ala. 444; Ellicott v. Pearl, 10 Pet. 441; Leeper v. Baker, 68 Mo. 400; Angell on Lim. ¶ 400; Real property Trials (Malone), § 277-278. And color of title is sometimes said to be a substitute for a substantial and permanent fence around the premises claimed. Trial of Titles to Land (Sedg. & Wait), § 707; Watson v. Mancill, 76 Ala. 600." Hughes v. Anderson, S. C. Ala., Dec. Term, 1885-86.

23. PARTNERSHIP- Contract Letters-Patent. Plaintiff and defendant were copartners in the brewing business. An inventor by the name of Mixer proposed to the defendant that if he would furnish the means of conducting certain experiments in perfecting a beer refrigerator which he was working upon that he would give the defendant a one-half interest in the results. Defendant consulted with the plaintiff in regard to the matter, and it was finally agreed between them that Mixer should use their brewery in which to construct an experimental refrigerator, and that the firm should bear the expense, and that they should share equally in the one-half interest which Mixer had agreed to give defendant. Mixer accordingly, under this arrangement proceeded with the experiments, and in making them was materially assisted by the defendant personally. They resulted in an invention of great value, and several patents were issued, all of which, however, were taken out either in the name of the defendant alone or in the names of the defendant and Mixer jointly, and the plaintiff was not recognized as having any interest in them. In an action brought by the plaintiff against the defendant to recover of him one-half of his interest in such patents and also of the profits derived therefrom, held, that the plaintiff could recover. Burr v. De La Vergne, N. Y. Ct. App. June 1, 1886, 5 East. Rep., 674.

son-When one partner has a transaction with a third person which is neither apparently nor really within the scope of the partnership business, the partnership is not bound by his declarations make that a partnership transaction which does not appear to be such, and which is apparently and really an individual transaction. In such a case the third person has notice that the transaction is outside of the partnership business, and he cannot rely upon the partnership credit. One member for a partnership has no power to bind his co-partner by giving the firm note for his own individual debt without the knowledge, assent or authority of his partner. Union Nat. Bank v. Underhill, N. Y. Ct. of Appeals, June 1, 1886. 5 East. Rep. 678.

25. PROMISSORY NOTES-Liability of Indorser, how Affected by Offer of Indorsee-Upon notice of presentation and dishonor of a promissory note, the liability of the indorser becomes fixed; and if, thereupon, the indorsee makes a proposition of certain acts to be done by such indorser in lieu of immediate payment performance by the indorser strictly, as so proposed, is the only alternative to payment open to him. Strickland v. Lee, Court of Appeals, Md. June 22, 1886. 4 Alt. Rep. 384. 26. WILL"Or" Should Read "And"-A testator by a clause in his will gave certain estate consisting of bank stock, etc., to his son, with a gift over, if he should die during minority or without issue. Held, that the word "or" should read "and," and that the son's estate became indefeasible on his attaining his majority. Phelps v. Bates, S. C. Conn. Feb. 5, 1886. 5 East. Rep. 708.

27. WITNESS-Communications to Attorney by Both Parties-Submission to Arbitration Award

When the parties in disagreement lay the facts in the case before an attorney for his opinion thereon, the question of privileged communication does not arise to exclude his testimony in a subsequent action, since there can be no privilege when both parties hear the communication, and where they are not made by a client confidentially to obtain counsel. When two parties have agreed to submit their differences to an attorney, with the understanding that his opinion is to be binding upon them in settlement, such a case establishes a parol submission to an arbiter, and the testimony of the Cady attorney is admissible to prove the award. v. Walker, S. C. Mich., July 1, 1886. N. W. Rep. 805.

QUERIES AND ANSWERS.*

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

14. "A, a manufacturer has $40000 invested 11 grounds, buildings, machinery, and stock in business. He makes a contract with B. by which he agrees to pay him, $1000 per year, and "10 per cent. net profits." What are net profits in such case? What are the deductions to get at net profits? S. & M.

