a counter-claim is an instrument which may be used by a plaintiff against a defendant. The act refers to relief being given by this means "to any defendant against any plaintiff," and the rule refers to "the defendant setting up claims. against the claim of the plaintiff." Order XX provides for pleading puis durrein continuance, but applies only to "grounds of defense," between which and counter-claims a broad distinction is drawn. There can be little doubt that the draftsmen of the acts and rules had in their minds only causes of action accrued at the time of the issuing of the writ, but it is still possible that room may be left for claims accruing since. If this be so, the question arises whether such a claim accruing to the plaintiff can be introduced by way of counter-claim, or whether it should not be made by way of amendment? It seems to have been assumed, in Toke v. Andrews, that the writ could not be amended so as to allow the rent accruing subsequently to be claimed. But is this clear? The date of the writ must, of course, remain as originally given; but there seems no reason why it should not be stated that by amendment dated subsequently a further claim was added.

If the true reading of the rules is that subsequent claims by a plaintiff may be introduced by amendment of the writ, there is a substantial difference between the right practice and that laid down in Toke v. Andrews. Under Order XXVII, Rule 2, an order must be obtained to amend the writ, whereas Toke v. Andrews permits a plaintiff to counter-claim as a matter of right. It must be remembered that a plaintiff, by issuing his writ, elects to sue on the causes of action then existing. If there are other causes of action in prospect, he has only to wait, when he can combine both. The whole subject, especially considering the view taken by the Master of the Rolls, requires investigation before the Court of Appeal, which was invited by Mr. Justice Fry in the case before him, and is more than ever necessary since Toke v. Andrews.

As the law at present stands interpreted, the pleadings in the action seem capable of becoming very inconvenient and perplexing in their character, and extending to a length compared with which a surrebutter was a moderate limit. -The Law Journal.

MORTGAGES.

An exchange pays its respects to mortgages and mortgagors in the following strain:

In the whole range of sacred and profane literature, perhaps, there is nothing recorded which has such staying properties as a good healthy mortgage.

A mortgage can be depended on to stick closer than a brother. It has a mission to perform which never lets up. Day after day it is right there, nor does the slightest tendency to slumber impair its vigor in the least. Night and day, and at holiday times, without a moment's rest for sickness or

recreation, the biting offspring of its existence

goes on.

The seasons may change, days run into weeks, weeks into months, and months be swallowed up into the gray man of advancing years, but that mortgage stands up in sleepless vigilance, with the interest of a perrennial stream ceaselessly running on.

Like a huge nightmare eating out the sleep of some restless slumberer, the unpaid mortgage rears up its gaunt front in perpetual torment to the miserable wight who is held within its clutch. It holds the poor victim with the relentless grasp of a giant; not one hour of recreation, not a moment's evasion of its hideous presence. A genial savage of mollifying aspect, while the interest is paid; a very devil of hopeless destruction when the payments fail.

Our liabilities may be evaded or smoothed aside, but a mortgage hangs on with the pertinacity of a bull dog or the grip of a blacksmith's vise. If the interest is not paid it is added to swell its grim parent, the principal, and hold up its horrible front with a harder seeming than before. It will have the pound of flesh which is nominated in the bond; and more terrible than the fearful witches of Macbeth, the threatening fiend, Foreclosure, rears up its dreadful menace with the crushing weight of despair.

Pity for the poor man who has the grim fiend in his household. Every hour of his life is fraught with one intact endurance of misery and dread, embittered with a grievous load he is powerless to shake away.

COPYRIGHT.

In the United States District Court for the Southern district of New York a case has just been decided (Youngling v. Schiel) which settles many doubtful and disputed questions in relation to copyrights.

The action was brought for an injunction to restrain the defendant from an alleged infringement of a copyright, where it appeared that the plaintiff had imported copies of a chromo designed and printed in Europe by a foreign artist, and that the plaintiff had copyrighted the chromo by depositing two of his imported copies with the Librarian of Congress.

It further appeared that the defendant had never known of such chromo having been copyrighted, had never seen any copyright impression, and had made a new chromo of some material portions of the same design as plaintiff's chromo, which the defendant took from a copy independently imported from Europe. A nice point in the litigation was that it did not appear whether the design of the plaintiff's chromo was old or new, or whethe the plaintiff had ever acquired exclusive right from the artist. The court held that no copyright upon a chromo designed by a foreign artist abroad can be acquired by his respresentative resident here as proprietor.

