KREKEL, J.—Under the 43d section of the amended bankrupt act of June 22d, 1874, providing for composition with creditors, the court made an order directing a meeting of creditors to be held to act upon a composition proposed by the bankrupts.

The meeting was held, and the resolution passed, as well as the confirmatory signatures of creditors, are now before the court for its action. From the number of creditors who were present and represented at the meeting which passed the resolution, as well as the number signing the confirmatory statement, it becomes necessary to determine what is meant by language employed in the following part of the section referred to:

"And such resolution shall, to be operative, have been passed by a majority in number and three-fourths in value of the creditors of the debtor assembled at such meeting, either in person or in proxy, and shall be confirmed by the signature thereto of the debtor and two-thirds in number and one-half in value of all the creditors of the debtor.

"And in calculating a majority for the purpose of a composition under this section, creditors whose debts amount to sums not ex

These head-notes were prepared by him, at my request. The statute refered to in the last head-note, is as follows:

When any estate is so situated that it cannot be divided so as to give to each owner his equal share therein without great prejudice or inconvenience, the same or part thereof may be assigned to one of the owners, he paying to the other persons interested, who shall have less than their shares, such sums of money as the committee shall award, or giving bond, with sufficient sureties, to pay the same, with interest, within such time as the court shail order."

The significance of the opinion arises from the fact, that the court is understood to have denied, in substance, though not in form, the power of the legislature to authorize a court of law to compel one person to buy another's land, for which he never contracted, which he does not want, and for which he has not the money to pay.

Apropos of your article on "Juries," our last legislature practicully abolished trial by jury, in civil causes, by making it the duty of the court to send them all to referees, unless satisfied by some party that such a course would be inexpedient. I will endeavor to send you in a future note, the result of this experiment so far as developed. Very truly yours,

BARNEY V. LEEDS.

JOHN M. SHIRLEY.

The appraisal of a committee, setting off a dedtor's homestead, upon the

levy of an execution, is conclusive upon the question of its value, until invalidated by some proceeding brought for the purpose of vacating or revising the record thereof. It cannot be cailed in question upon a subsequent proceeding for partition between the debtor and his creditor, to whom the residue of the estate has been assigned.

Whenever the estate of tenants in common is practically incapable of division, by assigning to each owner thereof, his equal portion in severalty, he cannot be compelled, under the provisions of 25, Ch. 228, Gen. Stats., either to sell his own share, or purchase that of his co-tenant; but in such a case resort may be had to a court of equity, which has power to compel a sale of the entire estate, and a distribution of its proceeds upon equitable principles.

ceeding fifty dollars, shall be reckoned in the majority in value, but not in the majority in number." The question is, what creditors shall be counted in order to ascertain the majority spoken of, and are creditors, whose claims do not exceed fifty dollars to be disregarded in computing the majority who must pass the resolution, as well as in ascertaining the number of those who are required to sign the confirmatory statement. The court holds that all creditors whose claims do not exceed fifty dollars must be disregarded in arriving at the majorities required in both cases, that is to say, in passing the resolution there must be a majority of the creditors assembled at such meeting, either in person or by proxy, excluding all whose claims do not exceed fifty dollars, to make the resolution operative, and in the confirmatory statement the number of signers required, must be two-thirds, after excluding from the whole Jury Service in the South A New Plan for Getnumber of creditors all whose claims do not exceed fifty dollars. It may be admitted that this construction will, in some cases, cause hardships, as it increases the trouble or difficulty on the part of bankrupts to obtain the requisite number. It must be remembered, however, that the whole of the requirements of the bankrupt act in some sense may be called a forced proceeding, so far as the creditor is concerned; for the failing circumstances of the debtor largely interfered with his freedom of action.

[Correspondence.]

ting Good Juries.