QUERIES ANSWERED.

Query No. 3 [23 Cent. L. J. 46,] "Husband and wife living together, wife gives husband money (not for household expense) there being no contract to re

pay, under laws of Michigan, can wife maintain action against husband as for money had and received?" "Milwaukee, Wis." SUBSCRIBER.

Answer. At common law husband and wife were under mutual disabilities in regard to mutual contracts, and neither could enforce a mere personal contract against the other in courts of law, the same rule applies in equity, except in regard to separate estates, and to some extent in these. The constitution of Michigan, Schedule sec. one, retains the common law not repugnant to that instrument until the same shall be altered or repealed by the legislature. Therefore if the action can be maintained at all in this State, it must be by virtue of some statute, that constitution was adopted in 1850, in 1855 the Legislature passed what has since been known as the married woman's Act (Howells Statutes, Chap. 239;) still in force, the the only statute bearing, on this inquiry, the right of of husband or wife to sue the other at law, first came before our Supreme Court in Oct. 1877, in the case of Jennie v. Marble, 37 Mich. 319, it was there held that a husband could not sue his wife at law or equity to enforce a purely executory contract, that the act did not confer that power. The question was again before the court in Bunt Adm. v. Jonas 45 Mich. 392, where it was again held that this action between husband and wife would not lie, there are other cases in this State bearing more remotely on the subject in regard to the power of a married woman to make and enforce contracts under the statute. DeVires v. Conklin, 22 Mich. followed by many others. It follows from the two cases first above cited, that an express or implied assumpsit, purely, cannot be maintained by husband or wife against the other in Michigan. From the statement of fact in the inquiry, no assumpsit could arise in favor of the wife, the money being paid to the husband without stipulation or agreement, was either a gift, or presumptive payment of a concurrent or antecedant consideration, there was nothing to give rise to an assumpsit. Bunt Adm. v. Jonas, supra. Hillsdale, Mich. July 15, 1886.

RECENT PUBLICATIONS.

S.

A Treatise on the Law of Attachment and Garnishment-With an Appendix Containing a Compilation of the Statutes of the different States and Territories now in Force Governing Suits by Attachment. By W. P. Wade, Author of "Law of Notice." In two Volumes. San Francisco, Sumner Whitney & Co., 1886.

This is a very elaborate work upon an intensely practical subject, the remedy by attachment and garnishment. The whole of the first volume is taken up with the subject or attachment, properly so called, about half of the second with that relating to garnishment, the remainder being occupied by a very carefully prepared compilation of all the statutes of the several States and Territories, relating to the remedy of attachment and prescribing its forms. As the whole subject of attachment is of statutory origin it is manifest that this compilation is of the very essence of the work. As the author remarks "—but little assistance can be obtained in discussing this peculiar remedy by looking beyond the statute by which it is authorized." It is manifest therefore that the merits of such a work as this, is, in the first place in the fidelity, accuracy, and completeness with which the statutory essentials of the proceeding are reproduced; in the second place, the judgment and discrimination displayed in setting before the reader, the modifications of the apparent

intention of the statutes,made in adjudged cases by judicial construction, or it may be said in many cases, by judicial legislation; and in the third place, and not less important than either of the foregoing essentials, it is indispensable that the whole matter of the work be arranged in an orderly and systematic manner, so that whatever authority or information is desired may be promptly and easily found. That is peculiarly essential in a work like this-a book of practice, and often needed under circumstances requiring especial expedition. Of all these considerations the author seems to have been duly sensible, and his work has been prepared with sufficient reference to them.

The work is well worthy of a very favorable reception by the profession.

A TREATISE ON THE LAW OF NOTICE.- As Affecting Civil Rights and Remedies-By William P. WadeSecond Edition-Chicago, Callahan and Company 1886.

