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"was of intemperate habits." and that his intemperate habits were generally known in the neighborhood in which the liquor was sold. Reversed. Opinion by STONE, J.-Tatum v. State.

EVIDENCE-CHILDREN AS WITNESSES. 1. The admissibility of children as witnesses depends not merely upon their possessing a competent degree of understanding, but also, in part, upon their having received such a degree of religious instruction as not to be ignorant of the nature of an oath, or of the consequences of falsehood. 2. When a child of tender years is produced as a witness in court, it is the duty of the presiding judge to examine him or her, without the interference of counsel further than the judge may choose to allow, in regard to the obligation of the witness' oath; and, in a proper case, to explain the same to one intelligent enough to comprehend what he says, and then to determine whether or not the child shall be sworn and permitted to testify. 3. Held, that a little negro girl, about nine years old, was improperly permitted to testify in this case, when the only evidence as to her competency was that, in answer to questions put to her by the defendant's counsel, she said, "that she did not know what the Bible was; had never been to church but once, and that was to her mother's funeral; did not know what book it was she laid her hand on when sworn; had heard tell of God, but did not know what it was; and said if she swore to a lie she would be put in jail, but did not know she would be punished in any other way.' Reversed. Opinion by MANNING, J.-Carter v. State.

COURT OF APPEALS OF KENTUCKY.

September, 1880.

PROMISSORY NOTE-CONSIDERATION-SEDUCTION -FORBEARANCE TO SUE.-The admitted facts in the pleadings in this case are: The sole consideration of the note sued on was the agreement to forbear the prosecution of suit by Susan Cline v. Appellee, that the suit was brought by Susan Cline against appellee for seduction, and that at the time she was an adult unmarried woman; that at the time of the alleged assignment of the note by Susan Cline to appellants they had full knowledge of all the facts. It is further shown in evidence that the note before maturity was discounted to the German Security Bank, and having been protested for non-payment it was taken up by appellants. The questions in the case are: First. Was the note unenforceable for want of consideration? Second. Are the rights of the parties altered by the fact that the note was put on the footing of a foreign bill of exchange by discounting it at the bank? Held, that there is no cause of action either at common law or under the statutes in behalf of a woman for seduction. Woodward v. Anderson, 9 Bush, 624. An agreement to forbear to prosecute a claim which is wholly and certainly unsustainable at law or in equity, is no consideration for a promise. Parsons on Contracts, Vol. 1, p. 440; Chitty on Contracts. Vol. 1, pp. 35-46. The effect of the statute in regard to discounting of notes in bank, so as to place them on the footing of bills of exchange, is to fix the rights and liabilities of the parties as they would be if the paper had originally been a foreign bill of exchange. As appellants received the note sued on with the knowledge that it was without consideration, they took it up from the bank with the same right in appellee to make defense as he had prior to the discount. ing; and being holders with notice of the infirmity in

the bill, it is in their hands subject to all the defenses that existed between the original parties to the paper. Judgment affirmed. Opinion by HINES, J.-Cline v. Templeton.

