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other up to the time of accounting. And for the purpose of selling lands it seems very clear that a public administrator could not be recognized in this State at all; for the statute contemplates the case of an administrator “appointed” in some other State or country, who shall produce and file in proper court an authenticated copy of his appointment." $ 6057. A public administrator having no appointment for the special case would not be within the terms of this statute. No case has been called to our attention in which it has been held that after letters issued in one State or country a foreign administrator can be recognized there even for the purposes of a voluntary payment; and the cases like Vaughn v. Barret, 5 Vt. 333; Young v. O'Neal, 3 Sneed, 55; and Ferguson v. Morris, 67 Ala. 389, which deny the validity of such a payment generally, if questionable when no domestic appointment exists, are perfectly sound and reasonable if there is at the time a valid administration in the State. See Noonan v. Bradley, 9 Wall, 394, 405. It is the duty of the citizens of the State to recoguize and defer to the judicial determination of its own tribunals, as much when they concern matters of administration as in other cases (Henderson v. Clarke, 4 Litt. 277), and this is especially true in a case like the present, where nothing existed to bring in question the judicial determination of the Michigan court, except the bare assertion of his own authority by the foreign official. By the law of this State the title to this demand, for all purposes of administration, was in the Michigan administrator, who might put it in suit when due, or assign it of record or discharge it of record. IIe was therefore the only person who could be safely dealt with in respect to it. Reynolds v. McIlullen. Opinion by Cooley, ('. J. [26 Eng. Rep. 12; 37 Am, Rep. 737; 36 id. 700.-Ed.] [Decided Jan. 14, 1885.]

NEGLIGENCE-RAILROAD-PERSONAL INJURY--CONTRIBUTORY NEGLIGENCE-STREET CROSSING.--Where in an action agai ist a railroad coinpany for a persona injury the evidence shows that the plaintiff exercised no care to avoid the danger, and there is no dispute in the testimony on this point, the court may instruct the jury to find for the defendant; but when the evidence shows, or tends to show, that the plaintiff was negligent in his efforts in the right direction to avoid the danger, but thoy did not go to the extent for any reason of securing his escape, it is for the jury to say, under all the circumstances, whether he was negligent in not exercising more care, or in making greater efforts to prevent the injury complained of; and especially in the caso where, if the defendant had performed his duty, the plaintiff would have been likely to have avoided the danger altogether. Palmer v. Detroit, L. & N. R. Co. Opinion by Sherwood, J. [Decided Jan. 21, 1885.]


:-Where a partnership firm, in contemplation of their insolvency, execute a chattel mortgage of their stock in favor of a near relatire, and a few days after ward make a common-law assignment of the same, upon a bill filed by her against the assignee for relief, and for payment of her claim, if it appears that she kiew of the insolvency of the firin when she took her security, and that this knowledge induced her to ask it, she is not entitled to preference as a bona fide secured creditor. Cron v. Cron. Opinion by Sherwood, J. [Decided Jan. 21, 1885.]

CHATTEL MORTGAGE-SALE-SATISFACTION-PLEADING.-(1) A woman who held a bill of sale of personal property in security for a debt proceeded to sell the property. Part of it was covered by a chattel mort

gage, and at her request this mortgage was purchased by a third person and held for her. She sold property enough to pay both debts, and of that which was sold enough was included in the chattel mortgage to pay that off. Afterward her son, who was cognizant of all the facts, took an assigument of the chatte) mortgage. Held, that the chattel mortgage must be deemed satisfied. (2) If there were any facts to excuse the failure to apply the moneys received on the sale in satisfaction of the mortgage, they should have been affirmatively established, as the sale prima facie paid it, under the circumstances stated. Long v. Moore. Opiuion by Cooley, C. J. [Decided Jan. 21, 1885.]

