superior, it is not enough that they are engaged in doing parts of the same work, or in the promotion of the same enterprise carried on by the master, not requiring co-operation, or bringing them together, or in such relations as that they may have an influence upon each other, but it is essential that at the time it is claimed such relation exists they shall be directly co-operating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation so that they may exercise an influence upon each other promotive of proper caution. (2) In a suit against a railway corporation to recover for negligence resulting in the death of a section foreman having charge and oversight of repairs upon a certain part of the road track, it is error to instruct the jury that such foreman is not engaged in the same line of duty with an engineer and fireman running with the defendant's locomotive engines, and therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, etc., of a fellow servant. Whether such persons were so operating and consociating is a question of fact for the jury, and not of law. Wabash Ry. Co. v. Elliott, 98 Ill. 481; Pennsylvania Co. v. Conlan, 101 id. 93; Chicago & Alton R. Co. v. Bonifield, 104 id. 223; Indianapolis & St. Louis R. Co. v. Morgenstern, 106 id. 216. In the last named case we said: "The definition of fellow servants may be a question of law, but it is always a question of fact, to be determined from the evidence, whether the particular case falls within the definition." (3) In an action to recover for an injury received from the falling or throwing of a piece of coal or slate from a passing locomotive upon a railroad, it is error to allow a witness to be asked and to testify what he considers a safe distance to retire from the track when the train is passing. Whether the line of danger from a passing train is at one distance rather than another depends upon facts, and not opinions. This does not fall within the rule as to expert testimony, and the allowance of such opinions to be given is to usurp the functions of the jury. Hopkins v. Indianapolis, etc., R. Co., 78 Ill. 32; Pennsylvania Co. v. Conlan, supra. (4) In a suit to recover for an injury of the plaintiff's intestate, received from a passing train while he was engaged in repairing the track, the defendant, a railway company, called as a witness one occupying the position of road master of a part of the road at the time of the injury, who testified that he had given the intestate instructions a number of times about getting out of the way of trains, etc. Plaintiff in rebuttal called several of the other men who worked with the deceased, and proved by them severally that the road master gave them no such instructions. Held, that the latter evidence was improper, as not tending to contradict the road master, he having testified only as to instructions given to the person who was injured. Chicago, etc., R. Co. v. Moranda. Opinion by Scholfield, J.

LICENSE-LIQUORS-PERMIT OF MUNICIPAL AUTHORITIES.-Where a permit to sell intoxicating liquors for medicinal purposes, etc., is granted to a druggist in pursuance of an ordinance by the authorities of an incorporated village, the village will not be permitted to insist it was not a sufficient warrant for the sale of liquors under it, in accordance with its terms. On a prosecution by the people a different question would be presented. But a municipal corporation will not be allowed to license an act to be done, and then collect a penalty for the doing of it as for an illegal act. Martel V. City of East St. Louis, 94 Ill. 67. Village of Genoa v. Van Alstine. Opinion by Scott, J.

BOUNDARY-CENTER OF STREAM-PRESUMPTION.The general doctrine that grants of land bounded upon rivers or their margius, above tide-water, carry the ex

clusive right and title of the grantee to the center thread of the current, unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned. Village of Brooklyn v. Smith, 104 Ill. 429; Cobb v. Lavalle, 89 id. 331. Chicago and Pacific R. Co. v. Stein, 75 id. 41: Braxon v. Bressler, 64 id. 488; Chicago v. Laflin, 49 id. 172; Board of Trustees v. Haven, 11 id. 554; Same v. Same, 5 Gilm. 548; Middleton v. Pritchard, 3 Scam. 510. In Rockwell v. Baldwin, 53 Ill. 19, it was however said that this was but a presumption, for one man may own the bed of such a stream and another may own the banks; that where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it along or on the stream, the presumption must fail, and that the party must be controlled by the terms of his deed. Counsel for appellant insist this is conclusive of the present for here defendant's boundary is limited to the banks of the Desplaines river. The question of intention must be settled by the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed. Hadden v. Shoutz, 15 Ill. 582; Batavia Manuf. Co. v. Newton Wagon Co., 91 id. 239; Louisville and Nashville R. Co. et al. v. Koelle et al. 104 id. 460. See also Miller v. Beeler, 55 Ill. 63; Kamphouse v. Gaffner, 73 id. 453; Oxten.v. Graves, 68 Me. 371; 28 Am. Rep. 75. Piper v. Connelly. Opinion by Scholfield, J.