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SURETIES RELEASE OF, BY ACTS OF PAYEE.Appellant was surety for one Hopkins on a note for $975, executed to Martha Duerson (Mrs. Snapp), on the 16th of February, 1875, due one day after date. Hopkins was, on his own petition, adjudged a bankrupt April 6, 1878. Mrs. Snapp, on the 22d of April, 1878, her husband consenting, proved the debt against said bankrupt's estate, and on the 2d of June following consented by a writing to the discharge of Hopkins, without regard to the relative amount of his assets, and the debts proved against his estate. Other creditors subsequently signed the writing consenting to his discharge, until the requisite one-fourth in number and one-third in amount were obtained, after which the writing was filed in the bankruptcy proceedings. Upon notice Mrs. Snapp was permitted by the bankruptcy court to withdraw her consent December 24, 1878. Hopkins has not been discharged, and it is claimed by appellant that he is entitled to judgment discharging him from liability as surety. Held, that in consenting to the discharge of Hopkins, the payee, Mrs. Snapp, released the appellant as security on the note for Hopkins, and that the subsequent withdrawal of consent does not alter the case, there being no locus penitentiæ in such cases. Judgment reversed and cause remanded, with directions to overrule the demurrer to defendant's answer. Opinion by COFER, C. J.-Calloway v. Snapp. CONSTITUTIONAL LAW - RETROSPECTIVE LEGISLATION-EFFECT UPON CONTRACTS WHEN PROHIBITED.-A note was executed in February, 1870, by W. J. Lusk, with the decedent, Samuel Lusk, as surety, to Samuel Holmes for $2,700, due in January, 1871. Samuel Lusk, the surety, died in February, 1872, and his personal representatives shortly thereafter qualified. By the 53d sec. of ch. 39 of the Gen. Stats., which took effect December 1, 1873, it is provided that "no interest accruing after his death shall be allowed or paid on any claim against a decedent's estate, unless the claim be verified and authenticated as required by law, and demanded of the executor, administrator or curator, within one year after his appointment." The note in controversy was not presented for payment to the executors of Samuel Lusk within one year after their qualification; and it is claimed by appellees that no interest can be collected from the estate of Samuel Lusk that accrued after the qualification of his executors. Held, that as the death of the decedent, as well as the qualification of his executor, occurred long before the General Statutes took effect, the section relied on by the appellees can not be made to apply. While retrospective legislation is not prohibited in cases where it does not affect or impair the obligation of a contract, it is manifest, from the language of the section, that the legislature did not intend the law to apply to cases where the representatives of the deceased debtor had qualified before the law took effect. If the law-making power had intended the section in question to apply to cases where the appointment of a personal representative had already been made, it would have provided that all claims against decedent estates should be presented within a certain period after the passage of the act, or no interest should be allowed. Nor do we mean to say that such a law would prevent the party from recovering the interest that had accrued at the time the act passed. Judgment reversed, and cause remanded for further proceedings consistent with this opinion. Opinion by PRYOR, J.-Holmes v. Lusk.

MORTGAGE LIENS PURCHASE OF MORTGAGED

PROPERTY-EFFECT OF, WHEN ITS CHARACTER IS CHANGED. The appellants, as assignees of a mortgage executed by Caldwell, Eaton & Co., to the Mississippi Valley Life Ins. Co., instituted this action in equity to subject to the lien created by the mortgage a number of cottage buildings. The land, with the cottages upon it, had been sold, after the execution of the mortgage to the insurance company, to the Louisville & Southwestern Railroad Company, and that corporation having purchased the property for depot purposes, sold the cottages to one of the appellees, Patrick Bannon, who removed them to lots of which he was the owner. The cottages and ground upon which they stood were then mortgaged by Bannon to his coappellees, the Hibernian Building and Loan Association. The sole object of the action is to subject the cottages on Bannon's land, and mortgaged to the building association, to the payment of the mortgaged debt, or so much of it as remains unsatisfied. The chancellor below dismissed the petition. It is maintained by the appellants that the lien followed the cottages to the land of Bannon, and the appellees having constructive notice of the lien by the mortgage on record, the cottages should have been sold to discharge the lien. Held, that the mortgagee had only a lien on the property for the payment of his debt, and could only enforce it by going into a court of equity and subjecting the property to its payment. No action for waste can be maintained by the mortgagee against the mortgagor while the latter is the owner and in posses. sion, nor would the chancellor, upon a bill filed to stay waste, interfere unless the waste complained of endangered the rights of the lien creditors. While the alienation of the land itself by the mortgagor can only be made subject to the mortgage, his right to cut timber, tear down buildings and to do all other acts in regard to his property that he may deem necessary for his interest, is not affected by the mortgage. He may be restrained from committing waste, and can no doubt be held liable when he impairs the value of the estate mortgaged so as to endanger the rights of the lien creditors; or, in other words, he is liable for the debt in any event, if the property when subjected fails to satisfy it; but when the timber he cuts upon the land, or the house that he pulls down and sells to another, is removed and becomes a part of the land by accession or otherwise, it is beyond the reach of the mortgagee's lien. In the case of Cooper v. Davis,15 Conn., the mill stones from a grist mill had been sold by the mortgagor and removed by the purchaser; it was held, in an action by the mortgagee to recover the property, that the title passed to the purchaser and the appropriate remedy for a mortgagee, when his security is being impaired, is by a bill in equity for an injunction. See Peirce v. Goddard, 22 Pick., and Buckout v. Swift, 27 Cal. The chancellor acted properly in dismissing the petition, and the judgment is now affirmed. Opinion by PRYOR, J.-Harris v. Bannon.

SUPREME COURT OF WISCONSIN.

September, 1880.

