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sent of the original parties to it. Durr v. State, 59 Ala. 24." Tabler, Crudup & Co. v. The Sheffield Land, Iron and Coal Co., S. C. Ala., Decem
ber Term, 1885-86. 2. ATTORNEY AND CLIENT-Good Faith.-An at
torney, when acting for his client, is bound to the most scrupulous good faith. If he corruptly sells out his client's interest to the other side, a judgment thus obtained may be set aside on the charge of fraud. So, also, if a plaintiff is guilty of so influencing the attorney of the defendant, by the payment of money, without the knowledge or consent of his client, as to make it the interest of said attorney that plaintiff should obtain a judgment against his client, and such attorney, in the absence of his client, does not make any resistance to the rendition of the judgment in favor of the plaintiff, a new action may be sustained by the defendant to set aside the former judgment and open the case for a new and fair hearing. Haverty v. Hacerty, S. C. Kans., July 9, 1886; Kans. L. J., Vol. 3, No. 23. 3. COMITY-Attachment – Insolvency. – Creditors
resident in a State which has enacted a system for an equal distribution of the assets of an insolvent, and who are bound by the decree establishing the insolvency, should be restrained from seeking preference by attachment of the debtor's property in another State. The courts of a State would not sustain the claim of attaching creditors not citizens of the State whose process is invoked, in preference to the claim of an assignee obtaining title under the laws of the State of the insolvent debtor. Although the property of a debtor was attached in another State before the assignment in insolvency was actually executed, yet if done with full knowledge that the debtor was embarrassed and had suspended payment, and with intent on the part of the attaching creditors to avoid the effect of the assignment, it is ineffectual to establish a preference over creditors resident in the same State as the insolvent. Cunningham v. Butler, S. Jud. Ct. Mass., May 11, 1886; 2 New Eng. Rep. 338. 4. COMMERCIAL LAW-Action on Promissory Note
Indorsement-Denial Under Oath-Evidence.-In an action brought to recover upon a promissory note payable to order, by a party claiming to be the indorsee, the lanswer admitted the execution of the note, but denied the written indorsement thereon by affidavit duly verified; it admitted, however, that the note had been transferred to the plaintiff, and the defense was that the transfer was made after maturity, and that there had been a total failure of consideration for the note. Held. The plaintiff is entitled to a judgment as being the holder and in possession of the note, unless the defense of the failure of consideration is established; but, held further, the plaintiff is not protected as a bona fide holder of the note, so
as to cut off the equities of the maker, in the absence of proof of the execution of the written indorsement, denied under' oath. State Sav. Assn. 0. Barber, S. C. Kans., July 9, 1886; Kans. L. J. Vol.
3, No. 23. 5. COMMON CARRIER-Duty of Railroad to Stop at
Platform-Evidence-Where the complaint, claiming damages of a railroad company for the refusal of a conductor to stop his train, and put plaintiff off at the proper station, alleges that he “willfully refused to stop," and carried her several hundred yards beyond,"without her consent, and against her protest;" these averments are material, and if
the evidence shows that the conductor only neglected to stop, or that the plaintiff not only submitted, but consented to alight at the further place, without objection or protest, there is a fa tal variance between the averments and the proof. If the defendant's trains were accustomed to stop at the platform at which the plaintiff desired to alight, though it was not owned or constructed by the company, an implied contract that passengers might stop there may be inferred. Louisville, etc.