case,

MISSOURI SUPREME COURT ABSTRACT.*

JURISDICTION-CIVIL-NOT ACQUIRED BY USE OF CRIMINAL PROCESS-PRACTICE.-The criminal process of the State cannot be used to take a person from one county to another, so as to subject him to civil process in the latter county. Where it is so used the facts may be set forth by an answer in the nature of a plea to the jurisdiction, and will constitute a good defense. Capital City Bank v. Knox, 47 Mo. 334; Marsh v. Bast, 41 id. 493; Graham v. Ringo, 67 id. 324. Byler v. Jones. Opinion by Martin, Comr.

V.

72

CORPORATION-STOCKHOLDER'S LIABILITY--SET-OFF. -In a proceeding under the statute by motion for execution against a stockholder, the stockholder is entitled to off-set against his liability any demand he may have against the corporation. Citing Briggs v. Penniman, 8 Cow. 387; Tallmadge v. Fishkill Iron Co., 4 Barb. 382; Matter of the Empire City Bank, 18 N. Y. 199; Agate v. Sands, 8 Daly, 67; 73 id. 620; Garrison Howe, 17 N. Y. 458; Mathez V. Neidig, id. 100; Briggs V. Cornwell, 9 Daly, 436; Wheeler v. Millar, 90 N. Y. 354; Buchanan v. Meisser, 105 III. 638; Gauch v. Harrison, 12 Bradw. 457; Meisser v. Thompson, 9 id. 368; Grose v. Hilt, 36 Me. 22; Hillier v. Ins. Co., 3 Penn. St. 470, Lawrence v. Nelson, 21 N. Y. 158; Mathews v. Albert, 24 Md. 527; Boyd v. Hall, 56 Ga. 563; Sawyer v. Hoag, 17 Wall. 610; Scovill v. Thayer, 105 U. S. 152; Barnes v. McMullins, 78 Mo. 260; Webber v. Leighton, 8 Mo. App. 502. Jerman v. Benton. Opinion by Martin, Comr.

NEGOTIABLE INSTRUMENT CHECK WHEN NOT ASSIGNMENT.- The drawing of a check upon a bank for part of the drawer's deposit does not transfer to the holder a legal or equitable claim pro tanto to such money, nor create any lien thereon in his favor. St. John v. Homans, 8 Mo. 382; McGrade v. German Sav. Bk., 4 Mo. App. 330; Thomps son v. Riggs, 5 Wall. 563; Bauk v. Whitman, 94 U. S. 343; Christmass v. Russell, 14 Wall. 69; Bank v. Wil*Appearing in 79 Missouri Reports.

FINANCIAL LAW.

OFFSET.

NEW BOOKS AND NEW EDITIONS.

HOWELL ON NATURALIZATION. Naturalization and Nationality in Canada, Expatriation and repatriation of British subjects, etc. By Alfred Howell of Osgoode Hall, Barrister. R. Carswell & Co., Toronto and Edinburgh, 1884. Pp. 132.

This manual comprises the Canada Act of 1881, with an explanation of the technical terms used therein, former statutes affecting subject-matter collated, acts wholly and partly repealed by Imperial Act of 1870, also the Laws of the United States on Citizenship and Naturalization. The whole supplemented with appropriate forms. The author also considers in twentysix pages "the old rule of perpetual allegiance." Those for whose use it is intended will find needed information in convenient form. The publishers' work is admirably done.

THE

COURT OF APPEALS DECISIONS.

HIE following decisions were handed down Tuesday, Oct. 7, 1884:

Judgment affirmed with costs-Patrick Walsh, appellant, v. Trustees of New York and Brooklyn Bridge Company, respondent; People v. Equitable Trust Company of New London, Conn.; City National Bank of Poughkeepsie, respondent, v. William Phelps, impleaded, appellant; Philip Kruman, respondent, v. Elias W. Beach et al., appellants; Rochester Savings Bank, respondent, v. James G. Averell and others, appellants; Levi Sillerman and another, respondents, v. Edward Clark and others, appellants; John McDermott, respondent, v. Sarah M. Bull, appellant; National Bank of Rondout, respondent, v. Benedict Dreyfus and others, appellants; Todd v. Same; Gertrude E Armitage, respondent, v. Daniel Mace, appellant; People ex rel. Chamberlain, as trustee, respondent, v. John G. Forrest and others, appellants; Village of Port Jervis, respondent, v. First National Bank of

