VIRGINIA COURT OF APPEALS ABSTRACT.*

DIVORCE-PLEADINGS AND EVIDENCE-DESERTIONCRUELTY ALIMONY-CUSTODY OF CHILDREN. — - In suits for divorce the pleadings and rules of evidence are the same as in other suits in equity, except that the bill shall not be taken for confessed, and the cause must be heard independent of the admissions of either party on the pleadings. But where the answer is responsive to the allegations of the bill, the defendant is entitled to the benefit of it, as in other cases in equity. Although the fact that a married man is seen to enter a house of ill-fame is strong evidence of the crime of adultery, yet it is not of itself conclusive, and the act is open to explanation; and it was satisfactorily explained in this case. Desertion is a breach of matrimonial duty, and is composed, first, of the breaking off of the matrimonial cohabitation; and, secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. A mere separation by mutual consent is not desertion by either party. The cruelty that authorizes a divorce is any thing that tends to bodily harm, and that thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health. There may be cases in which the husband, without violence, actual or threatened, may make the marriage state impossible to be endured. There may be angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, which may as effectually endanger life or health, as personal violence, and which therefore would afford grounds for relief by the court; but what merely wounds the feelings, without being accompanied by bodily injury or actual menace, does not amount to legal cruelty. The father is the legal custodian of the minor children, and they will not be taken from his custody without the strongest reasons therefor; and this right is not affected by the voluntary separation of the parties. If the application by the wife for divorce is refused, if the court is satisfied that she is the chief obstacle in the way of a reconciliation, and that the husband is, under all the circumstances, entitled to the custody of the child, it is impossible to impose terms upon him and to say he shall be compelled to have the child, under the decree of the court, at particular places and times, to gratify the wishes and feelings of the mother. It may be there are cases in which the court might refuse a divorce, and yet allow alimony to the wife. But if the husband is willing to be reconciled to the wife upon terms she can properly accept, if he has not abandoned her, if his conduct has not been such as to justify her separating from him, she is not entitled to alimony. Latham v. Latham. Opinion by Staples, J.

LIFE INSURANCE-ACTION TO RECOVER PREMIUMS.— C. takes out a policy of insurance on his life for the benefit of his wife. The insurance company fails in the life-time of C. C. may sue in his own name to recover the premiums he has paid. Universal Life Ins. Co. v. Cogbill. Opinion by Christian, J.

SURETY -DISCHARGE OF, BY LACHES OF OBLIGEE FAILURE TO INFORM SURETY OF DEFAULT OF PRIN

CIPAL.-I. K., as general freight and ticket agent of the R. & P. R. R. Co., gave a bond with sureties. The rule of the company was that he should settle monthly; and though there was no rule on the subject, it was expected that freight and tickets should be paid for in cash. K. seems to have given credit at his own risk to such persons as he chose, for the freight, and this was known by the president, who remonstrated with him for doing it. He did not settle his accounts promptly, To appear in 30 Grattan.

and the deficit grew for eighteen months, when he was dismissed. There was no fraudulent concealment of these facts by the officers of the company, though the sureties of K. were not informed of them. Held, 1. The sureties are not released from their liability for the default of K., by the knowledge of the officers of the company that he gave credit for the freight delivered. And if there had been a rule that freight should be paid for in cash, and that rule had been changed after the execution of the bond, that would not have released the sureties. 2. There having been no fraudulent concealment of the fact that K. did not settle promptly, the failure to inform his sureties of the fact did not relieve them from their liability for the default of K. 3. The rules and regulations of a corporation made for the government of the conduct of its officers, do not become terms and conditions of the bond of its officers unless such an intention is expressed on the face of the bond. Richmond & Petersburg R. R. Co. v. Kasey. Opinion by Moncure, J.

RECENT ENGLISH DECISIONS.

CHILDREN CUSTODY-THE MOTHER A ROMAN CATHOLIC AND THE FATHER A PROTESTANT.- Although the wife may bave obtained a decree of judicial separation, the court will not give her the custody of the children if she intends to bring them up in a religion different from that of the father, and different from that in which they have been educated during the cohabitation of their parents. A husband and wife having been Roman Catholics, the husband afterward became Protestant, and placed the children at a Protestant school. The wife filed a petition for judicial separation, but withdrew it and returned to live with her husband on his promise that the children should be educated as Roman Catholics. He broke the promise and she subsequently filed another petition and obtained a judicial separation. Upon an application by the wife for custody of the children that they might be educated as Roman Catholics, the court rejected the application, and gave the custody to a third person, with full access by both parents. D'Alton v. D'Alton, 4 P. D. 87.

