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WILL-UNDUE INFLUENCE-DECLARATIONS OF TESTATOR.-At a trial before the jury upon the questions arising upon the probate of a contested will, the proponent requested the following instruction: "That if the jury find that the testator was of sound mind at the time of excuting the will, they are at liberty to consider his declarations to the attesting witnesses at the time of the execution of the will as evidence of the facts stated, though his declaratious at all other times are not to be considered by them as evidence of the facts stated." Held, the ruling requested was correctly and legally refused. In Shailer v. Bumstead, 99 Mass. 120, it is said: "The declaratious of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it." This case is cited in 1 Greenl. Ev., § 108, as authority for the statement that "upon an inquiry as to the state of mind, sentiments or disposition of a person at any particular period, his declarations and conversations are admissible. They are parts of the res gesta. "It should at the same time be remembered that as primary proof that a testator was influenced in making the will by fraud or compulsion, his declarations are inadmissible. In such relation they are to be regarded as hearsay. But while such declarations are not admissible to prove the actual fact of fraud or improper infiuence by another, they may be competent to establish the influence and effect of the external acts upon the testator himself." Whart. Ev., § 1010; Robinson v. Adams, 62 Me. 369. In regard to another class of declarations by the testator, those received as evidence of his intention, Lord Denman said in Doe v. Allen, 12 Ad. & El. 451: "Cases are referred to in the books to show that declarations contemporaneous with the will are alone to be received, but on examination none of them establish such a distinction. Neither has any argument been adduced which convinces us that those subsequent to the will ought to be excluded, wherever any evidence of declaration can be received. They may have more or less weight according to the time and circumstances under which they were made, but their admissibility depends entirely on other considerations." Jones v. McLellan. Opinion by Symonds, J.
REMOVAL OF CAUSE-ENJOINING STATE COURT.— Suits in equity, not related in any way to the provisions of the bankrupt law, in which the only effective relief sought is an injunction to stay proceedings in an action pending in the State court and prevent the lovying of an execution issuing therefrom, are not removable to the Circuit Court of the United States on petition of the plaintiff in the action at law before injunction issued. In Gaines v. Fuentes, 92 U. S. 10, the opinion denies that that suit, which it was held should have been removed into the Federal court upon the application of the original defendant, was one that must have been brought originally in the State Court, and declares that it was, on the contrary, a suit for equitable relief such that if by the law obtaining in the State, customary or statutory, it could be maintained in one of its courts, whatever designation that court might bear, it could be brought by original pro
cess in the Federal court, the legal conditions as to citizenship of the parties being fulfilled; manifestly distinguishing the suit then before the court from one to enjoin the proceedings or process of a State court, for in the later case of Dial v. Reynolds, 96 U. S. 340, it is again said: "The gravamen of what is desired as to Reynolds is an injunctiou to prevent his proceeding at law in the State court. Without this, all else is of no account. Any other remedy would be unavailing. Such an injunction, except under the bankrupt act, no court of the United States can grant. With this exception, it is expressly forbidden by law;" citing the United States statutes already referred to, and Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612; Watson v. Jones, 13 Wall. 679. See also Randall v. Howard, 2 Black, 589; Nougue v. Clapp, 101 U. S. 554; Watson v. Jones, 13 Wall. 719; Bank v. Turnbuil, 16 id. 190; Dunn v. Clarke, 8 Pet. 1; Jackson v. Gould, 74 Me. 564; Stone v. Sargent, 129 Mass. 507. There is nothing in the ruling which requires us to consider that class of cases, of which Boudurant v. Watson, 103 U. S. 281, is one, in which the State Court had already issued the injunction before the right of removal was claimed, and the party applying for the removal sought also a dissolution of the injunction." It is to be observed that the injunction had already been granted by the State court before the application for removal was made. Edwards Manfg. Co. v. Sprague. Opinion by Symonds, J.