Port Jervis, appellant; Henry Beckworth, etc., respondent, v. James Brackett and others, appellants; Benjamin C. Nottingham, respondent, v. Maggie Clark, appellant; Philip A. Fitzpatrick, respondent, v. Lauren C. Woodruff, appellant; John Glushing, respondent, v. Thomas R. Sharp, receiver, etc., appellant; Gertrude B. Murray, appellant, v. New York Life Insurance Company, respondent; Thomas H. Larned, appellant, v. William E. Tillotson, respond ent; Henry Helbriegel, respondent, v. John B. Manning, appellant; Allen Wilson, appellaut, v. New York Central and Hudson River Railroad Company, respondent; George A. Coe, respondent, v. David Bearup, appellant; Lizzie Hannon, infant, etc., appellant, v. John T. Agnew and others, respondents; A. B. Hepburn, receiver, appellant, v. W. H. Montgomery and others, respondents. Judgment reversed, new trial granted, costs to abide the event-Francis B. Wallace and another, respondents, v. Robert H. Berdell and others, appellants; Ambrose S. Murray v. Same; George W. Wood, appellant, v. Rudolph F. Rabe and another, respondents; A. Barton Hepburn, receiver, etc., appellant, v. William H. Montgomery and others, respondents; Same v. Same; James Wilmore, appellant, v. James A. Flack and others, executors, etc., respondents; Lewis G. Knowles, appellants, v. Clara C. Toone, impleaded, etc., respondents; Alice Huntington, respondent, v. Emeline Asher, app.; Chas. W. Durant, Jr., appellant, v. Wm. P. Alendreth, resp.; John B. Grow, resp,. v. Horace Garlock, app.So much of the judgment of the Supreme Court as adjudges that the provisions of the will of Michael Kuhn, deceased, relating to the house and premises No. 472 Eighth avenue, are contrary to law, and void, and all directions in said judgment respecting that property reversed, and that the rights and interests of the parties in said premises No. 472 Eighth avenue should be declared in accordance with this opinion. The residue of the judgment of the Supreme Court affirmed, and the costs of all parties in this court to be paid out of the funds in the hands of the trustee-William P. Radley et al., respondents, v. Peter Kuhn et al., executor, etc., appellants, v. Margaret Schoenberger et al., respondents.- -Order of General Term reversed; that of Special Term affirmed-People v. Globe Mut. Life Ins. Co. (claim of Mary M. Brown).-Order of General Term reversed; writ of certiorari quashed-People ex rel. Second Ave. R. Co. v. Board of Commissioners of Public Works; Same v. Same.-Order of General Term reversed, and case remitted to General Term to exercise its discretion in reversing the order of the Special Term; costs of this appeal to abide the event of the action-Frank P. Reed, appellant, v. Mayor, etc., of New York, respondent. Order affirmed with costs-Thomas Cahill, appellant, v. Henry Hilton and another, respondents; William R. Barr and others, respondents, v. New York, L. E. & W. R. Co. et al, appellants; Adam Emerich, respondent, v. Peter Hefferan and others, appellants; Jennie E. Erkenbrach, appellant, v. George A. Erkenbrach, respondent.Judgment of the General Term affirming judgment entered upon the verdict at Circuit affirmed with costs -Joseph W. Duryee, respondent, v. Mayor, etc., appellant.-Judgment affirmed-People, respondent, v. August Muller, appellant. Order of General Term reversed and judgment entered on the report of the referee affirmed with costs-John Baird, appellant, v. Mayor, etc., of New York, respondent. Decree of surrogate and General Term modified, and case remitted to surrogate for judgment in accordance with the opinion in this case, costs of appellants and respondents in this court to be paid out of the estate-In re accounting of the executors of Bullard, Coe Adams and others, executors, etc., appellants, v. Arthur W. Benson and others, executors, etc., respondent.-Or der of General Terin reversed, and that of Special Term affirmed with costs-Agricultural Ins. Co., appellant, v. Henry Barnard, impleaded, etc., respond

ent.

