land, and which is almost indispensable to the proper enjoyment thereof, and that, notwithstanding these facts, the spring is allotted to another of the heirs, when to allot the spring to said firstnamed heir would make the lots unshapely and without uniformity, making it almost impossible for one of the heirs to fence his portion, and would leave one of the full shares without any water. Mackbee and Wife v. Fields, Ct. App. Ky., Oct. 5, 1886; 1 S. W. Rep. 485.

31. PARTNERSHIP DEBT.-Claim against Estate of Deceased Partner-Claim against Surviving Partner-Res Judicata-Claim against Estate of Deceased Person Uncorroborated Evidence of Claimant.-There is no rule of law that a claimant against the estate of a deceased person cannot recover unless his evidence is corroborated; the only question being whether the evidence of the living man alone brings conviction to the mind of the court. A father and son, being in partnership, became indebted to the plaintiffs. The son having died, the father commenced an action for the administration of his estate, and the plaintiffs, not being then able to prove that a partnership had existed, carried in a claim for the debt against the separate estate of the son, and were declared to be entitled to a dividend. The father died, and the plaintiffs afterwards became able to prove that the partnership had existed, and commenced an action for the administration of his estate, which they claimed to make liable for the debt. Held, that the proceedings taken by the plaintiffs in the previous action did not constitute the matter res judicata, so as to prevent them proving in this action for their debt; but that they must undertake to postpone their dividend out of the son's separate estate to the claims of his separate creditors. Beckett v. Ramsdale, Eng. Ct. App; 54 L. T. Rep. 222.

32.

Dissolution by Consent-Notice of-London Gazette-Action to Enforce Signature of Notice of Dissolution — Jurisdiction-Costs.-After the dissolution by consent of a partnership between the plaintiff and the defendant, an action was brought to compel the defendant to sign a proper notice of dissolution for insertion in the London Gazette. No other relief was sought. It was contended that the court had no jurisdiction to entertain such an action; and that an order directing a partner to sign a notice of dissolution could only be made as incidental to and part of a regular judgment for the winding up of the partnership. Held, that the court had full jurisdiction to entertain the action. Hendry v. Turner, Eng. Ct. App.; 54 London L. T. Rep. 292.

33. PRACTICE.-Action for False Imprisonment and Libel Particulars — Reasonable and Probable Cause. The plaintiff sued the defendant for having wrongfully made and signed an order, stating that the plaintiff was a person of unsound mind, in consequence of which the plaintiff had been assaulted and removed to a lunatic asylum and kept there against his will; and he also claimed damages for the libel contained in such order. The defendant, in his defense, pleaded (inter alia) reasonable and probable cause for believing the plaintiff to have been a person of unsound mind, and fit to be detained under care and treatment. Held, that the allegation of reasonable and probable cause was an immaterial allegation; and that the

34.

defendant could not be ordered to give particulars thereof. Cave v. Torre, Eng. Ct. of App.; 54 L. T. Rep. 87, 515.

Reference Account Stated Report of Referee-Evidence-Mortgage-Payment - Delirery of Mortgage to Mortgagee — Presumption— Mortgage not Satisfied. Where the uncontroverted testimony before a referee disclosed that there was an account stated between the parties on a certain date, and it also appears by the ref eree's own report without holding that the parties were not bound by said stated account: Held, that this was error, and that the report of the referee should not have been confirmed. The amount due upon a certain mortgage was claimed by the mortgagee to be about $5,000, and by the mortgagor to be about $4,000. The mortgagee agreed to accept $4,000 in cash, and to join the mortgagor in a note for $1,000, which was discounted, and the proceeds paid to the mortgagee, and the note was subsequently paid by the mortgagee. It was also agreed between them that the final accounting should be postponed for a short time. The notes and mortgage were delivered to the mortgagor, but the mortgage was not satisfied. Held, that the mortgagee might hold the unsatisfied mortgage as security for the balance found due him upon the final accounting, and that there was no presumption that the mortgage debt had been paid by the delivery to the mortgagor. Killops v. Stevens, S. C. Wis., Oct. 12, 1886; 29 N. W. Rep. 390.

35. SALE.-Agricultural Machine Taken on TrialEvidence-Agent.--In an action for the price of an agricultural machine, where the point in issue is whether the machine was sold or taken on trial, and the machine has been shown to be in the defendant's possession, it is not error to admit testimony of the plaintiff's agent to the effect that he had requested the defendant, after he refused to keep the machine, to place it under cover on his place until he could see his principal. Lyon v. Hayden, S. C. Vt., Sept. 6, 1886; 5 Atl. Rep. 892.