OXFORD, MISS., October 13, 1874. EDITORS CENTRAL LAW JOURNAL:-I have read with interest an article

It is

on the jury system, in a recent number of your journal (ante, p. 487). manifest to all who have considered the subject, that some reformation on this subject is necessary in most of the states, and especially in this state, where under a law of the state, which has been in force for many years, the petit juries are drawn from a box containing the names of all males who are householders, between the ages of twenty-one and sixty, irrespective of their intel

lectual or moral qualifications. The system was bad enough before the addition of the newly enfranchised class, but few of whom, comparatively, have had such opportunities as are necessary to qualify a man for this impor

tent service.

shall

The act of Congress requires that jurors in the United States courts, have the same qualifications, and be selected in the same mode required by the laws of the state in which the court is held, for juries in the courts of the

A creditor may, under compulsion, as it were, attend the meeting of creditors provided for, but suppose he does not on account of the expense he must incur, which, though small, may be large when compared with the amount offered in composition, or he fails from any other cause to attend, the law should not, on that account, be construed against him, and favorable to the debtor who makes the offer. Throughout the whole section from which the quotation is made, greater regard is had to amounts than number. To illus-state, as far as practicable, leaving it to the court or judge to determine the trate; in providing for the taking of bankrupt estate out of the hands of the courts, and placing them in the hands of trustees selected by the creditors, amounts are exclusively regarded by providing that three-fourths in value of the creditors whose claims shall have been proven, shall pass the resolution.

The bankrupts will be required to bring themselves within the views of the court here expressed, in order to have their cases passed upon favorably.

[Correspondence.]

practicability of the state law. If the names in the jury boxes were such as desired, the United States authorities would have no right to go into them; to avoid this, the practice was for many years to make an order directing the marshal to summon from certain designated counties the required number, who were qualified jurors under the laws of the state. To those selected by the marshals themselves, no just objection could be made; but as the law

allows as good as no compensation for the service, it was natural (and I do not know that they could much be blamed for it) for the marshal to adopt the most inexpensive mode of getting jurors, which has generally been by sending a special deputation to the sheriffs of the counties, assuming that the sheriffs knew the proper persons to summon. But the sheriffs, who are generally looking to a re-election, desire to please all parties, and, feeling no special interest in the court, excuse intelligent business men when requested, and often select those who request it, and who have no other business, and who are poorly qualified for this service. Besides this evil, it subjects the marshal to the reproach of partiality in his selections, to favor particular interests.

A Point in the Law of Homesteads-Partition.
OFFICE OF THE STATE REPORTER,
ANDOVER, N. H., October 9, 1874. )
EDITORS CENTRAL LAW JOURNAL:-I learn that one of your corps is
preparing a monograph upon that marvel of intricacy, the law of homesteads. This system did not conform either to the form or spirit of the state law.
I herewith enclose you the head-notes in Barney v. Leeds, one of the latest To avoid these objections and to conform to the spirit of the state law in
contributions on that subject. It is the same case reported in 51 N. H. 281. selecting the juries by ballot, and at the same time to procure such as were in
It was decided at the August term, 1874, Foster, J., delivering the opinion. every way qualified, I have in the courts in which I am the sole judge, and

Judge Woods, the circuit judge, and myself, have in the circuit court, adopted
the following rules: The commissioners of the court in their respective local-
ities select some three hundred names of gentlemen of well known intelli-
gence, integrity, impartiality and fair mindedness, irrespective of race, or
party affiliations. These names are forwarded to the clerk without any
knowledge being given as to who they are, and are placed on slips of paper or
ballots and placed in a box, which is kept locked except when the drawing is
had, which is done by the marshai and clerk in the presence of the judge or a
commissioner specially appointed to superintend it. The names drawn consti-
tute the venire, and are summoned by the marshal or his deputy; both grand
and petit juries are drawn in the same way.
The experiment has proved a success. The jurors obtained under it would
do credit to any court. It relieves the marshal from any blame, avoids any
possibility of a packed jury for any party; since in the first place the names in
this jury box are unknown to any one but the commissioner and clerk, until
drawn, and if they were known, it would not be known whose name would be
drawn. The drawing is continued until the names are exhausted, when the
box is refilled. The attorney-general has recommended to Congress to adopt
a similar rule for all the United States courts, which I am satisfied is the best
rule that can be adopted. Some of the states, I learn, have something like the
same plan. Some plan should be adopted by which to secure the very best
men for this important service.