Co. v. Johnson, S. C. Ala. 6. CONTRACT– Time-Propositi on by Mail-Accep
tance.—Where a proposition to enter into a contract is made, and no time of acceptance is fixed by the party proposing, it must be accepted within a reasonable time. Where a proposition to sell a stock of merchandise is made to a distant party by letter, in which he asks for an early response, the proposer has a right to expect a prompt reply through the mail, which is the usual mode of accepting an offer made by letter, or else by some other equally expeditious manner. A mere uncommunicatdd purpose to accept an offer does not constitute an acceptance, and where parties are distant and the contract is to be made by correspondence, the writing of a letter or telegram containing a notice of acceptance, is not of itself sufficient to complete a contract. In such a case the act must involve an irrevocable element, and the letter must be placed in the mail, or the telegram deposited in the office for transmission, and thus placed beyond the power or control of the sender, before the assent becomes effectual to consummate a contract; and not then, unless the offer is still standing. The mere determination to accept an offer received by letter, and the act of the party to whom it is made, in starting on a journey with the intention of meeting the proposer and accepting the offer, where no notice of his intention is sent to or received by the proposer within a reasonable time, is no more than a mere mental assent, and does not amount to an acceptance. Trounstine v. Sellers, $. C. Kans., July 9, 1886;
Kans. Law J., Vol. 3, No. 23. 7. CORPORATION-Municipal Corporations-Specia
Assessment- Benefits-Instruction as to Damages-Derivable Only at Expense Equaling Value. -An instruction directing the jury to ascertain the depreciation in value, if any, caused to certain property by a certain improvement, implies a całculation both of damages and benefits, and is not faulty as excluding benefits from the consideration of the jury. Where the evidence shows that property might derive a benefit from an improvement if a sum greater than its entire value were expended upon it in putting it into a condition to receive such benefit, a failure to instruct the jury to deduct the benefits to such property from the damages is not clearly erroneous. Village of Hyde Park v. Washingion Ice Co., S. C. Ill., May 15,
1886, 7 N. East. Rep., 523. 8. CRIMINAL LAW-Burglary-Possession of Stolen
Money – Evidence – Trial-Reasonable Doubt.The mere fact of one of two parties indicted for burglary being in possession of money identical in kind and denomination with that which was stolen is not sufficient evidence to convict him, in the absence of proof that he knew the money to have been stolen when he received it, or was connected with the commission of the crime. State v. Nelson, 11 Nev. 340, in regard to instructions as to reasonable doubt, affirmed. State v. Jones, S. C. Nevada, July 12, 1886, 11 Pac. Rep. 317.
9. Homicide-Manslaughter-Unlawful Act
Deadly Weapon-Carelessness-Instruction-Reasonable Doubt - Definition,Verdict-InformalSufficiency of.-Where one chases another with intent to catch him, and slap his face, and draws a pistol with intent to fire in the air, and scare the fugitive, and accidently shoots and kills him, the offense is manslaughter. Campbell, C. J., and Morse, J., dissent. An instruction defining “reasonable doubt" as "a doubt arising out of the facts and circumstances of the case, in maintaining which you can give some good reason," while not accurate, was not of sufficient consequence in this case to be assigned as error. Where the jury reported to the court that they found the respondent guilty of voluntary manslaughter, and the verdict was reduced to form, and the clerk then said: “Gentlemen of the jury, you say you find the respondent, Jacob Steubenvoll, guilty of manslaughter in manner and form as the people in their information charged—so say you, Mr. Foreman; so say you all?" and the jury answered, “We do;" held, that the verdict was sufficient. People v. Steubenvoll, S. C. Mich., July 8, 1886, 28 N. W. Rep. 883.
10. Larceny and Receiving Stolen Goods-In
dictment-Proof Must Agree With Allegations of Larceny-Embezzlement of Proceeds From Authorized Sale, not a Larceny of Thing Sold.The indictment against defendant charged that he “did steal, take and carry away one lace-pin, of the value of eight hundred dollars,
the property of James Porteous." The evidence was that Porteous had left it with defendant to be sold, but the former had authorized him to procure a loan upon it, which he did. Defendant asked the court to charge that "the indictment being for the larceny of a certain pin, if the jury believe that the complainant, being the owner of the pin, authorized the defendant to obtain a loan upon it, and the defendant did actually obtain the loan as authorized, they cannot convict under the indictment for the larceny of the pin." The court refused to so charge. Held error. An omission to account for the proceeds of a loan obtained on a pin which accused was authorized to pawn, could not, by relation, change the voluntary act of the owner in parting with the pin, into a larcenous taking by the defendant, nor support the allegation of the indictment. People v. Cruger, N. Y. Ct. Appls., June 1, 1886, 7 N. E. Rep. 555.