36. SALE-Bill of Sale-Power to Sell Under-Appeal-Conflict of Evidence-Conclusions of Court Below--Principal and Agent-Duty and Liability of Agent to Principal.-Where a bill of sale of goods and chattels is made to a person with full power to sell and apply the proceeds to the payment of certain specified debts, and such goods and chattels are left in the possession of the owner with the understanding that he may sell what portion of them he can and appropriate the proceeds to the same purpose, if such owner violates his agreement, and fails to apply the whole of the proceeds, as he has agreed to do, although the bill of sale was intended as a mortgage, the person holding the same has a right to sell the property without the judgment of a court, in the exercise of a reasonable judgment, where he may deem it for the interest of all the parties concerned so to do, and to apply the money as directed by the instru Where, in the trial of an action, there is a conflict of evidence between the parties, the court, on appeal, will not disturb the conclusion of the lower court. The principle that an agent cannot deal with his principal's property for his own benefit, inconsistent with the interest of his principal, applies only to agents who are relied upon for counsel and direction, and where employment is rather a trust than a service, or both, and not to those who are employed merely as instruments in

ment.

37. TROVER AND CONVERSION-Mortgaged Property-Damages-Iustruction to Jury.-In an action against an hfficer for damages for the conversion of personal property on a part of which the plaintiff held a bill of sale, and had a chattel mortgage on the remainder, an instruction to the jury that, if they found that the plaintiff was the owner or bailee of the property, his damages would be the value of the property at the time of the conversion, with interest and a fair compensation for the time and money properly expended in the pursuit of the property, and, if they found that the plaintiff held a chattel mortgage on the property, the amount of the mortgage debt, with interest, held, a proper instruction. Sherman v. Finch, S.

C. Cal. Sept. 22, 1886; 11 Pac. Rep. 847.

38. TRUSTS-Administrator Involuntary Trustee for Heir-Fraud-Section 2224, Civil Code Cal. Executors and Administrators-Sale of Land to Pay Claims-Delay Amounting to LachesClaims Barred.-An administrator who procures the heir of his intestate to convey to him all the heir's interest in the estate, by representations. which are actually untrue, though not made with a fraudulent intent, is an involuntary trustee of the property conveyed, for the benefit of the heir, under section 2224, Civil Code Cal. Where there is a failure of personal property to pay a claim which the administrator holds against an estate, the administrator must institute proceedings for sale of real estate belonging to the estate; and a delay of 13 years to institute such proceedings will bar the claim, although it has previously been allowed by the probate court. Wingerter v. Wingerter, S. C. Cal. Sept. 25, 1886; 11 Pac. Rep. 853.

39.

Children Selling Lands for Support of Father-Father as Trustee-- Violation of Trust by Trustee-Equity--Party not Joined in Bill-Consenting to Proceeding Before Decree--Statute of Frauds--Parol Agreement Creating Trust -Lands Sold-Proceeds in Trust.--Where the evidence shows that children sold lands to a third person, but the transfer was made to their father, and from him to the purchaser, and it was agreed by parol that the father was to have charge of the proceeds of the sale during his life, and use the income therefrom for his support, and that at his death the principal was to revert to his children, this created a trust in the father. Where a father who holds property in trust for his children, uses a portion of the trust property to purchase a woman's consent to marry him, he violates his trust. Where a party in interest in a proceeding in equity is not made a party in the bill, but before decree files a paper in the court stating, under oath, that he approves of the action of the complainants, and that he desires the relief demanded, and his interests are in no way prejudiced, the decree will be sustained. Where children agreed by parol with their father that he should take the proceeds of the sale of certain lands owned by them, the income to go to his support during his life, the principal to be returned to them at his death, and they then deeded the land to him, and he at the same time transferred it to a third party, held, that the contract was not void as being by pa

40.

rol, and relating to realty, but created a valid trust in the father. Edinger v. Heiser, S. C. Mich. Oct. 7, 1886; 29 N. W. Rep. 367.