DAMAGES-COLLISION- INEVITABLE ACCIDENT-NO LIGHT-NEGLECT OF RULE-COSTS OF SUCCESSFUL AP

PEAL.-An action for damages by collision in the Thames was brought by the owners of a barge against the owners of a steamer. The steamer had been obliged to alter her course in order to avoid another barge, and the barge with which the collision took place was last of three in tow of a tug and did not carry a light as directed by the rules of the Thames Conservancy; but there was no evidence that the want of a light contributed to the collision. Held, reversing the decision of the Admiralty Court, that the steamer was not to blame, and that she might have acted differently if the barge had carried a light. The action was dismissed without costs, but, semble, that in successful admiralty appeals the appellants will have the costs of the appeal. The Swansea v. The Condor, 4 (C. A.) P.

would prove attractive even to intelligent laymen as matter of recreation. The author has the advantage of having been preceded by great writers on this subject: Starkie, the finest of writers in matters of style; Phillips; Greenleaf, whose work will after all never be superseded; and Best, whose treatise is disfigured by an excess of metaphysics. Dr. Wharton contrives to be lively. Thus he tells us of Chief Justice Marshall's dying words, and gives us copious quotations from the Tichborne case; indeed, his notes are stuffed with interesting and not irrelevant matters of this sort. His

NEGLIGENCE-ANCIENT NAVIGABLE RIVER-ACTION AGAINST CONSERVATORS-PUBLIC PURPOSES-CONSERVATORS OF RIVER NOT LIABLE FOR OBSTRUCTION TO

NAVIGATION.-The defendants were an unpaid body of trustees created by statute conservators of the Lee, an ancient navigable river, and were "authorized and empowered from time to time at their discretion to cleanse, scour, deepen, enlarge or straighten the channel or course of the said river, and also to set out, open, make and maintain" certain new cuts or canals thereinafter specified, to communicate with the river and to be used for the navigation, "and also to remove all obstructions and impediments whatsoever to the said navigation." The defendants were also by statute empowered to levy rates or tolls for the use of certain locks and artificial cuts, but were expressly forbidden to receive any toll in respect of such part of the navigation as was between Bow creek and Old Ford lock, which part of the navigation was an ancient highway, and was by statute declared to be forever free from toll. The plaintiffs' barge, while navigating a part of the river between Bow creek and Old Ford lock, struck upon one of several submerged piles and was injured. The plaintiffs having brought an action for damages, the jury found that the piles were dangerous; that the defendants ought to have been aware of the danger, and had neglected their duty. Held, by Pollock, B., that the action could not be maintained, since the defendants were unpaid trustees appointed for public purposes in aid of the common-law right of navigating an ancient highway, and the duty of removing obstructions imposed by the statute was discretionary and not compulsory. Forbes v. Lee Conservancy Board, 4 Ex. D. 116.

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MARRIAGE-IRREGULAR MARRIAGE IN SCOTLAND · TWENTY-ONE DAYS' RESIDENCE IN SCOTLAND-MODE

OF COMPUTATION.-Two persons domiciled in England arrived in Scotland about 4 A. M. of the 1st of July, 1870, remained there until the 21st following, and between 11 and 12 A. M. of that day contracted a marriage by declaration before a registrar. Held, that they had not lived in Scotland for twenty-one days next preceding the marriage, and that, therefore, it was invalid. Lawford v. Davies, 4 P. D. 61.

Perhaps we can convey no stronger impression of our estimate of the work in this regard than to assure our readers that we propose to read the entire treatise, even if we sit up nights. We really know no reason why a law-book should not be made interesting, if possible, and that it is possible, in the domain of Evidence, Dr. Wharton has demonstrated. The "Country Parson says the most essential feature of a good sermon is that it shall be interesting, and shall keep hearers awake. A student will always remember a principle if it is enforced by an interesting or amusing illustration. The profession therefore should thank Dr. Wharton for this performance. We could not expect that he would create or originate any thing new in a field which has been occupied by such predecessors, but he has achieved something valuable and characteristic, and we give his book a hearty reception on that account. At the same time it must not be forgot

ten that the work contains much new treatment necessitated by the modern admission of parties as witnesses, and the modern relaxations on variance, relevancy and presumptions. In these respects the treatise is exhaustive, methodical and intelligent. We regard the work, for the American student, as indispensable, as much superior to Best's, and with Greenleaf's, as constituting a complete view of this most important and most interesting branch of the law. The work is most elegantly printed.