the matter of the form of a question being in the discretion of the trial court. Testimony relating to the condition of a witness when his alleged dy. ing declaration was made, is not testimony adding to or contradicting the written statement. Dying declarations are restricted to the act of the killing, and to circumstances immediately attending it, and forming a part of the res gestce. The action of a court in sustaining the objection to a certain question cannot be assigned as error, if elsewhere in the course of the trial the question has been fully answered. On a trial for murder, it is not error to refuse to admit a question put to a witness as to whether he knew of the defendan't arrest for arson, and at whose instigation such arrest was made, if no offer was made to prove that the arrest for arson was instigated or brought about by any witness for the prosecution, or any organ. ization or society hostile to the defendant with which any witness for the prosecution was con. nected; as in the absence of evidence, or any offer thereof, connecting the witness for the prosecution with such arrest, the answer to the question could not have tended to destroy the credibility of any of them. People v. Fong Ah Sing, S. C. Cal., May 31, 1866, 11 Pac. Rep. 323.
12. DESCENT AND DISTRIBUTION- Will by Minor
Guardian's Sale.-G., while an infant, inherited from her father and mother real estate belonging to them during their lives in equal moieties as tenants in common. Her guardian sold her said estate, under leave of the court of probate. She died November 21, 1885, 19 years old, leaving a will dated that day, purporting to convey her estate, consisting of the surplus proceeds of the above real estate. Under Pub. St. R. I. c. 182, $$ 1, 2, minors of 18 can dispose of their personal estate by will, but only those of full age can dispose of their real estate by will. Under Pub. St. R. I. c. 179, $ 14, if real estate of a ward is sold by guar. dian by leave of a probate court, the surplus remaining at the death of the ward descends to the heirs of such ward, as the real estate of the ward would have done had no sale been made. Held, this clearly means that the conversion of the real estate into money shall not alter the course of descent. Held, also, since the will would have been ineffectual to interrupt the descent if the real estate had not been sold, it is likewise ineffectual, notwithstanding the sale as to the surplus proceeds. Held, that the surplus proceeds will descend in moieties, according to the canons of descent, one-half to the next of kin of the deceased of the blood of the father, and the other half to the next of kin of the blood of the mother. In Re McCabe, S. C. Rh. Isl., June 19. 1886, 5 Atl. Rep. 79.
11. New Trial-Newly-Discovered Evidence
-Jury-Chalienge for Cause-Exception-Witness-Ecamination of-Practice-Leading Questions-Evidence - Dying Declarations-Evidence Explaining- What Admissible-- Error-Evidence - Exclusion of-Error Without Injury-Credibility of Witness.-In cases of conflicting testimony, newly-discovered evidence, merely cumulative, will not furnish ground for a new trial. A challenge to a juror on the ground that he is not a resident of the county where the trial of a criminal case is had, is a general challenge for cause, and no exception to the action of the court in disallowing such a challenge is permitted by statute. On the examination of a witness, counsel is not authorized to insert in a question a statement as having been made by the witness which had not in fact been made by him. The allowance of a question to a witness, against the objection of the adverse party that it is leading, improper, and incompetent, cannot be assigned as error on appeal,
13. DIVORCE-Fraud in Procuring Divorce; Re
view.-Where an action is commenced by a defendant within six months after the rendition of a decree of divorce, to vacate the same, upon the charge of the fraud of the plaintiff, and in such case a judgment is rendered against the defendant, a subsequent proceeding to review said judgment may be commenced in the supreme court within one year after its rendition. (Sec. 3, ch. 126, Ses. sion Laws of 1881.) Haverty v. Haverty, s. C. Kans., July 9, 1886, Kans. Law J., Vol. 3, No. 23.
• 14. DOWER-Rents and Profit 8–Alienation of Dox
er Interest-Equity.-Until her dower is assigned
Subsequent Ratification.-A guardian expended certain sums of money judiciously and in good faith in repairs which resulted to the advantage of the estate, and although there was no order of court previously made authorizing the expenditure, yet when his account was presented to the court it was decided that he was justified in making the repairs. Held, that the guardian having taken the risk of being surcharged, yet the subsequent approval by the court relieved him from liability. Kilpatrick's Appeal, S. C. Penn., May 10, 1886. 5 Alt. Rep. 10.
