there is but a single issue-mental capacity-and the true inquiry is as to the testator's mental condition at the precise time when he executed the instrument sought to be probated. The instrument sought to be probated is admissible in evidence as part of the res gestæ, and its precise character may be considered by the jury, in connection with the other testimony. Vance v. Upson, S. C. Tex., June 25, 1886; 1 S. W. Rep. 179.

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.

20. Please answer the following questions, citing authorities. A. purchases from B. a certain business, and in connection therewith, certain chattels and trade fixtures used in running the business; all constituting one of the same transaction. A. afterwards brings suit against B. for damages for fraudulent representations as to amount of business done; average receipts and expenses of running the business; amount of receipts above expenses of running; amount of business done between different dates. Upon the trial, fraud is clearly shown; the representations; their falsity; defendants knowledge of their falsity; plaintiff's reliance upon them that the receipts of the business had always run below cost of running, etc. A. fails to prove the value of the chattels received with the business, and the court dismisses the action on the ground that plaintiff has failed to prove the measure of damages; plaintiff fails to prove the difference between the value of the business as represented, and as it actually came into his possession, would not plaintiff be entitled to a verdict for nominal damages, actionable fraud being clearly made out. If A. had attached the goods of B. would not the fact that, the liability of A. and his sureties on the bond was conditioned upon A's recovering judgment entitle A. to his verdict for nominal damages, and should not the case have gone to the jury with an instruction from the court to that effect? Please answer, and give authorities as soon as convenient. DOUBT.

QUERIES ANSWERED.

Query No. 41. [22 Cent. L. J. 382.1-In Missouri the State has a lien on lands for delinquent taxes assessed against them, enforceable by civil action in courts of general jurisdiction, upon notice to the owners as in other suits to enforce liens. R. S., §§ 6836-7. The statute endows widows of one-third for life of all lands of which husbands were seized at any time during marriage. R. S., § 2186. Will decree and sale in tax suits against husbands in life defeat dower? If not, when against husbands only, will they, if wives be joined as defendants? G. H.

Answer. The wife's contingent right to dower is a valuable interest, but not a vested estate, and the State can alter it or take it away entirely before it becomes vested by the husband's death. Bishop's Mar. Women, § 42. The law provides, that the action shall be against the owner (§ 6837); that the judgment shall be the first lien on the land (§ 6838); and that the sale shall convey a title in fee (§ 6839). It has been decided, that the law is constitutional; that the judg ment is not personal against the owner but merely en

forces the lien against the land; and that it need not be against the true owner, if it is against the owner of record, State v. Heman, 70 Mo. 441; State v. Sargeant, 76 Mo. 557; State v. Hunt, 79 Mo. 661. Under such sales the purchaser takes a valid and unimpeachable title. Cooley's Con. Lim. 445. The wife is not a proper party to the suit, but a sale thereunder will bar her inchoate right of dower. S. 8. M.

Query No. 42. [22 Cent. L. J. 406.]-July 3, 1881, P. bought a threshing machine of S. for $300, to be paid for, in three equal annual payments, and agreed verbally to give S. his promissory notes for the same within a reasonable time. July 9, of the same month S. delivered the threshing machine to P. at his request but P. never gave the notes as agreed. August 1, 1885, S. commenced suit against P. who pleads the statute of limitations. Under our law an account outlaws in 4 years and a note in 5 years. Is the plea of the statute of limitations good? What is meant by a reasonable time? Cite authorities. Under the circumstances as stated in this case, is the time from July 3, to August 1, more than a reasonable time? Daniel City, Neb.

'J. W. M.

Answer. The limitation as to the right of action must be computed from the time when the creditor first had a right to commence suit. Hall v. Vandegrift, 3 Binn. (Pa.) 374; 7 Wait's Act. & Def. 242, § 12. No right of action accrued till a breach of the contract, which at the earliest was the failure to give the notes, for which a reasonable time was allowed. This reas onable time is to be determined by a jury. Evans v. Hardeman, 15 Tex. 480. It varies with the circumstances of each case, though it has been held that, that construction is to be preferred in doubtful cases which will preserve rights and prevent forfeitures. O'Connor v. Towns, 1 Tex. 107. We should think that this action was not barred. S. S. M.

RECENT PUBLICATIONS.

A TREATISE ON THE LAW OF NEGLIGENCE.- By Horace E. Smith, B. A. of Trinity Hall Cambridge, and of the Inner Temply and Midland Circuit, Barrester-at-Law, Recorder of Lincoln, Author of "The Law of Landlord and Tenant," Editor of "Addison on Contracts," "Roscoe's Criminal Evidence," etc. First American, from Second English Edition. Elaborated with Notes and References to American Cases. By W. H. Whitaker, of the Cincinnati Bar. St. Louis, Mo. The F. H. Thomas Law Book Co. 1886.

