and judgment rendered for one of the parties, and no motion for a new trial is made, the district court can not reverse the judgment upon allegations in the petition in error that the justice erred in admitting incompetent evidence; in rejecting relevant testimony; in directing the jury, or for other errors of law occurring on the trial. Reversed. Opinion by HORTON, C. J. All the justices concurring.-Holland v. Madenger. VOID TOWNSHIP WARRANTS.-C, the president of a railroad corporation, of his own accord and without any previous contract with a township, caused to be printed certain blanks suitable to be used by said township in issuing bonds to said corporation. No authority existed to issue bonds to said corporation, and no such authority was anticipated or expected, C having full knowledge of this lack of authority approached the officers of said township and induced them to receive the blanks, and also sign and issue said bonds, paying them fifty dollars for their services, and also at the same time induced them to issue to him a township warrant for the cost of printing said blanks. Held, that no action could be maintained upon said warrant either by C or a party to whom he had transferred it. Reversed. Opinion by BREWER, J. All the justices concurring. Salamanca Township v. Jasper County Bank. PURCHASERS AT EXECUTION SALES. Where a judgment is rendered in the district court in favor of the plaintiff, and against the defendant P for money, and against the defendant H that certain real estate belonging to H be sold to satisfy said money judgment; and a case for review in the Supreme Court is then made, settled, signed, attested and filed in the district court. and afterwards said real estate is sold on execution in accordance with said judgment- the judgment-creditor being the purchaser; and afterwards said sale is confirmed by the district court; and afterwards the case is taken to the Supreme Court for review, on the said case made therefor, where the said judgment of the district court against H is reversed: Held, that the said sale may be set aside, and the parties placed back in the same condition that they judgment against H had not been rendered. Reverswould be in, if said sale had not been made, and said ed. Opinion by VALENTINE, J. All the justices concurring.-Hubbard v. Ogden. NEGLIGENCE TURN-TABLE · PERSONAL INJURIES.-1. In an action against a railroad company for injuries received by the plaintiff, a boy twelve years old, on a turn-table, negligently left in a public place, unlocked, unguarded, etc., the questions whether the defendant had anything to do with the turn-table, whether the defendant was negligent or not, and whether the plaintiff was guilty of contributory negligence or not, are questions of fact to be determined by the jury upon the evidence. 2. Where fifty-six miles of railway including a turn-table are constructed and completed, and then the further construction of the railway is suspended for several years, and from and after the said completion of said fifty-six miles of railway, the railway is operated and managed for general business and transportation by the consent of all the parties in the name of the railroad company for which it was constructed, and the construction company is not known to the public or to persons doing business with the railway, but only the railway company, and the railway has not been leased to the construction company: Held, that a finding of the jury, approved by the trial court, that the railway company was responsible for the condition of said turn-table, at a period of time about ten months after the completion of said fifty-six miles of railway, will not be disturbed by the Supreme Court, whatever the other evidence may show private wish or understanding of the said railway conmpany and said construction company. 3. Where a turntable is situated near a populous city, in an open prairie, where the cattle of citizens roam and graze; where persons frequently pass and repass, and where boys often play, and yet is left without locks or fastenings, and without being watched or guarded, or even fenced in, and a boy, hunting his father's cows, goes to the turn-table with other boys, and rides and plays upon it, and is injured by means thereof, and the jury find that the railway company leaving the turn-table in that condition is guilty of negligence and is liable for the injuries to said boy: Held, that the verdict of the jury is conclusive. And where the jury also find in such a case that said boy is not guilty of contributory negligence, which finding is approved by the trial court: Held, that under the circumstances of this case, which are stated more fully in the opinion, said verdict can not be disturbed by the Supreme Court. Affirmed. Opinion by VALENTINE, J. HORTON, C. J., concurring. BREWER, J., not sitting-Kansas Central R. Co. v. Fitzsimmons. SUPREME COURT OF WISCONSIN. November. 