The subject of this book is one of the most important to the practitioner in the whole range of legal learning. It is hardly possible for a law suit impor. tant or trivial, summary or long drawn out, to arise, run its course and be adjudicated without having evolved some question of notice for the examination of the counsel and the decision of the court. The work before us, now in its second edition, is almost indispensable to the active practitioner, especially as it contains, carefully and methodically arranged all the principles of this important branch of practical law, supported by the citation of many authorities.

The book is divided into thirteen chapters, of which the first treats of the two great divisions of legal notice actual and constructive. The second, of notice to purchasers of different kinds of property; the third, a long and most important chapter, of notice by registration of instrnments; the fourth of notice by possession; and the fifth of notice by title papers. The sixth chapter, treats of the notice given by lis pendens, and the seventh, also a long and important chapter on the notice by which certain liabilities are created, such as notice of assignments of guaranty, to carriers or bailees; and the eighth of notices by which liabilities are extinguished, such as notices of dissolution of partnership landlord and tenant, carriers etc. The ninth chapter treats of notices affecting the relation of principal and agent; and the tenth of the notice of dishonor of commercial paper. The eleventh chapter treats of the publication of notices, and the twelfth, the most important of any of notices necessary to be served in the course of practice, as of trial, of appeal, of taking depositions etc. The final chapter shows the facts of which courts will take judicial notice.

We think this book, which is well printed and bound, will be very useful to the profession.

JETSAM AND FLOTSAM.

A COMICAL case was recently brought before the Probate Court in this district. A petition was preferred to the court to put a woman under a conservator, on the ground that she proposed marrying a worthless fellow, who was in pursuit of a little money she had saved. It does not appear that she was of unsound mind except in this particular direction. Unluckily the suit was withdrawn, and we shall never know whether a court of probate can be put to any such useful purpose as the petitioners claimed. If it is to place every one under a conservator who designs marrying foolishly it will certainly be a very busy tribunal.-Exchange.

The Central Law Journal.

ST. LOUIS, AUGUST 6, 1886.

CURRENT EVENTS.

INDEPENDENCE OF THE JUDICIARY "THE CALIFORNIA PLAN."-A question which will interest the legal profession every where is pending in the California Legislature now convened in extra session. The Supreme Court of that State, on the 26 day of April 1886, rendered a decision in the case of Lux v. Huggin involving the subject of Eminent Domain, and connected therewith, important riparian and water rights, and seriously affecting the whole irrigation system of the State. The malcontent interest in the community had sufficient influence with the Governor to induce him to convoke the legislature in extra session, not, as might well be supposed at this distance, to limit or define the law of eminent domain, or to revise and amend the irrigation and other water laws of the State, but to re-organize the Supreme Court, for the purpose, avowed without paraphrase or circumlocution, of repealing out of office the judges who concurred in the ruling in Lux v. Haggin, and replacing them with judges who will reverse that ruling, and hereafter administer the law in accordance with the views of those at whose instance the Governor has taken this remarkable step.

The Bar Association of California naturally takes much interest in these proceedings, and has adopted a memorial to the legislature protesting in the strongest terms against the proposed action. These gentlemen very properly ignore the Lux v. Haggin case and all the Eminent Domain, water, and irrigation doctrines involved in it, and put their opposition to the proposed measure upon the higher ground that the Judiciary of a State is a co-ordinate branch of the government of the State, equal in dignity, and importance to the Executive or Legislative branch; that its independence is one of the chief safeguards of the rights of the people, and especially of the minority, and that irrespective of all reference to transitory emergencies, or temporary expediency it should be scrupulously preserved.

Vol. 23.-No

It does not appear by this memorial which is the only document on the subject now in our hands, whether an amendment of the constitution is proposed, or how otherwise the desired object is to be accomplished. The constitution of California provides for the removal of judges by a two thirds vote of both houses of the legislature, but this proceeding, like removal upon an address, is a penal and punitive process, equivalent to impeachment, and only applicable to "high crimes and misdemeanors." These Judges are not charged with any crime, on the contrary, the Executive Committee of the State Irrigation Convention, while actively agitating for the removal of the judges, says: "We do not in any way question the uprightness, integrity, or personal character in any respect of any of the Judges of that high tribunal." The only fault found with them is, that their opinions on certain points of law are very distasteful to those who seek their removal.

