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business of the principal and as a part of the transac tion which is the subject of inquiry. Hence where the baggage-master of a railroad company, while away from the baggage-room of the company and engaged in the transaction of his private business on his own premises, gave directions to a stranger with reference to the delivery of baggage, held, that they were not binding on the company. Adams v. Railway Co., 74 Mo. 554. City of Chillicothe v. Raynard. Opinion by Norton, J.

DEED-MARRIED WOMAN-MISTAKE IN CANNOT BE REFORMED.-As against a married woman a court of equity has no power to compel specific performance, to reform a deed, or to do any thing else which will divest title to land out of her. Hence where there were two deeds of trust executed by husband and wife, and both intended to cover the same land, but by mistake the earlier deed described a different tract, and because the holder of the later deed had notice of the mistake, the court decreed that the first deed should be reformed and enforced as a first lien against the true land. Held, that this decree was correct so far as it related to the husband's interest, but erroneous so far as it related to the wife's, and as to her interest the second deed must remain the first lien. Shroyer v. Nickell, 55 Mo. 264; 7 Cent. L. J. 182; Atkison v. Henry, 80 Mo. 151. Meier v. Blume. Opinion by Sherwood, J.

But

MARRIAGE-HUSBAND AND WIFE'S JOINT ESTATECONVEYANCE OF TITLE BOND-EQUITY.-Where a husband and wife are seised in entirety the husband may without joining his wife couvey his legal or equitable estate, subject to her right of survivorship. where the husband alone executed a title bond for such land, held, that the wife's estate could not be divested by reason thereof, although she afterward received from her husband part of the purchase-money, and thereupon expressed satisfaction with the sale. Hall v. Stephens, 65 Mo. 670; Shroyer v. Nickell, 55 id. 264; 7 Cent. L. J. 182; Devorse v. Snider, 60 Mo. 235; Baldwin v. Snowden, 11 Ohio St. 203; Ackert v. Pultz, 7 Barb. 386; Purcell v. Goshorn, 17 Ohio, 105; Pilcher v. Smith, 2 Head, 208; Martiu v. Develly, 6 Wend. 9. Alkison v. Henry. Opinion by Sherwood, J.

ASSIGNMENT-CAUSE OF ACTION FOR TORT.-A cause of action against a railroad company arising under the 43d section of the Railroad Law, for double damages for the killing of live stock, cannot be assigned so as to invest the assignee with the right to sue. Citing Wallen v. Railway Co., 74 Mo. 521, and distinguishing Smith v. Kennett, 18 id. 154. Snyder v. Wabash, St. Louis & Pac. Ry. Co. Opinion by Norton, J.

CONSTITUTIONAL LAW-INTERMARRIAGE BETWEEN WHITES AND NEGROES.-The act making intermarriage between white persons and negroes a felony (Rev. Stat., § 1540) is no violation of the 14th amendment of the Constitution of the United States. Neither is that clause of the act which provides that the jury trying a party accused of such a marriage may determine the proportion of negro blood in either party to the marriage from the appearance of such person, a violation of that clause of section 53, article 4 of the Constitution of Missouri, which provides that "the General Assembly shall not pass any local or special law regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding." "The privileges and immunities of citizens of the United States "protected by the 14th amendment are such as are secured to them by the Constitution of the United States and laws enacted in pursuance thereof, and the right of unrestricted marriage is not among these. The Slaughter House cases, 16 Wall. 36; Minor v. Happer

sett, 21 id. 162; State v. Gibson, 36 Ind. 389; S. C., 10 Am. Rep. 42; 1 Bish. Marr. & Div., § 87; State v. Kennedy, 76 N.C. 251; S. C., 22 Am. Rep. 683; Ellis v. State, 42 Ala. 525; Burns v. State, 48 id. 195; S. C., 17 Am. Rep. 34; U. S. v. Stanley, 109 U. S. 3. State v. Jackson. Opinion by Henry, J. [See 32 Eng. Rep. 7.]

MAINE SUPREME JUDICIAL COURT

ABSTRACT*.