MARYLAND COURT OF APPEALS ABSTRACT.*
WILL GIFT TO A CLASS-DISTRIBUTION PER CAPITA. -W. E. died in the year 1828, leaving a will, by which he gave to his two daughters, Mary and Elizabeth, life estates in all his property, real, personal and mixed, with a remainder over in favor of Mary after the death of Elizabeth. The will then proceeded as follows: "Upon the decease of both of my daughters, Mary aud Elizabeth, it is my will and desire that the property hereby bequeathed to them for their use and benefit shall be equally divided among the lawful issue of my sou John, lately deceased, and the lawful issue of my two daughters, Mary and Elizabeth, aforesaid, or the survivors of their issue; but in case the property hereby bequeathed cannot be equally divided, then and in that case I hereby direct my executors hereafter named to sell the same and distribute the proceeds thereof, share and share alike, among the lawful issue of my above-named son and daughters, or the survivors of them, the said issue." Both of the daughters died. Mary left surviving her three children and four grandchildren, the children of three deceased daughters. Elizabeth left one daughter, and Johu's descendants who were living at the decease of the last surviving daughter of the testator were five grandchildren, the children of a deceased daughter. Held, that the objects of the testator's bounty, after the death of his two daughters, were not divided into classes, with a share of the estate to each class; but they were all comprehended in one class, and were to receive separately equal interests with each other. In Brittain v. Carson, 46 Md. 186, this court construed a clause in a will which consisted of the following words: It is my will that the rest, residue and remainder of my said estate shall be equally divided between my said daughter, Amelia J. Brittain, and the children of Virginia Carson." Mrs. Carson was a deceased daughter of the testator, who had left two children surviving her. It was held that the distribution was to be made per capita, Mrs. Brittain getting one-third, and each of the Carson children getting a third. The court in
*To appear in 62 Maryland Reports.
their opinion refer to a number of cases where the same construction prevailed. See also Maddox v. State, 4 Har. & J. 539; Abrey v. Newman, 16 Beav. 431; Tyndale v. Wilkinson, 23 id. 74. Allender v. Keplinger. Opinion by Bryan, J. [See 29 Alb. L. J. 378.]
CARRIER-RAILROAD-EXCURSION TICKET—EXPULSION OF PASSENGER.-The appellant purchased of an ngent of the appellee at a reduced rate of fare an excursion ticket, to be used between the stations designated within three days, including the day of sale. He made the journey in one direction, and after the expiration of the time limited he attempted to return on the ticket, which the conductor declined to receive for his passage, and upon his refusal to pay the fare demanded he was expelled from the train. In an action against the railroad company to recover damages for such expulsion, it was held, that the plaintiff's rights were limited by the ticket, and he was rightly required to leave the train upon refusing to pay the fare demanded; and after being expelled, he had no right to be readmitted except upon payment of full fare for the whole distance. Pennington v. Phila., etc., R. Co. Opinion by Bryan, J. [See 27 Am. Rep. 255; 28 Eug. Rep. 272; 30 id. 284; 27 Alb. L. J. 386.1
NEBRASKA SUPREME COURT ABSTRACT.
CONSTITUTIONAL LAW-TITLE OF ACT-"REMOVAL NOT "TRANSFER."-That part of "An act to prevent the fraudulent transfer of personal property," approved February 13, 1877, which makes it criminal to remove mortgaged property out of the county within which such property was at the time of the execution of the mortgage, held, unconstitutional, as not being expressed in the title of the act. The word "transfer" is evidently used in its legal sense, and with reference to its legal meaning. In Bouv. Law Dict. the word is defined to be "the not by which the owner of a thing delivers it to another person, with the intent of passing the right he had in it to the latter." And this definition is approved in Robertson v. Wilcox, 36 Conn. 426. In Innerarity v. Mims, 1 Ala. 669, it is said: 'The term 'transfer' means to convey or pass over the right of one person to another, unless the general meaning is restrained or limited by something accompanying it." See also Winfield Adjudged Words & Phrases. This being the meaning of the word, it is quite difficult to see how the title can be said to "clearly" express the subject of the act, for it cannot be successfully maintained that the removal of property from one county to another is a "transfer" of the property thus removed. Assuming that the title is sufficient to express the subject contained in that part of the act which refers to the sale, transfer or disposal of mortgaged property, it must then be conceded that it excludes all idea of removing property from one place to another, whatever the intent of the person causing the removal may be. As to the propriety of the clause of the