MALICIOUS PROSECUTION PARTICIPATION OF DE FENDANT-FALSE ARREST–PROBABLE CAUSE,-Defendant had a horse stolen from his pasture. A man of bad reputation, who had served a term in prison, and was then under criminal accusation, told a story connecting plaintiff and his son with the larceny. De. fendant, for some time, took no notice of this story, but after three weeks or so went to a justice aud obtained warrant for plaintiff and on which they were arrested in the night-time, handcuffed, and taken to the jail. Defendant, with others, was with the officer wheu the arrost was made and the parties taken away. The warrant was obtained without evidence, and the case was continued before the justice for three weeks, and was then voluntarily abandoned. Plaintiff then brought au action for malicious prosecution. Held (1), that the defendant, when he applied to the justice for a warrant, was bound to state to the justice any facts tending to detract from the credibility of the charge against the plaintiff, and if his information came from such a source that he gave it little or no credence himself, he should have stated the fact. (2) The defendant in thus procuring a warrant without evidence, and accompanying the officer who made the arrest in the nighttin is responsible for the conduct of the officer, and those who accompanied him, in what they did with his appareut acquiescence. (3) A story of crime wbich in itself or from its source is so incredible or so uutrustworthy that a party does not venture to use it as evidence for others to act upon, will not justify him in acting upon it himself to the serious prejudice of others, Chapman v. Dunn. Opiuiou by Cooley, C. J. [Decided Jan, 21, 1885.]



CHATTEL MORTGAGE-REFILING-WITHIN THIRTY DAYS.-In order to preserve the lien of a chattel mortgage beyond the first year, the filing of the verified statement and copy required by section 4155 of the Revised Statutes, must be done during the thirty days immediately preceding the expiration of the year. The refiling of the mortgage with such statement before the commencement of the thirty days is not sufficient. The claim of plaintiff in error is that the verification and refiling of this mortgage on September 16, 1879, was equivalent to an original filing, and thereby the lien of his mortgage became valid as against subsequent purchasers in good faith, for one full year after the date of refiling; and in support of this claim relies on Swift v. Hart, 12 Barb. 530. This ease holds under a statute similar to ours that a verification and refiling after the expiration of a year from the original filing revives the lien as against subsequent purchasers. This doctrine was questioned in the subsequent case of

*To appear in 42 Ohio State Reports.

Newell v. Warner, 44 Barb. 258. It is however ex v. stwood, 15 Ohio St. 186, where it is said: “The liapressly decided in National Bank v. Sprague, 20 Y. J. bility of the lessee arising from his express contract is Eq. 18, that in order to preserve the lieu of a chattel so permanently fixed during the whole term that no mortgage beyond the first year, the reliling a copy re act of his own can absolve him from the lessor's dequired by law must be done during the thirty days mands in respect to it." That was an action by the immodiately preceding the expiration of the year. A lessor against the lessee; but the principle applies in refiling before the commencement of the thirty days is any case upon the lessee's covenant where the plaintunavailing. Biteler v. Baldwin. Opinion by McIl iff is entitled to the rent secured by the covenant. It vaine, J. [Soe:21 Eng. Rep. 161.]

was also decided in that case that an assignment by the

lessee, with the lessor's concurrence and his subseMECHANICS' LIEN-HOW CONSTRUED-SERVICE OF

quont receipt of rent from the assignco, will be ineffectNOTICE-DIRECTOR IS “OFFICER 'OR AGENT. '-l’nder

ual to discharge the lessee from his liability. “The the provisions of "An act to secure pay to persons per

lessor, when there is an express agreement of the forming labor or furnishing materials in constructing

lessee, may sue at his election, either the lesset, or the railroads," passed March 31, 1874 (71 (). L. 51) which

assignce, or may pursue bis remedy against both at provides that “Any person performing said labor or

the same time, though of course with but one satisfac furnishing said materials, who has not been paid

tion.” The foundation of the action by the assignee therefor, shall serve a notice in writing upon the sec

of the reversion against the assignce of the leasehold is retary or other officer or agent of said railroad com

the privity of estate between them. The principle is pany, stating in said notice tho kind and amount of

that the latter shall not enjoy the former's property materials furnished," etc., the service of such notice

without the payment of rent. The action against the upon a director of the railway company to be affected

lessee is upon this express covenant to pay rent during by it is suflicient. It seems clear to us, tipon both rea

the term which, as we have above said, runs with the son and authority, that the design of the statute was to

land anci vests in the assignee of the reversion the right, facilitate the methods by which the laborers anı ma

to receive the rents accruing during his ownership of terial-men chielly affected by it are to secure their

the fee. Smith v. llurrison. Opinion by Mollvaine, claims by charging the companies with them, and is