19. LANDLORD AND TENANT-Eject mdnt. - Where
the husband of the defendant occupied the premis es in controversy, as a tenant by the year, and defendant, after his death, continued in possession of the premises with the knowledge of the plaintiff, who made no objection to her occupancy, and by his silence and his acts consented to it, she may be regarded as a tenant at will, and, being lawfully in possession, ejectment will not lie against her until after demand of possession. Perkins v. Perkins, S. C. Conn., April 24, 1886. 2 N. Eng. Rep., 311.
to her, the widow has no interest which she can convey to a stranger, so that he may assert it at law, and the heir may recover in ejectment against her grantee; but a court of equity will protect the rights of her alienee, when founded on a valuable consideration, and enforce the transfer against her in a proper case. Where the widow joins with two of the heirs in conveying the lands to a third person, to whom the other heirs had already aliened, the deed being founded on valuable consideration, and containing covenants of warranty, she cannot afterwards maintain a bill in equity against her grantee for assignment of dower. Where the widow, residing with her sons on the homestead lands, before dower has been assigned to her, unites with them in a mortgage of the lands and crops, as security for advances to enable them to make a crop, and the cotton raised is delivered to the mortgagees in payment of the debt, she cannot afterwards maintain a claim against them as for rents and profits before dower: as signed. Reeves v. Brooks, S. C. Ala. 15. Equity-Bill to Quiet Title – Fraud — Sale by
Guardian.-Where a guardian sells lands without proper formalities, and the wards, after attaining their majority, presumptively affirm the sale by retaining the purchase money, and later actually do so by giving the owner of the title under the probate sale a deed of the property, he may maintain a bill in equity to quiet title against a third party who, by fraud, obtains a deed of the wards after their majority, and before they execute the deed to complainant. Fender 0. Powers, S. C. Mich. July 1, 1886. 28 N. W. Rep., 878. 16. Fixtures - Landlord and Tenant - Machinery, when a Fixture — Execution against Landlord Conversion-Demand.- Machinery attached to a building with bolts and screws is a fixture, within the meaning of $ 660 of the California Civil Code. Machinery having the character of a fixture may be taken on execution against the owner of the property to which it is 'attached, notwithstanding it belonged to, and was attached to the realty by, a tenant whose lease has not expired, and who, under the lease, has a right, upon the expiration thereof, to remove such machinery. No demand is necessary before bringing suit for the recovery of property which constituted a fixture, and which was wrongfully severed and removed. McNally v. Connolly, S. C. Cal. May 28, 1886. 11 Pac. Rep., 320. 17. FRAUDULENT CONVEYANCES Post-Nuptial
Settlements – Evidence - Husband and Wife – Proving Consideration-Recitalin Deed.-A Husband is not a competent witness to prove the consideration upon which a post-nuptial settlement upon his wife was made, even though the wife be dead. In equity the consideration for a post-nuptial settlement may be shown by parol proof. A recital in the deed, that the consideration was paid by the husband, does not necessarily imply anything more than the money passed through his hands; it does not at all indicate the ownership thereof. A case in which the evidence satisfactorily shows that the consideration for the settlement upon the wise moved not from the husband, but from the wife's father, and the settlement is sustained. Marks v. Spencer, S. C. of App. Va. April 22, 1886. Va. L. J. Vol. 10, 463. 18. GUARDIAN AND WARD-Account of Guardian
Expenditure without Order of Court – Repairs
20. MARRIED WOMEN-Disabilities of Coverture
Powers Conferred when Relieved of-A decree of the chancellor, relieving a married woman of the disabilities of coverture as to her statutory or other separate estate (Code, $ 2731), although it does not confer on her a general power to contract, expressly authorizes her to “buy” and “to be sued as a femme sole;” and she is personally bound by a contract of purchase made by her and may be sued at law. In rendering the opinion of the court, upon this point, Somerville, J., says: “It is our opinion that she was personally bound by her contract of purchase. No one contends that the purpose of the statute was to confer on married women a general power to contract. The contrary has been uniformly declared in all of the decisions of this court where the construction of this law has been under our review. Ashford v. Watking, 70 Ala. 156; Meyer v. Sulzbacker, 76 Ala. 121; Cohen v. Wollner, 72 Ala. 233; Hatcher v. Diggs, 76 Ala. 189; Dreyfus v. Wolffe, 65 Ala. 496.