The Albany Law Journal.

ALBANY, OCTOBER 18, 1884.

CURRENT TOPICS.

E once amused ourselves, if not our readers, by publishing some specimens of "fine writing" by the judges. At the risk of extending vacation topics beyond the proper bounds, we venture to add a few examples. Chief Justice Jackson, of Georgia, has such a way of putting things that we suspect he must be descended from "Old Hickory." In Hussey v. State, 69 Ga. 54, an indictment for keeping open a tippling shop on Sunday, he thus discoursed: "The door on the street, through the bar and office room into the restaurant, was kept open to the extent that any visitor had only to push it and go in, and tipple in the restaurant. The counter, where on other days drinking could be done, was covered by canvas from the ceiling to the floor, so as to be invisible itself, and to conceal the bottles on shelves behind, and on it in brazen letters was the announcement 'bar closed,' and all the drinking was carried on in the rear and restaurant room. This fact, that the ostrich thus hid his head in the sand, and thereby imagined that his body was all covered too, is absolutely assigned as the legal reason why he was not visible to the keen eye of the law, which penetrates and despises all subterfuge and deceit! But one witness, though the canvas tried to hide the bird's head, actually did see poked out through a sort of aperture or window, the bill or beak which let out the liquor from the bar to servants in the restaurant. So that the foolish bird did not even keep all his head hid all the time! It makes no difference in law whether the place be called a bar-room, or a glee club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sabbath day, with a door to get into it, so kept that anybody can push it open and go in and drink, the proprietor of it is guilty of keeping open a tippling house on Sunday."

י' י ! us

truly a piteous object. The judge is not patient with technical objections. In State v. Johnson, page 843, he says: "If courts should tolerate such verbal objections, the criminal pleader might exclaim with the Melancholy Dane, 'we must speak by the card, or by'r lady, equivocation will undo. In Bourdier v. Railroad Co., page 949, speaking of a taking of lands without consent, he says: "The dazed plaintiff was roused from his attitude of waiting for his permission to be asked, by the scream of the locomotive." We cannot recall any thing more vivid than that, unless it is the next. In City v. Roos, page 1011, holding that a charge of keeping a bawdy-house in an indecent manner need not specify the acts of indecency, he observes: "The experience of the city fathers in that domain is doubtless so limited that in drafting an ordinance which should comprehend all the indecent convolutions of lascivious cyprians, they would be forced to put fancy on the wing, and imagine postures they never beheld. This would be dangerous occupation." In Tilton v. Railroad Co., page 1072, on the subject of signing a petition to continue a nuisance, he says many "sign it with the same indifference and facilty that they would sign a petition for the pardon of a criminal, or for the execution of a saint." In Rihert v. Bataille, page 1173, he says: "So far as these two are concerned, we may repeat here the adjuration of the priestess to the intruder into the sacred grove, quoted years ago by the great chief justice of this court on a similar occasion:

Procul, O! Procul este profani,
totoque absistite luco.'"

By the way, we take it for granted that the printer is responsible for "sticking in the back," in the opinion on page 795, on a question of construction of contract, as we cannot conceive that such a reprehensible mode of assassination has any thing to do with such a question. Judge Manning applies to a lawyer who sued for malicious prosecution the maxim, de minimis, etc., in Maille v. Lacassagne, page 595, as follows: "The plaintiff is the only witness for himself. He has been practicing law since November, 1880 or 1881. The date is very recent, and yet his knowledge of so interesting an event is so misty that he does not fix the year with precision. He has not lost any business in consequence of the defendant's charge against him, and his outlay, as stated in a bill of particulars, has been $2.60 for newspapers, $9.75 for car fare and extra clerk hire, and $1.50 for mail matter and telegrams, and even these items are reduced upon his cross-examination to 80 cents for newspapers, 10 cents for car fare, 12 cents for postage, and 30 cents for a telegram. The whole affair is so puerile that it seems unaccountable that the counsel on each side should have wasted over twenty pages of printed brief upon it." But inasmuch as the lawyer got a verdict of $450, which was affirmed, he probably does not much care for the judicial

sarcasm.