I submit our rule for your consideration, and for any use you may see proper
to make of it. Yours, etc..
R. A. HILL.

Notes and Queries.

I. JUDGMENTS OF JUSTICES OF THE PEACE. BLOOMINGTON, ILL., Oct. 13, 1874. EDITORS CENTRAL LAW JOURNAL:-A, instituted a suit before a justice of the peace, against B. A trial was had, the jury returning a verdict in the following form:

"We, the jury, fine for the plaintiff fifteen dollars and costs."

No further proceedings were had before the magistrate, and the magistrate failed to render a judgment on the verdict. From this verdict the defendant appealed the cause to the circuit court.

Would a motion to dismiss the appeal, on the ground that the justice rendered no judgment from which the defendant was authorized by law to appeal, be sustained? Would like a reply, with authorities, through the columns of the JOURNAL. C. D. M.

ANSWER.—We find thit the precise case to which the above query has reference, has recently been adjudicated by Tipton, J., of the Circuit Court of McLean County, Illinois, in Merrit v. Tarman, 1 Monthly Western Jurist, 264, the learned judge declining to dismiss the appeal. In support of his position he cites the following cases: Lynch v. Kelly, 41 Cal. 232; Tilton v. Mullin er, 2 Johns. 181; Gaines v. Betts, 2 Douglass (Mich.) 99; Iverall v. Pero, 7 Mich. 316. With this view, we entirely agree. As was said by the court in Gaines v. Betts, supra, "the verdict is itself the judgment of the law in the case, and the justice is simply required to make the entry on his docket. If he neg.ects to do so, still the verdict must be considered the final determination of the cause." We agree with the reasoning of Judge Tipton: "The failure of the justice of the peace to formally enter the judgment on the verdict, amounted simply to an irregularity that might be waived; and the defendant having regarded the same as a valid judgment and appealed from the same, thereby waived any right to complain on his part." The question may, however, be controlled in each state by local statutes.

II. STATUTE OF FRAUDS-ANOTHER ANSWER TO W, F. (ANTE, P. 482). We thank S. W. W. for the following, and are sorry that want of space has compelled us to delay it so long :

if I understand it rightly, it presents a case either of a fixed term, one month, or a common law tenancy at will.

It is in either event an interest in real estate, as now construed by the courts, Let us see what the law applicable to it is, viewed as a fixed term. Uunder the statute of frauds, 29 Chas. II. C. 3. Sec. 4, which has been adopted in most of the states, a written agreement signed by the parties or his agent is generally necessary to the validity of any contract for the sale or purchase of lands, tenements or hereditaments, or any estate or interest in or concerning them, whether such estate or interest be subsisting or be proposed to be created de novo. Dart on Vendor and Purchaser, Chap. 2, p. 91; Sug. 135 Atty-Gen. v. Day, 1 Vesey, Sr. 218, and 12 Vescy Jun. 472; ex parte Cutts 3 Deacon, 267, by Lord Cottenham.

Although an actual demise by parol for any term not exceeding three years at a rent not less than two-thirds of the improved value, was valid under the second section of the statute of 29 Chas. II, an executory agreement for such a demise is void unless in writing; so, a parol agreement by a lessee, for an as signment of the residue of his term, being less than three years, is void, and cannot, it would seem, operate as an underlease. Sug. 95; Barret v. Rolph, 14 Mees, and W. 348; Dart on Vendors, p. 92. New York and most of the American states have adopted the English statute with some modifications. For instance, there it is applied not only to every estate and interest in lands but to every trust or power concerning the same, and the exception in favor of leases is confined to leases for a term not exceeding one year. (Such 1 the limit in Arkansas). See Trear v. Hardenburgh, 5 Johns. Rep. 272; 7 Cowan Rep. 263.

By the English statute, a lease for three years might be made by parol, provided the rent reserved did not exceed two-thirds of the improved value of the property.