1879. SERVICE OF PROCESS-DEFENDANT INDUCED TO COME WITHIN JURISDICTION BY FRAUD:-1. Where the defendant in a civil action has been induced by plaintiff's fraudulent representations to come within the jurisdiction of the court, the summons then served upon him will be set aside, although the design of the representations was to obtain his arrest upon a criminal charge, and the institution of the civil action was an afterthought. 2. It seems that in such a case the action should be dismissed even after defendant has made a voluntary general appearance therein; but whether there was such an appearance in this case is not determined. Opinion by LYON, J.-Townsend v. Smith. LIBEL WHEN PUBLICATION PRIMA FACIE A-PRIV ILEGE.-1. A publication which charges that a person while formerly holding the office of sealer of weights and measures and inspector of scales for a certain city, "tampered with" or "doctored" such weights, measures and scales, for the purpose of increasing the fees of his office, is prima facie libelous, as tending to bring the accused into public hatred or contempt. 2. On demurrer to a complaint in libel which alleges that defendant made such charges against plaintiff "false. ly, wickedly and maliciously," the question whether the publication was privileged does not arise; as priv ilege does not extend to false charges made with improper motives or express malice. Opinion by COLE, J.-Eviston v. Cramer. PAYMENT-NOTE OF PARTNER AS Evidence of. -1. The taking, not as payment, of the individual note of one partner for money loaned, though it may be evidence that the loan was not made to the firm, is not conclusive of that fact. 2. Where such individual note of one partner is taken for a loan made at the time to the firm, the presumption is that it was not taken as payment. A remark of Dixon, C. J., in Ford v. Mitchell, 15 Wis. 364, doubted, but distinguished. 3. The complaint avers, in substance, that on, etc., S, as partner in the then existing firm of W & S, borrowed from plaintiff, for and on account of and for the use of said firm, a certain sum, which loan was evidenced by a note for the amount, signed by S, dated on the same day; and that the money so loaned was expended for the use of the firm. Held, that under these averments plaintiff may show that the mon ey was loaned by him to and upon the credit of the firm; there is no admission that the note was taken in payment, and the complaint is good on demurrer. Opinion by TAYLOR, J.-Hoflinger v. Wells. MERCANTILE AGENCY - LIABILITY OF.- Defendants having a "mercantile agency " with a "collection department," in this State, plaintiffs left with them a claim for collection, and took from them a receipt stating the amount of such claim and that it was to be transmitted by mail for collection or adjustment, to an attorney, at the risk and on account of plaintiffs, and the proceeds to be paid over or accounted for to them, when received by defendants from said attorney. Plaintiffs also signed a receipt in defendant's books, which stated the nature and amount of their said claim, and that the receipt first above mentioned had been given them, reciting its terms. Held, 1. That in the absence of any proof of fraud in respect to them, these receipts fix the rights and liabilities of the parties in regard to said claim, even if accepted or subscribed by plaintiffs without reading them. 2. That, under such receipts, defendants were not liable for the acts or default of the attorney employed by them to collect the claim, unless they were guilty of gross negligence in the selection of such attorney. LYON and TAYLOR, JJ.. dissent as to second point. 3. What the liability of defendants would have been in the absence of any express contract, not considered. Opinion by COLE, J.-Sanger v. Dun. CONDEMNATION OF LAND-ABANDONMENT-DAMAGES.-1. Where proceedings by a corporation to condemn land for a public use have been lawfully abandoned, the owner can recover for the damages resulting to him from acts done by the corporation in the course of such proceedings, only in case those acts were wrongful. 2. A complaint in such a case alleges that on the 26th of April, 1875, the defendant city concluded that certain premises of defendant, on which was a dwelling house, were necessary for a public street; that on application of the city, a jury was appointed May 3d of the same year, to determine the necessity of the taking, it was necessary, and promptly reported, but the city unnecessarily delayed further action until October 4, 1875, when it confirmed the report of the jury, and directed the board of public works to make an assessment of benefits and damages; that on November 8th, 1875, the condemnation proceedings were abandoned by resolution of the common council; and that, by reason of the pendency of those proceedings and the public knowledge thereof, plaintiff had been unable to rent the premises, to her damage, etc. Held, on demurrer, (1.) That the facts averred do not show that the delay of the city to complete the condemnation proceedings was unnecessary, and the general averment to that effect, without facts alleged to support it, is not sufficient. (2.) That mere delay in such proceedings, without any element of malice or want of probable cause for the condemnation, would probably not be a cause of action in any case. (3.) It seems that if plaintiff had leased the premises, covenanting with the lessee for their quiet enjoyment, any damages recovered of plaintiff by the lessee for breach of that covenant, caused by the taking of the land by the city, would have been a valid claim in plaintiff's favor against the city. Driver v. Railway Co. 32 Wis., 569. 