Digest of Decisions.

MICHIGAN.

(Snpreme Court.)

PEOPLE V. CRAWFORD. June 14, 1882. Respondent in a criminal prosecution cannot complain of the admission for the prosecution of facts which the defence proved at à later stage of the case.

The defence in a criminal case cannot insist

that the judge shall charge the jury argumentatively or comment on the evidence or point out the weak points in the case for the prosecution so far as they involve questions of fact and not of law. It can only demand that the instructions on the legal points shall be correct, and that the evidence shall not be commented upon or presented in an incorrect or unfair way.

SCOTT v. PALMS. June 14, 1882.

A widow had a dower interest in the west half of a brick building consisting of four stories and a basement, and standing in a wholesaling neighborhood. The owner of the east half also owned the reversion in her portion. There was no communication between the two parts below the second story, and there was only one set of staircases, which was on the cast side. The owner of the east half proposed to take out the stairway and completely close all communication between the two halves of the building. The widow sought a perpetual injunction against these changes on the ground that she had an easement in the stairway appurtenant to her life estate. Held that the injunction would not lie. The changes tended to increase the value of the building; the stairway was not a way of necessity, nor was it shown to be intended as a permanent appurtenance to the life estate, and its removal would benefit defendant more than it would injure complainant.

A tenant for life is left to making the property available to his profit at his own expense. WISCONSIN.

(Supreme Court)

FERGUSON V. HILLMAN. May 10, 1882. Chattel Mortgage.-This court will not set aside a finding of the lower court of a fact, unless it be against the clear preponderance of the evidence.

A grantee of real or personal estate, when it is shown that the purchase was made with the intent to defraud or to hinder and delay creditors, has no equity as against such creditors to be protected for the amount which he actually paid on such purchase.

So, the fraudulent grantee in possession of the property of the debtor cannot be protected for the money or other consideration he may have given for the transfer as against the creditors of

such debtor; nor can he be protected in the possession of the proceeds of such property received by him on a sale thercof

Where a chattel mortgage is fraudulent and void as to creditors, the holder thereof cannot be credited with any sums which he may have paid as the consideration of such mortgage as a set-off against what he has received upon such mortgage.

Where a debtor in insolvent circumstances gave a warranty deed for his lands, and chattel mortgages on his personal property exempt from execution, for the purpose of defrauding, delaying and hindering his creditors, a personal judgment may be entered against the vendee and mortgagee for an amount of money over and above what he had applied to the payment of the debts of the vendor and mortgagor.

COLORADO.

(Supreme Court.)

UNITED STATES V. TAYLOR.

1. Trial by Jury in Criminal Cusc—Jury must Deliberate and Decide.-Under the sixth amendment to the constitution, which guarantees to every accused person the right to a speedy and public trial by an impartial jury, etc., there must be a submission of the case to the jury for their consideration and decision, and the jury must deliberate upon and determine it.

2. Same-To what Extent the Jury may Judge of both Law and Fact.-The right of the jury in criminal cases to pass upon questions both of law and fact, is the necersary result of the jury system, so long as the right of the jury to find a general verdict remains; for a general verdict necessarily covers both the law and the fact, and embodies a decision based upon and growing out of both. from the Court. While the Court is the judge of the law, 3. Same-Same-Duty of the Jury to Receive the Law and may instruct the jury upon the law, and while it is the duty of the jury to receive the law from the Court, it is still within the power of the jury to render a general verdict, and thereby to decide on the law as well as the facts. 4. Same-Same.-Ruling of Justice Hunt in The United States v. Anthony, 11 Blatchford, 200, considered and dissented from.

5. Same-Same-Right of Jury to Disbelieve Witnesses. -Although the defendant in a criminal case calls no witness to contradict the witness for the prosecution, yet the jury may still judge of the credibility of those witnesses, and may consider whether, upon applying all the tests of manner, clear or confused statement, prejudice, and accuracy of memory, they are to be believed.

6. Same-Same-Charge to Find Verdict of Guilty -It is error for the Court to charge the jury to find a verdict of guilty even in a case where, in the opinion of the Court, guilt is established beyond dispute.