JONES ON MORTGAGES.

A Treatise on the Law of Mortgages of Real Property. By Leonard A. Jones, Author also of a Treatise on Railroad Securities. In two Volumes. Second Edition. Boston: Houghton, Osgood and Company, 1879. Pp. cv, 717, viii, 810.

The first edition of this work was issued barely a year ago, and we then spoke of it in terms of praise. The present edition has been revised and enlarged by 150 pages, with above 1,000 new cases. Among the additions is a synopsis of the mechanics' lien laws so far as they affect mortgage priority, and the chapter on the liability of purchasers assuming mortgages has been considerably expanded. Considering its modernness, its exhaustiveness, and the extraordinary number of its citations, we cannot doubt that it is unrivaled in a department in which comparatively little has been done by others. The work is printed in the unapproachable style of the Riverside press, as also is Dr. Wharton's.

LXII INDIANA REPORTS.

Reports of Cases Argued and Determined in the Supreme Court of Judicature of the State of Indiana, with Tables of the Cases Reported and Cases Cited, and an Index. By Augustus N. Martin, Official Reporter. Vol. LXII. Containing the cases decided at the May Term, 1878, not reported in Vol. LX and Vol. LXI, and cases decided at November Term, 1878. Indianapolis: 1879. Pp. xii, 652.

This volume is issued with commendable promptness and contains a considerable number of cases, few of which are of very general importance. We note the following: Love v. Hoss, p. 255.-A real estate broker, who for a specified compensation agrees with the owner

of a tract of land to negotiate a sale of the same for a particular price, is liable to his principal, without demand, for any excess received by him in the sale and concealed by him from his principal. Bowen v. Sullivan, p. 281.- An employee in a paper manufactory, while engaged in assorting a bale of old papers purchased by the proprietor for manufacture, found certain lost genuine bank bills, inclosed in a clean, unmarked and undirected envelope, which had formed part of such bale, and to ascertain whether they were genuine, delivered them to the proprietor, upon his promise to return them, whereupon he retained them, notwithstanding the demand of the finder, who instituted an action for their value. Held, that the plaintiff was entitled to recover. Kent v. Town of Kentland, p. 291. A statute authorizing a town to assess and collect a tax for the payment of a debt contracted by such town in constructing a school building, against the property of persons who, residing and having their property outside of such town, have, whether transferred or not, sent their children to a school taught in such building, is constitutional. Catlett v. Trustees of the M. E. Church of Sweetser Station, p. 365.- A subscription to a church on Sunday is void and a subsequent acknowledgment and promise to pay it, without any consideration, is not a binding ratification. Hausmann v. Nye, p. 485.-A contract of sale of goods, void by the statute of frauds, is not made valid by the delivery of part of the goods to a common carrier without the vendee's assent, for delivery to the vendee. State v. Sanders, p. 562.-The investment of the ward's money by a guardian in his own business, for his own benefit, is a conversion, for which his sureties become immediately liable on his bond, and from which they are not relieved by his continued solvency his subsequently executing a new bond with other sureties. In an action in Indiana for intoxicating liquors sold and delivered by the plaintiff, a resident of Wisconsin, to the defendant, a resident of Iowa, pursuant to a verbal order given in Iowa, an answer that such sale was in violation of the Iowa liquor law is good; and a reply that such sale was also in violation of the Iowa statute of frauds, but that the plaintiff had avoided the effect of both statutes by delivering the goods to a carrier in Wisconsin, agreed on by the parties at the time of the contract, is insufficient. The judges in this State have a bad habit of making long and detailed statements of pleadings and quotations from testimony in their opinions.

LVII ALABAMA REPORTS.

and

Reports of Cases Argued and Determined in the Supreme Court of Alabama, during December Term, 1876, and part of December Term, 1877. By Thomas G. Jones, State Reporter. Vol. LVII. Montgomery: Joel White, 1879. Pp. vii, 699.