CONTRACT-PERSONAL LIABILITY OF AGENT.-The defendants gave the plaintiff a note reading: "$1,000. Carmel, April 22, 1876. For value received, we, the subscribers for the Carmel Cheese Manufacturing Company, promise to pay William Simpson, or order, one thousand dollars in six months from date, with interest. F. A. Simpson, Rufus Work, A. S. Garland." Held, that an action upon the note could not be maintained against the signers, as it did not purport to be their promise, but the promise of their principal, aud if given without proper authority the agents may be liable in another form of action. Nor could an action of money had and received be maintained against them where they received the money as agents, and disposed of it for the benefit of their principal before the commencement of the suit, and without notice to withhold it. The note does not contain the promise of the defendants. There are in it no apt words to bind them, but the promise is expressly made for the corporation. The testimony introduced has no tendency to fasten that promise upon them, nor would that or any other having that tendency be competent for the purpose. So far as the action is founded upon that contract, it must stand or fall with it. Any proof offered, whether in writing or otherwise, must correspond to the allegations in the writ. If they have signed a note purporting to bind a principal without authority, the note is simply void. The agent thus doing may be liable in another form of action, but certainly not in a suit upon a contract into which he never entered. This seems to be clear upon principle, and is supported by a decided preponderance of authority. It may be considered as well settled law in this State and Massachusetts. In New York, while the earlier decisions were opposed, the later are in faIt is not necessary to cite all the cases or discuss them in detail. The following will give all the light necessary: Harper v. Little, 2 Me. 14; Stetson v. PatTalbot, 16 Mass. 461; Abbey v. Chase, 6 Cush. 54; Jefts ten, id. 358; Noyes v. Loring, 55 id. 408; Ballou v. v. York, 4 id. 371; S. C., 10 id. 392; Bartlett v. Tucker, 104 Mass. 336; Bray v. Kettell, 1 Allen, 80; 1 Pars. Cont. 68, and note. Thus it is evident that the defendants cannot be holden upon the note declared upon, even though they had no authority to bind the principal; nor can they be holden upon the count for money had and received; for whatever money they had was received as agents, and disposed of for the benefit of their principal before the commencement of the suit, and without notice to withhold it. Simpson v. Garland. Opinion by Dauforth, J. [See 47 Am. Rep. 818.]

vor.

FRAUD-RESCISSION OF CONTRACT-OFFER TO RESTORE-DAMAGES.-To rescind a contract of sale of merchandise, which has been delivered, on the ground of fraudulent representations of the seller, the buyer must restore the goods to the seller, if they are of any value, or to offer to restore them under such circumstances as to show an existing intention and ability to deliver them into the possession of the seller, or if he

*To appear in 76 Maine Reports.

elects, to accept them. When such a contract has not been rescinded the buyer is liable for the contract price, less the damages occasioned by any fraud that was practiced upon him in the sale. Sharp v. Ponce. Opinion by Walton, J. [See 27 Alb. L. J. 218, 375. -ED.]

ELECTION--ELECTOR DISFRANCHISED--UNREASONABLE ACT OF ELECTION OFFICERS-REV. STAT., CH. 4, § 63DAMAGES. (1) The action of selectmen in refusing to permit a legal elector to vote on the ground that his name was checked; that another man had falsely personated him and voted under that name, is unreasonable, and renders them liable to an action under R. S., ch. 4, § 63. (2) It appears to us that the question was one upon which men of common intelligence, acting fairly and without bias, could not be expected to take opposite sides. The defendants claim that they were justified in their action, because two gentlemen present, who were lawyers, declared that the plaintiff should not be permitted to vote, as it would invalidate the election; and fearing that effect, they refused the vote. We cannot conceive how two lawyers, giving their opinions upon their responsibility as such, could express such an opinion. It must have been inspired by political interest or bias rather than by legal learning. The idea that because a fraudulent ballot had been put into the ballot box, which, if it would change the result, any tribunal having power to determine the election would reject, the reception of the honest, legal ballot would invalidate the whole election, is, to say the least, unique. No elector can be legally disfranchised by being falsely personated by another as in this case. The defendants were so advised by several lawyers, among them the solicitor for the town, whose opinion was given at the request of the chairman of the board, and that they ought to permit the plaintiff to vote. (3) Where the act of the selectmen in refusing to permit a legal elector to vote is unreasonable, but not corrupt, punitive damages will not be awarded in an action against them by such elector. Pierce v. Getchell. Opinion by Libbey, J.