STILES v. MCCLELLAN et al.

1. Contract-Consideration-Promise.-The second paragraph of a complaint is as follows: "Plaintiff further alleges that before he made said purchase of a ranch from a third party-he had the positive promise of the defendants that the said ranch should be made, and so long as they continued to operate said line of stage coaches, should remain the eating station for all passengers, both for breakfast and dinner, carried by said defendants; that the plaintiff was induced by these promises to make the purchase of the ranch, and to expend a large sum of money, not less than $1,000, in improving, furnishing and supplying said ranch for the purposes aforesaid, and that but for these promises of the defendants he never would have made the purchase or the aforesaid expenditures," and alleges withdrawal of the patronage of the passengers carried by defendants as a breach-laying damages at $2,000. Held: Bad on demurrer, as stating no cause of action. The facts stated do not come within the rule that a promise is a good consideration for a promise-there being no mutuality of engagement. Unless each party may have an action on a promise or agreement, neither is bound.

Ohio Law Journal.

:

COLUMBUS, OHIO, : JULY 20, 1882. During the vacation of the Supreme Court we shall be specially obliged if judges and attorneys will send us reports of novel and important cases from District, Superior and Common Pleas Courts. Make a note of it.

JUDGE COWAN, of the Common Pleas bench, made a decision recently in Clermont County that has created considerable commotion among the school teachers of the State. The custom of county examiners has been to divide their work, each member of a board preparing a list of questions, the answers to which are examined and passed upon by such member separately. The Judge decided that certificates issued to teachers are illegal unless the manuscript is examined and passed upon by each member of the board. THE right of railroad companies to compel passengers to stand and deliver at the command of a (too often) impertinent boor in uniform-to stop and tumble down grip-sack and packages: to halt a tired wife and weary little folks; to der posit on the dirty floor a baby in pure white and fumble through pockets and purses searching for tickets, while the blear-eyed gate keeper regards the party as intruders whom he ought to killthis right of the railroad company to thus crucify the traveling public is to be settled in an Ohio. court.

A prominent attorney of Zanesville, Chas. A. Beard, Esq., after being subjected to this ordeal until patience got tired sitting on a monument smiling at the grief engendered by the insolence of a railway gate keeper, refused to show his ticket was refused admittance to the train upon which he had paid his gold to ride, and missed the same and suffered loss and damage.

We do not desire to forestall a verdict in this case, but it seems that after a man has paid his fare he is entitled to a seat in the train; and a rule that can subject the traveler to the annoyance outlined above is certainly unnecessary, unreasonable and unlawful. We advise the plaintiff to remember two things: 1st, Travel hereafter, if possible, by decent lines of railway-the Bee Line, the B. & O.,-or some other line where snobbery and insolence are not tolerated. 2nd, Before going to trial search the julge's pockets and remove the pass sent him by the railroad company you are after, as a bribe to lean "jest a leetle" toward the side of said company.

IMPORTANT INSURANCE DECISION.

An important insurance case, involving the National Aid Association of this city, was decided by the District Court of Holmes County, at Millersburg, last week. The following were the facts in the case:

William Rebaugh, a resident of Millersburg, took out a policy on himself in the above company, and made a will, willing the policy and all benefits arising therefrom to A. B. Gouser. Rebaugh died and the company refused to pay the certificate. Suit was brought in the Common Pleas Court of Holmes County, and a demurrer was interposed to the petition and overexceptions taken, on which the case was brought ruled by the presiding Judge, C. F. Voorhes, and into the District Court. Hon. Dan. H. Uhl represented the case for the plaintiff and Hon. M. A. Daugherty, of this city, for the company. The defense set up that the certificate issued to Rebaugh contained provisions which the Supreme Court had lately decided was unlawful, and therefore void, and no court could enforce it. The language in the certificate referred to was regarding the payment of the policy to others than the immediate heirs of the deceased.

On the other hand it was claimed by the plaintiff that where there was ignorance on the part of either of the contracting parties, the burden should be borne by the party within whose scope it was most likely to be thrown and not by the party who could not have known it.

The Court sustained the Common Pleas Court

in overruling the demurrer.