The publishers of this volume are entitled to the thanks of the profession for their enterprise in reproducing this excellent and standard English text book, so well "done into" American by the learned editor, Mr. Whitaker.

His elaborate notes form a large and most valuable portion of the book, and not only bring the learning of the subject down to date, but furnish,in full detail, the results of the very numerous American decisions, some three thousand cases, examined and cited by the indefatigable editor.

The classificatfon of the subject adopted by Mr. Smith, and the division of negligence into several and separate degrees and grades, is not in favor on this side of the water, and may in some cases prove misleading to the unwary. But it must be said, in justice to the author and his work, that these grades and degrees do exist, and are constantly recognized by American courts. Although they may not use the terms,

"gross negligence," slight negligence," "ordinary care," "less than ordinary care," etc., they nevertheless express the same ideas in different words. Things are never altered by changing their names. Apart from this blemish, if it is a blemish, the arrangement of the work is very good. We prefer shorter sections, but the practice which Mr. Smith has adopted is very generally used and approved, especially in England. That, however, is a matter of detail, and affects the value of the work in no perceptible degree.

There are already many text-books on negligence, but the subject is so large and grows so fast, so many new points are made, and new distinctions are taken, that there is ample room for any reasonable number of new-comers, and the work before us can well bear comparison with the best of its competitors for the favor of the profession.

JETSAM AND FLOTSAM.

PRACTICAL.-There are comparatively few surly or obstinate people whose dispositions, tact, kindness and courtesy will not at least modify. And there are few persons so amiable that they cannot be badgered into a show of temper. The practice of brow beating witnesses by lawyers will drive the most amiable person to retaliation, and is both senseless and cruel. woman who was giving her testimony in a case of assault was "nagged at" persistently by the attorney for the defendant, who inquired:

"How did he strike him, my good woman?" "Why, you see, sir, he stood"

A

"But how did he hit him? I want to know just how."

"I'm a tryin' to tell yer! Ye see, Ike was a standin"

"I can't stop to hear all that! I want to just know how he hit him. You can tell a straight story, can't you?"

The woman hesitated, whereupon the counsel bellowed forth, "If you have come here to testify, will you have the goodness to tell me how the blow was struck?"

The woman's eyes blazed, but she answered, quietly, "Ef ye'll fetch me a broom-stick and stand nigh enough, I'll be most happy to illustrate the performance!"

WHO IS A GENTLEMAN?-It is not many years ago since singular notions prevailed in Great Britain as to gentility. Even now, the House of Lords is practically closed to a doctor or a tradesman, and "society" does not smile upon any person who makes money by buying and selling the staples of the country.

In 1845, a man named Kelley sued a Mr. Young for a racing cup and stakes which he refused to give up. Kelley had ridden his own horse in a race and won it, but the prizes had been awarded to Lieut. Young, of Her Majesty's regiment, whose horse came in second.

One of the conditions of the race was that the horses should be ridden by gentlemen, and it was claimed that as Young was a gentleman and Kelley was not, therefore Young deserved the prize.

On the trial, Kelley proved that he "lived idly and without manual labor," and bore "the port, charge and countenance of a gentleman," and should therefore be considered a gentleman, according to Blackstone's definition of the word.

The other side proved that the Marchionesss of

Clanricarde did not visit at Mr. Kelley's, though living within a short distance of his house, and that, therefore, "society" did not recognize Mr. Kelley as a gentleman.

One witness having declared on oath that he did not consider Mr. Kelley a gentleman, was asked, on his cross-examination, to define the meaning of the word. "A gentleman is a person whose father was a gentleman," answered the witness.

"So that if Mr. Kelley's father was a peasant," asked the counsel, "Mr. Kelley would be a peasant still, no matter what amount of wealth or education he possessed?"

"Precisely so, sir."

"Is a barber a gentleman?" "Most certainly not."

"Did you ever hear of Sir Edward Sugden, the present Lord Chancellor of Ireland?"

"Oh, yes; frequently. His father, I am told, was a barber."

"Is the Lord Chancellor a gentleman?"

"Most certainly not," and the witness went down, amid loud laughter.

The jury's verdict pronounced Mr. Kelley a "gentleman," and gave him the silver cup, stakes and

costs.