In most of the states the period for which a parol lease may be made is limited to one year. In the case stated by your question, it is either a bargain for the transfer of an unexpired term, with possible right of renewal, or it was the transfer of a tenancy at will, which the courts construed by judicial legislation to be from year to year-as to which more anon-or else it was nothing and the contract was void for want of consideration. If it involved the transfer of a term, being an interest in real estate, the case is on all fours with the case of Barrett v. Rolph, 14; Meeson v. Welsby, decided in the Exchequer Chamber of England in June 1845. See also the case of Mollett v. Brayne, 2 Campbel! 103; Thomas v. Cook, 2 B. & Ald. 119; Graham v. Whichelo, 1 C. & M. 188 and Lyon v. Reed, 13 M. & W. 285. In the case of Barrett v. Rolpb, al though the 2d section of the act of 29 Chas. II, made prarol cases for less than three years valid, yet as the 4th section of that act required the contract, which such interest, could not be transferred by parol, although an underlease might be transferred any interest in real estate, to be in writing, and a leasehold being

so made, the court refused in that case to recognize this transfer as an underlease. I have been unable to find any English decision changing this ruling. If we follow it, it is inevitable that in all cases, where one party holding an interest in real estate attempts to transfer it, although that interest be one which, by the statute of frauds, may be created by parol, being for less than three years in England, or less than one year in those states where the limits are shortened, he must do so in writing, or the case falls within the statute, and s

void.

There has been another question in those states, wherein the statute of 2 Chas. II has not been literally adopted: As to whether or not a tenancy at will, as construed by the courts, is such an interest in real estate as will bring it within that provision of the statute; for the English statute expressly prohibited the parol assignment of a lease in this language: And that no lease or estate, either of freehold or term of years should be assigned, granted, or surrendered, unless in writing." See 4 Kent Commentaries, pages 95-6: see also, 7 Barb. (S. C.) Rep. 191. We think, however, in these states, which LITTLE ROCK, ARK., Sept. 30. 1874. have left out the specific provision of the English statute as to assignment of EDITORS CENTRAL LAW JOURNAL:-A correspondent presents to you lease, there can be no doubt but that such assignments come within this genthe following question, which you request your readers to answer, to wit: "Aeral provision regulating sales of real estate or any interest therein. The folis renting a store by the month from C., at $40 per month. B. offers him $200 to move out and give him possession; A. accepts the offer with the proviso that he be allowed to remain until he can get another house; in two week's time he moves out and tenders the key to B., which B. refuses to accept. The contract was not in writing. Was it within the statute of frauds? Is it an interest in land?" Will you allow me to dash off a few thoughts on the subject. First, presuming that it is very doubtful about its being an interest in real estate, but whether it be or not, if there was no part payment, delivery or earnest given to bind the bargain, the case falls within another section of the statute of frauds, as the contract price exceeds the sum which requires payment, delivery or earnest in sales of personal property. And lastly, if the cosideration for the promise was neither real nor personal, then it was nothing, and the contract was nude pact.

lowing American cases bear strongly upon this question: McDowell v. Delap, 2 A. K. Marshall, 33, which involved a lease. Possession is an interest in land within the meaning of the statute. Howard v. Easotn, 7 Johnson, 205: Hesseltine, v. Seavey, 4 Shep. 212 The sale of timber on land growing, with an agreement that the purchaser shall have a certain time within which to take it off, and right of entry therefor, is a sale of an interest in land. Olmstead v. Niles, 7 New Hamp. 523Many cases conflict with this. An agreement for future conditional sale is within the statute. Folsom v. Great Falls Co., 9 New Hamp. 355. A right to enter upon the land of another to repair a dam and embankment necessary to the working of a mill originally erected with the consent of the owner of the soil, an interest in land, within the statute. Cook v. Sterns, 11 Mass. 533. See also, Scott v. McFarland, 13 Mass. 309; Stone v. Crocker, 19 But to the law as applied to this case. The case is a little obscurely put, but Pickering, 292. A parol contract, to make a lease, is void, even where the con