The statute confers on her the express power to buy. This includes the power to buy on credit, and, by necessary implication, the incidental power to promise to pay for what she buys, because her authority is not confined to buying for cash. Then follows the declaration in the statute that she may be sued as a femme sole—that is, just as she could be sued if she were unmarried, or had no husband. In the latter contingency it is perfectly clear that the result of a suit, in the event of a recovery, would be a personal judgment against her.” Par
ker v. Rosvald, S. C. Ala. Dec. Term, 1885-86. 21. PARENT AND CHILD-Step-Father-Step-Child
- Support of Minor Child-Contract, Express and Implied—Guardian and Ward-Liability of Guardian – Advice of Counsel Surcharge.- A stepfather is under no legal obligation to support a step-child. If, however, the latter enter into and form a part of the former's family, the law will imply no promise to pay for his doing; but this rule is changed by an express promise to pay. A guardian who has acted according to his best light, under the advice of counsel, and in good faith, will not be surcharged for sums of money expended for the benefit of his wards. Brown's Appeal. S. C. Penn. April 5, 1886. 5 Atl. Rep. 13.
22. PARTITION-Procedure in Adverse Claim. — In
an application for the sale of property, for division or distribution among several tenants in common, as in an application for partition (Code, $$3498, 3515), the petition must set forth the names and residences of "all the parties interested in the property;" and this statutory requirement, which is jurisdictional, includes the person who files the application. If the petition shows that one of the tenants in common has died, it must show to whom his interest has descended, or in whom it has become vested, and such persons must be made parties. If it appears that the deceased tenant owed debts at the time of his death, the court should appoint an administrator ad litem to protect the creditors (Code, $ 2625); but such administrator is not authorized to receive the money decreed to him. Although a partition or sale can not be decreed, “where an adverse claim or title is asserted by any one" (Code, $ 3512); yet the jurisdiction of the court can not be ousted, or rendered nugatory, by the false assertion of an adverse claim by one of the defendants, without foundation in law or in fact. The surviving husband of a deceased married woman who was one of the tenants in common, having a statutory life estate in his wife's interest in the lands (Code, $ 2714), is a proper and necessary party to the proceeding, and is bound by a decree ordering a sale; but, as to how his interest in the proceeds of sale is to be ascertained and determined, in the absence of the statutory provisions, the court decides nothing. Ballard v.
Johns, S. C. Ala. 23. PARTNERSHIP.-Members of Proposed Corpor
ation-Contract with One of Its Members--Form of Action-Case-Bill in Equity-Account Render. -The members of a proposed corporation are partners liable to contribute, in proportion to their interest, to funds required for the use of the partnership, and entitled to a proportionate share of profits realized. A member of a proposed corportion, who is treated as a partner, cannot bring an action on the case against the other members to recover damages for failure to perform a contract for the purchase of property for firm purposes into which they have entered with him. One partner cannot sue another partner for a partnership debt, except by bill in equity, or action of account render. Crow v. Green, s. C. Penn., April 26,
1886. 5 Atl. Rep. 23. 24. STRANGER PAYING DEBT.-Subrogation-Re
quest to pay-Mortgage-Administrator.- Where a mere stranger, a mere volunteer, a mere intermeddler, pays the debt of another, he cannot be subrogated to the rights of the creditor. But where a person pays a debt which is secured by a mortgage, at the instance and request of the debtor, with the agreement that the person paying the debt shall have a mortgage lien upon the real estate then mortgaged to secure such debt, and a new mortgage is given but is void, the party furnishing the money may be subrogated to the rights of the original creditor. And this rule applies where an administrator borrows money to pay a debt of his intestate's estate. In other words, where a debt is due against the estate of a deceased person, and such debt is secured by a mortgage on real estate of such deceased person; and the administrator, whose duty it is to pay such debt, borrows the money therefor from a third person, with the agreement and understanding between them that such third person shall be sesured by a mortgage lien upon the previously
mortgaged property of such estate, and for that purpose a mortgage on the previously mortgaged property is executed by the administrator to such third person, which mortgage is void because of a want of power in the administrator to execute the same, but in pursuance of such mortgage and with the agreement and understanding between the administrator and the loaner of the money, the money is loaned and is paid to the original mortgagee; held, that such third person may then be snbrogated to the rights of the original mortgagee. Crippen v. Chappel, S. C. Kans. July 9, 1886,
Kans. L. J. Vol. 3 No. 23. 25. Tax.-Title-Color of Title-Adverse Posses.