3. The complaint also alleged subsequent condemnation proceedings of the city, including the appointment and affirmative report of a jury, confirmation of such report, and an order made for an assessment of benefits and damages; that in the course of these proceedings the board of public works, pursuant to a resolution of the common council, caused public notice to be given that the building would be sold at public auction, and afterwards entered on the land and sold the building; that some two months afterwards the city abandoned the proceedings; and that, in consequence of these proceedings, persons were deterred from renting the premises, and that they had become depreciated in value, to plaintiff's damage, etc. Held, that the wrongful act shown by these averments is the entry upon plaintiff's premises and attempted sale of the house; and that, while this may show a cause of action quare clausum fregit, it does not show any ground of injury by reduction of the rental value of the premises, which is the gravamen of the present action. 4. Von Vallenburgh v. Milwaukee, 42 Wis. 547, distinguished from this case. Opinion by LYON, J.-Felton v. City of Milwaukee. BOOK NOTICES. PRINCIPLES OF THE LAW OF REAL PROPERTY, Intended as a First Book for the Use of Students in Conveyancing. By JOSHUA WILLIAMS, Esq., of Lincoln's Inn, one of Her Majesty's Counsel. Fifth American from the twelfth English edition, with notes and references to the previous American editions by William Henry Rawle and Hon. James T. Mitchell, with additional notes and references by E. COPPEE MITCHELL. Philadelphia: T. & J. W. Johnson & Co. 1879. In noticing the appearance of another edition of Williams on Real Property, little need be said. As a first book of the law of real property this work has taken a high place, and a generation of lawyers can testify to its merit. In conciseness of language and accuracy of expression no treatise on the law excels it, while in the clearness of its illustration and the attractiveness in which a difficult and dry subject is presented to the beginner, it has its match in but one other text-book for students written by an English authorMr. Snell's matchless introduction to the Principles of Equity. But Williams on Real Property is not alone a student's book; Rufus Choate making in his diary the entry "Read to-day a page of Williams on Real Property," only shows the esteem in which this book was held by the greatest of American advocates. The present American edition (the fifth) is to all intents a reprint of the fourth. The work has never been much edited, the American notes being few and scanty, and the main distinction sought by the numerous editors appearing to be that of having their names handed kown to posterity in company with the great name of the distinguished author. A TREATISE ON THE APPLICATION OF PAYMENTS by Debtor to Creditor; Being a Complete Compilation of the Law Pertaining to the Rights of Debtor and Creditor Respectively; and Also Giving the Various rules for the Guidance of the Courts when no Appropriation has been made by the Parties. By GEORGE G. MUNGER. New York: Baker, Voorhis & Co. 1879. Speaking of the subject of this treatise, a writer in the American Law Magazine remarked some years ago: "No part of the law exhibits, perhaps, such painful uncertainty as that relating to the application of payments made to a creditor by one indebted on various accounts. The student may pause, and after wearing himself over this confusion, turn at length in despair to a more promising chapter." Many judges before and since have admitted the perplexity of the cases and the diversity of the decisions which the books contain upon this branch of the law. This furnishes a good reason for the appearance of an essay which will be of great use to the profession. The author considers the points growing out of the doctrine under the three general rules familiar to students of the text-books on equity: that the debtor has the right in the first instance to make the application at his pleasure; that in the absence of such an appropriation a similar right enures to the creditor, and that if neither act in the matter the court will make the application as the law and equity of the case may require. The book is written in plain and easily understood language, and evinces a thorough knowledge of the subject on the part of the author. It is to be regretted, however, that it was not published in a more convenient and different style. An essay on a branch of the law heretofore discussed in a single chapter of a legal treatise, containing less than 500 cases, ought scarcely to be expanded into the form of an ordinary law book. To do this it is necessary to use large type and wide spacing, and to have recourse to paragraphs whenever possible. The entire contents of this work might easily, without the omission of a single word, have been issued in the form of a monograph of 100 pages. Its cost would then have been about one-third of that of the present edition, and it would not then have borne upon its face such unmistakable evidence of "padding," not on the part of the author, which often happens, but on that of the publishers, which in the case of the publishers in question has been heretofore rare. QUERIES AND ANSWERS. QUERIES. 