J. [20 Am. Rep. 311.] ontitled to such reasonable and liberal construction as will best carry out its purpose. Railway Co. v. ('ronin,

ENNENT DOMAIN--PUBLIC USE-QUESTION OF LAW 38 (hio St. 127; Barnes v. Thompson, 2 Swan (Tenn.),

-REV. STAT., $ 4511.—The facts being ascertained, the 315; Buck v. Brian, 2 IIow. (Miss.) SS(); Phillips Mech.

question whether or not il ditch will conduce to the Liens, $ 16. Thoro certainly was a literal complianco

public health convenience or welfare within the meanwith its requirements. When we reflect that “the

ing of the Revised Statutes, section 1511, 80 that it will corporate powers, business and property of the[railway]

be of public use, is a question of law; and the mero corporations ** * must be exercised, conducted and

fact that larger and better crops may be raised on two) controlled by the board of directors",$ 3::18, Rev. St.),

farms sought to be drained does not authorize the eswe cannot question that a director of such company is

tablishment of the ditch, Article 1, section 19, of the an “oflicer" of it. We are at liberty to suppose also

('onstitution provides that “private property sball that a director of a railway corporation is one who is

ever be held inviolate, but subservient to the public sufliciently interested in its affairs to see to it that any

welfare;' thus placing beyond question that private fact wbich comes to his notico affecting his company

property cannot be taken for a mere private use. will with promptness bo brought to the knowledge of

McArthur v. Kelly, 5 Ohio, 1:39; Shaver v. Starrett, 4 tho lattor. To hold that class of persons who are

Ohio St. 198; Reeves v. Treasurer Wood ('o., 8 id. 345. chiefly affected by this provision to a strict rather

Two petitioners sufficient, and one petitioner is all the than liberal construction of it, would tend rather to

law requires; and tho land through which the ditch is defeat than to effectuate it.. Railway Co. v. McCoy.

to pass need not bo owned by more than two persons, ()pinion by () won, J.

and if owned by one person only the ditch may be

made. Reeres v. Treasurer Wood ('0., 8 Ohio St. 33:3 ; COVEXAVT-ASSIGNEE OF LEASE - LIABILITY FOR RENT Kent v. Perkins, 36 id. 639. Whether or not the use -RUXS WITII LANI).-il) The lessee of it perpetual for which property is proposed to be taken is a public loasehold estato is liable, upon an express covenant to use is a question of law, to be settled by the judicial pay rent to the lessor, his heirs and assigns, during the

power. ('oster v. Tide-Water (oo)., 18 N. J. Eq. 55 ; term, in an action by tho assignee of the rorersion for Tyler v. Beacher, 14 V 1.619; Parham v. Justices, 9 Ga. accruing rents, whether such rents accrue before or 341; Anderson v. Turbeville, 6 ('oldw. 150; Channel after an assignment by the lesses of all his interest in ('o, v. Railroadl, 51 (al. .269. The use must be for the the leasehold estato. (2) Such corenant for rent runs public at large. Memphis Freight ('o. v. Mayor, 4 with the land, and an assignce of the reversion may, ('oldw. 419. The use that will justify the taking of under our (ode, sue thereon in his own name. (3) Tho

privato property by the power of eninent domain is receipt of rents from the assignees of the leasehold es. the use by or for the government, the general public tate does not absolvo such lessee from liability on his or some portion of it; and not the use by or for parexpress covenant. See ('rawford v. (hapman, 17 Ohio,

ticular individuals, or for the benefit of certain estates. 419; Masury v. Southworih, 9 Ohio St. 3-10. A perpet The use may be limited to the inhabitants of a small ual leasehold estate is not a fee-simple, although by locality, but the benefit must be in common,and not to our statutes it has many incidents of a fee-simple es

a very few persons or estates. ('ostar r. Tide-Water Co, tate. Taylor v. De Bus, 31 Ohio St. 464. The fee sim supra; Talbot v. Iludson, 16 Gray, 117, 121; Gilmer r. ple remains in the lessor, his heirs and assigns, the Lime Point, 18 ('al. 2:2). The prosperity of each indiprincipal value of which is the right to the rents re vidual conduces in a certain sense to the public welserved by the lease. And the right to sue for and re fare, but this fact is not a sufficient reason for taking cover rents follows the fee-simple estate, and the action other private property to increase the prosperity of intherefor must be in the name of the owner of the fee dividual men. The draining of marshes and ponds at the time the rent accrues. As to the fact that the may be for the promotion of the public health, and so plaintiff below, as well as her predecessors in interest, become a public object; but the drainage of farms to had received rent from the owners of the leasehold af render them more productive, is not such an object. ter the defendant had assigned and transferred all his

Anderson v. Kerns Draining Co., 14 Ind. 199. VICinterest therein, it will be sufficient to refer to Sutlil | Quillen v. Hutton. Opinion by Follett, J.