WHAT BETTS SAID.-A sharp-visaged, keen-eyed and very garrulous old lady named Betts was a witness in a case tried in a country village. when asked to state what she knew of the matter before the court, she replied, "Well, it was like this: My man and me we both see the fuss, and sez I to Betts, sez I, and sez Betts to me, sez he"

"State what you saw only."

"Very well. 'Betts,' sez I, just like that, sez I: and sez Betts to me, sez he, "Lizabeth,' says he, and""No matter what either of you said."

"No, I s'pose not. Well, sez I to Betts, sez I, 'Betts,' and Betts he sez, sez he, 'Look yender.' And sez I to Betts, sez I, 'Where?' jest like that, sez I. And Betts he sez, sez he"

"We care nothing for what your husband or you said," again interrupted the lawyer.

"Oh, I s'pose not. But if Betts hadn't of said to me, as he did say, sez he, 'Look yender,' and if I hadn't of said to Betts, 'Where?' as I did say to him, jest like that, and if Betts hadn't gone on then and said, sez he, 'Over there,' sez he, and I sez to Betts, sez I"

"Stop! What has Betts to do with this case?" "Nothing, thank goodness! Betts is too decent a man to be mixed up with rows of this sort; only he comes in, and sez he to me".

"What did you see?"

"Didn't see the first livin' thing, till Betts sez, sez he"

"Let the witness step down," said the lawyer.

THE United States Supreme Court has a Bible which has been in constant use since 1808. It wes printed at Oxford in 1799. On the fly-leaf is written "U. S. Supreme Court, 1808." And every justice of the court, and every attorney who has been admitted to practice before the bar since that date, has been sworn upon that Bible.

A MAN who was at Auburn last week asked one of the prisoners how he came to be there. "Want," was the answer. "How was that?" "Well, I wanted another man's watch. He wanted to keep it himself, and the judge wants me to stay here five years."

ATTORNEY-GENERAL HAHN says that a woman is egally a "person." But just let him catch a woman and call her one!

of this scheme of reform contemplate plenary legislative action on the subject, it would be much better to stipulate at once for more regular judges and smaller circuits. The courts should be sufficiently numerous and the terms long enough to dispose of all the business without calling into requisition special terms or special judges either. A jurymast is no doubt a treasure in a tempest, but no man who ever followed the sea would like to trust one where he could help it. So the special or "temporary" judge is a make-shift at best, and, however learned and able as a lawyer, is seldom sufficiently judicial to be as satisfactory as the regular judge, whose mind has been fitted by years of service into its appropriate juridical grooves.

The remaining recommendations call for no particular remark except that the recommendation that "greater attention should be paid to the selection of judges," (in many of the States) will have to be addressed to the political "bosses," and their rule for selecting candidates, for judgeships as will as other offices, proceeds upon principles very different from those which, presumably, control the framers of these recommendations.

CRITICISING JUDGES.-We reprint by request an article entitled "Are judges above criticism," and find no difficulty in answering the question. If ever there was "a divinity that doth hedge a" judge, and secure him against public animadversion, that protection has surely been withdrawn. The privilege is now freely used by the press and the public, of criticising not only the formal and ex-cathedra dicta of the courts, but their minor, and incidental rulings and every exercise of that elastic and indefinite power denominated judicial discretion. And this is as it should be. There is no reason why judges should not be held to a responsibility to public opinion not less stringent than that of political officers. Indeed, as judges hold their officers, if not by a life tenure, at least for a long term of years, and as their removal from office can rarely be effected by impeachment or otherwise, and only in cases of flagrant offences, the reason is stronger for their responsibility to public sentiment, than

for that of the political officer who must needs face his constituents, within a year, or two, or three, and stand or fall upon the account he can then give of his stewardship.

Of course we will not be understood as saying that judges should be swerved or controlled in their judgments by popular sentiment. On the contrary quite the reverse. They should declare the law, and administer justice irrespective of all outside influences. While their duty in this respect is plain, the right of the public to criticise and discuss their performance of it, is equally clear. In many minor matters however, judicial notice If a may well be taken of lay criticism. judge is too slow, permits unnecessary delays, allows cases to go over from term to term, or if he falls into the opposite error, forces counsel to premature trial of their cases, and thereby produces a plentiful crop of appeals, writs of error and reversals, it is well that his fault should be fully ventilated in newspapers or anywhere else. And if a judge is tyrannical or peevish, or impatient, any one may well say so: In England, lately, a judge upon the bench took exceptions to the conduct of a solicitor, lost his patience, which seems however to have been no very great loss, and fell to scolding like a very Billingsgate fishwoman. The principal legal Journals of London commented in unmeasured terms on the scandalous scene, and in the name of the profession, tendered their sympathy to the aggrieved solicitor. Upon faults such as these, and they are not uncommon, the public may and should comment freely, but if a judge honestly and faithfully strives diligently to do his whole duty, he is entitled to the commendation of the community however distasteful to the feeling or adverse to the interests of the people his rulings may be. The recent proceedings in California against the judges of the Supreme Court of that State, upon which we commented some weeks ago, is a striking illustration of the extremes to which a people may be carried by an adverse ruling on a point of great public interest. Not only was the legislature convened in extra session for the avowed purpose of repealing out of office the Judges who made the obnoxious decision, but charges of imbecility, physical and mental, were preferred against two of the judges in aid of the nefarious project of removing from office, judges confess