Conveyance as Security Purchase Under Mortgages, Judgments and Bankruptcy, Proceedings-Bankruptcy-Interest of Bankrupt After Assignment-Land-Nature of Estate-Assignee's Sale-Purchase by Trustee-Jurisdiction of State Court-Partnersnip-Contract to Manage and Sell Lands.-K. owned a large quantity of real estate, and was largely indebted beyond his ability to pay at once without sacrificing the real estate. His wife also owned a large amount of real estate. June 15, 1875, the two conveyed the greater part of their real estate to R. by deeds absolute in terms. At the same time K. and R. executed an agreement in writing, acknowledging the conveyances to have been made as security for advances to K., made and to be made by R. and containing provisions in respect to future advances of money and credit, which R. covenanted to make, from which the purpose of the transaction appears to have been to enable K., by means of the advances so to be made, to pay off his debts, and save so much of his property as might remain after disposing of enough to reimburse R. for all advances made and to be made, and interest and expenses. The contract gave to R. peculiar powers with respect to the holding and disposition of the lands conveyed. Held, that this created such a relation of trust and confidence between the parties as disabled R. to purchase under judgments or mortgages, or bankruptcy proceedings, and hold against K., and for his own benefit, property of K. whether included in the deeds executed as security or not. A bankrupt's interest in this estate is not extinguished by the assignment in the bankruptcy proceedings to the assignee in bankruptcy. In respect to real estate, the interest remaining in the bankrupt after such assignment, is under our statute, in the nature of a reversion, subject to be defeated by a sale by the assignee. The state courts have jurisdiction to determine that a purchaser at a sale by an assignee in bankruptcy stands in such relation to the bankrupt and the property that he will be charged as trustee for the latter in making the purchase. A certain contract construed, and held to create a partnership to manage and dispose of certain lands, and a purchase of the lands in the name of one of the partners, made simultaneously Iwith the forming of the partnership, held to be a partnership transaction, so that notice of the rights of others in the lands had by one partner was notice to the other. King v. Remington, Supreme Court of Minnesota, October 9, 1886; 29. N. W. Rep. 352.

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.

29. "I give and devise the house and lot on Ninth Street, in the City of N., to John Thompson, in trust for the sole and separate use of my daughter Kate, aud the said trustee, or any successor, in the lifetime

of said Kate, with her consent, or afterwards,may sell the said house and lot at public or private sale, and on such terms of payment as the person selling may deem best, and hold and dispose of the proceeds of sale on the same trusts as the property was held before sale " What interest does the daughter Kate take in the house and lot by virtue of the above provision of a will? If she takes but a life estate, would the property at her death go to her children, or to her brothers and sisters?

QUERIES ANSWERED.

Query 27. [23 Cent. L. J. 408.]-A. contracts to build a house for B., and in the contract there is a clause that A. "will deliver the building free of mechanics or other liens." What effect would such a clause have on material men, sub-contractors and day laborers. If B. paid A. in full, according to contract, and it turns out that A. has not paid for all the material, and still owes sub-contractors and day laborers, could they, under the above claim, file a lien on said building?

Answer. The contract binds none but the privies. Mechanic's lien could not be filed. The Mechanic's Lien Law usually provides for two classes of persons. First, those employed by the owner, whom the statute gives a lien. Second, those employed by the contractor, who only can have a lien on the unpaid funds of the contractor in the hands of the owner, by serving notice on the owner as provided by statute. See McCollum v. Richards, 2 Handy, Cincinnati; Copeland v. Manton, 22 Ohio St. 398. M. A. H.

This is a neatly printed and bound volume of 262 pages, and the reason of its existence is so well and tersely stated in the preface that we find it most convenient to express the object of the work in the author's own words: He says:

"The many cases summarily disposed of on motion by the United States Supreme Court from term to term, for years past, upon jurisdictional questions, rules of practice, or trivial questions, induced a belief that a book which would enable the practitioner to review the decisions upon these oft-recurring questions, without having to examine all the volumes containing the decisions would be of service to the profession. This volume is therefor designed to present in a convenient form, decisions embracing every principle adjudicated upon motion down to the beginning of October Term 1885. It is not intended to reproduce cases of exact similarity, but to produce those which, though similar, differ in some respect-probably maerial."

It is manifest from this statement that the work addresses itself to a very smail segment of the profes. sion including only those lawyers who practice habitually in the Supreme Court, those who occasionally appear there, and those who, appearing regularly in the circuit and district courts of the United States might be presumed to feel a special interest in the practice of the Supreme Court.