AFTER TRIAL-ENTRY respondent.-Judgment affirmed with costs—John NUNC PRO TUNC. -Where a party to an action dies H. Haight, appellant, v. Mayor, etc., respondent.after trial and submission to the court, but before a Order and award affirmed, with costs—John Sipple, decision is announced, the court has jurisdiction, and respondent, v. State of New York, appellant.-Judgin furtherance of justice, may enter judgment nunc ment reversed, new trial granted, costs to abide events pro tunc as of the day of submission. It is-George C. Gerritt, appellant, v. City of Brooklyn, well established that prevent injustice and respondent. -Judgment reversed, new trial granted, to promote justice judgments may be

costs to abide event-Samuel D. Coykendall, appellant, tered nunc pro tunc. This power has been ex v. Abraham Constopto and others, respondents.ercised by courts from the earliest times. Mayor of Judgment affirmed, with costs—Supervisors of TompNorwich v. Berry, 4 Burr. 2277; Tooker v. Duke of kins County, respoudent, v. George H. Bristol and Beaufort, 1 id. 146; Freem. Judg., $ 56, and cases cited. others, appellants. — Order of General Term affirmed In Dial v. IIolter, 6 Ohio St. 228, this court said: and judgment absolute ordered for the defendants on “Where a defendant in an action for libel and slander stipulation, with costs—Town of Ontario, appellant, v. after the finding of a verdict against him in the Court of Hezekiah Hill and others, respondents.—Order of Common Pleas, files, duing the same term, aud in com General Term reversed and judgment absolute rendpliance with the rules of the court, motions for a new ered for the respondents on stipulation, with coststrial and in arrest of judgment, and afterward dies, Benjamin Gould, respondent, v. Cayuga County Naand the motions continued to another term tional Bank and others, appellants.-Judgment affor hearing, the court may, if such motions be over firmed, with costs-Addison Macullar and others, apruled, enter a judgment nunc pro tunc upon the ver pellants, v. John W. McKivlay, respondent.-Judgdict, as of the term in which it was found.” In Perry ment affirmed with costs - Isabella B. Clute, appellant, v. Wilson, 7 Mass. 393-395, the court say: “Where an V. Adam Emericb. - Judgment affirmed with costsaction is delayed for the convenience of the court they | People ex rel. Carrie L. Van Deusen, appellant, v. will take care that no party suffers by such delay." | George W. Drum and others, trustees, eto., respondTherefore where, after a continuance by order of the ents. --Judgment affirmed with costs—John Rehberg, cuurt for advisement, the defendant in the action died, / appellant, r. Mayor, etc., respondents. — Judgment judgment was entered as of a former term. This po- reversed, new trial granted, costs to abide event-Elsition is supported by numerous decisions. Bank U.S. len Bullock, respondent, v. Mayor, eto., respondents, v. Weisiger, 2 Pet. 481; Clay v. Smith, 3 id. 411; Gris --New trial ordered, costs to abide event-National wold v. Hill, 1 Paino, 484; Gray v. Brignardello, 1 Bank of Virginia, appellant, v. Robert A. Mills and Wall. 6:36; Campbell V. Mesier, 4 Johns. Ch. 312; | others, respondents. -New trial granted, costs to Freem, Judg., $ 57. In Turner v. London & S. W. abide event – Benjamin P. Fairchild, appellant, v. Ry. ('0., L. R., 17 Eq. ('as. 561, 565, Sir Charles IIall, Theresa Lynch.-Judgment affirmed with costs.V. C., examines Collinson v. Lister, 20 Beav. 355, and Gustave Pantzur, respondent, V. Tiltz-Foster ManuTroup v. Troup, 16 W. R. 573, and states the law to be facturing Company, appellant. — Judgment affirmed, that “whero a plaintiff dies after hearing but before with costs—Mary R. Husted, respondent, v. John H. judgment the court bas jurisdiction to date the judg- Sweeney and others, appellants. -Judgment affirmed llent as of the date of the hearing." And in Chitty's with costs-Patrick Cowan, respondent, V. Hudson Archbold's Practice, Q. B. (12 ed., p. 1572), the rule at River Bridge Company, appellant. —Judgment aflaw is stated thus: “The court will in general permit firmed, with costs—Charles W. Miller, respondent, v. a judgment to be entered nunc pro tunc, where the N. Y. C. & H. R. R. Co., appellant. —Motion to dissigning of it has been delayed by an act or the court. miss appeal. Ordered that the appellants have leave Therefore if a party die after a special verdict, or after to apply to General Term for the preparation and seta special case has been stated for the opinion of the tlement of a case as required by section 1339 of the court, or after a motion in arrest of judgment, or for Code, etc., and that appellants pay $10 costs, in which a new trial, or after a demurrer is set down for argu case inotion to dismiss is denied ; if not it is granted, ment, and pending the time taken for judgment, or with costs-George Jackson and others, respondents, whilst the court are considering their judgment, the v. Horace D. Tupper and another, appellants.—Mocourt will allow judgment to be entered up after the tion to dismiss appeal granted unless, within twenty death nunc pro tunc, in order that a party may not be days after the service of a copy of this order, appellant prejudiced by a delay arising from the act of the file the proper undertaking and proceeds to justificacourt.” Mfutter of Jarrett. Opinion by Follett, J. tion, if objected to, and pay $10 costs of motion; in