It is by no means an uncommon occurrence nowadays, for parties to an action to conduct their cases in person and the practice is by no means confined to male litigants. In a recent instance, where an action was brought by a lady against the Right Hon. W. H. Smith, the First Lord of the Admiralty in the last Conservative Administration, for alleged improper detention of certain securities and documents handing them back to her, on his going out of referring to her income and sanity, for not office, and for libel, the plaintiff had apparently prepared the pleadings herself, in addition to coming into court to support them in per

son.

Her claim was certainly unique. It ran as follows: "The plaintiff claims 40,000£, and all legal expenses and outstanding debts a public paid and pawn-tickets redeemed. apology, and all libels contradicted in all the fish, and the committal of those who slandered public newspapers, foreign, domestic and Enand libeled her, and forged and lithographed her name, to Newgate for life, with twenty strokes from the cat-o'-nine tails on the back of each person." Does not the fact that it is

still has, an undeserved popularity. Principles are defined and doctrines stated, not in the stereotyped diction of law writers, but in new and original expressions. What is substantially said in praise of Lord Westbury by the author [Section 742] might be said very justly of himself-His grasp of principles is remarkable, his power of generalization wonderful, and faculty of analysis great.

The list of the subjects of the second volume indicate their importance. The author's exposition of the ingredients of the representation which constitutes fraud in equity [pp. 357-386]

is most full and instructive. The doctrines of constructive fraud are set out with exceeding clearness of statement; new views of these doctrines

are presented, and new illustrations are given. The law of Notice is so fully explained in one hundred and twelve pages that there will be no need for a lawyer, who has this, to buy Wade's new book on that subject. In section 601, et seq. there is discussed the question of how far a purchaser or mortgagee, for example, who is dealing, touching property with one who is owner, grantor or mortgagor, may be affected by notice of an outstanding claim, right or equity, such as a prior unrecorded mortgage. After showing what actual notice is, how it may be proved, that rumors do not make it, the kind. and amount of information necessary and what circumstances are sufficient, he shows how the notice may be neutralized by information explaining or contradicting the notice. If the contradictory or explanatory information are communicated by a third person to the purchaser or mortgagee he will not be chargeable with notice, but if they are received from the owner or mortgagor he is bound to inquire elsewhere. As a prudent man he is not allowed to shelter himself behind the contradictory or explanatory information derived from such a person, for the obvious reason that the latter is "under a strong personal interest to misrepresent or conceal the facts." But, again, if both the notice and contradictory or explanatory informa tion are obtained from him "who holds or asserts the conflicting interest, claim or right," or if such person upon being questioned "either keeps silence or denies the existence of any claim, or affirmatively declares it to be of any certain kind and amount," the subsequent pur

chaser or mortgagee is not bound by notice. We refer thus, at some length, to this subject to illustrate the fullness with which every subject is discussed.

This work should be in every good lawyer's library. When completed it will be a library in itself on equity jurisprudence, and will supersede the older works. Story's work was always objectionable, because it was too pedantic in authorities were cited to exemplify the text, alLatin quotations, and because too few American though this fault perhaps could not have been avoided in the first editions. Pomeroy's book is not amenable to either of these objections. And, moreover, his precise habits of thought easily supplied him with equivalents for the technical

terms-a good feature in the book.

If this work serves at all to promote the study of equity law by lawyers, the author will have rendered no small service. It was said by Rufus Choate: "A charm of the study of law is the sensation of advance * * * or being in a progression towards a complete apprehension of a distinct department and body of knowledge." To will be furnished in a `large measure. those who choose to study this work this charm

THE AMERICAN DECISIONS.

Volume thirty-five of this valuable series has been received, All that has been said of the excellence of preceding volumes applies equally well to this. We add, however, the remark that we have recently, upon business or pleasure, made calls at the offices of hundreds of the leading attorneys in this and other States. In every one of these offices we meet the familiar and friendly "American Decisions" and hear only words of praise in their behalf. We find many young attorneys who, with rare good judgment, begin their life work with the text books, the reports of their own States and the American Decisions, and are fully fortified for almost any legal battle.

RIGHT OF BAIL TO ARREST PRINCIPAL. Editors Ohio Law Journal :—

A question of considerable interest has been under discussion in the daily papers in regard to the capture and removal of one Kahn from Cincinnati to Philadelphia, under the alleged sanction of a bail-piece from one of the Pennsylvania courts; and the press, with great unanimity, have been asking the authorities to vindicate