sion-Witness.-Five years after the date of the sale” is the statutory limitation to an action to recover land sold for non-payment of taxes (Code, 464); and this has been construed to mean five years from the delivery and registration of a deed properly executed and acknowledged. A taxdeed, though invalid as a muniment of title, may constitute color of title, and thus operate to define the boundaries of an actual possession. A fence, or inclosure, is not an essential element of an ad. verse possession; and permitting a fence to be. come dilapidated, or even destroyed, during the interval between periods when necessary to protect the crops, does not, of itself, constitute an abandonment, nor interrupt the continuity of the possession. Although a witness may testify corruptly, his testimony should, nevertheless, be received as credible, so far as it may be satisfactori. ly corroborated by other evidence. Hughes 0. An
derson, S. C. Ala. 26. WILL-Specific Devise-Residuary Clause-Es.
toppel - Deed - Signature- Assumed Name.-A residuary devise, in ordinary terms, carries with it not only the property of the testator in which no interest is devised or bequeathed in other portions of the will, but also reversionary interests in property not otherwise disposed of by him, even when the residuary devisee is also the devisee of the interest specifically devised as a life-estate. A party signing and executing a deed under an assumed name will be estopped from taking advantage of it, and so will all others in privity with him and whose rights are not paramount thereto. Datis v. Callahan, S. J. C. Me., June 22, 1886, 5 Atl.
Rep. 73. 27. WITNESS-Transactions With Decedents, Act
of April 15, 1869–Competency of WitnessTrial— Testimony of Incompetent Witness-Striking Out-Error Cured-- Trusts-Resulting Trusts -Payment of Purchase Money-Intention of Parties-Evidence.-The act of April 15, 1869, forbidding the living party to a contract to testify in relation to it when the other party is dead, applies to suits upon choses in action only. It does not apply to actions involving title to real estate. Where a witness is competent when offered, and when afterwards, in the course of the trial, his incompetency appears, his testimony is stricken out, and the jury instructed to disregard it, its original admission is not error. Where a purchaser of real estate pays the purchase money,and takes title in the name of another, a presumption arises of a resulting trust in his favor. The intention of the parties governs in such a case, and their contemporaneous and subsequent acts and declarations may be admitted evidence to rebut the presumption. Warren v. Steer, S. C. Penn., May 17, 1886, 5 Atl. Rep. 4.
QUERIES AND ANSWERS.
Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.)
QUERIES. 15. A. offers to sell a lot for a certain price. B. replies: "I accept your offer, please execute the enclosed deed and send it to S. Bank with instructions to cashier to collect the amount due you and deliver deed. I will pay their charges, you will send with the deed an abstract of title, or if you have not one, please order one. If you prefer to send the deed to any one else, it does not matter much to me, only I do not want anything to do with a real estate agent.” Is this an unqualified acceptance? Or do the requests to send it to S. Bank-subsequently modified-and for an abstract constitute new conditions? Please cite authorities.
16. A., a physician, gave to B. as collateral security, to secure to B. a running account not due, an order on C., who was indebted to A. B. immediately returns the order to A. for collection and agrees to give a credit when the order is collected and amount paid to him. The order was never accepted by C. and he knew nothing of it. Afterwards C. pays his account to A., and on demand from B., A. fails to pay the money so received from C. over to B. Is A. guilty of embezzlement? Cite authorities.
