new master for dishonesty, in the absence of direct proof of guilt or innocence, the testimony of a former master that he had for many years served him with conspicuous probity would undoubtedly be the most satisfactory evidence to character producible; but the master may be quite unable to speak to general reputation, and so the servant is deprived of what would be the most conclusive testimony in his favor, for the very reason that it consists in experience and not in hearsay. On the other hand, suppose the witness to have an absolute knowledge that the prisoner has previously committed offenses similar to that charged, if the prisoner has been sufficiently adroit and hypocritical to keep up appearances among his neighbors and to hoodwink them into the belief that he is an upright man. he will receive the benefit of his duplic ty, and the witness who knows to the contrary will have to deliberately deceive the court and judge, by deposing to his good character.

Surely, in the common sense conduct of affairs, there would not be a moment's hesitation whether, in investigating the character of a man, to place more independence on a deliberate opinion formed as the result of personal contact and experience, or on a recollection of the random utterances of an indefinite number of persons who may never have seen the object of their garrulity, nor have had the remotest opportunity of forming a judgment upon his merits. The reception of such evidence would not be open to the decisive objections urged against previous acts of the accused being adduced, because the only questions admissible would be as to the means of knowledge of the witness, and the deduction he drew from those means of knowledge concerning the disposition of the accused. Here there would be occasion neither for wrangling over disputed facts, nor for the prejudice inseparable from taking for granted that a previous similar offense has been committed by the accused.

We may, perhaps, be permitted to suggest that in a careful perusal of the judgments in Reg. v. Rowton, sufficient justification might be found for inserting in the forthcoming criminal code a section devoted to the subject of evidence to character, altering the rule relating thereto that, if such evidence is to be retained at all, we may have it for the future the best instead of the worst possible of its kind.-London Law Times.

ECCENTRIC BEQUESTS.

A Manchester lady bequeaths a surgeon £25,000, on condition that he should claim her body and embalm it, and "that he should once in every year look upon her face, two witnesses being present." Another lady of an economical turn of mind, desires that if she should die away from Branksome, her remains, after being placed in a coffin, should be inclosed in a plain deal box, and conveyed by goods train to Poole. "Let no mention," she states, "be made of the contents, as the conveyance will not be then charged

more for than an ordinary package." A French traveller recently deceased, desired to be buried in a large leather trunk, to which he was attached, as it "had gone round the world with him three times;" and an English clergyman and justice of the peace, who, at the age of eightythree had. married a girl of thirteen, desired to be buried in an old chest he had selected for the purpose. Tastes differ in the matter of burial. One man wishes to be interred with the bed on which he has been lying; another desired to be buried far from the haunts of man, where nature may "smile upon his remains;" and a third bequeaths his corpse for dissection, after which it is to be put in a deal box and thrown into the Thames. One man does not wish to be buried at all, but gives his body to the Imperial Gas Company, to be consumed to ashes in one of their retorts; adding, that should the superstition of the times prevent the fulfillment of his bequest, his executors may place his remains in St. John's Wood Cemetery, "to assist in poisoning the living in that neighborhood." A person may ap prove in cremation himself, but it is a little hard when he requires his relatives to approve of it also.-The Spectator.

IOWA.

(Supreme Court.)

Negotiable Instruments—Maker leaving State-Demand. Op. by Rothrock, J. Action on a note, indorsee against indorser. The indorsement waived notice but not demand. It was shown that the maker, before maturity, left the State, and that there was no one in the State on whom demand could have been made. Held, that demand was sufficiently excused; that a holder of a note is not bound to follow the maker out of the State. 1 Parsons on B. & N. 45. Whitely v. Allen. June 10, 1881.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Aug. 24, 1881.]

1145. Otho Ilardman et al. v. George W Wilson, administrator. Frror to the District Court of Madison County. McCloud & Son and Converse and J. M. Ken nedy for plaintiffs.

1146. John J. Wagoner, executor et al. v. Sarah Cox. Error to the District Court of Hamilton County. I. J. Miller and F. Sample for plaintiffs; Hoadley, Johnson & Colston for defendant.

1147. James A. ulp v. George Troutman. Error to the District Court of Allen County. Richie & Richie and A. B. East for plaintiff.

1148. Calvin McCombs et al. v. John Stewart. ErrorReserved in the District Court of Mahoning County. Hutchins & Tuttle for plaintiffs; Sutliff & Stewart for defendant.

1149. Isabel A. Móore v. Harriet E. Ide. Error to the District Court of Franklin County. Charles Follett for plaintiff; Harrison, Olds & Marsh for defendant.