50. A MORTGAGE WAS MADE to a corporation and acknowledged before a notary public who, at the time of taking the acknowledgment, was a secretary and stock-holder in the corporation to which the mortgage was given. Is the acknowledgment valid and the mortgage legal in the absence of any statutory provision to the contrary? J. P. W. ANSWERS. (9 Cent. L. J. 460.) It is laid down that "a marriage may be proved by the record of a judicial proceeding sustaining it." Bishop on M. & D. § 542. It is also said that while cohabitation and repute will, in all civil proceedings, establish a marriage, they will not establish it in bigamy and other crimes. Bishop on M. & D. § 442. A judgment is not a bar unless the same evidence will sustain both the present and former action." Freeman on Judgments, 224. On an indictment for bigamy, “an actual and valid marriage must be proved. Phillips on Ev. 631. In the Duchess of Kingston's case, a judgment where the question litigated was, marriage or no marriage, was held not conclusive against the Crown on the charge of polygamy. 2 Smith's Leading Cases, 648 top page, 573 side page. It would appear to follow that "a judicial proceeding sustaining'' a marriage, the suit being a civil suit, would not conclude defendant in bigamy. C. No. 49. [9 Cent. L. J.460.] The note is not negotiable from the fact that there are no words expressed or implied in the note whereby the payor, Richard Roe, extends the promise of paying to another, and if it be assigned it is so under the general rule of law, and is subject in the hands of the assignee to all equitable defenses. See Parsons on Contracts, vol. 1, p. 238. Then the innocent holder could not hold the payor, Richard Roe, and compel him to pay said note, from the fact that the note expressly states that Richard Roe promises to pay John Doe and none other, but if it should say in the note that he promises to pay John Doe or order, then the The following extracts from the annual report of the Attorney General of the United States will be of interest to the profession: The number of entries of appeals to the Supreme Court each term since the act of February 16, 1875, sec. 3, increasing to $5,000 the disputed value required to authorize appeal, has been very large. On the October, 1878, docket, there were five cases of original jurisdiction, and 1,333 brought up from inferior courts. On the docket of the current year 10 original cases, and 1,080 appellate cases. The attorney general entered his appearance in 228 cases last term, and 195 the present, showing that the Government is interested in about one-fifth of the cases. During the past fiscal year 2,515 civil suits, in which the United States was a party were terminated in the circuit and district courts. Of these 1,079 were customs suits, in 118 of which judgment was for the United States, in 39 judgment for the defendants, and 922 were either dismissed or discontinued. Two were appealed from the distriot to the circuit courts, and two from the circuit to the Supreme Court. There were 786 internal revenue cases, in 393 of which judgment was given for the Government, in 72 for defendant, and 321 were either dismissed or discontinued. Post offices, 100, judgment for the United States in 50, for defendant, 1, dismissed, 49. Miscellaneous, 550, judgment for United States in 231, in 82 for defendants, and 237 discontinued or dismissed. The aggregate amount of judgments in favor of the United States was $1,151,867.68. There were pending July 1, 1879, 4,236 civil suits, to which the United States was a party. During the past year 13,717 criminal cases were terminated, of which 8,181 were convictions and 5,536 acquittals and nol. pros. Amount of fines and forfeitures, $478.535.88. There were 12,801 civ. il suits commenced during the year, of which were terminated 8,590. Winthrop W. Ketchum, judge of the United States District Court for the Western District of Pennsylvania, died of apoplexy at Pittsburg on the 7th inst. Judge Ketchum was born at Wilkesbarre, Pa., June 29, 1820. He was a teacher in languages and mathmetics for four years in the Wyoming Seminary. In 1850 he was admitted to the bar, and for three years he was prothonotary for Luzerne County. He served in the State house in 1858, and in the Senate in 1859. From 1864 to 1866 he was Solicitor of the United States Court of Claims. He was elected to the XLIVth Congress as a Republican; serving from March 4, 1875 to March 3, 1877. In 1877 he was appointed as district judge.