QUERIES ANSWERED. Query 10. [23 Cent. L. J. 70).-A. loses his house which was insured, by fire. The insurance company believed that A. either did or procured the burning thereof, and refuses payment of loss. A. sues to recover the amount claimed under the policy. The company answers, setting up as their defense, A.'s guilt in regard to the fire. What is the quantity of proof required at the company's hands to release it from liability? Must it establish the guilt “beyond a reasonable doubt” as would be required of the State in a criminal prosecution for the crime, or must it simply show it by “the preponderance of testimony” only as is the rule in other civil cases.
Answer.-The defendant need only show A.'s guilt by a preponderance of the evidence. 2 Greenleaf on Evidence, $ 408: Gordon v. Parmlee, 15 Gray (Mass.), 413: Wash. Union Ins. Co. v. Wilson, 7 Wis. 169; Schmidt v. Ins. Co., 1 Gray (Mass.), 529; Bla eser v. Ins. Co. 19 Am. Rep. 747.
A. W. L.
Query 37. (22 Cent. L. S. 310.)-Section 5010, Rev. Stat. Mo., provides that the Board of Trustees may pass ordinances: "To provide licensing and regulating dram-shops and tippling houses, etc." Under this provision in said section, has the Board of Trustees power to pass an ordinance regulating the sale of liquor by druggists and pharmacists in the village? Please cite authorities.
Answer. Under the laws of Missouri a dram-shop keeper is one thing (2 Rev. Stat. 1069) and a druggist is another (2 Rev. Stat. 1075). By a familiar rule of construction the Board of Trustees under the authority stated can regulate snch establishments only as fall under the statutory definition of dramshops, but cannot regulate drug-stores, nor interfere with the busi.
ness of a drug-store, which under the statute includes the sale of liquors in certain modes and quantities. If however, a druggist so conducts his business as to make his establishment fall under the legal definition of a dram-shop, he becomes amenable to the law and ordinances relative to dram-shops.
A, B, C.
A TREATISE ON CONTRACTS FOR FUTURE DELIVERY
and Commercial Wagers, Including “Options," "Futures," and "Short Sales." By T. Henry Dewey, of the New York Bar. New York: Baker, Voorbis & Co., Publishers, 66 Nassau Street, 1886.
The subject of this work is of no slight importance to lawyers who are interested in commercial affairs, for, from the necessity of the case much of the business of their clients is speculative. It should, therefore, interest them to be able to distinguish clearly between those classes of contracts which, although confessedly speculative, are nevertheless legal and within the scope of legitimate commercial enterprise, and those which the law condemns as wagering contracts. The line of demarcation is not very distinct, the law, as the author of this work remarks in his preface “is far from being settled and the decisions in many cases are contradictory and unsatisfactory.” It is the object of this work to classify and harmonize the numerous rulings, and to enable the practitioner to distinguish clearly, speedily and accurately between those classes of speculation which the law regards as legitimate enterprise, and those which it brands as wagering contracts, and mere gambling, and to the enforcement of which, it steadfastly refuses its aid.
As to whether a given transaction is lawful or unlawful, a legitimate speculation or a mere wager, the author furnishes the following on “The True Test:" “Where the parties to a contract in the form of a sale agree, expressly or by implication at the time it is made, that the contract is not to be enforced, that no delivery is to be made, but tho contract is to be settled by the payment of the difference. * Such a transaction is a wager.” In an English case "the jury was told that if neither party intended to buy or sell, it was no bargain but a mere gambling transaction.” The rule seems simple enough but in its application to transactions complicated by the incidents of boards of trade, “bucket shops,” agents, brokers, and other commercial machinery, there has been considerable difficulty, and the cases are not in accord with each other, nor in all respects with the obvious general principle governing the subject.
The work before us is evidently the result of much research, and is well worthy of the consideration of all members of the profession whose line of practice includes commercial transactions of a speculative character.
A TREATISE on the Construction or Interpretation of
Commercial and Trade Contracts. By Dwight Arven Jones, of the New York Bar. New York: Baker Voorhis & Co., Law Publishers, 66 Nassau Street, 1886.
This is another work on commercial law, but much broader in its scope than the preceding. That is confined to the law relating to certain morbid developments of commercial activity-this extends to the construction of commercial contracts generally, unaf. fected by any taint of illegality. At first it would ap