Constitution, and the necessity of a strict com. pliance with its terms, it is not now necessary to speak, as it has been often held by this court, as well as by the courts of all other States having a similar constitutional provision, that it is mandatory, and must be obeyed, and that it is a wise provision, calculated to prevent surreptitious legislation by incorporating into a bill obnoxious provisions of which the title gives no indication. It follows that that part of the act which makes the removal of mortgaged personal property a crime is not within the purview of the title, and is therefore void. Boggs v. Washington Co., 10 Neb. 297; S. C., 4 N. W. Rep. 984; City of Tecumseh v. Phillips, 5 Neb. 305: White v. City of Lincoln, id. 505; State ex rel. Lancaster Co., 6 id. 474. Matter of Thomason. Opinion by Reese, J. [Decided Aug. 20, 1884.1
EJECTMENT RAILROAD OCCUPYING LAND WITH OWNER'S CONSENT-SALE OF ROAD-GRANTEE TAKES TITLE.-R. was one of the original projectors of the O. & N. W. R., owned more than one-fifth part of its capital stock, was an active member of its board of directors during the whole life of said corporation. In 1869 the line of the road was laid out and established, and the first ten miles graded, passing over and occupying a tract of land belonging to R. No objection was made by R. to the occupation of his land by said railroad track. In May, 1871, the first twenty-six miles of the railroad, including that part crossing the land of R., was conveyed by said railroad company by deed of trust to secure the payment of certain bonds therein described. In 1878 the said deed of trust was foreclosed in equity, and the said railroad sold to satisfy Defendthe principal and interest due on said bonds. ant holds its title to said railroad under such sale. Afterward R. brought ejectment against the defendaut to eject it from said land. Held, that such action could not be sustained. The rights of property, however sacred, and guaranteed by the Constitution and the laws, yet must be held and enjoyed in relation to the rights of others. While property in the possession of the owner may be kept and enjoyed by him with little or no respect to the wants or wishes of other people, yet when he once suffers it to pass from his own possession and control into that of others, either with or without consideration, the law limits him in the manner of repossessing himself of it, and this limitation can only be measured by the facts of each case as it arises. In the case of Right v. Beard, 13 East, 210, the law is stated in the syllabus as follows: "One who is put in possession upon an agreement for the purchase of land cannot be ousted by ejectment before his lawful possession is determined by demand of possession or otherwise." It is also true that under the Constitution and laws of this State the assessment of damages and payment or deposit of the amount is a condition precedent to the vesting of the title, or of any right in the company to construct their road. But these conditions are susceptible of being waived, and, as said by Chief Justice Redfield in the case of McAulay v. Western Vt. R. Co., 33 Vt. 311: "In these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his claim for present payment, will be held to include the right to assert the claim in any such form as to stop the company in the progress of the work, and especially to stop the running of the road after it has been put in operation, whereby the
public acquire important interests in its continuance." Whatever rights the plaintiff may have against the present plaintiff in error, growing out of this right-of way question, and whether he is estopped in pais to assert any or all of them, it seems clear to me that he is not entitled to a judgment that would enable him to sever a line of commerce which, by his assent, if not through his active agency in part, was constructed over the same property, and has enjoyed free passage over it for at least seven years. O. & N. R. W. R. Co. v. Redick. Opinion by Cobb, C. J. [Decided Aug. 20, 1884.]
CONVERSION -TITLE DAMAGES BREACH OF CONTRACT.-A. purchased of B.seventy tons of hay, which was standing in a stack in a field containing over 100 tons; the hay to be delivered by B. in the city of P. No part of the hay was set off, designated or delivered in the field. B. afterward delivered twenty tons to A. at P., after having it weighed as required by the contract. Held, that A. did not acquire title to or possession of the fifty-five tons not delivered, and that he could not maintain an action against C. for the conversion of the same. His remedy was by action against B. for damages resulting
from a failure to perform the contract. In Herrick v.
whole of Division III on law-making, particularly at Subdivision II, on "Judge-Legislation," and the objections to it, the three objectious to codification, and the answers to such objections as therein stated, may be useful to lawyers who have not the voluminous work. You will find it at vol. 13, p. 267, of the quarto; 21 vol. edition, Little, Brown & Co.. Boston, 1857.