DEED-ACCEPTANCE-PROMISSORY NOTE-PAROL AGREEMENT.-1. The acceptance by the grantee, of a deed or land contract executed by the grantor alone, binds such grantee. 2. Plaintiff sold, assigned and delivered to defendant, for an agreed consideration in money, certain notes and mortgages of a third party, and all his interest in a contract for the sale of certain lands by him to such third party, the assignment be

ing in writing under seal, executed by the plaintiff alone, and containing a statement of the consideration and stipulations for the security of the plaintiff, and as to the effect of a default by the defendant to make the payments therein specified; and in execution of said agreement defendant paid a part of the sum named as consideration, and delivered to plaintiff his three promissory notes for the remainder. In an action on the notes: Held, that defendant can not prove a cotemporaneous oral agreement, by which, in case the timber on the lands described in the contract should fall short of a certain amount, he was to be allowed at a certain rate per M. for the shortage, and that there was such a shortage. Reversed. Opinion by LYON, J.-Hubbarb v. Marshall.

FRAUD- RESCISSION OF WRITTEN INSTRUMENTS WHEN NOT GRANTED.-1. Written instruments will not be cancelled or rescinded on the ground of fraud, except upon clear and convincing proofs. 2. Where a married woman sues to set aside a conveyance of her land executed by herself and her husband, on the ground that its execution was procured by defendant's fraudulent misrepresentations, if it appears that the negotiations which resulted in its execution were all between the defendant and the plaintiff's husband acting as her agent, she is bound by his acts, and the case is as if the husband had been owner of the land and plaintiff in the action. 3. In this case, in the absence of any sufficiently clear and convincing proof of the alleged fraud, this court reverses the judgment below cancelling the conveyance. Opinion by LYON, J.-Lavassar v. Washburne.

MARINE INSURANCE-CONSTRUCTION OF POLICY. -1. A contract of marine insurance upon a steam tug provided that the insurer should not be liable for losses arising from "incompetency of the master or insufficiency of crew, and want of ordinary care or skill in navigating said vessel." It appeared that the master, while navigating Lake Michigan, the fuel being exhausted, let go the anchor in a storm, and with his crew abandoned the tug and went ashore; and that a few hours afterwards the cable parted and the tug was wrecked. In this action upon the policy the jury found specially that the master did not do “* all that a skilful, careful and prudent seaman could do to prevent the wrecking of the boat," and that it was his duty to remain on board of the tug, or leave a man there to attend to the cable;" but to the question, "Did the master leave said boat only when, in his opinion, to stay longer would endanger the life of himself and the crew," they also answered ''Yes.'' appeal from a judgment in plaintiff's favor: Held, that the findings are so inconsistent as to require a new trial. 2. To render a ship seaworthy," within the meaning of a contract of insurance, she must be sufficiently furnished with proper cables and anchors. Reversed. Opinion by COLE, J.-Lawton v. Royal Canadian Ins. Co.

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CRIMINAL EVIDENCE-PARTY AS WITNESS-CONDUCT OF TRIAL-INSTRUCTIONS-VERDICT.-1. Under our statute which provides that "in all criminal actions and proceedings, the party charged shall, at his own request, but not otherwise, be a competent witness, but his refusal or omission to testify shall create no presumption against him" (Rev. Stats., sec. 4071) the voluntary testimony of such party on his preliminary examination may be put in evidence by the State upon his trial. 2. It is generally within the sound discretion of the court to allow a witness who has been discharged from the stand, to be recalled for further cross-examination, even where other proceedings have intervened. 3. After defendant who had testified in his own behalf, had rested, and after the introduction of some rebutting testi

mony, the court permitted the prosecution to recall him for further cross-examination; but this consisted merely in asking him whether he signed a letter then shown to him; and he answered that he did not, and the contents of the letter were not disclosed. Held, no ground for a new trial. 4. The judge read to the jury from his written charge three forms of verdict, and afterwards wrote out the same forms separately and passed them to the jury before they retired, defendant's counsel expressly consenting thereto. Held, no error; nor was such consent necessary. 5. An oral statement to the jury that they should find one of said three verdicts, and that their foreman should sign the verdict as found, held no part of the "charge" which the statute required to be reduced to writing. 6. Verdicts may be received in writing in the first instance; but if that were otherwise, a polling of the jury, and the assent of each to the verdict as read, would cure the error. firmed. Opinion by LYON, J.-State v. Glass.