--Senator Davis, of Illinois, intends to ask Congress for an appropriaton for a statue of Chief Justice Marshall, to be placed in Judiciary Square, Washington— The Tichborne case is to the front once more, and the almost forgotten "claimant' has obtained the ear of the officers of the Crown. An English telegram says that the attorney-general has granted a fiat for a writ of error in the case of Arthur Orton, otherwise known as the Tichborne claimant, on the ground that matters have been put before him sustaining the discussion of the point whether Chief Justice Cockburn should not have made the two sentences of seven years' penal servitude, one of which has just expired, concurrent instead of successive. The Central Law Journal. ST. LOUIS, DECEMBER 26, 1879. DIGEST AND INDEX. ABANDONMENT. [See EMINENT DOMAIN; HOMESTEADS AND EXEMP- ABATEMENT. Where suit has been brought against a defendant to An action for breach of promise of marriage will not Where the defendant in such an action dies after a An action in tort for negligence or deceit will lie An action ex delicto was brought against the adminis- ABORTION. In trial for, dying declarations of woman admissible, ACCOMPLICE. [See CRIMINAL EVIDENCE.] ACCORD AND SATISFACTION. A defense of accord and satisfaction is not supported [See DEEDS.] ACTION. If a person who had agreed to make a loan refuses to After recovery in suit against gas works for deteriora- A owned a field in which B had a stack of wheat which [See EXECUTORS AND ADMINISTRATORS.] To justify a sale of a cargo by a master it must appear 75. Imprudent navigation of tug occasioning necessity for Wages of vessel and crew recoverable under common 5. Vol. 9-No. 26. ADMIRALTY AND MARITIME LAW-Continued. In case of actual total loss, no formal abandonment is ADVERSE POSSESSION. [See EJECTMENT.] ADVERTISEMENT. [See PLEADING AND PRACTICE.] Courts recognize the commercial usage of buying and A broker who makes a purchase with the understand- Brokers who are paid a commission to buy goods are. Although a mortgage is left for record by the attorney When principal not bound by acts of agent, 177. Where the lunacy of a principal is of so serious a na- A general agent for the sale of safes has no authority, The receipt by the principal of the price of the safe Contracts "on Account of” or “on Behalf of" Another.. Duty of broker on sale of real estate, 295. A special agent, authorized to sell a horse, is not An action to recover the price of a horse sold by a AIR. [See EASEMENTS.] [See DIVORCE.] AMENDMENTS. [See PLEADING AND PRACTICE.] Right to increase of animal conditionally sold, 335. ANIMALS-Continued. A and B own adjoining parcels of land, and upon the dividing line is situated a small lake. A has stocked this lake with fine fish. Can he enjoin B from taking the fish from his own side of the lake? Query, 239; answer, 340. ANSWER. [See PLEADING AND PRACTICE.] APPEALS AND APPELLATE PROCEDURE. [See, also, CRIMINAL LAW AND PROCEDURE; JUSTICE OF THE PEACE.] Where a case was tried at one term before a jury, verdict returned and a motion for a new trial duly filed, and such motion was continued to a subsequent terin, and then upon hearing overruled and time given in which to make a case: Held, that the excep tions to the proceedings on the trial, though first reduced to writing at the time of making the case, and after the close of the trial term, were in time, and must be considered in appellate court. Denny v. Faulkner, 32. Damages on appeal only awarded when appeal is without merit, 76. On appeal from Illinois Appellate Court to Supreme Court, latter can only consider questions of law, 159. Where a judgment is taken for too large an amount in the court below, and the excess is cured by a remittitur in appellate court, the party entering the remittitur must pay all costs incurred in latter court up to the time of entering the remittitur, 158. Direct appeal allowed from county to Supreme Court in election cases (Ill.), 218. The right of membership in the board of trade, an organization for the transaction of commercial business, is not a "franchise" in the strict sense in which that term is used in the Illinois statute, and therefore an appeal does not lie from the circuit court directly to the Supreme Court, in a case where such a right is involved. Board of Trade v. People, 224. Certificate of appellate court as to findings, (Ill.) 237. When interest on the amount of a verdict is given and included in the judgment, such interest must be taken into account in considering whether the amount at issue reaches the limit allowed for an appeal, 258. Appeal from Appellate to Supreme Court (Ill.), does not lie in forcible detainer, 399. Points not made on original argument of case not allowed on rehearing, 437. Where a party to a judgment dies before the commencement of proceedings in error, one who becomes a privy to the judgment by operation of law, may file à petition in error without being first