edly upright because they expounded the law the way they understood it. Judges ought to be subject to fair criticism of their official acts, but surely they should hold their offices free from such perils as those which environed the California judges.

NOTES OF RECENT DECISIONS.

DOMESTIC ANIMALS-INJURIES BY-LIABILITY OF OWNER.-In a recent case in New Hampshire, the Supreme court settled a question of some interest as to the liability of an owner of a domestic animal for injuries inflicted by it. The animal in question, a horse, was known by its owner to be vicious, a "notorious kicker," but not otherwise depraved, so far as the information of his owner extended. On one occasion, however, being in harness at the depot, he "reared, squealed," and struck out with his forefoot, very seriously injuring the plaintiff, who brought suit and recovered a verdict in the court below.

The defence was, in effect, that although the defendant was aware of the evil reputation and bad habits of his horse as a kicker, he did not know, nor had he ever heard, that he was otherwise vicious, disposed to bite, or to strike with his forefoot. The court regarded this line of defense as quite thin, and disposed of it in the following language:

"It is not necessary that the vicious acts of a domestic animal, brought to the notice of the owner, should be precisely similar to that upon which the action against him is founded. If it were, there would be no actionable redress for the first injury, of a particular kind, committed by such an animal, because its owner would necessarily be exempt from all liability until it should commit another injury of exactly the same kind. is enough to say that the law sanctions no such absurdity."

The question in such cases is, whether the notice of the vicious propensities of the animal is sufficient to put the owner on his guard, and require him, as a prudent man, to anticipate and make provisions against

1 Reynolds v. Hussey, S. C. N. H., July 30, 1886, 5 Atl. Rep. 458.

such an occurrence.

2

It is not necessary to

fasten a liability upon him, that he should have had actual notice of a previous injury of this character. inflicted by the animal. In a New York case, the owner of watch-dogs was held liable for their biting a passer-by, although, so far as the evidence showed, it was their first exploit of that description. In Vermont there is a like ruling,3 the animal being a bull-terrier, and biting the plaintiff in the public street of the village.

The courts do not seem to make the proper distinction between dogs and other domestic animals. It is the conceded mission of every dog to bite, in proper cases, and his nature is usually in accordance with his mission, but it is not a part of the duty of a horse to kick, in him it is a vice, Hence there is a presumption, in the absence of proof, either way, that a dog will bite, and that a horse will not kick, or bite, or strike with his forefoot. The evidence of vice in the horse, therefore, should be stronger to charge the owner with notice and fix his liability than that necessary to charge a like liability on the owner of the dog.

The notice to charge the owner of an animal with liability for its misdeeds, must be notice that he will do the particular thing laid to his charge. Notice that a dog will worry and kill sheep, although the penalty of that canine crime is, everywhere, death without benefit of clergy, will not be held notice that such a culprit will bite people. The rule is, that as soon as the owner of an animal has notice that he is likely to do mischief, he must, at his peril, take care and secure the brute.5

It seems, that a biting horse is especially obnoxious to the law. In an action in England, Lord Denman held that, whoever knowingly kept an animal accustomed to attack and bite mankind, is prima facie liable for damages, and in a Massachusetts case,7 the ruling was followed. In that case de

2 Rider v. White, 65 N. Y. 54.

3 Gordeau v. Blood, 52 Vt. 251.

4 Cooley on Torts, 344; Keightlinger v. Egan, 65 Ill 235.

5 Cockerham v. Nixon, 11 Ired. 269; Earhart Youngblood, 27 Pa. St. 331; Dolph v. Ferris, 7 Watts & S. 367; Barnes v. Chapin, 4 Allen, 444.

6 May v. Burdett, 9 Ad. & El. N. R. 101.

7 Popplewell v. Pierce, 10 Cush. 509.