sideration of the deed which conveyed the land was such parol promise made tion 26) to give any and all information which will enable the assignee to reby the grantee, with the further promise to support the grantor for life. Town-ceive, demand and recover debts or property due to his trust estate? Or, send v. Townsend, 6 Met. (Mass.) 319. An agreement, concerning leasing does such a mode of eliciting testimony for the assignee in this case refer more real estate not to be performed within a year, is not within the statute of to the rules of the common law or to examinations of a bankrupt before a regfrauds. Janes v. Finney, 1 Root, 549. An agreement to surrender a lease is ister, under section 26 of the bankrupt law? within the statute. Lammot v. Gist, 2 Har. & Gill, 433. Also see, on the subject of assignment of leases and prescription rights, etc., Schmitz v. Lauferty, 29 Ind. 400; Lester v. White's heirs, 44 Ill. 464; Hogsett v. Ellis, 17 Mich. 351; Greton v. Smith, 33 N. Y. 245. This citation of American authorities, which has been taken mostly from the United States Digests, gives a fair specimen of the drift of American decisions.

If the common law rule as to leading questions in interrogatories should be sustained in such a case, then could not the assignee still put such questions, on the ground that the bankrupt is to be considered an unwilling witness, having been a party to the fraud? GUION. ANSWER. In an action of this kind the general rules of evidence would apply, and leading questions would not be proper, unless in the discretion of the court. At the page above cited from 4 Kent. Comm. will be found a note which If it appeared that the bankrupt was a hostile witness, or if the contains a list of all the states which have adopted the English statute, with fraud was a fraud in fact, leading questions would be allowed. those which, like New York, have modified it, and the nature and extent of the change in each; by the use of this note and examination of the authorities of the several states, it will be found that there is no diversity of opinion as to the fact that a leasehold interest or possessory right, is an interest in real estate, within the meaning of the statute, as adopted by all of them, and being such interest | the assignment of it is not a lease for less than one year under New York's modification, or less than three under 29 Chas. II, but is the transfer of an interest in real estate within the meaning of the 4th section.

Let us now examine the case, viewing it as a common law tenancy at will. Originally an estate at will was not bounded by limits with respect to time. 2 Bl. Com. Ch. 9, page 145, to the end; Littleton, p. 1 Ch. 8, and comments; Preston Estates, Ch. Will; Com. Dig. Estate, 258; 1 Inst. 57; Watkins on Conv. 1-9.

As such estates depended upon the will of both parties, the dissent of either determined the estate, and the conveyance by the tenant determined the will, and ended the estate. But latter judges beginning with Mansfield, who was a great innovator, have given something of a term to this class of tenants, and this kind of tenancy has, under the effect of judicial legislation become nearly extinct practically. In the case of Timmons v. Rowlinson, 3 I, Burrow, page, 1603, Lord Mansfield, said, "and as it is notorious that an infinite quantity of land is holden in this kingdom without lease, therefore, it is an extensive case and proper to be remedied. In the 4th George II, the provision was for those cases where the landlord gave the ten int notice to quit. This the 11th of George II. provides for the case of the tenant giving his landlord notice of his intention to quit, and not delivering up possession according to it."

These tenancies, so numerous in England, in Lord Mansfield's day were all in a technical sense estates at will. But says Chancellor Kent, "such estates are said to exist only notionally, and when no certain term is agreed on, they are construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate." 4 Kent Com. III, 112 (Margin). Although judicial decisions have construed technical tenancies at will as being from year to year, yet there are cases like Doe v. Wood, 14 Messon & Welsby, 682, wherein it is held that a simple permission to occupy creates a tenancy at will, unless there are circumstances to show an intention to create a ten vicy from year to year; but that is not the case now before me, as I understand it, although we are left in the dark, as to A's exact relations with his landlord.

Though the tenant of a house is equally under the protection of notice as the tenant of a farm, which requires six months, or at least reasonalble notice of the determination of the will, yet if lodgings be hired by the month, the time of notice must be proportionately redudced. 4 Kent Com. 114. While it is true that an actual tenant at will, if there be any such, has no assignable interest, though it is sufficient to admit of enlargment by release, yet these estates above indicated are constructive tenancies, from year to year, and may be assigned. 4 Kent, 114.

I therefore answer the question, that the case put to your correspondent is within the statute. On the other, hand, if the possessory right, or tenancy at will, or whatever else it is, be not an interest in real estate, then it is nothing, and the contract is void for want of consideration; for it is certainly will not be contended that it is personal property. But if the thing sold be personal, no earnest to bind the bargain being given, and being over the value of thirty dollars, is it not still in the statute of frauds?