MASTER AND SERVANT-EVIDENCE AS TO FITNESS OF EMPLOYEE-JURY CANNOT DECIDE FROM SIGHT.-(1) In an action for personal injuries alleged to have been caused by the negligence of the employer in retaining the services of a fellow servant who was careless, and whose carelessness caused the injury, a witness testified that he considered the fellow servant slow and lazy, and not fit for the service, he was so slow, and witness had so informed the agent of the employer; and in answer to a question, if the fellow servant was competent and careful in the performance of his duties, witness testified: "Yes, he was always careful about his work." Held, that this evidence was not sufficient to establish the negligence of the employer. (2) The jury is not authorized to decide that a person is unfit to be employed as a brakeman on a railroad, on account of what they saw or supposed they saw, or could read in his face and manner while testifying before them as a witness, and determine from that alone

that the railroad company was negligent in employing Corson v. Maine Cent. R. Co. Opinion

such a person. by Walton, J.

MONEY HAD AND RECEIVED-TRUST-SALE OF NOTE. -C. and G. were tenants in common of a parcel of real estate. C. conveyed his party to G. and took G.'s note therefor. Both parties agreed that the sale was one only in form, that C. was to continue the actual owner of one-half and that G. should not be required to pay the note. G. Bold and conveyed a part of the land and paid to C. a portion of the purchase-money received therefor. C. then in violation of the under

standing sold the note, and G. was compelled to pay it, principal and interest, to the purchaser. Held, that by the sale of the note C. violated a trust, and thereby forfeited his right to retain that portion of the purchase-money received from G., and that assumpsit for money had and received was a proper form of action in which to recover it. Moore v. Marshall. Opinion by Walton, J.

INJUNCTION-JUDGMENT NOT ENJOINED-RES ADJUDICATA.-A court of equity never enjoins a judg ment except upon some distinct equitable ground which neither was nor could have been set up as a defense to the action at law. An issue once tried in a court of law is never retried by a court of equity. The parties have had their day in court, and they must abide by the result. The rule was correctly stated by Chief Justice Marshall in Marine Ins. Co. v. Hodgson, 7 Cranch, 332. It is that any fact which clearly shows it to be against conscience to execute a judgment at law, and of which the complainant could not have availed himself at law, or which he was prevented from availing himself of by fraud or accident, unmixed with any fraud or negligence of himself, or his agent, is ground for enjoining the judgment; but a legal defense, actually made at law, is not ground for enjoining the judgment, though the court may think it ought to have prevailed. "It is now, I apprehend well settled," said Redfield, J., in Emerson v. Udall, 13 Vt. 477, "that a court of equity will not examine into the foundation of a judgment of a court of law, upon any ground which either was tried, or might have been tried in the court of law. The judgment of a court of law is conclusive upon all the world as to all matters within its cognizance. If a party fail by not presenting his defense, when he should have done it, he can have no redress in a court of equity. Much less can he expect relief in a court of equity, when he has had a full trial at law upon the very grounds which he now wishes to urge anew." To the same effect is 2 Story Eq., § 894, and High on Inj., § 96. Bachelder v. Bean. Opinion by Walton, J.

CRIMINAL LAW.

VERDICT-RECEIVING IN ABSENCE OF DEFENDANT -RIGHT TO POLL JURY-SUNDAY NOT COURT DAYERROR. The jury returned their written verdict in a criminal case to the judge of the court on Sunday, in the absence of the defendant and his counsel, and without either of them being called or notified. The judge received the verdict, and discharged the jury from further consideration of the case. At the opening of the court on the next day (Monday), the defendant asked the court to recall the jury, and allow him the opportunity of having the jury polled in his presence; but the court denied the application. The defendant also moved that the verdict be set aside and stricken from the files; that the jury be recalled, and directed to return a proper verdict; all of which motions, as well as the motion for a new trial, were overgel, in the absence of notice, were bound to be in atruled. Held, that neither the defendant nor his countendance upon the court on Sunday on the coming in of the jury; and held further that on account of the action of the court in discharging the jury, and refusing to poll the jury in the presence of the defendant, the judgment must be reversed and a new trial granted. When a verdict is announced the defendant may require that the jury be polled. A party has, in all cases, the right to know whether the supposed verdict is the verdict of each juror, or only one of the jury; and examining the jury by the poll is the only