When, within living memory, a President of the United States in appointing Justices of the Supreme Court was said to have been controlled in his selection by the known opinions of the aspirants, on certain important legal questions, with a view to secure a decision in accord with the Presidential views, his action so prompted by these (alleged) motives was regarded by large classes of people, by no means political purists, as decidedly sharp practice and "against the rules of the game." The President however was only discharging an official duty, he displaced nobody, his action in no degree disorganized the Supreme Court, and whether his motive was to defeat the deliberate official action of a co-ordinate branch of the government, was at the time a partisan political question and is now a "dead issue."

In the case under consideration there is no "if" or "whether." The avowed purpose is to remove from office, Judges of the highest court of the State, who have been duly elected by the people, whose term of office, fixed by the constitution, has not expired, whose "uprightness, integrity and personal character" are conceded by their adversaries to be above suspicion, because, and only because they do not understand the law on certain points, as their adversaries understand it. This is the proposition, and we

must say that we can recall nothing like it in the history of any constitutional government. There is certainly no judicial parallel.

If this project shall be carried into effect, these Judges removed, others more complaisant put into their places, the dignity and independence of California Courts will have been extinguished, and the highest judges of the land reduced to the status of day laborers liable at any time to be paid up at sundown, and ordered off the premises.

We could not believe upon any authority less respectable than the California Bar Association that gentlemen, acting under the responsibilities of official station, could even contemplate so radical, revolutionary, and destructive a measure as the utter annihilation of the independence of the Judiciary of a State. That, because of their professional opinions, and official decisions in cases pending before them, judges should be asked by any responsible persons, to resign their officers is bad enough; but that judges of the highest court in the land, (or any other judges, for that matter) should on account of their opinions on legal questions be turned out, of office by the legislature upon the recommendation of the Governor, is simply incredible, and we will not believe that it can be done until it has been done. No consequences, however grave, of judicial decisions can justify such a measure. It would be better to resolve society into its original elements, call a convention, abrogate the existing constitution of the State as a failure, and frame a new one, taking care that it shall secure, beyond controversy, the independence of the judiciary as the surest and most effectual safeguard of all rights, public and private.

"I WILL"-A question that troubles young lawyers is, where to locate and what branch of practice to select. This puzzle lasts even into middle life with many able men, and some never solve it-life itself is an unsolved riddle.

Letters from Dakota, Oregon, Iowa, Georgia, and Arkansas, indicate a fast growing settlement in each locality, and where growth is rapid, young lawyers secure more chances of promotion, while in Eastern and Middle

lished, and older men do the leading busi

ness.

But there is a place for every one of genius and ability somewhere, and only let him say, I will reach it, and he is half to it already. Men live where their hopes are, and prosper when they will prosper. Men invent when they have courage to think out problems alone and advance them. The man who surrenders to a theory like this: I'm only a little moth around the candle of the earth, burning my wings with each flutter, and doomed to fall unknown and early into an unforgotten hereafter, is very likely to do so -he is halfway on the journey.

Men who have within them the I will be a lawyer and a good one, the I will live happily, battle bravely, the I will succeed inwardly, must make a bright mark some day, for such lives are never failures; they are heard of, marked, remembered. "Make up your mind to have a front seat in life, and you attract to you the powers that carry you to it."

Confidence in yourself, the "I will" is everything. Look at the leaders of great enterprises! They seem to care little for competition; most of them are sharpened by it. They aspire to be first, and the first is ever just ahead of them. They have already half reached it when once fairly started. Think to the front and you will get to the front; lag to the rear and it is ever ready for your coming.