SUPREME COURT OF INDIANA.

September, 1880.

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SHERIFF'S SALE-WHEN LEGAL TITLE VESTS IN PURCHASER WIFE'S INTEREST.-When the time for redemption has expired, and the sheriff's deed has been executed, the legal title of the execution defendant in the real estate sold, vests in the purchaser, not as of the date of the sheriff's deed, but as of the date of the sheriff's sale. 17 Ind. 64; 22 Ind. 55; 23 Ind. 91; 60 Ind. 478. And where a sale was made under foreclosure of a mortgage in which the wife ha not joined, and, after such sale, the mortgagor and his wife deeded the real estate to another: Held, that such grantee could bring suit for partition, and to have the one-third of such real estate set-off to him before the year of redemption had expired, under the act of 1875 (1 Rev. Stat. 554), which provides that the inchoate interest of a married woman may be set-off to her whenever, by virtue of any sale, such inchoate interest becomes absolute. Affirmed. Opinion by HOWK, J.-Hollenback v. Blackmore.

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CRIMINAL LAW-INDICTMENT-PLEADING - EVIDENCE.-1. Where the verdict of a jury finds the defendant guilty upon one count of an indictment, and is silent as to the other counts, it is equiv alent to a verdict of not guilty on such counts. Blackf. 186; 56 Ind. 101. Therefore the overruling of the defendant's motion to quash such counts presents no question that will be considered in the Supreme Court. 2. The charge of an assault is included in a charge of assault and battery, and if a defendant is charged only with an assault and battery with a felonious intent, he may be convicted of an assault merely, with or without the intent, according to the evidence. 54 Ind. 63; 66 Ind. 241. 3. In an indictment for an assault and battery with intent to commit a robbery, it is not necessary to describe the particular property which the defendant intended to take from the person upon whom the assault and battery was committed. 68 Ind. 38. 4. A prosecution for such crime must be commenced within two years after the commission of the offense, and where the evidence fails to show that the prosecution was commenced within such time, the judgment against the defendant will be reversed. 18 Ind. 492; 34 Ind. 104; 56 Ind. 207. Reversed. Opinion by HowK, J.-Dickinson v. State.

PLEADING PLEA IN ABATEMENT-PAYMENT. - 1. In a suit by a foreign corporation to collect a debt in

this State, an answer alleging that the plaintiff has not complied with the law of this State so as to authorize it to do business herein, is good as an answer in abatement upon demurrer. 54 Ind. 270. 2. An answer in abatement, not verified, may be struck out on motion for that cause; but if an issue, whether of law or fact, be formed upon such unverified answer, the objection to its want of verification is waived. 58 Ind. 521; 20 Ind. 528; 44 Ind. 413. 3. In an action to recover the value of a mower, the defendant answered, "that before the commencement of this suit he fully paid the amount demanded to plaintiff's agent," etc. Held, this was not equivalent to an averment that the demand sued on was fully paid. The defendant might have paid all that was demanded of him at a certain time, and yet not all that was sued for in this action. The demurrer to this answer should have been sustained. 4. A single pleading can not perform the double function of an answer and a counterclaim. 68 Ind. 356; 59 Ind. 269. Reversed. Opinion by NIBLACK, J. Toledo Agricultural Works v. Work. ATTACHMENT-CONTRACT WITH INDIAN-UNITED STATES STATUTE CONSTRUED.-In an attachment proceeding against an Indian woman, appellant was summoned as garnishee and answered that he had received from the United States certain money of the defendant, who agreed that he should draw said money for her and apply it to her indebtedness to him, and that he had done so. The court found that the defendant had made the verbal agreement alleged by the garnishee, but held that it was void under the laws of the United States. R. S. 1873-5, p. 370. Held, the statute cited applies only to such agreements as have been made with Indians, not citizens of the United States, "in consideration of services for said Indians, relative to their lands, or to any claims growing out of or in reference to annuities, installments, or other monies, claims, demands, or thing, under laws or treaties with the United States. or official acts of any officers thereof, or in any way connected with or due from the United States." Such agreements must be in writing and officially approved. Held, also, that as it was not shown that the indebtedness of the Indian woman in this case came within the provisions of the statute, or that it was not for money loaned or necessaries furnished her by the garnishee, her agreement was not void under said statute. Reversed. Opinion by Howk, J.-Godfrey v. Scott.