1150. Hester A. Pattenger v, Martha E. Bailey et al. Error to the District Court of Perry County. Butler & Hoffman and J. V. Campbell for plaintiff.

-We call the attention of the profession to the card elsewhere of Mr. J. V. Cowdery, of Niles, O. Mr. C. is well recommended as a careful and honest lawyer, and as such, we commend him to the bar of the State.

-During a recent voyage of discovery, recreation, and business, "Ye editor" came in contact with a host of the members of the bar, whose friendship is an honor and whose kindness will long remain as a delightful memory. Nothing could give us greater pleasure than to make public acknowledgment of our obligation to each of these kind gentlemen, by separate personal indication, but their name is legion. We must, however, mention specially, Mr. Frank E. Dellenbaugh, Col. A. J. Sandford and L. A. Russell, Esq., of Cleveland, gentlemen all, and lawyers whose gentlemanly instincts, fine social qualities and excellent abilities, fully account for their present success and bright prospects in the profession. In the same category we with pleasure include, Messrs. Fraze & Welsh, law partners in Akron; C. A. Reed, Esq., of Ravenna-who by the way, will be the next Probate Judge of Portage County;-Gen. R. W. Ratliff and E. D. Kennedy, of Warren; Judge Thoman, S. D. L. Jackson, Willis W. Powers, of the law firm of McNabb and Powers and Mr. Wirt of Woodworth & Wirt, of Youngstown. To these gentlemen the LAW JOURNAL extends profound thanks. THE AMERICAN BAR ASSOCIATION AND MR. IRVINGE BROWNE.

The recent meeting of the American Bar Association, at Saratoga, demonstrates the mutability of earthly hopes and the wondrous potency of a great man's smile or frown. It may be conceded that many of the best lawyers of the country were in attendance, and that some very able papers were publicly read; but that the prime object of the meeting was not fully accomplished, must be sorrowfully admitted. We refer to that full and complete success in winning the approval and commendation of Mr. IRVINGE BROWNE, the editor of the Albany Law Journal, which had been confidently hoped for. What would be insufferable egotism on the part of a less gifted and less God-like being than Mr.

Irvinge Browne, we accept from him, for the Association, as the condescension to a belief that the members thereof were a nice enough set of gentlemen-not wise and cultured as Mr. Irvinge Browne, it is true, yet as giving promise of some good things in the beautiful future sometime!

Of the address of the 'President, Mr. Phelps, of Vermont, IRVINGE BROWNE says: "We did not hear it, and have not read it," although published in his paper "at the cost of a large and valuable but with our natural space; scent for heresy, we have detected some utterances against codification to which we shall try to evolve some rejoinders by and by. Much can be pardoned Mr. Phelps, however," &c., &c., ad

nauseum.

The promise to notice Mr. Phelps' address and to evolve rejoinders from his omniscient inner consciousness-although to matters he had never read by the great Irvinge Browne, must be exquisitely gratifying to Phelps.

The paper by Judge Cooley, of Michigan, read by Mr. Hinckley, the Secretary, is approved in one part by Irvinge Browne, but, in the other half is annihilated-Irvinge Browne sits down upon it!

Of the address by the new President, Hon. Clarkson Potter, Irvinge Browne says, "it was quite entertaining to all, and probably instructive to most." Of course, Mr. Potter could not produce anything that could be possibly instructive to Irvinge Browne; but, then, to cheer him up, Irvinge Browne concedes the charitable and condescending remark, that "he was very properly chosen President for the ensuing year."

Mr. Hunt, of Louisiana, as Chairman of the Committee on Legal Education, reported in favor of a three years' law-school course of education, and in favor of admission to practice on the diploma of a chartered law-school, granted after such a course. This was adopted. Irvinge Browne doubts Mr. Hunt's ability to understand the resolution adopted concerning such requirement, and charges "vagueness" upon the same; and apparently regrets that the august presence of Irvinge Browne deterred the Association from venturing upon a discussion. This is sad!

Irvinge Browne frowns down the foolish practice of endeavoring to solve abstruse problems in constitutional or other law, which has neretofore obtained in the Bar Association. He kindly, however, relieves that body from absolute despair-consequent upon that frown-by pointing

out a few things to which it may properly direct its attention hereafter.

Irvinge Browne's report and remarks upon the proceedings of the Association reminds one very forcibly of a chicken on a manure heap. There are occasional grains of corn to be found, no doubt, but the great mass is nauseatingvery nauseating, indeed.