such case motion denied-Clarence T. Sanford, respondent, F. Louisa C. Pollock, appellant. -Motion to perfect appeal granted in paymeut of $10 costs; but

if not paid within twenty days from entrance of this COURT OF APPEALS DECISIONS.

order, motion to dismiss appeal granted; otherwise dismissed-Edward D. McCarthy, respondent, v. Rob

ert Bonynge, appellant. Motion to vacate order day, June 9,

granted without costs-Julia E. Blackman, respondJudgment of the General Term reversed; that of

ent, v. Eliza Wheeler, appellant. - Motion denied, Special Term affirmed, with costs—Eliza Ilegerick, ad

without costs, J. Smith McIntosh, appellant, y. State ministrator, etc., respondent, v. John Keddie, execu

of New York, respondent. -Order that remittitur be tor, etc., appellant. -Order of Goveral and Special consolidated, and that it direct that on plaintiff's apTerms reversed and motion denied, with costs to all peal the judgment of General Term, so far as it recourts-Polly Moriarty, respondent, v. Virgil ('. Bart versed the judgment entered in referee's report, be lett, executor, etc., appellant. Order of General

modified by ordering a new trial, and as modified afTerm reversed, and case remitted to General Term

firmed; and on defendant's appeal the judge of Genfor further consideration-James Mingay and others,

eral Term, so far as it affirms the referee's report, be respondents v. IIenry B. Hansom and others and the Holly Manufacturing ('ompany, appellants. — Judg

reversed and new trial granted, costs to abide eventment affirmed with costs-People ex rel. Alfred Short

Daniel R. Lyddy, appellant and respondent, v. Lilah and others, appellants, v. Orin S. Bacon, sheriff, etc., Chamberlain, respondent and appellant.

The following decisions were handed down Tues

The Albany Law Journal.


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have been overlooked. “Judex,” in our opinion, labels this practice wrong. It really springs from

the unconscious desire if there can be such a ALBANY, JU. 20, 1885.

thing — of making a precedent that shall do for all like cascs.