recognized means of ascertaining whether they were unanimous in their decision. This right is equally applicable to civil and criminal cases. The appellant therefore had the legal right to poll the jury, and he cannot be deprived of that right without his consent. Cr. Code, § 208; Civil Code, § 283; Maduska v. Thomas, 6 Kaus. 159; Munkers v. Watson, 9 id. 668-673; James v. State, 55 Miss. 57; 30 Am. Rep. 496, and notes; State v. Hughes, 2 Ala. 102. If it be urged that the appellant was voluntarily absent from the court-room on the coming in of the jury, and thereby waived his right to have the jury polled, it is sufficient to answer that neither he nor his counsel, in the absence of notice, were bound to be in attendance upon the court on Sunday. Dies dominicus non est juridicus-the Lord's day is not a court day. While it is lawful for a court to receive a verdict on Sunday, yet as the parties have the right to poll the jury, the court ought not to make such disposition of the case, in the absence of the parties and counsel, as to prevent the exercise of this right. Stone v. Bird, 16 Kans. 488; Norvell v. Deval, 50 Mo.272; Reid v. State,53 Ala. 402; Stewart v. People, 23 Mich. 63; James v. State, supra; 1 Bish. Cr. Pro., §§ 270, 272. Sup. Ct. Kans. State v. Muir. Opinion by Horton, C. J. (32 Kans. 481.) [See 4 Neb. 86; 28 Am. Rep. 484; 67 N. C. 283; 88 Penn. St. 189; 49 Cal. 41.]

BASTARDY-CIVIL PROCEEDING -- PREPONDERANCE OF EVIDENCE-CHARGE BELIEVING CERTAIN WITNESSES.-If a doubt is raised as to the paternity of a bastard child by reason of the complainant's connection with other men at about the time it was begotten, other facts may be shown sufficient to satisfy the jury that the accused is the father. State v. Pratt, 40 Iowa, 631. In other words, the jury are to determine from all the evidence before them whether or not the accused is the father of the child. The first instruction therefore was properly refused. The second instruction also was properly refused. The proceeding is essentially a civil one, and the rules of evidence governing civil actions are applied. Carter v. Krise, 9 Ohio St. 402; Glenn v. State, 46 Ind. 368; State v. Evans, 19 id. 12; Byers v. State, 20 id. 47; State v. Brown, 44 id. 329. In this State a preponderance of evidence is all that is required in civil actions, even in cases of fraud. Patrick v. Leach, 8 Neb. 538; Search v. Miller, 9 id. 30; Kopplekom v. Huffman, 12 id. 101. In Patrick v. Leach, p. 538, it is said: "In a civil action the law does not require the jury to be satisfied beyond a reasonable doubt, as in criminal cases.' "" The court did not err therefore in refusing to give the instruction. Sup. Ct. Neb., Nov. 18, 1884. Altschuler v. Algaza. Opinion by Maxwell, J. (21 N. W. Rep. 401.)

PRACTICE-ASSAULT WITH INTENT TO KILL-REVERSAL-SECOND TRIAL FOR ASSAULT-CHALLENGE.-When a party has been convicted of an assault with intent to kill, and on appeal such conviction has been reversed on the ground that the evidence would not sustain such charge, he can only be tried a second time on the same information for the offense charged therein, and if the court put him on trial for a simple assault, and restrict the number of his challenges of jurors to five, a conviction for the assault will be reversed, and the accused discharged. Sup. Ct. Mich., Nov. 20, 1884. People v. Comstock. Opinion by Champlin, J. (21 N. W. Rep. 384.)

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It also appeared that divers rooms, closets and drawers in the house were ransacked; but there was no evidence that burglar's tools had been used to effect the entry or to open inner doors or drawers. Held, that evidence that the defendant, when arrested, had such tools in his possession was nevertheless admissible. People v. Winters, 29 Cal. 658. State v. Davis. Opinion by Hough, C. J. (80 Mo.)

INSURANCE LAW.

FIRE-LOSS-LOCATION OF GOODS.-Where a policy of fire insurance in one clause insures household goods, furniture, clothing, etc., contained in a "two-story frame dwelling-house aud additions, occupied as a residence," and in another clause insures "horses, buggies, hay, etc., and barn tools," the insured cannot recover for the loss of the household goods by burning of the baru into which they had been removed on account of a previous fire in the dwelling-house. Hartford Ins. Co. v. Farrish, 73 Ill. 166: Annapolis, etc., R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am. Rep. 112; and Bryce v. Lorillard Ins. Co., 55 N. Y. 240. Sup. Ct. Mich., Nov. 19, 1884. English v. Franklin Fire Insurance Co. Opinion by Cooley, C. J. (21 N. W. Rep. 340.)