SUPREME COURT OF ILLINOIS.
September, 1880.

TRUST DEED-NOT A LIEN UNTIL MONEY PAIDREGISTRATION - PRIORITY - NOTICE-COSTS. -1. The mere recording of a deed of trust to secure a loan of money, does not create a lien upon the prop erty when the money has not in fact been paid over to the borrower. It becomes a lien against the rights and equities of a third person under prior unrecorded mortgage or trust deed only from the time the money is in fact paid. 2. Where the owner of real estate gave a deed of trust to A to secure a prior indebtedness to B, which was left with the trustee to be placed on record, and afterwards C, in good faith. made a loan to the owner, taking notes and a second deed of trust to A, to secure the same, which was placed on record on the same day, but no money was in fact paid by C to the borrower until some ten or twelve days after the recording, and the prior trust deed was recorded at the same time the money was

advanced to C: Heid, that under our recording law, neither of the trust deeds could be regarded as prior to the other, and that as the legal and equitable rights of B and C were equal, the equities of B, being first in point of time, must prevail over those of C. 3. It is immaterial whether a deed of trust was delivered to the trustee or not before it is recorded, to affect a subsequent purchaser with notice of the equities of the cestui que trust in the land therein conveyed. 4. The awarding of costs in suits in equity is a matter of discretion in the court below. Affirmed. Opinion by DICKEY, J.-Schultze v. Houfes.

MARRIAGE-COMPETENCY TO MAKE CONTRACTACTION.-1. Persons having a husband or wife living are not competent to contract marriage, and no presumption of a marriage can be indulged from cohabitation by such persons. 2. The statute does not prohibit or declare void a marriage not solemnized in accordance with its provisions. A marriage without observing the statutory regulation, if made according to the common law, will be good. 3. By the common law, if the contract be made per verba de præsenti, it is sufficient evidence of marriage, or if made per verba de futuro cum copula, the copula will be presumed to have been allowed on the faith of the marriage promise, if at the time of the copula the parties accepted each other as husband and wife. It is the consent of the parties, and not the concubinage, that constitutes valid marriage. 4. A contract of marriage per verba de futuro, while it may give an action, is not evidence of valid marriage; nor are the relations of the parties changed by the fact that cohabitation may have followed the promise to marry at a future time. A contract of marriage in the future, even where the parties may afterwards cohabit, is not understood to constitute marriage, unless the parties at the time of the cohabitation accept each other as husband and wife, and so conduct themselves that that relation is understood and acquiesced in by relatives and other acquaintances. Reversed. Opinion by SCOTT, J.-Hibblethwaite v. Hepworth.

NEGLIGENCE- RAILROAD KILLING STOCK-ACTS OF SERVANTS.-Where a coal train, in passing through a village, was running at the rate of fifteen or twenty miles an hour, and as the same approached, certain employees of the railroad, out of sport, threw stones at a person's hogs running at large, in such a manner as to make a sow run upon the track in front of the locomotive when she was struck and killed by the train: Held, that the speed of the train through the village was too fast for prudence, and that the stoning of the hogs was wanton, and the company was clearly liable for loss to the owner of the sow. Affirmed. Opinion PER CURIAM.-Cairo, etc., R. Co. v. Howes. OFFICERS ACTS SHOWING ABANDONMENT-IMPLIED RESIGNATION.-1. When an alderman elected under a special charter is elected in the same ward at different date on the assumption of the adoption by the city of the general law relating to cities, etc., and after a decision that the general law was not legally adopted, refuses to attend the meetings of the council, or appear on notice to show why he should not be removed, his subsequent election and refusal to attend the council meetings may be treated as abandonment of his office under the prior election, or as an implied resignation, and the office may be filled as in case of a vacancy. 2. One of the modes by which a member or officer of a municipal corporation may be said to impliedly resign his office, is by being elected and accepting an office incompatible with the duties of the former office. Affirmed. Opinion by SCOTT, J.-People v. Hanifan.

QUERIES AND ANSWERS.

[**The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

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44. A negotiable promissory note is made payable at "The State Bank" at Kansas City, Mo. A notary certifies under his seal, without affidavit, that he "presented the same at the Bank, which now occupies the rooms formerly occupied by the State Bank' in said Kansas City to the officers of said Bank, and demanded payment thereof," etc. "and I gave notice thereof," etc. 1st. Is such demand, and due notice thereof to an indorser, sufficient to hold the indorser? 2nd. Is the certificate without affidavit admissible in this State under sec. 20, p. 218, 1. W. S., or must it be made under affidavit, as provided by sec. 50, p. 598, 1. W. S.? These questions arose prior to 1879. L. Rolla, Mo.