made a party by revivor, 439. ARBITRATION AND AWARD. Where private matters are submitted to arbitration and award all the arbitrators must concur in the award; aliter where the submission is of a public nature, 122. The power "to settle" on an assignment of a complainant's interest in a contract, does not authorize the assignee to include in it a general arbitration of all matters in difference between him and the other party to the contract, 294. ARBITRATORS. [SEE ARBITRATION AND AWARD.] ARCHITECT. Action will not lie by builder against architect for "knowingly and negligently" certifying to less work than was done. Stevenson v. Watson, 68. ARREST. The privilege from arrest extends to all cases in their nature judicial, whether taking place in court or not. People v. Judge of Superior Court, 8. A motion for a discharge is a suitable proceeding to avoid an arrest that is voidable as a breach of privilege. Ibid. Although one arrested under civil process of the United States Circuit Court is legally entitled to give bail to the marshal in the county of his residence, yet if he accompanies the marshal to a city in another county where the process is returnable, his presence there must be considered compulsory. Ibid. One arrested on civil process of the United States Circuit Court and taken from his home into another county to the place of holding court, is privileged, upon his discharge after giving appearance bail to the marshal, from arrest under the civil process of a local court which could not have reached him had not the former process brought him within the jurisdiction. Ibid. Appellate Court will interfere by mandamus. Ibid ARREST-Continued. A citizen of one State who comes into another voluntarily and without a subpœna, for the purpose of giving evidence in a suit pending there, can not be arrested on a ca. sa, 261. ARSON. On indictment for, proof that defendant has been guilty of forgery and larceny not admissible, 480. ASSAULT. What constitutes an, 198. Assaults on the Police in the Execution of their Duty. Article from London Law Times, 353. Construction of terms "assault" and "battery," 474. ASSESSMENTS. [See TAXATION.] ASSIGNMENT. Assignor of chose in action not liable for illegal and unauthorized acts of assignee in his name, 216. ASSIGNMENT FOR BENEFIT OF CREDITORS. An assignment of future profits for the benefit of creditors, as where an agricultural society assigned the proceeds of a fair about to take place on their grounds, is void, as against the lien of an execution Issuing before the payment of such proceeds to the creditors, 419. ATTACHMENT. In action for wrongfully issuing, plaintiff must show that it was vacated or that he had opportunity to vacate it, 17. A debt due to a co-partnership is not liable to attachment at the suit of a creditor of one of the partners, where the partnership is a continuing one, and where there has been no adjustment of the partnership affairs. Peoples Bank v. Shyrock, 327. The tangible effects of a partnership are liable to attachment and sale for the individual debt of a partner. Ibid. The proceeding of attachment in this State is essentially a legal proceeding, and in no way appropriate to ascertain and settle the equitable rights between the garnishee and defendant, as to ascertain, by adjusting the partnership affairs, the true interest of the defendant in the fund attached. Ibid. Bona fide sale by debtor no ground for attachment, 338. Several attachments; priority of, 341. ATTEMPTS. [See CRIMINAL LAW AND PROCEDURE.] ATTORNEY AND CLIENT. Client liable for fees of assistant counsel, when, 58. Privileged communications between attorney and client, 81. 100. Attorney refusing when ordered by court to defend prisoner without compensation guilty of contempt, Payment to associate counsel when binding on client, 116. An attorney can not abandon a case because fees due to him in another case have not been paid, 160. Real estate agency not a "professional employment" within statute applying to cases of contract liability incurred through "some misconduct or neglect in office or in some professional employment," 276. Attorney appointed by court to defend pauper pris. oner can not recover compensation therefor from county, 401. The contract of an attorney for services as such, whether to be rendered before a court, a department of the government or a legislative body, is valid, 475. The contract of a lobbyist, for his services as such, is against public policy, 475. AWARD. [See ARBITRATION AND AWARD.] BAILMENTS. [See COMMON CARRIERS; PLEDGE.] BANKRUPTCY. The bankruptcy court has exclusive jurisdiction of suits to determine an assignee's right to property where the exemption is disputed under the exemption clause of the bankrupt law, 38. An assignee in bankruptcy, like a sheriff levying exe cution, is entitled to at least temporary control of exempted property until it can be set apart from the rest, 38. When the assignee has sold property, his authority as assignee ceases, and his neglect to deliver it is a personal breach of duty, not official, 38. |