The book is faulty in one very material respect. The cases are not arranged according to their subjects; the reader must turn to the index, which seems to be the only guide vouchsafed him. The paucity or total absence of cited authorities is another grave error, into which, according to his preface, the author was led by his anxiety to make the book "as brief and compact as possible." A minor error is the omission of the names of the justices who respectively delivered the opinions; the omission of the names of the attorneys in the several cases, for which he thinks it necessary to apologise, is no error at all.

we

Notwithstanding the defect in arrangement, think the book may prove useful to the limited circle of the profession for whose service it is designed.

JETSAM AND FLOTSAM.

It is a beautiful story that in one of the old cities of Italy the king caused a bell to be hung in a tower in one of the public squares, and called it "The bell of justice," and commanded that any one who had been wronged should go and ring the bell. and so call the magistrate of the city, and ask and receive justice. And when in the course of time the lower end of the bell rope rotted away, a wild vine was tied to it to lengthen it; aud one day an old and starving horse that had been abandoned by its owner and turned out to die, wandered into the tower, and in trying to eat the vine, rang the bell. And the magistrate of the city, coming to see who rang the bell, found this old and starving horse; and he caused the owner of that horse, in whose service he had toiled and been worn out, to be summoned before him, and decreed that as his poor horse had rung the bell of justice, he should have justice, and that during the horse's life his owner should provide for him proper food and drink and stable.

The shortest and yet the most pointed charge to a jury that has come under our notice is that reported by the Law Journal, to have been delivered by Mr. Commissioner Kerr, famous for the terseness of his charges, while sitting as sitting as assistant judge at Middlesex Sessions. The prisoner concluded his defense by saying, "After all, gentlemen, you have only the prosecutor's word for it that I took his watch." "That is true, gentlemen," said the judge; "but if you believe his word, you will find the prisoner guilty; if you don't believe it, or are in doubt, acquit him. Consider your verdict."

ST. LOUIS, NOVEMBER 12, 1886.

CURRENT EVENTS.

We

PRISONERS AS WITNESSES-AGAIN.-We will not place ourselves in a false position. are not laudators temporis acti; on the contrary we are champions of progress, devoted to reform, and our dearest ambition is to "keep up with the procession." It would seem otherwise from our strictures upon the so-called reform in the matter of the testimony of person accused of crime.

The ex

planation is simple. That reform is no reform at all, but reaction. In England, and in those of the American States in which it has been adopted, it is regarded as a concession to the prisoner, "opening his mouth," that he might defend himself by telling his own story under oath. Upon its face this would seem fair and liberal, in effect, as we think we have shown, and as Mr. Justice Stephen substantially admits, its operation is adverse, not favorable to the prisoner, whether he is innocent or guilty. The nett result is usually to say to the average defeudant: "If you do not testify, we will believe you guilty; if you do testify we will strongly suspect you of perjury." Besides this the average prisoner who is, in Mr. Justice Stephen's language, "an igignorant, uneducated man, dreadfully frightened, very much confused," having told his tale as best he could, is forthwith subjected to a cross examination by a skillful and expeperienced prosecuting attorney who is not a bit frightened, and utterly incapable of being confused. All this tends no doubt to increase the chances of conviction, but whether it is as Mr. Justice Stephen says, "favorable in the highest degree to the due administration of justice," is another and altogether different question.

To place a prisoner under duress physical or moral, and thus compel him to testify against his will is certainly a step backward. Mr. Justice Stephen however goes further in his article in the Nineteenth Century for October, upon which we commented in our last number1, and proposes that persons ac123 Cent. Law Journal, 433. Vol. 23.-No. 20.

tent but compellable witnesses at every stage of the inquiry." This is certainly not as mediæval as the rack and the thumbscrew, but it is of the same character, for the catechism may well assume the nature of moral torture. We have read of persons, who, under the persistent importunity of their persecutors "at every stage of the inquiry," but without physical torture, confessed themselves guilty of impossible crimes, such for instance as witchcraft. Of course this is an extreme illustration, but we can easily conceive that a prisoner suddenly arrested, perhaps dragged from his bed, hurried before a magistrate, persistently interrogated in a hostile spirit, might, although absolutely innocent, involve himself in such inconsistencies, as would at least tend very strongly to establish his guilt. Especially would this be the case if he were without counsel and "an ignorant, uneducated man dreadfully frightened, very much confused."