Get out of the notion that the man who cites the most law and reads the most re

ports, is the best lawyer. No man carried less books to court than did Carpenter, but he carried his manhood there always, his clear insight was thought out by himself, and his facts applied to principles and results demanded. It is not the most learning but the best wisdom that wins. What a weak ambition one must have to spend a life-time in dreaming over the prospects of personal failure! Why not anticipate success and aim for it? The courage of the I will lawyer secures him, first standing room; next an opening, and then, early, a front seat in the ranks of his profession. If you never have set your heel down with emphasis, in an "I will" determination to win, the sooner this resolution is reached the nearer you will be to the

The facts were, that the plaintiff's intestate, a boy of seventeen years of age, had a free pass on defendant's railroad, being a train-boy who sold refreshments to passengers. The pass stipulated that the person accepting it assumed all the risk of accident, and that the company should not be liable in any event for any injury resulting from the negligence of its agents, or otherwise. The boy, while riding on a train under this pass, was killed, in consequence of a collision of the train with another train. He was not at the time in the exercise of his functions as train-boy.

The court, pretermitting all questions of contributory negligence, held: 1st, that the pass was granted without consideration, and was a gratuity; 2d, that the railroad company had a right, in cases of gratuity, to stipulate against liability for negligence of every grade and degree; 3rd, that the pass in question effectually excluded all liability for all negligence; and, 4th, that the exemp

1 Griswold v. New York etc. Co., S. C. Conn. 11 New ng. Rep. 315.

tion was in no degree impaired by the fact that the deceased was an infant under the age of twenty-one years.

The court says: "By the English decisions it is clear that the carrier has full power to provide by contract against all liability for negligence in such cases. In the United States we find much contrariety of opinion. Some State courts of the highest authority follow the English decisions and allow railroad companies, in consideration of free passage, to contract for exemption from all liability for negligence of every degree, provided the exemption is clearly and explicitly stated.3

Other courts, also of high authority, concede the right to make such exemptions in all cases of ordinary negligence, but refuse to apply the principle in cases of gross negligence. And other State courts of equal authority utterly deny the power to make a valid contract exempting the carrier from liability for any degree of negligence.5

The Supreme Court of the United States, in Railroad Company v. Lockwood," where a drover had a free pass to accompany his cattle in their transportation, held, in opposition to the New York and English cases, that the pass was not gratuitous because given as one of the terms for carrying the cattle, for which he paid. The reasoning of Bradley, J., was directed so strongly to the disparagement of the New York decisions, that it might have indicated an opposition to the principle of those cases in other respects, had not the opinion concluded with this distinct disclaimer: purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger, instead of a passenger for

'We

2 McCawley v. Furness R. Co., L. R. 8 Q. B. 57; Hall v. N. E. R. Co., L. R. 10 Q. B. 437; Duff v. Great North. R. Co., 4 L. R. Ireland, 178; Alexander v. Toronto & Nipissing R. Co., 33 U. C. 474.

3 Welles v. N. Y. C. R. R. Co., 26 Barb. 641; s. c. 24 N. Y. 181; Perkins v. N. Y. C. R. R. Co., Id. 208; Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442; Poucher v. N. Y. C. R. R. Co., 49 N. Y. 263; Magnin v. Dinsmore, 56 N. Y. 168; Dorr v. N. J. Steam Nav. Co., 11 N. Y. 485; Kinney v. Central R. R. Co., 32 N. J. L. 409; s. c. 34 Id. 513; W. & A. R. R. Co. v. Bishop, 50 Ga. 465.

4 Ill. Cent. R. R. Co. v. Read, 37 Ill. 484; Ind. Cent. R. Co. v. Mundy, 21 Ind. 48; Jacobus v. St. Paul & C. R. Co., 20 Minn. 125.

5 Cleveland, etc. R. R. Co. v. Curran, 10 Ohio St. 1; Mobile & O. R. R. Co. v. Hopkins, 41 Ala. 486; Pa. R. R. Co. v. Henderson, 51 Pa. St. 315; Flinn v. Phila. W. & B. R. R. Co., 1 Houst. (Del.) 469.

617 Wall. 357 [84 U. S. bk. 21, L. ed. 627.]