ANSWERS.

43. [11 Cent. L. J. 278]. It may be regarded as fully settled that a grant of letters testamentary in one State or jurisdiction, does not confer any authority to bring an action in such representative capacity in another State or jurisdiction. McClure v. Bates, 12 Iowa, 77; Vaughn v. Northup, 15 Pet. 1; Atkins v. Smith, 2 Ark. 63; Noonan v. Bradley, 9 Wall. 394; Parsons v. Lyman, 20 N. Y. 103; In re Webb, 11 Hun, 124. The authorities are cited quite fully in Rorer,s Inter-State Law, 250, 251; Story Confl, of Laws, secs. 512, 513 and notes. A debt due upon an ordinary contract, to a testator or intestate, can only be sued by his representatives in their capacity as such. 1 Chit. Pl. 16 Am. Ed.22,36, It is therefore clear that no action would lie in Iowa by the foreign executor, nor in his own name and right, on such a contract. The note is such an ordinary contract unless payable to bearer, or indorsed by the payee. The querist does not say how it is as to this note-although all-material. In a work of much authority it is said: "So if the instrument were the property of the decedent, and were payable to bearer, the executor is the bearer and may treat it as his own, and may sue in his own name or in his representative capacity." Bliss, Code Plead. § 53. The same rule (citing same cases) is laid down as to foreign executors in Rorer's Inter-State Laws, p. 261. The cases cited are Mowry v. Adams, 14 Mass. 327; Bright v. Currie, 5 Sandf. 433; 4 Hill, 57; 28 Wis. 381; 16 Iowa, 430; Sanford v. McCreedy, 28 Wis. 102; 9 Wend. 425. With deference I do not think the cases cited, unless the last, support the proposition, as the question was not before the courts. In every case cited, except 28 Wis. 102, the action was one accruing since the death of the testator or intestate, as in 16 Iowa, 430, and the rule is unquestioned now that on a liability accruing to an executor after decease of testator, he may sue in his own name. Indeed that is the most proper form. 6 N. Y. 168; 3 Barb. Ch. 71; 10 Sm. & M. (Miss.) 607; 9 Wend. 302; 13 Wend. 591. It may be true as said by Lyon, J., in 28 Wis. 106, that the note being payable to bearer, "the mere production of the note on the trial was sufficient prima facie to entitle him to judgment." But that does not avoid the difficulty. A late case in the Court of Appeals of New York, decided under a similar code provision to that of Iowa, as to the real party in interest, held (reversing 10 Hun, 511) what I think must be the true rule, viz.: “To entitle a party to maintain an action upon a promissory note, he must be the legal owner, and have the right to possession. The production of the note payable to bearer, or properly indorsed, is sufficient prima facie evidence of title, but liable to be rebutted." Hays v. Hathorn, 74 N. Y. 486. My answer, therefore, is: 1. That the foreign executor can not sue as such. 2. That on a liability or debt due the deceased, though in the form of a note payable to bearer, he can not, under a statute like that of Iowa, cited, sue in his own name. The executor should procure “ancillary letters to be taken." D. L. A.

Sherburne, N. Y.

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CURRENT TOPICS.