S. W. W.

III. EXAMINATION OF BANKRUPTS-LEADING QUESTIONS.

SAVANNAH, GA., September 24, 1874. EDITORS CENTRAL LAW JOURNAL:-An asignee brings suit to recover a certain sum of money for the bankrupt's estate, which suit involves a fraudu lent settlement between the bankrupt and the defendant. The bankrupt's testimony being necessary on trial, and he having removed from the district in which the bankruptcy was committed, the assignee sues out interrogatories. Can the assignee put leading questions in such a case, treating the bankrupt not as an ordinary witness, but as one who is bound by the bankrupt act (sec

IV. HOMESTEAD EXEMPTIONS.

CORVALLIS, OREGON, Sept. 21, 1874. EDITORS CENTRAL LAW JOURNAL:-By the act of Congress, commonly known as the " Homestead Law," approved May 20, 1862, 12 Stat. 392, it is provided: "No lands acquired under the provisions of this act, shall, in an any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of a patent therefor." Before the expiration of the five years from date of settlement, the party pays the minimum price as allowed by section 8 of said act, and acquires a right to the title.

1. Are said lands liable to be taken in satisfaction of debts contracted prior to the issuing of patent therefor?

2. Are lands thus obtained "acquired under the provisions of this act," within the meaning of the clause above quoted? Truly, S. ANSWER.-In view of the settled rule of liberal construction of such exemptions for the benefit of the family, it is probable the court would answer the first question in the negative and the second in the affirmative. We know of no decision on the question.

Summary of our Exchanges.

The Legal Intelligencer, for October 9, contains a long, and we should judge, important opinion of Mr. Justice Strong, in the Circuit Court of the United States for the Western District of Pennsylvania, in the Locomotive Engine Safety Truck Co. v. The Pennsylvania Railroad Co., ruling the following points:

1. The patent of the Locomotive Engine Safety Truck Company is not invalid for want of novelty in the invention, for. when in combination with a locomotive engine, it is substantially a different truck from any other in use. This combination is a patentable invention.

2. The mere forbearance to apply for a patent during the progress of experiments, and until the party had perfected his invention and tested its value by actunl practice, affords no just ground for presuming an abandonment. Also several interesting decisions of the Supreme Court of Pennsylvania, from which we take the following points:

Ernst v. Wagoner. Defective acknowledgment of a married woman's deed does not entitle her husband's creditor to recover the property from her purchaser.

Pusey, executor, v. Dusenberry. A special partner cannot be made liable as a general partner on account of some acts done after the dissolution of the partnership.

Miller & Reist v. Kreiter. The right of set-off dates from the time that defendant had notice. One defendant may set-off his individual claim against a joint claim against him and another.

Rodgers v. the Riddlesburg Coal and Iron Company. 1. The admission of copies of field notes of a person who was not even the deputy-surveyor, cannot be admitted. 2. An ancient paper is not only one of great age, but it must come from the proper authority to be admitted,

The Legal Gazette, for October 9, reports with full statement and argument of counsel the case of the Wenona, Supreme Court of the United States, opinion by Mr. Justice Clifford. In this case the steamer Wenona was condemned for a collision with a sailing vessel, the wheelsman, mate, captain and other witnesses on the sailing vessel swearing positively to courses, and distances and times immediately prior to the collision, and these showing that the steamer was in fault; while though there was strong evidence on the steamer's side to show that these courses, distances, and times could not have been truly stated by the witnesses in behalf of the sailing vessel, this evidence was inferential chiefly, consisting of conclusions or arguments drawn from other facts sworn to, as ex gr., the lights which the steamer saw and the lights which she did not see on the sailing vessel, and the effect of giving credence to this infe ential or argumentative testimony being to convict, as of necessity, the witnesses for the sailing vessel of perjury.