It is really disheartening to witness the antics of this same Irvinge Browne. He has been a profound student for so very long a time that he is unusually well informed in matters of law. With modesty, he would be really a great man; but his pedantry-his style of criticizing others fully as wise as he-his Lord Roscoe air of supercilious loftiness, and his palpable and offensive over-rating of his own ability, is only equalled by the air of the man who, at the circus, crawls through a nine-inch hoop, and, afterwards, feeds himself with a fork tied to his heel; or the man who jumps over sixteen horses, turning three summersaults in mid-air. It proclaims: "Who so limber or so great a leaper as I ?"

PLEADINGS, PARTIES AND FORMS UNDER THE CODE.

BY CLEMENT BATES ESQ.

The immense book and printing establishment of Robert Clarke & Co., Cincinnati, Ohio, is rapidly coming to the front as one of the best publishing houses of the country. We are not sure but that this house is to the West what that of Baker, Voorhis & Co. is to the East-the principal caterer to the wants of book buying lawyers. One very certain thing is that they are publishing some very valuable books. The latest, especially of interest to lawyers of Ohio, is the first volume of the above mentioned work. Its table of contents shows, briefly: a General Treatise on Parties and pleadings; followed by the topics of Misnomer, Amendment, Variances and Failure of Proof, Joinder of Causes of Action, Revivor of Actions, Submission, Venue, Verifications, etc., and the head of Actions and Proceedings, which embraces Forms of Petitions, with Authorities, arranged alphabetically, thus: Account, Account Stated, Accounting, Agents, Animals, Arrests, etc., down to and including Municipal Corporations.

There can be but little doubt that this book will become immensely popular with the bar of Ohio, particularly, if the second volume follows the plan adhered to in the first, as tersely expressed in the preface which declares that "the book is

rather a digest than a treatise;" that, "from it, discussion has been as far as possible banished, the region of conjecture avoided and the author's personal opinions suppressed."

The scope of the work is strictly what its title states, practice alone. The alphabetical arrangement carries not only the matters under the usual heads of classification, but as well the authorities and forms, which, in many instances, must be very useful to the attorney, who finds before him, and at a glance, all he seeks as matter of attack or defense.

There is one feature in this book we especially admire. There is no useless multiplication of citations. Attorneys in citing authorities to the court, in argument, to make assurance doubly sure, pile up authorities in some instances, until hundreds are cited bearing upon the same point. We can therefore readily see why a lawyer, writing a book, will fall into the same habit. But this is certainly a mistake. The court invariably mentions the authorities upon which the decision is based and if the same doctrine is found in a great number, the latest one wherein reference is made to the current of such authority alone is cited; at least anything different is exceptional. Then, why fill reports or text books with so many citations? We heartily commend the good judgment manifested by the author of this book in that regard. Robert Clarke & Co., Cincinnati, O.-2 vols, $12.

The Kentucky Law Journal, for August, has been received. The matter and make up of this new candidate, for the favor and five dollar bills of Kentucky lawyers, is really first class. In fact, there is not a better monthly legal publication extant, so far as general news and Kentucky law is concerned, than this same Kentucky Law Journal. But the editor, Mr. George Baber, will ascertain, as time rolls along, that the novelty of publishing a model law journal will be swallowed up in a desire to receive a better patronage, and the freshness of the new editor will droop before the ardent necessity of paying printers' bills, and of looking round for the wherewithal to do so.

withal to do so. Then the contributors will weary of writing leaders for the novelty of the thing and many things will work together to make the editor wish he had never been born. Then he will settle down to the wise conclusion that when a law journal furnishes to the members of the profession all the decisions of the Supreme Court, which is mainly their inspiration, and gives the laws newly made and the

proceedings of the highest court as they transpire, it is fulfilling its mission, and, that anything further than this, is neither practicable nor profitable. We wish Mr. Baber all good luck and therefore give him these points free of charge.

THE Colorado Law Reporter, having finished its first year with less of loss than was expected, has concluded to press onward as one of the established law journals of the country. We are glad of this. It deserves to succeed, and will succeed. The bar of Colorado will certainly appreciate and patronize an enterprise that gives them promptly, and in full, the decisions of the supreme courts. A lawyer who does not try to keep up with the rulings of the highest court in his State, is not trustworthy. He cannot give reliable counsel, and cannot be considered safe or competent as an adviser. This is as true in Ohio as in Colorado, and there is no more certain means of distinguishing between lawyer and shyster, than to ascertain whether the person in question keeps pace with the law as interpreted and applied by the court of last resort in his own State. A shyster resorts to tricks and petty advantages-to accident or luck-in giving counsel and conducting cases; a good lawyer depends on the rulings of the Supreme Court of his State, as a good farmer depends on and procures the improved appliances of agriculture.