Prof. E. Robertson, the author of the law article in the 9th edition, 1882, treats mostly of the analytical ideas of the late John Austin and the writings and criticisms of Sir Henry Maine. It does not contain the matter above mentioned. January 24, 1885.
But I took up my pen to call your attention to the article on "Law as it stands in the Encyclopædia Britannica," 8th edtion, written by John Ferguson McLennan, advocate. A republication of part or
COURT OF APPEALS DECISIONS.
HE following decisions were handed down Tuesday, Jan. 27, 1885:
Judgment affirmed with costs-Solomon D. McMillan, appellant, v. John B. Arthur, respondent.-Motion for reargument denied with costs-John Hayes, respondent, v. Forty-second Street and Grand Street Ferry R. Co., appellant.-Motion for reargument granted, as per order-Sherburne Shaw, respondent, v. New York, Lake Erie and Western R. Co.- -Motion to put cause on calendar granted without costs-Peter R. Kelly, respondent, v. Horace F. Burroughs, appellant; John W. Blauvelt, executor, etc., respondent, v. William B. Slocum, appellant.-Motion to dismiss appeal granted without costs-Sarah E. Nichols, administratrix, respondent, v. Charles F. MacLean, appellant.-Motion to advance cause denied without costs Oscar C. Ferris, respondent, v. William R. Spooner, assignor, etc., appellant; German American Bank of Buffalo v. Georgeanna J. Gunther.-Motion to file certificate nunc pro tunc denied without costsIn re Hulbert D. Stevens, law student.-Motion as above granted without costs--In re Alfred T. Britton, law student. Motion to discontinue and strike cause from calendar. Defendant's motion denied without costs. On plaintiff's motion ordered that the cause be stricken from the calendar and appeal discontinued without costs-Richard H. Disosway, appellant, v. Jedediah K. Hayward, respondent.-Motion to put cause on calendar denied without costs-Daniel R. Lyddy, appellant, v. Long Island City, respondent. Order affirmed with costs-James Carney, respondent, v. John B. Thompson, appellant; Emily A. Kimball and others, respondents, v. Leonard Mapes and others, appellants; Amie Larner, respondent, v. Henry E. Farnsworth, appellant; John Statts, appellant, v. Thomas Garrett, respondent. Appeal dismissed without costs-Josiah H. Burton, appellant, v. Antoinette W. Sherman, impleaded, etc. respondent.
Editor of the Albany Law Journal:
It is to the interest of the whole community, espec-W" The police ought to be ashamed of med
HAT is all this about "the police and the spar
ially of every lawyer and law student not having easy access to the large law libraries at the great centers, to advocate the adoption of the Civil Code as proposed by David Dudley Field.
One of the best things I have read within a twelvemonth is "An Answer to Mr. James C. Carter's pamphlet on the proposed Codification of our Common Law," by Mr. Field, published in your journal, vol. 29, p. 127. It is multum in parvo, terse, and to the issue.
dling with such innocent and interesting little birds.
The profession and the whole country owe Mr. Field a debt of gratitude for his labor, for his energy and his persistence in and his unyielding devotion to law reform and codification.
The Albany Law Journal.
ALBANY, FEBRUARY 7, 1885.
HE failure in New York city of the private
necessity of some reform in the laws relative to banking, or else in the methods of private bankers. This house seems to have invested all its depositors' money in several pet schemes which it thought well of, but which unfortunately went to the bad. The result is that the depositors' money is jeopardized, and probably lost in whole or in part. Now bankers have no moral right to use deposits for their private enterprises. What would be thought of Coutts in England if they were to put all their customers' money in some crazy railway enterprise, which were to break down? This habit of the New York private bankers is open to criticism at the hands of the authorities. Within a few days a Californian has brought suit against another firm of bankers to compel them to take back certain securities, which it is claimed they knew too much about before the sale. This charge is a corollary of the one we think Cisco's failure entitles us to make on the latter's methods.