66

These reports are further in arrears than they ought to be, but they are among the best in this country, as to editing, the interest of the cases, and the learning and usefulness of the opinions. The present volume is an unusually dull one for Alabama. We note the following: Williamson v. Harris, p. 40.- The term 'personal property," in a statute of exemption from execution, allowing the selection by the debtor of such property to the amount of $1,000, includes money. Mayor of Mobile v. Baldwin, p. 61.-A ferry-boat plying daily between the eastern shore of Mobile Bay and the city of Mobile, in the transportation of freight and passengers, and returning every night to the eastern shore, where the owner resides, and from which it commences its trips, is not taxable in Mobile, although registered in the custom-house there, the owner being in that collection district but another county. Myer v. Hobbs, p. 175.-The right to lateral support in soil is limited to the soil in its natural state without erec

tions; but a person is liable to an adjoining land-owner for injury to his estate through a negligent or unskillful excavation on his own land. City Council of Eufala v. Hickman, p. 338.-Mandamus will lie to compel a municipal corporation to levy a tax to pay its bonded indebtedness. Toomer v. Rutland, p. 379.-Where a creditor holding commercial paper for a debt voluntarily alters it to the prejudice of the debtor, the paper is not only rendered void, but he cannot fall back on the original contract.

THE

NOTES.

HE publishers of "The American Decisions" announce that they have secured the services of Mr. A. C. Freeman, editor of that series. Mr. Freeman is the author of several legal works of unusual merit, and will, we doubt not, continue the series with the same ability and discrimination that have hitherto characterized it under the management of the late Mr. Proffat. It is said that The American Law Review will be issued monthly after the first of January next. American law books, like the English Empire, have a dominion so wide that the sun never sets on them. In a recent number of The North China Herald we notice several citations of the "American Reports in an important case before the Consular Court at Shanghai; while in The Celestial Empire, published in Shanghai, is given an argument before the same court in June, wherein are cited, besides the same reports, several of the reports of this State and a number of American text books.

Definitions of legal terms and expressions are of the greatest utility when they have the sanction of the Superior Courts. Mr. Justice Fry has in Re West of England and South Wales District Bank, Ex parte Date and Co. (40 L. T. [N. S.] 712), given a definition of the expression "fiduciary relationship," which is worthy of some notice. What is a fiduciary relationship?" asked his Lordship. "It is this," he went on to say: "It is one in respect of which, if a wrong arise, the same remedy exists against the doer, on behalf of the plaintiff, as would exist against a trustee on behalf of the cestui que trust." In the case itself, a banking firm at S. sent to a bank at C. certain average orders for collection at C., and payment of the proceeds over to bankers in London, who were London agents for both parties. The bank at C. collected some of the orders, and received a check for one of them, and cash for the remainder of them, except two which were returned uncashed. They then paid the cash into the till with other moneys, and, stopping payment, went into liquidation. The question for the court was, whether the check or cash could be followed by the firm at S., on the ground that it was their specific property resulting from the special agency. On behalf of the official liquidator, it was admitted that the check might be followed as being the property of the banking firm at S., but that the cash formed part of the assets in the winding up. The question really was, whether money could, under the circumstances, be followed, i. e., when it was not ear-marked. Some remarks of Lord Justice Knight Bruce in Pennell v. Deffell, 21 L.T. Rep. (N. S.) 54, certainly favor this view, being to the effect that the right to follow is the same whether the trust found is kept separate or has been mingled. "Not in either case, as I conceive," said the Lord Justice, “could the blending together of the trust moneys, however confusedly, be of any moment as between the various cestuis que trust on the one hand, and the executors representing the general creditors on the other." This view of the law, however commendable it may appear, was not followed, for the sufficient reason that it is opposed to a long line of authorities.-Law Times.

There is manifestly a great deal of inequality in taxation as between real and personal estate, but the difficulties of finding personalty, and the rule as to the residence of its owner rather than the place of its situation, renders the adequate taxation of the latter almost impracticable. This is illustrated by the attempted enforcement of the recent very stringent law for the listing and taxation of personal property in Illinois. The inhabitants of Chicago have done a good deal of bragging about the approaching commercial supremacy of that town, but New Yorkers need have few fears when it appears that Chicago contains only 810 safes, and that their average value is only $46.70. The pianos show up a little better, but they number only 6,917, while of watches and clocks there seem to be but 8,317; which indicates a sad want of time and tune in Chicago. The people are shy of "shares," for the total value of those found in corporations outside the State is only $34,000. The ladies must wear a great deal of paste and pinchbeck, for the jewelry and diamonds discovered foot up $28,468 in the city, and $52,667 in the State. After this meager showing we shall expect the denizens of the promising city of Chicago to be much more modest in their pride of place and possessions. Riches have wings when the assessor comes around. Irus et est subito, qui modo Cræsus erat, and as real estate cannot well fly it necessarily incurs the heavier share of the burdens of state.