Some things must be taken for granted CURRENT TOPICS..

of the judiciary. It must be presumed that they

examine and consider all the points raised, without TTENTION is called to a communication in A

their certificate to that effect. It is no part of a another column on "The Law's Delays," criti-judge's duty to convince parties or counsel. It is cising Judge Learned's article of that title in the their duty simply to decide, adjudge, declare the North American Rericu. It is written by a jurist of law. Therefore we have always been opposed to the distinguished experience and ability and of great practice of reporting clissenting opinions. They cminence, whose opinions on the topic in question

are mischievous - it note of dissent is enough, if should command the same respect that his judicial | not too much. When Judge Learned speaks of opinions have long obtained. We do not however (lisregardling errors when substantial justice has altogether agree with “ Judex.” Ile is unquestion- been done, he probably does not mean that appelably right about the methods of such arbitrary late judges have that power, but that it would be judges as Kenyon and Ellenborough, the latter of

well to confer it on them. But let all read the whom "went through the calendar like an clephant forcible and candid views of our correspondent, through a sugar plantation." To turn off“ and not be in haste to decide a matter that divides teen defender cases " in one day, unless they are such eminent judges as Judge Learned and “ Judex.” intrinsically short causes," is il monstrous perversion of justice. We do not agree with “ Judex that "most lawsuits are brought to a termination

Those who try to keep cool in this weather “by with all the speed any reasonable person could ex

thinking on the frosty Caucasus,"


find some pect or desire,” but we do agree with him that

comfort, in reading a recent decision of the Iowa generally " when they are not, the judiciary is not Supreme Court, that a fireman on a railway locomoto blame.” The parties, and their counsel, one or

tive, injured in the act of “bucking snow, both, are usually willing or even anxious to

his own risks, and cannot hold the company re

Pro)crastinate. Especially in this true of referred sponsible. causes, where great delays occur through the disposition of counsel to accommodate each other.

President Dwight's address to the graduating We have no doubt that Lori Eldon's doubting

class of Columbia Law School is very interesting. habit was a curse to suitors in a great many in

We do not even object seriously to what he says stances, and yet it was justly said that his “ tardy

about (odes. Ile says: “Having had considerajustice was better than the swist injustice of his

ble experience in the nurseries of the law, I conVice.”. Trial judges, in our opinion, are frequently fidently affirm that no legal infant can be named not strict enough in compelling parties to trial, but

who has developed, by a mere law of his inner nawe should be very lothi to believe that this even

ture, it natural fondness for such a code." (Infants proccells from an indisposition to work. Is to a

seldom know what is good for them.) IIe continues: clesire to make precedents, we think, as we have

“One code develops :nother quite unlike itself. said before, that Judge Learneal is substantially

The Field (ode of my youth has given way to the right. Not that they do this purposely, perhaps Throop Code of my later life — a tiny pop-gun sup

Into what the or consciously, but that it is the inevitable ten- plantel by a mighty cannon. clency of “judge-made law"to bend the judges Throop Code will develop 1 am straining my eyes towarı making rules that will answer for other

After all, one cannot help feeling a sincere We once heard William 1. Beach sily with sympathy for the ingenuous and carnest youth just great indignation to Judge Togeboom," why, sir,

from college, full of high hopes, and born, as he there is no precedent for your honor's ruling." | fondly imagines, to ail in reforming the world, “Very well," drawled the great judge, with his in- just from the critical study of Ilomer, and an arimitable sarcastic grin, “then we'll make one.

tistic analysis of the tragedies of Shakespeare, with Now if Mr. Beach had not reminded the judge of

the very freshest dew of ('astalia on his lips, who the manufacturing process, it would not have oc

is called upon in a down-town office to translate the curred to him that he was making a precedent, but

New York Code of Procedure into lucid and intelhe would have been doing so, nevertheless. But ligible Englislı

, and then to mark and inwardly diwe chiefly disagree with " Judex” in the matter of gest it." We concur. Nobody ever heard us say long opinions. As a rule, we do not think that

any thing in favor of the style or dimensions of the opinions in this State, especially in the Court of Throop Code. But to forbid codification is not the Appeals, are too long, and it is true, perhaps, that way to cure bad codification. it takes longer to write a short opinion than a long one; but we do not accede to the necessity of tell An interesting communication in another column ing the suitor all about the reasons, nor of satisfy accounts for the inconsistency of Illinois decisions ing him and his counsel that none of the points by the practice of assigning opinions to be written

Vol. 31 — No. 25.

to see.


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by a single judge, and the absence of critical exam shall look to see a bill introduced into the Vermont ination by the others, and denies that codification legislature next winter setting apart the 12th of would cure the difficulty. We do not see why not. June as a public holiday, and expect that Judge The trouble now comes, it is said, from ignorance Poland in August next will submit gratulatory resor forgetfulness of what some other judge has de-olutions for adoption by the American Bar Associcided. Now if the law were reduced to rules, as tion in honor of this marked triumph of one of its certainable by quick and easy reference, there | late presidents. would be no such difficulty. Of course, we assume that the rule shall be explicitly and clearly laid

down, and that the judge shall not be too indolent
to hunt it up if he has any doubt.