FIRE-FORM OF POLICY-WAIVER OF PROOFS OF LOSS. In the absence of averment as to the form of an insurance policy agreed to be issued, it will be assumed that the form stipulated for was the form then in use by the company, and that the terms of such policy were embraced by implication in the contract. Hubbard v. Hartford Ins. Co., 33 Iowa, 325. See also De Grove v. Insurance Co., 61 N. Y. 594. Acts or omissions relied upon as a waiver of preliminary proof should, to constitute such waiver, take place before action is brought if not before the time has expired within which the insured has a right, under the terms of the contract, to supply such proof. Beatty v. Lycoming Co. Mut. Ins Co., 16 P. F. Smith, 9; Fland. Ins. 593, note. Besides in this case no waiver was pleaded. Lumbert v. Palmer, 29 Iowa, 104. Sup. Ct. Iowa, Oct. 24, 1884. Smith v. State Ins. Co. Opinion by Adams, J. (21 N. W. Rep. 145.)

UNOCCUPIED.”—

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FIRE PREMISES "VACANT OR Where the owner of a dwelling, who after a tenant has vacated the premises, moves his furniture into and cleans up the house with an intention of making it his residence, but during that time does not actually occupy it at night, subsequently leaves it temporarily on business, and puts a party in possession until his return, the house cannot be considered as "vacant or unoccupied," within the meaning of a clause in the policy providing that if the insured building shall be or become vacant or unoccupied" the policy shall be void unless consent in writing is indorsed thereon, and he will be entitled to recover for a loss occurring during such temporary absence. In contemplation of law her occupation of the house would have been continuous. Stupetski v. Translantic Fire Ins. Co., 43 Mich. 373; S. C., 5 N. W. Rep. 401; Cummings v. Agricultural Ins. Co., 67 N. Y. 260; Herrman v. Merchants' Ins. Co., 81 id.184; Phoenix Ins. Co. v. Tucker, 92 Il1.64; Dennison v. Phoenix Ins. Co., 52 Iowa, 457; S. C., 3 N. W. Rep. 500. The only question then is whether the fact that for the few days she remained at home before starting on the business trip she did not sleep in the house or take her meals there should make any difference. Under the circumstances we think not. The insured had taken possession of the house, as the jury must have found, for the purposes of permanent occupancy. She had moved in her household furniture

and other goods, and was cleaning and doing other work preliminary to living there in person. Nothing apparently was wanting to complete personal posses-sion, except that she lodged and took her meals at her father's, a few rods off. Those facts were not conclusive against her occupancy. It could not be justly claimed, we think, that if a family, for the purposes of cleaning and interior decoration, were thus to sleep and take meals at a neighbor's, while busy in the house in working hours, they would in doing so vacate the house. But the case of such a family would be analogous to that of the party insured in this case. Cases are cited and relied upon on the part of the defense which we think are distinguishable on their facts. Wustum v. City Fire Ins. Co., 15 Wis. 138, was the case of a policy of insurance, which by its terms required unoccupied property to be insured as such. The building insured was not occupied, but was not insured as unoccupied, and the policy was held inoperative for that reason. In Ashworth v. Builders', etc., Ins. Co., 112 Mass. 422, it was decided that merely using a house for the purpose of taking meals in it was not occupancy within the meaning of an insurance policy. "Occupancy, "it was said, "implies an actual use of the house as a dwelling-place." "The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such an occupancy." This we think is true; but as we have seen, it does not follow that the presence of the occupant in the building should be continuous and unintercepted. The necessity for temporary absences on business, or for family convenience or pleasure, is recognized, and the insured is understood to contemplate an assent to them. In Corrigan v. Connecticut Fire Ins. Co., 122 Mass. 298, the question was whether a tenant who had occupied a house, but had moved with his family out of it and was taking his meals elsewhere, could be said to be occupying it merely because some of his furniture remained in it, and he had not surrendered the key? It was very properly held he could not. Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162, was still more unlike the present case, and calls for no comment. Sup. Ct. Mich., Nov. 19, 1884. Shackelton v. Sun Fire Office. Opinion by Cooley, C. J. (21 N. W. Rep. 343.)

FIRE ALIENATION OF PROPERTY.-A policy of fire insurance provided that if the building was sold or transferred, the policy would be rendered void, unless ratified to the assignee thereof by the written consent thereon, signed by the president and secretary, or any two directors of the company. Held, that a sale of the buildings without a transfer of the policy, rendered the policy void. Sup. Jud. Ct., Maine. Gould v. Patrons' Androscoggin Mut. Fire Ins. Co. Opinion by Libbey, J. (76 Me. 298.) [See 29 Am. Rep. 180; 27 id. 582; 28 Eng. Rep. 162; 30 Alb. L. J. 457.-ED.]

