THAT a married woman has capacity under the statutes of our State to make a promissory note, which may be enforced by judgment and execution, notwithstanding that she express no intent to charge her separate estate, has been decided by our Supreme Court, and much discussion has ensued as to the correctness of the decision. Many are bold enough to assert that the present court or some future one will undoubtedly overrule the decision upon the grounds of correct interpretation of the statutes. Now, it is interesting to consider the effect of a subsequent decision overturning that principle announced in Wood vs. Orford, thus altering the construction given to the statutes by that decision, as to all contracts of such a nature, made subsequent to the decision in Wood vs. Orford, and prior to a decision overruling the

same.

Would the note be rendered invalid by the subsequent decision if made prior to it? Could it be enforced in any man

ner?

The unconstitutionality of laws impairing the obligations of contracts have been extended beyond the actual making of laws, and in an early case the Supreme Court of the United States held that the sound and true rule is that if the contract when made was valid by the laws of the State as then expounded by all the departments of the government, and administered in the courts of justice, its validity and obligation can not be impaired by any subsequent action of legislation or decision of the courts altering the construction of the

law. (The Ohio Life and Trust Co. vs. Debolt, 16 Howard, 432.)

This ruling has been followed in many subsequent decisions, and we suggest that the principle is not carried too far and rests upon grounds of the strictest equity and justice.

That the highest court of a State should establish a construction of statutes under which right, duties, and obligation accrue, made and entered into with a view to such a construction, and then by its own oscillations or the disposition of a future court such a construction is altered, sweeping away all vested rights under former constructions, certainly is a deterioration as broad and productive of injury and ruin as the enactment of positive statutes. If the record be made to present the federal question we see no reason why there does not exist a remedy.

IN People vs. Herrera the Supreme Court affirms the judgment of the court below. The court of its own motion gave the following instruction: "Possession of property recently stolen, if such possession is not explained, is a circumstance to be considered by the jury in arriving at a verdict; a failure or refusal to explain such possession may be considered by the jury as a circumstance showing the guilt of the accused." Also, "that if the prisoner failed to account for such possession, or to show that such possession was honestly obtained, it is a circumstance tending to show his guilt, and the accused is bound to explain the possession in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts."

The defendant says the first instruction is erroneous, because stolen property tends only to show guilt; that the bare possession is not enough of itself to raise a presumption of guilt as will lead to a conviction unless repelled. That the second is erroneous, because the court assumed "other suspicious facts," which ought to have been left to the jury.

IN Waugh vs. Wingfield, now before the Supreme Court, the appellant filed a petition setting forth the fact of an appeal from the judgment of the court below, and the further

fact that a draft of a bill of exceptions had been presented to the judge of the District Court, and that no amendments had been proposed by the respondent, but he, the said judge, refused to settle and certify the same, and refused to settle any bill of exceptions, and prays that the same may be settled in the Supreme Court as provided by statute. The court denied the petition, but directed that a writ of mandate be issued to said judge compelling him to settle and certify the bill of exceptions or show cause, returnable before said court.

IN Brine vs. Hartford Fire Ins. Co., in the Supreme Court of the United States, at the October Term, 1877, it was held that the laws of the State in which land is situated control exclusively its descent, alienation, and transfer from one person to another, and the effect and construction of instruments intended to convey it. All such laws in existence when a contract in regard to real estate is made, including the contract of mortgage, enter into and become a part of such contract.

A State statute, therefore, which allows to the mortgagor twelve months to redeem after a sale under a decree of foreclosure, and to a judgment creditor of his three months after that, governs to that extent the mode of transferring the title and confers a substantial right, and thereby becomes a rule of property. This right of redemption after sale is, therefore, obligatory on the federal courts, sitting in equity, as on the State courts, and the rules of practice of such courts must be made to conform to the law of the State, so far as may be necessary to give substantial effect to the right.

In the case of Lamb vs. Walker (38 L. T. Rep. N. S., 643), recently decided by the Queen's Bench Division of the English High Court of Justice, the plaintiff sued the defendant for injury to plaintiff's buildings by mining operations of defendant on his own lands. A special referee found that in addition to the injury already incurred, the plaintiff would incur injury in the future, and assessed the prospective dam

ages at £150. It was held by a majority of the court that such damages were recoverable. MANISTY, J., who delivered one of the prevailing opinions, states that where no injury has accrued in a case of this kind, prospective damages are not recoverable. So long as So long as plaintiff's right to have his land and house supported by the adjoining strata is not interfered with, he has no cause of action, but as soon as the support which was left proved insufficient, defendant's act in withdrawing the necessary support became wrongful, and damnum and injuria concurring, plaintiff's cause of action accrued. The defendant contended that if this was so, the true measure of damage was the injury actually done up to the time of the commencement of the action, and the remedy for subsequent injuries was by actions from time to time as the injuries should accrue. But the answer to this was that it is a well-settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all, and that in this case there was but one cause of action. The leading case cited on this subject was Backhouse vs. Bonomi (9 H. L. 503), where it is held that no cause of action arises in respect to what a man does on his own land until actual damage arises therefrom to the property of the adjoining owner. In this case, when in the lower court (E. B. & E. 638), it was said that "where a right of action is thus vested, and an action is brought for the act alleged to have occasioned the injury, the damages given by the jury for that act must be taken to embrace all the injurious consequences of that act, unknown as well as known, which shall arise thereafter, as well as those which have arisen; for the right of action is satisfied by one recovery." See, also, as sustaining the same view, Mecklin vs. Williams (10 Exch. 259); Homer vs. Knowles (6 H. & N. 454).

IT has been held by the Court of Appeals of Kentucky, in the case of Woods vs. Finnell, that where a civil suit is prosecuted with malice and without probable cause the defendant is entitled to recover damages, which should be confined to loss of time, the reasonable expenses incurred in the de

fense of the action beyond the ordinary costs and fees to counsel. Citing Classon vs. Staples (42 Vt.); Watson vs. Freeman (Esp. Dig. 527); Whipple vs. Fuller (11 Conn.); Elza vs. Smith (2 Chit. Report, 304).

A QUESTION of liability of sureties on an undertaking in attachment for the costs of the defendant, incurred in defending the suit other than the costs accruing under the attachment itself, arose in the late case of Lock vs. Chace in the County Court of Santa Cruz County. A subscriber has been kind enough to forward us a statement of the case, from which it appears that Chace was one of the sureties on an undertaking in attachment sued out by Rice in an action on a contract against Lock. Rice was unsuccessful and could not establish his claim, whereupon judgment was given against him and in favor of the defendant Lock for his costs, amounting to $62 50. The writ of attachment was not claimed to be improperly or irregularly issued; the plaintiff simply failed in his suit. Rice, being insolvent, Lock now prosecutes this action against Chace, one of the sureties, to recover $62 50, the amount of the judgment for costs rendered in his favor.

Chace contends that he is only liable under the undertaking for such costs only as accrue by reason of the attachment; that the costs awarded defendant arose not by virtue of the attachment, but out of the action in the first instance; that the purpose of the attachment is to secure the debt to the plaintiff, and the undertaking to secure the defendant in damages against the wrongful seizure of said property and all costs accruing by virtue of such seizure, and that in no manner can it be held that the costs in defending the action accrued by reason of the attachment.

The undertaking was in the usual form. The court gave judgment for the plaintiff. We believe the Supreme Court have never passed upon this question, and it may be considered as unsettled and worth the attention of the profession.