Also Stevenson v, Williams, same court, opinion by Mr. Justice Field, with purchaser until confirmation : Owen v. Owen, 5 Hum. 352; Graves v. Keaton, the following syllabus: 3 Cold., 8; Wood v. Morgan, 4 Hum. 372; Jones v, Walkup, 5 Sneed, 135; Moore, ex parte, 3 Head, 171; Rogers v. Clark, 1 Sneed, 665; Armstrong v. McClure, 4 Heisk. 80.

1. The act of Congress of March 2, 1867, under which a removal may be had of causes from a State to a Federal court, only authorizes a removal where an application is made before final judgment in the court of original jurisdiction, where the suit is brought, It does not authorize a removal after an appeal has been taken from such judgment of the court of original jurisdiction to the Supreme Court of the state

2. Where the judgment of a state court was annulled by the decree of a

2. And it is the duty of the court, while securing the rights of the successful litigants, to see that the property be sold for the best price that can be had: Childress v. Hurt, 2 Swan, 487; Johnson v. Quarles, 4 Cold. 615.

court of the same state, on the ground that the notes on which the judgment higher price, if the advance be so considerable as to furnish a sufficient induce

was rendered were given for a loan of confederate money, and that the transactions which resulted in the acquisition of the notes were had between enemies during the late civil war, in violation of the proclamation of the President forbidding commercial intercourse with the enemy, this court cannot review the ruling in these particulars. It conflicts with no part of the constitution, laws, or treaties of the United States, and presents no federal question.

It also publishes Locomotive Engine Safety Truck Co. v. Pennsylvania Railroad Co., supra; and also gives condensed notes of several other cases, which have been elsewhere published.

The Pacific Law Reporter, for October 6, publishes Swain v. Duane, Supreme Court of California, which was a suit by a creditor of the husband to subject property claimed by the wife as her separate estate. It also publishes an opinion of Mr. Justice Field in the Circuit Court of the United States, for the District of California, in Patterson v. Tatum, an important land case. It also publishes several other short opinions delivered in the Supereme Court of Cali

fornia. In one of these, People v. Frese, the court below instructed the jury

as follows:

You will also observe that the difference between murder and manslaughter is, there is no intention whatever either to kill or to do bodily harm. The killing is the unintentional result of a sudden heat of passion, or of an unlawful act committed without due caution or circumspection." "This, said the supreme court, is clearly erroneous. Whether the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case, there may be a present intention to kill at the moment of the commission of the act. But when the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the law, out of forebearance for the weakness of human nature, will disregard the actual intent and will reduce the offence to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder."

The American Law Review, for October, publishes valuable papers on The Law of Literature and Art in England and America; The Trial of William E. Udderzook; The Wisconsin Railroad Acts, and The Law of Adoption. The rest of its contents comprises a Digest of the English Law Reports for May, June and July, 1874; A Selected Digest of State Reports; Book Notices; List of Law Books published in England and America, since July, 1874; Summary of Events.

The Southern Law Review, for October, contains a long paper on Homicide, and the Defence of Insanity, by James Wyatt Oates, Esq., of Abbeville, Alabama; and another on Railroad Laws, or Legislative Control of Railroads, by S. S. Wallace, Esq., of Denver, Colorado. The remaining portion of its contents comprises a Digest of the English Law Reports; a Selected Digest of State Reports; and several Recent Decisions, among which we notice Memphis Dry Dock Co. v. Waggoner, in which the Supreme Court of Tennessee decides that the proceeding by attachment against boats to enforce liens is not a proceeding in rem, nor an admiralty proceeding, and does not conflict with the jurisdiction of the federal courts in admiralty.

It

It also publishes Atkieson v. Murfree, recently decided by Mr. Chancellor Cooper, of the Nashville Chancery Court. This case will be read with interest by Tennessee practitioners, as it relates to the vexed question of " Opening the Biddings" after chancery sales, where an advance has been offered. will be remembered that the July number of the Southern Law Review, contained a caustic and searching paper on this question, by E. S. Hammond, Esq., of Memphis, reviewing the recent decisions of the Supreme Court of Tennessee, in click v. Burris, in which a rule is laid down that the biddings may be opened upon a mere increased bid, and that an advance of ten per cent. on the previous offer is sufficient for this purpose. This decision Chancellor Cooper had not heard of at the time he decided Atkieson v. Murfree. The learned chancellor takes the view that the biddings should be reopened in proper cases, and that it should be done in the present case, an advance of 18 per cent. having been offered. The following is the syllabus:

3. It is allowable, therefore, to open the biddings alone upon the offer of a ment, under all the circumstances, to a resale of the property: Coffin v. Corruth, 1 Cold. 194; Newland v. Gaines, 1 Heisk. 723; Aubrey v. Denny, 2 Moll, 508; 2 Dan. Ch. Pr. 1285.