A

OUR LONDON LETTER.

WEEK ago the bar was in a state of absolute ferment. There was every indication of a possible change of government. And even when the ministry saved defeat by the narrowest of majorities, there was much talk upon the prospect that the Cabinet might resign. Even at the present moment when the intelligible desire to hold on to office till the last gasp has been plainly expressed, no one knows what a day may bring forth. It is possible that in spite of the wishes of their colleagues two of the most prominent members of the government may secede, and if Sir William Harcourt and Mr. Chamberlain do secede it can hardly be that the ministers will continue to hold office. It is probably unnecessary to state that a pros

pect of a change of government throws the bar into a wild state of excitement, because it means a shuffling of the cards and a partial redistribution of business. Of a truth the advent of a conservative ministry would produce changes more than usually great in the personnel of the law officers. In plain words, no one knows who the fortunate men would be. In all probability the master of the rolls would be elevated to the woolsack, and Mr. Edward Clarke, Q. C., who has distinguished himself in the House of Commons of late, would become a law officer of the crown. But his health is delicate, and it is doubtful whether he would be able to sustain for any length of time the wear and tear of official life. After him and Sir Hardinge Gifford all is mystery. There is hardly a single barrister who has distinguished himself as a conservative, in the House of Commons, and who is also well known for forensic ability. This perhaps may account for the fact that the conservatism which has apparently been lying dormant in many leading juniors is beginning to show signs of awakening.

Of all the changes which the advent of a conservative ministry must produce for barristers, none would be more welcome than the new lord chancellor. Lord Selborne has been a failure, not because he has made many mistakes, but because he has given himself no opportunity of making any. It is quite an event for him to sit in the Court of Appeal, where his predeces. sors sat frequently. When he does sit, the society papers, the bugbear of all great men, or perhaps I should say of all men in great places, hope sarcastically "that he is not fatigued by the unwonted exertion." Yet it cannot be said that the duties of the office are more laborious now than they used to be in former times. Sometimes it is suggested that the lord chancellor has enough to do in drafting bills for Parliament, but the suggestion is obviously based upon either a low estimate of his lordship's power of work, or a mistaken idea of the nature of the work which he in fact performs. The lord chancellor does not draft bills, he settles them after they have been drafted by his subordinates, and they in their turn are rewarded by County Court judgeships, like Mr. Chalmers, or become standing counsel to the Board of Trade in bankruptcy cases. Therefore there is no sufficient reason why a lord chancellor should not make his mark in the history of the curious development of case-law as lord chancellors were wont to do in times of historical celebrity; but of Lord Selborne it can only be said that his foot-prints are small, and the impressions thereof are light. The place of the lord chancellor as the presiding genius of English law has been lost-perhaps not for ever-but certain it is that the late Sir George Jessel, to say nothing of the present accomplished master of the rolls, will be remembered when the name of Lord Selborne has long been forgotten. I should add that the present lord chancellor has incurred much unpopularity by his reluctance-up to the present moment well sustained-to add to the number of existing queen's counsel.

The Durham divorce case is attracting an infinity of notice. Imprimis, it is a case of first impression; secundo, the parties engaged are of the highest rank. The judgment is not pronounced at the moment of writing, nor will it largely affect the public feeling in the matter. Lord Durham seeks for a declaration that his wife was never married to him, on the ground that when she went through the ceremony of marriage with him she was, in plain words, mad. Whether the allegation be true or not nobody knows, and there are two diametrically opposite classes of opinions. But upon one point there is universal unanimity. Lady Durham is now hopelessly and incurably mad, and every body agrees that when either party to a marriage is ascertained to be in this deplorable condition, the

same party ought, pro facto, to be freed from the
bonds of marriage. A somewhat scandalous side in-
cident of the trial has had the effect of throwing some
light upon the rights of the public to enter the law
courts. It is certainly the fact that since the courts
were transplanted to the Strand, there has been a
great increase of difficulty in this respect. More spec-
tators have come to the fore, and ingress is barred for
those who have business, and for those who have not,
by a band of absolutely irresponsible officials.
these gentry, Sir James Hannen has administered a
severe blow over the knuckles, because by barring
the entry of a certain eccentric student at law, who is
a bad imitation of Oscar Wilde, they were the cause of
a most unseemly uproar.