It seems that at Swansea Assizes, recently, Mr. Justice Stephen had occasion to complain of the annoyance caused in court by the continued hammering on board a ship in the neighboring dock basin. Having sent once or twice to request that the noise might be discontinued, he despatched the high sheriff to the scene of the annoyance, and he presently returned with the offending workmen. Ilis lordship, after lecturing the men, told them that they must desist, adding that if it caused them inconvenience to stop hammering they must let him know. London Truth remarks: "It must naturally cause workingmen inconvenience, and probably loss, to knock off work for an indefinite period in the middle of the day, and I fail to see by what right any judge can order them to do so. If the Swansea courts are unsuited for their purpose, by all means let steps be taken to improve them, but not in this way." The Canada Legal News observes: "Mr. Justice Stephen met with a measure of success; a learned correspondent rcminds us that the late Mr. Justice C. Mondelet was not as fortunate, when he sent to the Regimental Band to stop playing upon the Champ de Mars in Montreal. It refused." We do not see why the learned justice should conceive himself entitled to stop the industries of the community. Better move his court. Next we shall hear of his suppressing an auction or a singing school. If it is only a man practicing on a cornet we do not object.

We are sorry to observe that Lord Justice Bramwell is in favor of cutting off the right of appeal in small cases. He says: "My objection is not that difficult questions do not arise when the dispute is for a small amount. They do as much as when it is for a large one. Nor do I say that such appeals are vexatious, except in so far as the amount is so small as to make them so. My objection is that such appeals 'do not pay,' that prudent litigants should agree to do without them, and that as litigants will not be wise for themselves, the State should be for them. Suppose one man honestly believes that another owes him £20, and suppose the other as honestly believes he does not. What is to be done? They will not toss up to settle, for each would feel that they would be giving up the advantage of being in the right. They must get it settled for them by a court of law or an arbitrator. Would they not show good sense and good temper by agreeing that the first should be the final decision? This must be arranged before any decision is pronounced. For the one against whom it is pronounced, if he gave up his right to appeal, would do so without any return, besides which costs would have been incurred, increasing the temptation to appeal. It may be said that litigants can so agree now. That is true, but they do not. Litigants are in a state of quarrel, and do not agree. Each is satisfied that what the one proposes is for the disadvantage of the other. The result is that the law should do them this kindness." This is

not the spirit that has made Great Britain great. The determination to stand up for one's rights, however small, is what has made the little island great, and that resolution should always be facilitated. Lord Bramwell is the person, we believe, who advanced the doctrine that one travelling by railway ought to take his chances of the railway company's negligence without recourse for damages, in consideration of the great advantage of being transported. Perhaps we are stating it too strongly, but it was much to that effect. If his lordship denies it we will look it up.

The fair sex have always been allowed to be sworn without taking their bonnets off, and now the question is discussed whether it is necessary for them to remove the glove. Lord Bramwell, it is said, never required it. He was a rather impatient man, we believe, and probably could not endure the waste of the public time necessitated in removing a glove with, say, fourteen buttons.

IN

NOTES OF CASES.

N Mallett v. Lewis, 61 Miss. 105, it was held that an oral agreement to buy goods exclusively from a certain person for five years, if he sells as reasonably as others, is within the statute of frauds. The court, Chalmers, J., said: "The first contingency set up by the plaintiff, as liable to occur within the year, to wit: that the plaintiff might fail and refuse to sell the goods on as good terms as could be obtained elsewhere, is no contingency at all in the proper sense of the word. On the contrary, it is an attempt to avoid the force of the statute by saying that the adversary might within the year have refused to comply with his portion of it, and therefore his possible refusal makes the contract good. In other words, it is equivalent to saying that the contract is condemned by law; but inasmuch as it is possible that the adversary party may break it, or be unable to comply with its terms within less than twelve months, it therefore escapes the condemnation of the statute. If the mere possibility that one of the parties to a contract may within the year refuse or be unable to comply with its terms avoids the statute prohibiting verbal contracts which do not contemplate full performance within the year, it is apparent that the statute is at once at an end, since it is hard to imagine a case where such a replication to a plea of the statute of frauds could not be filed. A refusal to comply with the terms of a contract by one party usually releases the other, but the court never anticipates a refusal in advance for the purpose either of upholding, or of annulling the contract as made. It is also true that a contract for an indefinite time, as for instance, for life, or until the happening of some contingent, uncertain and expected event, is held not to be within the statute where the contract is strictly personal, and does not descend against the administrator of the promisor, because in such