In a lucid and attractive treatise of fifty pages, Mr. F. W. Holls prints a paper, entitled "Franz Lieber," read by him in 1882 before the German Social Science Association. The text is a faithful reproduction of the excellent engraving which is prefixed. The opening sentences certainly strike too high a key. But the eulogy is moderated by facts honestly stated, and indulgence may well be claimed under the circumstances for a disposition to give to Dr. Lieber, the compiler and translator, credit which was in fact due to taste and skill rather than profound or original thought. Order No. 100 was an admirable piece of work; but Seward, Stanton and Lincoln knew little and cared less for Grotius and Puffendorf, except as they could avert European complications by the pen (not the advice) of the German-American jurist. When a translation of the Conversations-Lexicon could be termed an Encyclopedia Americana, it is not surprising to learn that it was seriously proposed to control Bismark at Frankfort by a German compendium from Cushing's Manual. Political Ethics and the noble thoughts "On Civil Liberty and Self Government" however have exercised a wide and enduring influence in literary as well as political circles. But when the author of this vivid and interesting sketch concedes that Lieber's admirers in Germany were few in number, and that no German house could be found to undertake the risk of publishing a second book, it is evident that while Laboulaye termed him " une des figures les plus originales parmi les jurisconsultes de notre temps," his personality consisted rather in himself than in his VOL. 31-No. 6.
work. It was felt on the continent that he not only added no element to the metal which he obtained from the inexhaustible ruins of ancient jurisprudence, but (except in the treatise On Civil Liberty) had not given to the mould a distinctive form.
An injunction has at length issued to restrain the publication of Lord Lytton's ridiculous love-letters, but inasmuch as the whole world has for several months been laughing at them and has now become cept the matter of principle. It is very annoying tired of them, we see no use in the injunction exto the surviving relatives of great men to have their letters published exhibiting their weaknesses and prejudices and vices. Great men can prevent this annoyance by not putting themselves on paper. We are not certain that it does any harm for the world to learn the real character of such men as Carlyle, Hawthorne and Lytton. Hawthorne stands the test of his own letters very well. Our respect for Carlyle is diminished, and for Lytton it is utterly destroyed. But after all we suppose that it is well enough to prohibit the unauthorized publication of such letters. It is only the putting the prohibition on the ground of sentiment that we object to. There is
truth in letters as in wine, and it will never hurt the world to learn the real characteristics of those who have posed through life as its gods.
We hasten to put ourselves on record as abhorring the late dynamite outrages in London. Assassination is never justifiable in national differences. The assassination of innocent men, women, and children is peculiarly abominable. In fact, the methods of the Irish assassins are almost as abomniable as the employment by the English government of Indians against the American colonists in the war of independence. Having thus briefly, but we trust sufficiently, recorded our opinion on the immorality of such warfare, we feel at liberty to add that the English have and will have no reason to find fault with the United States for not suppressing such outrages. It is utterly impracticable to do so-as impracticable as it was for Great Britain to suppress Confederate privateering against our commerce in our late civil war. There is this difference however: while the dynamite outrages are regarded with universal horror and destestation in America, there was a great and influential party in Great Britain who regarded our misfortunes in the civil war with delight and did all they could to assist and succor our enemies—as for example, saving the crew of the Alabama. Our British cousins may depend upon it that we shall exhibit a great deal better spirit and act in a more decent practical manner than they ever did in our times of trial. This is particularly addressed to the threatening English newspapers which would fain embroil the two countries.
We have received a Memorial of the late Charles O'Conor, from the New York Law Institute, con
taining an acknowledgment of his gift to them of twenty thousand dollars and the bound volumes of his Opinions and Cases, and certain silver testimonials presented to him by lawyers and ladies in connection with the Forrest case. The paper does full justice to the admirable trials of Mr. O'Conor's character. At the annual meeting of the New York City Bar Association, Mr. F. R. Coudert read a memorial of Mr. O'Conor, prepared by him at the request of the Association-an exhaustive and eulogistic treatment of the subject, perhaps not exaggerating the great lawyer's good and grand qualities, but certainly conveying the impression that he was a nearly faultless and almost angelic personwhich he certainly was not. Mr. O'Conor was certainly guilty of one glaring public fault and mistake; we mean his treatment of the Court of Appeals in the Tweed cases, and although we believe he subsequently invited the judges to dine with him, we never saw or heard of any public retraction of or apology for the accusation. If the lives of such men are to be studied as lessons, such things should not be glossed over. The admirable series of "American Statesmen, now in course of publication, treats such matters very differently.