We therefore say to the enterprising publishers of the Colorado Law Reporter, that the patronage of their paper will depend on simply two things: Make a good paper and then confidently rely upon that which is bound to follow. Every lawyer in the State, worthy of the name, will buy it.

The Indiana Law Journal has been re-purchased by the Messrs. Wells, father and son, and will we hope have abundant success. The Hoosiers need a law journal and need it badly, as indeed do the lawyers of every State.

THE BEST LAW JOURNAL IN THE

COUNTRY.

The Central Law Journal, of St. Louis, Mo., has entered upon its thirteenth volume and is rapidly approaching a time when it will be entitled to a patriarchal position among the journals of the west. Its well earned success, which has been steady and uniform from its first day of publication has been due to the careful and thorough manner in which it is edited, the energy and enterprise of its publisher in sparing neither pains nor expense in his efforts to procure the latest and freshest cases and the most able leading articles, and in some degree to the general nature of its contents, making it of equal interest to the profession in all the States.

We know of no paper which is of greater practical utility to the profession. WM. H. STEVENSON, Publisher, St. Louis, Mo,

SUPREME COURT OF OHIO.

CORWINE U. MACE.

D. executed a codicil to her last will and testament, as follows:

"Item 1st. I desire and do hereby change and modify Item 8th in said will, so as to read as follows: I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, his heirs and assigns forever, the equal one-half of all those pieces of land purchased by me of Wesley Claypool, situate in Ross county, state of Ohio, and being described in Item 8th of said will. And the other one-half of said Claypool land, described in Item 8th, and by said 8th Item of said will devised to James W. Hays, Peter B. Hays and John Hays, I devise to Peter B. Hays and James D. Corwine, son of John W. Corwine, and their heirs and assigns forever. My wish and desire being to exclude John Hays and James W. Hays from any Interest in said Claypool farm. The said Peter B. Hays and James D. Corwine to have their half of said Claypool farm on the upper side thereof and the said Mace on the lower side.'

Item 8th of the will referred to in the codicil was as follows:

"Item 8th. I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, and unto his heirs and assigns forever, the equal undivided one-half of all those pieces of land purchased by me of Wesley Claypool, situated in Ross county, state of Ohio, containing about eleven hundred and seventy-four acres, one rood and twenty-nine poles, which is particularly described in the deed made by Wesley Claypool and wife to me, bearing date April 29, A. D. 1856. And I hereby devise and bequeath unto James W. Hays, Peter B. Hays and John Hays the remaining one equal undivided half thereof, to be shared equally between them."

Held, 1. The devisees named in the codicil took the estates as tenants in common, subject, however, to be aparted among them so that the interests of Hays and Corwine should be located on the upper side and that of Mace on the lower side of the farm. 2. In making partition between them the part on the upper side to be set off to Hays and Corwine should be of equal value with that part on the lower side set off to Mace. 3. Such partition may be enforced by a civil action under the code. Appeal-Reserved in the District Court of Ross County.

The case is sufficiently stated in the opinion. O. F. Moore and George D. Cole, for plaintiffs.

Harrison, Olds & Marsh, with whom were Van Meter & Throckmorton, for defendants:

We maintain that the testatrix divided the farm into two equal parts by an ideal east and west line, which gave an equal quantity of land to each part above and below the division line, and devised the upper part to Hays and Corwine, and the lower part to Mace.

The will did not specify the dividing line by metes and bounds, but it furnished the data and a rule by which that line was easily ascertainable. It only required a survey and a mathematical calculation. Each might precisely ascertain and know his own severalty, and what he had the exclusive right of possessing. A description of the several parts would have been but little, if any, more definite or certain. der this construction there is surely no ground for an application to any court to fix the line. If either party takes possession of any land above or below his part, a remedy can be had against him by an action of ejectment or tres

pass.

Un

The estates devised are legal, and not equitable estates.

As to ascertainment of boundaries, see 70 N. C. 706; 64 Pa. St. 275; 3 Washburn on Real Property, *635; 2 Dev. & Battle, Eq. 379.

A court of equity has no jurisdiction to fix the boundaries of legal estates, unless some equity is superinduced by the act of the parties. Story Eq. Jur. $ 615, et seq.; 2 Leading Cases in Eq. *433. In the case at bar, no equity has been superinduced by the act of the parties.