4. The advance which ought to be deemed sufficient to require the biddings to be opened, must be left to depend in some measure on the circumstances of the given case. An advance of sixteen hundred dollars is clearly sufficient, 5. The better practice, upon opening the biddings, is to authorize tha master, upon notice in the usual way, to receive bids for a limited time, commenc ing with the advance offered, the bidders to be required to make payments, and give notes as of the date of the original sale, and otherwise to comply with the terms and requirements of that sale, and the highest bidder at the end of that time to be the purchaser.

The American Law Record, concludes in its October number, with what we judge to be a very learned paper by A. T. Whatley, B. A., entitled Historical Sketch of the Law of Piracy. It also contains what we should take to be a very thoughtful and valuable paper by Sheldon Amos, A. M., on Materials of the Science of Law. rior Court of Cincinnati, General Term—a case which appears to relate chiefly It also publishes the case of Taylor v. Bonte, Supeto questions of local practice. It publishes several other interesting decisions, but these we have either published or noticed as they have appeared in other publications.

The Insurance Law Journal, for September, decisions on the law of insurance, fire and life. some of these hereafter.

publishes thirteen important We may find space to notice

The Monthly Western Jurist (Bloomington Ill,), for October, has a leader on Selection and Summoning of Grand Jurors. It also prints Nugent v Supervisors of Putnam County (ante, p. 153), with a valuable note. It pub lishes Merritt v. Tarman, McLean County (Ill.) Circuit Court (Tipton, J.), holding that a verdict of a jury before a justice of the peace in this form: 'We the jury find for the plaintiff, fifteen dollars and costs," constitutes & valid judgment without any further order of the magistrate.

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It prints Lovenguth v. City of Bloomington, Supreme Court of Illinois (Craig, J.), with the following syllabus :*

I. This was an action brought in the circuit court by Joseph Lovenguth. against the city of Bloomington, to recover damages for an injury received by a minor son, Emil, in passing over a sidewalk in the city.

2. It appears from the record, that Emil Lovenguth at the time of the acci dent was eighteen years of age, he was working in the shop of the C. & A. R. R. Co., and in passing from the shop to his boarding place, over a defective sidewalk, he stepped upon a loose board, fell and fractured a bone of his ankle. He was well acquainted with the sidewalk, and knew it was in a bad walk to his boarding place, which was entirely safe and secure, and the distance and unsafe condition; had he so desired he could have gone over another side

no greater.

3. Upon the evidence submitted, it was a question of fact for the jury to determine whether the accident occurred from the negligence and the want of proper care on the part of plaintiff's son, or from the neglect of the city to keep in repair the sidewalk in question. The jury found by their verdict tha: the injury received grew out of the negligence and the want of proper care of the injured party.

4. The instructions given and refused, examined, and held, that a party has no right to knowingly expose himself to danger, and then recover damages for an injury which he might have averted by the use of reasonable pre

caution.

5. The city having furnished a safe and secure sidewalk over which the plaintiff's son might have passed affirming the case of Centralia v. Krouse. 6. To recover damages after the commencement of the suit, and for future damages, it must appear from the evidence that the injured party has not at the time recovered, and that the injury is permanent, and if not permanent, al

what time a cure could reasonably be anticipated.

It also publishes, Schintz v. Ballard, Circuit Court of Outagamie County, Wisconsin, (Ellis, J.), with the following syllabus:

1. By the terms of the will, the appropriations to the institute are to be made only on the condition that $75,000 shall be contributed by the citizens of 1. A sale of land, made by the master, is not complete and binding upon the Appleton, and the same to be actually paid to the said institute, or secured, to