Miss Becky Jones has now been in prison nine months for contempt, and it is high time that she should be delivered. Her contempt consisted in refusing to testify in the Hammersly will case, and reveal what she regarded as secrets of the family imparted to her as a servant. Any woman who can hold her tongue nine month ought to be applauded rather than punished, especially when she is keeping a secret. Becky seems to be a harmless sort of "crank." She is not being punished, either, for she is living in luxury and enjoying herself. Really, we should say the public dignity has been sufficiently vindicated her There danger her being forgotten, and left to die in prison. Perpetual imprisonment for contempt would be an excessive punishment. The majority of murderers do not get so much as that.
On the other hand, we have no sympathy with Edmund Yates, the editor convicted of a society libel. His appeal has been dismissed, and he has been consigned to Holloway prison, to undergo his sen. tence of four months' imprisonment. A telegram from London says: "Orders to the governor of Holloway prison took effect to-day in regard to Edmund Yates, the celebrated society editor. He is put on an allowance of half a pint of wine or one of malt liquor a day. Visits from friends must be arranged by the visiting magistrates, and he can receive only one newspaper daily. His letters will be regulated by the governor's orders. He is to take exercise by himself in the first-class misdemeanants' ground, to rise at half-past six and retire at a quarter past nine. Rules may be relaxed by the medical authorities if his health suffers from the prison treatment." He is evidently not suffering.
His newspaper is being well advertised; in fact, its circulation is daily increasing in consequence of his incarceration. He will be out in four months, ready and encouraged to publish and sell more libels of society. We think it would be fairer to make him and Becky exchange places-give Becky four months, and lock Edmund up until he should promise not to do so any more.
We have seen several very severe articles in the newspapers on the abuse of cross-examination. There is a great deal of public cant on this subject. The privilege is rarely abused except that lawyers are generally tedious in its exercise. Witnesses very frequently have the best of the encounter. We must say that so far from believing that there is any considerable warrant for these strictures, we have been repeatedly astonished at the good nature, patience and magnaminity of cross-examining counsel, when dealing with obstinate, uncandid, prejudiced, stupid, evasive and tricky witnesses. As a general thing there is no witness so uncandid and tricky as an artless woman, and yet it is in respect to the cross-examination of women that counsel are most blamed. There are two sides of this question, as of every other, and it is well to hear the other side.
The speaker of the Assembly of this State has announced as the special committee on the Civil Code and Revision of the Statutes, Messrs. Scott, of Liv
ingston; Raines, of Ontario; Kruse, of Cattaraugus; Westchester; Connolly, of Brooklyn. Cole, of Schuyler; Ives, of New York; McClelland, of
NOTES OF CASES.
N connection with Crocker v. McGregor, 76 Me. 282, ante, 23, read Lewis v. Eastern Railroad, 60 N. H. 187, holding that on the question whether a locomotive engine emitting steam and standing near a highway crossing is an object dangerous to the public travel, as likely to frighten horses of ordinary gentleness, evidence of other horses than the plaintiff's being frightened by locomotives and cars passing near the same crossing is not admissible. The court said: "Evidence that other horses, driven by other persons at other times, had been frightened by the same or a similar object, or by a sound produced in the same or a similar manner, was admissible to show that the object or sound was dangerous to the public travel, as being more likely than otherwise to produce the result complained of. Darling v. Westmoreland, 52 N. H. 401; Gordon v. B. & M. Railroad, 58 id. 396. The case does not show that the evidence excepted to was that of other horses being frightened by the escape of steam from a locomotive, but by locomotives and cars passing upon the railroad near the place of the injury. In Darling v. Westmoreland, the plaintiff was permitted to show that other horses were frightened at the same pile of lumber which produced the