T is important to know that evidence that “the

prosecuting witness will be twenty-one years There is no book more delightful for a lawyer's old the first day of August next” after the trial summer vacation than Mr. McMaster's “ History of justifies a finding that he was under twenty-one on the People of the United States,” the second volume the 15th of November preceding. Dolke v. State, 99 of which has just been published. The author is Ind. 229. The court observe: “But counsel say undoubtedly an imitator of Macaulay's method and that evidence that the alleged minor will be twentystyle, but he follows him closely and worthily. His one years old next August is not conclusive that he work is a wonderful mosaic. His industry and re was under twenty-one years of age at the time of search are wonderful. Ilis list of petty and obscure the alleged sale, and they cite Meyer v. State, 50 authorities is an astonishing evidence of his patience. Ind. 18, which seems to support their position. The result is a book as picturesque and interesting Upon the point now under consideration the case as a novel. We note a singular mistake on the cited was criticised and condemned in the recent first page of the current volume. The author states case of Ellert v. Stute, 93 Ind. 76, and must now be that Oglethorpe served with Peterborough in Italy; regarded as overruled.” In the Meyer case, the meaning Spain — the war of the Spanish succession, minor being Edward Gresh, the evidence showed undoubtedly.

that “Gresh ” was nineteen; it was held that it did

not show that he was a minor. The court said: It will probably be necessary to fence Vermont “For any thing that appears in the evidence Gresh in with a strong barrier, to prevent her from tres- might have lived the age of Methuselah,” because passing on her neighbors, so swollen with pride will wit does not show lie was older than that.” But she be to think that Minister Phelps had an in the Ehlert case it was held sufficient that the evition" in the House of Lords on the 12th instut. dence showed that the person in question was nineIIe appeared before that angust boily, and testified teen in August preceding the trial. The court said that between 1691 and 1830 a ceremony was not of the Meyer case: “What was said in that case in essential to a marriage in the State and colony of relation to the age of the party to whom the liquor New York. We do not suppose that he means it was soll was not necessary to a decision of the to be understood that he lived here during all that case, and may therefore be regarded as a dictum. period and speaks from knowledge, but that such | The statement there made, and the argument bere, is his opinion of the law. Others may have a dif are too refined and technical to commend themferent opinion, and think that the common law did selves to our judgments. In this case the witnesses not prevail here in the earlier colonial clays. But it were asked to state the age of the party to whom seems that “when Mr. Phelps arose to leave the the liquor was sold by appellant. It would be a Chamber, their lordships all rose and bowed defer- straining of terms, and an unusual interpretation of entially to him, the American minister returning the language, to hold that the answers left any reathe greeting in a graceful and appropriate manner.” sonable doubt as to the young man's age.” But see It is a great thing to be "known and honored in Arbintroile v. State', 67 Ind. 267; S. C., 33 Am. Rep. the lIouse of Lords,” anil it is touching to observe 86, holding that an allegation in an indictment of a that these representatives of an etřete civilization do sale of “one gill” does not necessarily imply less not forget the deference due” to the representa- than a quart. tive of this glorious country, any more than the victim forgot that due the esccutioner, in Jr. Gil In State v. Masson, 99 Ind. 261, it was held that bert's last opera. We flatter ourselves that when under a statute requiring election tickets to be it comes to manners our new minister knows all printed on plain white paper, but prescribing no about the politest observances, and will never, quality or thickness, they may be printed on plain never trip over his own sword. But what was Mr. white paper of unusual thickness. The court said: Phelps' “ return "sor the greeting? We are con “ The object of the statute undoubtedly was to sesumed with curiosity to know. Probably he bad cure the privacy of the ballot. But if a voter uses not his sword about him; otherwise le might have a ballot which comes within the letter of the statute, drawn and flourished it. Did he ask their lord- his vote is not to be rejected because the quality or ships all out for “a modest quencher ?” That grade of the paper upon which it is printed differs would have been “graceful and appropriate.” Wc from that of others, which also come within the





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