A singular question of personal rights has arisen in England. Mr. Ambrose Fortescue, an American gentleman, being detained in Newgate prison on a charge of forgery, the Governor of the prison became so much attached to him as to desire his photograph to add to his large and curious collection of portraits known as the "Rogues' Gallery," and proposed to have it taken. Mr. Fortescue objected to sitting; in short interposed a negative on his own account, insisting that he was presumably innocent, and that it was an injustice to associate his counterfeit presentment with those of convicted or notorious offenders. Whereupon the Governor had him manacled and "shored up," and his likeness was taken under these compulsory circumstances. Probably the sitter did not "assume a cheerful expression." But intelligence of the proceeding reached the ears of an M. P., who ventilated it in the House of Commons, whereupon there was a tremendous lashing of the British tail, and the home secretary was called upon to explain. That official explained that the thing was all wrong and irregular, against the rules of the prison, and that really it should not be suffered again. This pacified the high-spirited British lion. We do not observe that the negative was ordered broken up. Mr. Fortescue will perhaps demand from an unprejudiced jury pecuniary compensation for the deep damnation of his taking off. The action will probably be in the nature of assault and battery coupled with libel, for the likeness under such circumstances must have been libellous.

It seems that it is the custom of English judges to attend church at least once a year. Then they go together, probably to keep one another in countenance. So a few weeks ago, according to annual custom, they went in state to St. Paul's Cathedral. There were Lord Chief Baron, Lord Justice Thesiger, and Justices Manisty, Lopes, Stephen, and Bowen, accompanied by Sergeants Robinson and Pulling. Also the Lord Mayor, attended by the sword and mace bearers, the marshal, sheriffs, recorder, some aldermen, and the common sergeant. Also the Lady Mayoress, with her daughters, two of whom seem to be married to Justices Manisty and Lopes, respectively. Also the common counsel "in their mazarine gowns." The account says that the Lord Mayors, etc., wore their robes of office and carried bouquets. It does not appear how the judges were dressed or whether they carried posies. But the judges had stalls within the choir. One would naturally expect that the anthem would be about the "statutes of the Lord," but instead of that it was "all they that trust in thee, Lord, shall be as Mount Zion." The text was: "He is the minister of God to thee," and the hymn, "Jerusalem the golden." Nothing is said of a collection. It does not appear where the rest of the judges were, but possibly they are dissenters. At any rate, it must have been a fine spectacle, for "a large crowd assembled outside the cathedral to see the judges leave,"

NOTES OF CASES.

N important question, long since authoritatively settled in this State, was decided by the Kentucky Court of Appeals, at March term, 1879, namely: that the owner of a steamboat engaged in the business of towing is not liable as a common carrier for the loss of a vessel in tow, unless he has expressly and publicly offered to tow for all persons indifferently, or has so conducted his business as to hold himself out as ready to tow for all who might offer. His liability is only for the exercise of ordinary care and skill. The court observe: "Tested by the principles we have laid down, it is clear the appellants are not chargeable as common carriers. They are not shown to have held themselves out to the public as ready to tow craft for all who might seek their services. They are engaged in a business which, in its nature, is not such as to entitle the public to suppose they would tow for all who might desire to hire them. They are not shown to have operated upon a definite route, or between established termini." There must be either an offer, express or implied, or an obligation, to tow for all, to render the tow boat proprietor a common carrier, and the law implies no such obligation. the better view, although the authorities are not uniform. The Supreme Courts of Louisiana and North Carolina have decided the contrary. Smith v. Pierce, 1 La. 349; Adams v. N. O. Steamboat Co., 11 id. 46; Bussey v. Mississippi Valley Transportation Co., 24 La. Ann. 165; S. C., 13 Am. Rep. 120; Watson v. Myers, 5 Jones, 174. In the first case,

Such we think