Mr. Justice Stephen in advocating this change in the procedure in criminal cases not only proposes to return to the worst methods of the middle ages, short of physical torture, but, in doing so, to abrogate the primeval legal maxim that no man shall be required to accuse himself; and the equally venerable doctrine that the law presumes every man innocent until he shall be proved guilty. Under his theory the law presumes the prisoner to be guilty and requires him, upon what is equivalent to a cross-examination to prove his innocence if he can, and his guilt if he cannot. And thus Mr. Justice Stephen, and those who favor his views, contrive to combine the opposite characters of innovator and reactionary.

In his character of innovator Mr. Justice Stephen proposes to remove another landmark of the law. He says: "If the change in question should be made, it would, I think be necessary to modify the old doctrine about proving beyond all reasonable doubt the guilt of an accused person, for it would be a matter of moral certainty that whenever a plausible story consistent with innocence can be devised, the prisoner would swear to it and find others to help him."

It is not very apparent why the time-honored safeguard of "a reasonable doubt"

should be extinguished, because prisoners who can devise a plausible story consistent with innocence, may find others to swear to it. Prisoners, in any state of the law, can often find persons to swear to plausible stories, and as Mr. Justice Stephen has himself demonstrated that in most instances the testimony of a prisoner is of little value to himself, it cannot add much appreciable weight to that of his friends.

As we said in the beginning of this article, we are in favor of legal reform. We are fully aware that the law needs careful and judicious pruning. The process, however, is critical, and should be conducted with special caution and discretion. Anachronisms should be abolished, excresences removed, and abuses remedied, but every principle of the law as it stands should receive that, which Mr. Justice Stephen seems disposed to deny to prisoners on trial for their lives, "the benefit of all reasonable doubt."

NOTES OF RECENT DECISIONS.

MALICIOUS PROSECUTION-PROBABLE CAUSE -BURDEN OF PROOF-CORPORATIONS.-In a

1

recent English case, the House of Lords held that a party suing a corporation for a malicious prosecution was bound to prove a negative, to-wit, that the prosecution was instituted without probable cause. The court

held that, although it was a rule of logic that he who asserts a particular proposition must be held to prove it, yet the law required that a plaintiff must establish his own case, and cannot be permitted to rely upon the weakness of his adversary. This settled the case, of course, but underlying this question was one much more discussed in the opinions, but not necessary to the decision of the cause, and that was whether a corporation could be sued at all for a tort of this description. Lord Bramwell's opinion was, that malice could not be predicated of a corporation, and therefore it could not be sued for any cause of action of which malice was an essential component part. He says a corporation may be

1 Abrath v. North Eastern etc Co., 55 L. J. Rep. 457.

held responsible for a trespass committed by its servants, because trespass is an action into which neither motive nor malice enters. So a printing company may be held liable for a libel, because a libel may be published without malice or other improper motive.

Lord Bramwell's view that malice cannot be predicated of a corporation, is in some sort affected by his opinion of juries. He says, that "in an action for malicious prosecution if the plaintiff proves himself innocent, you may tell the jury over and over again that that is not the question, but they never, or very rarely, can be got to understand it. They think it is not right that a man should be prosecuted when he is innocent, and in the end they pay him for it." And in so doing, they are, in our opinion, in full accord, not only with natural justice, but with the spirit of the law.

A corporation, being an artificial body made in the likeness of a man, endowed with human powers should, by analogy, be subject to all the liabilities of a man. It can institute a prosecution upon unfounded charges and the flimsiest pretexts, without the shadow of probable cause, and employ all the artillery of the law to secure a conviction. If a natural person did so and failed, he would assuredly be liable to an action. Why should not a corporation. Its liability should surely be commensurate with its powers. In this same case Lord Fitzgerald says:

"I shall only say of corporations, and of trading corporations especially, that I have often heard it observed that they certainly are very frequently without conscience, and sometimes very malicious."

EMINENT DOMAIN-CONSTITUTIONAL LAWREMEDY-ACTION.-In the Supreme Judicial Court of Massachusetts was recently decided a case2 of some interest, involving the remedy of a land owner whose property has been injured by the action of a corporation exercising the right of eminent domain under authority of a statute of the State. The defendant, an aqueduct company, under authority of a statute enacted in 1867, built a dam across the outlet of Kenoza lake, by which

2 Brackett v. Haverhill etc Co. 7 East. Rep. 124.