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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 0. Upson, S. C. Tex., June 25, 1886; 1 S. W. Rep. 179.
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. Sar. geant, 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 ber inchoate right of dower.
S. 8. M.
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 bis 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,
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. Vandegrist, 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.
Query No. 41. [22 Cent. L. J. 382.1-In Missouri the State has a lien on lands for delinquent taxes as• sessed 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. Ansier.-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 jndgment shall be the first lien on the land ($ 6838); and that the sale shall convey a title in fee ($ 6839). It has been de. cided, that the law is constitutional; that the judg. ment is not personal against the owner but merely en
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," "ess 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.
Clanricarde did not visit at Mr. Kelley's, though liv. ing 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 gen. tleman," 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."
“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,
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. A 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”
“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
“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 be 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 was 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 Haun says that a woman is egally a "person.” But just let him catch a woman and call her one!
The Central Law Journal. remedy should be decided within a fixed num
ber of days, and if not so decided, the reme
dy should fail. In all other cases a decision ST. LOUIS, SEPTEMBER 10, 1886.
within a fixed period should be required of
every judge and every court, except a court CURRENT EVENTS.
of last resort.
7. The ordering of new trials should be reAMERICAN BAR Association.—The special stricted to cases where it is apparent that incommittee of the American Bar Association justice has been done. on the "Delay and Uncertainty in Judicial 8. Whenever a court of first instance ad. Administration," in their recent report to the journs for a term, leaving unfinished busiAssociation embody the following recomen ness, the executive should be not only audations which, if adopted, would, in their thorized, but required, to commission one or judgment, go far to remove, or certainly alle more persons, so many as may be necessary, viate the present prevailing evils in the ad to act as judges for the time being and finish ministration of Justice.
the business. Such temporary judges should "1. Summary judgment should be allowed be commissioned in all courts except the court upon a negotiable instrument or other obliga
of last resort. tion to pay a definite sum of money at a defi 9. The time allowed for appealing should nite time, unless an order of a judge be ob be much shortened. One month, or at most tained, upon positive atfidavit and reasonable two, should seem to be enough in all cases. notice to the opposite party, allowing a de 10. Greater attention should be paid to the fendant, on terms, to interpose a defense. selection of judges, without which no other
2. In an ordinary lawsuit, the methods of reform, however good in itself, can succeed. procedure should be simple and direct, with 11. The statistics of litigation in the courts. out a single unnecessary distinction or detail; of the United States and of each State should and whatever can be done out of court, such be collected and published yearly, that the as the statement of claim and defense, should people may know what business has been be in writing and delivered between the par done and what is waiting to be done. ties or their attorneys without waiting for the These recommendations will bear a good sitting of a judge.
deal of tough cogitation and we will not ven3. Trials before courts, whether with or
ture to express anything more definite than without juries, should be shortened, by our first impressions. The first recommendastricter discipline, closer adhereance to the
tion is liable only to one objection, that the precise issue, less irrelevant and redundant defendant should interpose a defence only testimony, fewer debates and no personal al "upon terms."
What those terms may be is tercation.
left indefinite. If it means that he shall give 4. Trials before referees should be limited
security for the debt, it is grossly unreasonar in duration, by order made at the time of ap ble; if, that he shall give security for the pointment.
costs, it is less so but still unjust. An aff5. The record of a trial in every court in davit that he has a real defence made after which official stenographers are in attendance, notice to his adversary, with a statement of should contain short-hand notes of all oral its nature should be sufficient. The second testimony, which notes, if the court shall so is perhaps all right, but we are not at all clear order, shall be written out in long-hand and that as much uncertainty would not be created filed with the clerk; but only such parts as cured by the extreme simplicity contem-should be copied and sent to an appellate plated by this recommendation. There does. court as are relevant to the point to be dis not occur to us any reasonable objection to cussed on the appeal, and if more be sent, the third, fourth, fifth, sixth or seventh of the party sending it should be made to pay these recommendation. The eighth, however into court a sum fixed by the appellate court strikes us as an expedient unworthy of the by way of penalty.
general reform contemplated by the recom6. A motion for or against a provisional mendations. If, as we suppose, the framers Vol. 23.–No. 11.
of this scheme of reform contemplate plenary for that of the political officer who must legislative action on the subject, it would be needs face his constituents, within a year, or much better to stipulate at once for more two, or three, and stand or fall upon the acregular judges and smaller circuits. The count he can then give of his stewardship.
courts should be sufficiently numerous and Of course we will not be understood as say• the terms long enough to dispose of all the ing that judges should be swerved or con
business without calling into requisition spec- trolled in their judgments by popular sentiial terms or special judges either.
ment. On the contrary quite the reverse. mast is no doubt a treasure in a tempest, but They should declare the law, and administer no man who ever followed the sea would like justice irrespective of all outside influences. to trust one where he could help it. So the While their duty in this respect is plain, the special or "temporary” judge is a'make-shift right of the public to criticise and discuss at best, and, however learned and able as a their performance of it, is equally clear. In lawyer, is seldom sufficiently judicial to be as many minor matters however, judicial notice satisfactory as the regular judge, whose mind may well be taken of lay criticism. has been fitted by years of service into its judge is too slow, permits unnecessary deappropriate juridical grooves.
lays, allows cases to go over from term to The remaining recommendations call for no
term, or if he falls into the opposite error, particular remark except that the recommen
forces counsel to premature trial of their dation that greater attention should be paid
cases, and thereby produces a plentiful crop to the selection of judges,” (in many of the
of appeals, writs of error and reversals, it is States) will have to be addressed to the pol
well that his fault should be fully ventilated itical "bosses," and their rule for selecting
in newspapers or anywhere else. And if a candidates, for judgeships as will as other judge is tyrannical or peevish, or impatient, offices, proceeds upon principles very differ
any one may well say so: In England, lately, ent from those which, presumably, control
a judge upon the bench took exceptions to
the conduct of a solicitor, lost his patience, the framers of these recommendations.