To

It is with the greatest pleasure that I am able to announce that the subject of codification is again to the fore, and that its advocates are in no mood for trifling. The draft Criminal Code has hung fire so long that people had begun to believe that the law officers had no heart in the projected reform; but I am informed and verily believe that the reason of delay is to be found in the imperfections of the draft. The presiding genius of the drafting was Mr. Justice Stephen, whose reputation as a criminal lawyer is waning, whereas for his knowledge of common law he has never been famous. On dit that he has only thrice since his elevation to the bench been confirmed by the Court of Appeal, and your correspondent in person has, in the course of the present year, heard him lay down that it was not negligence in a sheriff's officer to sit in the front parlour of an inn at his ease while the furniture upon which he has levied execution is being carried off at the rear. In the same case he ruled that where an officer has been guilty of a breach of statutory duty the onus of proving damages lies upon the plaintiff. On the very same day he characterized as "rubbish" a statement of law of which he was com pelled to admit the precision later. Therefore I believe that a good Criminal Code would have been converted into law long ago. Certaiuly the commercial classes will not wait long for a commercial Code. They are agitating vigorously, and barristers, having little to do, are helping them by showing that the difficulty of the task is not invincible. With a view to elucidate the problem, one of my acquaintance, who has studied much under German professors, is publishing an historical commentary on both the criminal and commercial Codes of Germany; I have just received a prospectus of a similar book upon French lines; there is lying before me a copy of Marine Insurance, codifled ten years ago, and altogether I am looking for ward to the time when the interest of my law library shall be antiquarian merely.

LONDON March 4, 1885.

CORRESPONDENCE.

AGISTER'S WARRANTY OF WHOLESOMENESS OF
PASTURAGE.

Editor of the Albany Law Journal:

I get much valuable learning from your journal. There is one question to which I have not noticed any reference, and that is the liability and responsibility of agisters of cattle. The general rule seems to be, that agisters are not insurers, or in the language of Judge Dwight, in the case I will refer to:

"A pasturer is not an insurer against any kind of loss, but he only engages to exercise the care of a prudent person in respect to the property intrusted to

him."

The case is this: The plaintiff was the owner of cattle, and hired them pastured in the defendant's

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pasture, at a price agreed upon. The cattle were turned into defendant's pasture in the month of August. From May to that time, Texas cattle, direct from Texas, had been depastured in the same field. It is an established fact, that when native cattle are turned into a pasture where Texas cattle have been pastured, they will take the Texas cattle fever, which generally proves fatal. The emissions or droppings from the Texas cattle infect or poison the grass, from which the native cattle become infected. The plaintiff turned eighteen head into defendant's pasture, and they all died of Texas fever. There was evidence on the trial, which tended to prove that the defendant did not know that Texas cattle would poison the pasture. Judge Dwight charged, on this point, that "the jury must find, to authorize the plaintiff to recover, that the defendant knew that the effect of pasturing Texas cattle was to render the field dangerous for pasturing northern cattle thereafter."

Under the charge, the verdict was for the defend

ant.

My contention is, that the defendant in offering his field to grazers warranted, among other things, that the grass was wholesome, and not contaminated with any foreign substance that would kill the cattle grazing thereon. I fail to find any authorities bearing on this precise point. I found a case which held that the vendor of hay was liable in damages to the vendee, if the hay was unwholesome and not fit for food for horses, although there was no express warranty as to the condition of the hay. I entered the case in my pocket diary, and subsequently lost it, and after diligent search, have been unable to find it again or my diary.

It occurred to me, that in your law researches, you may have seen the same case, and can refer me to it, if not that you could put me on a line of cases that would throw light on the question involved in the action.

In 1 Bell Com., p. 458, I find this under the head of Agister of Cattle:

"The place of custody must be secure against ordinary accidents incident to the property to be preserved. The "grazing field must be properly secured against escape, and free from pit-falls and dangers which may lame or injure them. The livery stable must be wind and water tight, so as not to expose the horse to cold or wetness, besides the food being wholesome and the hostler fit for his undertaking. A failure in these respects will expose the owner of the field, the stable or other place of custody, to a claim of damage, thus occasioned by his fault."

Why should not the grazing field contain wholesome grass, and be free from poisons that sicken or kill cattle?

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