The circumstances under which a court of equity will not interfere to restrain a threatened injury to real property, are illustrated by the case of Smith v. City of Oconomowoc, recently decided by the Supreme Court of Wisconsin. The plaintiff asked for an injunction against the city officers who, it was alleged, were about to remove a fence and storm door in front of his building; the city alleging that they were encroachments upon one of its streets. The circuit court granted the order, in reversing which the Su preme Court say: "We are of opinion that the court should have dismissed the action as not properly within the equity powers of the court. The city must be supposed to be abundantly able to pay any damage which the plaintiff may sustain if its officers shall remove the fence and door; and as the complaint does not show that the plaintiff will be greatly incommoded in the use and occupation of his premises by their removal, he should be left to his ordinary action at law, both to establish his right and to recover his damages. If this action can be maintained in a court of equity, then every threatened trespass upon real estate, of the most trivial kind, will be a ground for a suit in equity to restrain such trespass. If this action can be sustained, then every attempt on the part of town or county officers to remove obstructions from the highways of such towns or counties may be restrained by a court of equity, without first having the legal right determined in an action at law. In cases of this nature there is no reason for the interference of a court of equity in the first instance. The threatened damage being such as can well be compensated in damages in an action at law, the legal rights of the parties should be determined in such an action. Ordinarily, one action at law will determine the matter. It will be time enough for the plaintiff to invoke the restraining arm of a court of equity when he shall have established his right by a judgment in an action at law for an actual trespass committed, and when, notwithstanding such judgment, the city and its authorities shall threaten to repeat the trespass. The complaint and evidence in this case discloses nothing but a threat on the part of the city, under a claim of right, in order to protect its streets from illegal obstructions and encroachments, to do an act which, if not authorized, would be a trespass upon the plaintiff's realty resulting in but slight damages, and not in any way doing what in the law is termed an irreparable injury to his property.' The court distinguished the case from that of Wilson v. Mineral Point, 39 Wis. 160, where the city by its officers, threatened to open a street through the plaintiff's garden and grounds, and to destroy his shrubbery, fruit and ornamental trees-a damage which might be compensated in money, but a destruction of property which could not be restored to its former condition by the labor of man alone, nor with his labor aided by the forces of nature, except after the lapse of many years. See, also, Sheboygan v. R. Co., 21 Wis. 667; Judd v. Fox Lake, 28 Wis. 583.

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We have more than once deplored the public spirit of this country which seeks to obtain judicial labor as cheap as possible, and consequently often obtains the poorest quality. We have more than once affirmed that this shameful penuriousness is confined to judicial officers; that while ministerial officers, either by fees or salaries, only require to hold their positions for a few years, in order to leave them opulent, our

judges are barely able to make their salaries cover their current expenses; that while the public in dealing with administrative and executive officers is often prodigal, in dealing with judicial officers it is always stingy. Some months ago, in the New York Graphic, the public found its apologist in a writer who undertook to show by statistics that the expenditure for judicial services was larger in America than in England. Thirty-four judges, he said, discharged the law business of England at an aggregate cost of less than $1,000,000, the population served being about twentyfive millions; while New York State alone employed over four hundred and fifty judicial officers, at a compensation of more than $1,000,000, to administer justice to a population of five million people. But now comes a letter to the Albany Law Journal, from a lawyer who has examined the judicial expenses in England with great care, which shows that the Graphic has been woefully deceived, or else wilfully misrepresented the facts. The salaries of the Judges of the Supreme Court of Judicature, viz.: the Lord Chancellor, the Chief Justices and the Master of the Rolls are $250,000. The salaries of the judges of appeal are $155,000; of the judges of the different divisions of the High Court of Justice, $650,000; of the assistant judges, $180,000. This includes the judges of the superior courts alone. The salaries paid to the judges of the inferior courts amount yearly to the sum of $2,160,000. To this must be added a large number of the chancellors and judges of local courts, who are paid by fees and not by salary, and whose emoluments certainly reach $1,000,000 a year, if not more. So we have a total of nearly four million and a half dollars as the cost of judicial labor in England. It must be remembered that we have more judges to the population than they have in England. An American citizen has no confidence in the decision of any judge lower than a Supreme judge, and consequently never trusts him with the final determination of even the smallest case. In England the judgment of a county court judge, whose jurisdiction is similar to that of a justice of the peace here, is not appealable; but with us where a man's cow is run over by a locomotive, or a note for fifty dollars on which he is an indorser is not paid by the maker, he sues or is sued, first before a justice of the peace, then if he loses he appeals to the circuit court, and from there to the appellate court. Six or more judges must pass upon his case before it is finally decided, where in any other country one would be considered sufficient for the purpose. When this is taken into consideration the disproportion between the wages which each receives becomes plainer.

RECENT LEGAL LITERATURE.

RECENT REPORTS.

The sixth volume of Bradwell's Reports contains all the remaining opinions of the first, second, third and fourth districts up to August 12, 1880. The opinions cover 643 pages, the index and table of cases extending the volume to 704 pages. The following points, among others, seem to be novel and of general interest: The failure of an alderman to attend the meetings of the city council or perform the duties of his office for five months, is an implied resignation.

Reports of the Decisions of the Appellate Courts of the State of Illinois. By James B. Bradwell Vol. 6. Chicago: The Legal News Co. 1880.

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