The equity of partition attaches only to estates held by joint tenants, tenants in common and coparceners. Partition of an estate in severalty is a contradiction in terms. The purpose and effect of partition is to convert tenancies in common into estates in severalty.

If the testatrix had devised to the plaintiffs the upper half in value of said lands, and to the defendant the lower half in value, this would not have constituted a tenancy in common. The data from which the dividing line is to be ascertained, is attempted to be given; whether sufficiently so or not, is another question. The land is divided by an ideal line into the upper and lower halves. If the respective parts are to be halves in value, the line may come at one place, and if they are to be halves in quantity, the line may come at another. But wherever the dividing line is, the plaintiffs have, under the will, the land above it, and the defendant has the land below it. They have no part of it in common.

As to tenancies in common and in severalty, see 1 Wash. Real Prop. *407; 2 Cruise Dig. R. P. *344; 9 Pick. 34; 15 N. H. 546; 3 Ohio, 21.

Afterwards, on the 8th of June, 1871, the testatrix executed a codicil, the first item of which reads as follows:

"Item 1st. I desire and do hereby change and modify item 8th in said will so as to read as follows: I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, his heirs and assigns assigns forever, the equal one-half of all those pieces of land purchased by me of Wesley Claypool, situate in Ross County, state of Ohio, and being described in Item 8th of said will. And the other one-half of said Claypool land, descffin Item 8th,, and by said 8th Item of said will devised to James W. Hays, Peter B. Hays, and John Hays, I devise to Peter B. Hays and James D. Corwine, son of John W. Corwine, and their heirs and assigns forever. My wish and desire being to exclude John Hays and James W. Hays from any interest in said Claypool farm. The said Peter B. Hays and James D. Corwine to have their half of said Claypool farm on the upper side thereof and the said Mace on the lower side "

The title of the parties to this suit is held under this item of the codicil, and the controversy is in relation to the nature and extent of the estate of the respective devisees. The plaintiffs, Corwine and Hays, claim that the estate devised is held by the devisees as tenants in common, that is to say, that defendant Mace owns an undivided half, and each of the plaintiffs an undivided fourth part of the whole tract, subject, however, under the direction of the will, to be apportioned according to value, so that the interest of the plaintiffs shall be aparted to them on the upper side, and that of the defendant on the lower side of the tract. While the defendant contends that the lower half of the tract, ac

As to construction of codicil, see 7 H. of L. Cas. 68; 1 Jarman on Wills, 315; 27 Vt. 739; 29 Ohio St. 150; 50 Me. 364; 30 Me. 28; 24 Conn. 219; 25 Ohio St. 115.

MCILVAINE, C. J.

This is a civil action for the partition of certain premises held by the parties, James D. Corwine, Peter B. Hays and Jacob Mace, as devisees under the will of Kesiah Davis. The principal question arises on the construction of the will. The eighth item of the original will, executed May 19, 1863, was as follows:

"Item 8th. I give and bequeath unto Jacob Mace, of the county of Ross, state of Ohio, and unto his heirs and assigns forever, the equal undivided one-half of all those pieces of land purchased by me of Wesley Claypool, situated in Ross county, state of Ohio, containing about eleven hundred and seventy-four acres, one rood and twenty-nine poles, which is particularly described in the deed made by Wesley Claypool and wife to me, bearing date April 29th, A. D. 1856. And I hereby devise and bequeath unto James W. Hays, Peter B. Hays, and John Hays the remaining one equal undivided half thereof, to be shared equally between them."

alty, and that plaintiffs took, under the will, the upper half, as tenants in common.

The contention of the defendant is based chiefly on the last clause in the first item of the codicil, and on the fact that in describing the interests devised, the testatrix omitted the qualifying word, "undivided," which had been used in the original 8th Item of the will. That there is much plausibility in the claim thus made cannot be denied; but upon a careful consideration of the language used by the testatrix in the 1st Item of the codicil, a majority of the court are of opinion that a tenancy in common between the devisees was created, although the testatrix contemplated a separation of the interests, and directed the location of the respective interests when partition should be made.

The last clause in the item does not give to Hays and Corwine the upper half of the farm, and to Mace the lower half; but directs that Hays and Corwine are to have their half on the upper side and Mace on the lower side thereof. Although the interest of Hays and Corwine is here designed as "their half of said Claypool farm," we must look to other parts of the item to determine the true meaning of the phrase here used, namely, what was meant by "their