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 unmeasCRITICISING JUDGES.-We reprint by re
ured terms on the scandalous scene, and in the quest an article entitled “Are judges above
name of the profession,tendered their sympacriticism," and find no difficulty in answer
thy to the aggrieved solicitor. Upon faults ing the question. If ever there was "a di
such as these, and they are not uncommon, vinity that doth hedge a” judge, and secure
the public may and should comment freely, him against public animadversion, that pro
but if a judge honestly and faithfully strives tection has surely been withdrawn. The
diligently to do his whole duty, he is entitled privilege is now freely used by the press and to the commendation of the community howthe public, of criticising not only the formal ever distasteful to the feeling or adverse to the and ex-cathedra dicta of the courts, but their interests of the people his rulings may be. The minor, and incidental rulings and every exer- recent proceedings in California against the cise of that elastic and indefinite power de- judges of the Supreme Court of that State, nominated judicial discretion. And this is upon which we commented some weeks ago, as it should be. There is no reason why is a striking illustration of the extremes to judges should not be held to a responsibility which a people may be carried by an adverse to public opinion not iess_stringent than that ruling on a point of great public interest. of political officers. Indeed, as judges hold Not only was the legislature convened in extheir officers, if not by a life tenure, at least tra session for the avowed purpose of repealfor a long term of years, and as their removal ing out of office the Judges who made the obfrom office can rarely be effected by impeach- noxious decision, but charges of imbecility, ment or otherwise, and only in cases of fla- physical and mental, were preferred against grant offences, the reason is stronger for two of the judges in aid of the nefarious protheir responsibility to public sentiment, than ject of removing from office, judges confess
edly upright because they expounded the law such an occurrence. It is not necessary to the way they understood it. Judges ought to fasten a liability upon him, that he should be subject to fair criticism of their official have had actual notice of a previous injury acts, but surely they should hold their offices of this character. inflicted by the animal. In free from such perils as those which environed a New York case,” the owner of watch-dogs the California judges.
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, the animal NOTES OF RECENT DECISIONS.
being a bull-terrier, and biting the plaintiff
in the public street of the village. DOMESTIC ANIMALS—INJURIES BY—LIABILI
The courts do not seem to make the proper TY OF OWNER.-In a recent case in New
distinction between dogs and other domestic Hampshire, the Supreme court settled a
animals. It is the conceded mission of every question of some interest as to the liability of dog to bite, in proper cases, and his nature an owner of a domestic animal for injuries
is usually in accordance with his mission, but inflicted by it. The animal in question, a it is not a part of the duty of a horse to kick, horse, was known by its owner to be vicious, in him it is a vice, Hence there is a prea 'notorious kicker," but not otherwise de- sumption, in the absence of proof, either praved, so far as the information of his
way, that a dog will bite, and that a horse owner extended. On one occasion, how will not kick, or bite, or strike with his foreerer, being in harness at the depot, he
foot. The evidence of vice in the horse, "reared, squealed," and struck out with his therefore, should be stronger to charge the forefoot, very seriously injuring the plaintiff, owner with notice and fix his liability than who brought suit and recovered a verdict in that necessary to charge a like liability on the court below.
the owner of the dog. The defence was, in effect, that although
The notice to charge the owner of an anithe defendant was aware of the evil reputa
mal with liability for its misdeeds, must be tion and bad habits of his horse as a kicker,
notice that he will do the particular thing be did not know, nor had he ever heard, that
laid to his charge. Notice that a dog will he was otherwise vicious, disposed to bite, or
worry and kill sheep, although the penalty of to strike with his forefoot. The court re
that canine crime is, everywhere, death withgarded this line of defense as quite thin, and
out benefit of clergy, will not be held notice disposed of it in the following language: that such a culprit will bite people. The "It is not necessary that the vicious acts of
rule is, that as soon as the owner of an ania domestic animal, brought to the notice of
mal has notice that he is likely to do misthe owner, should be precisely similar to that
chief, he must, at his peril, take care and seupon which the action against him is
cure the brute.5 founded. If it were, there would be no ac
It seems, that a biting horse is especially tionable redress for the first injury, of a par
obnoxious to the law. In an action in Engticular kind, committed by such an animal,
land, Lord Denman held that, whoever because its owner would necessarily be ex
knowingly kept an animal accustomed to atempt from all liability until it should commit
tack and bite mankind, is prima facie liable another injury of exactly the same kind. It
for damages, and in a Massachusetts case,? is enough to say that the law sanctions no
the ruling was followed. In that case desuch absurdity.” The question in such cases is, whether the
2 Rider v. White, 65 N. Y. 54. notice of the vicious propensities of the ani
3 Gordeau v. Blood, 52 Vt. 251. mal is sufficient to put the owner on his 4 Cooley on Torts, 344; Keightlinger v. Egan, 65 III guard, and require him, as a prudent man,
235. to anticipate and make provisions against
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. 1 Reynolds v. Hussey, s. C. N. H., July 30, 1886, 5 6 May v. Burdett, 9 Ad. & El. N. R. 101. Atl. Rep. 458.
7 Popplewell v. Pierce, 10 Cush. 509.