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sion of the time of payment. Morse v. Richmond, p.
NOTES. 166. A partnership for dealing in real estate confers on the individual members no implied power to borrow money. Forbes v. Jason, p. 395. - Assent of the eminent legal author, as a candidate for the St.
nomination of Mr. Seymour D. Thompson, tho donee is not essential to the validity of a gift through the medium of a third. Lemon v. Sweeney, p. 507. - A
Louis Court of Appeals, is one eminently fit in every judgment against an infant is not absolutely void be- point of view. The Central Law Journal says his elec. cause no guardian ad litem was appointed.
tion is desired by nine-tenths of the bar; and very
be safely trusted to select the best talent for the
bench." It seems from Gabe v. McGinnis, 68 Ind. The Code of Civil Procedure of the State of New York, with
538, that "
*under the fish” means the court-house at notes by Montgomery H. Throop, lately one of the Com
Bloomington. missioners to revise the Statutes. Part II, chapters 14-22, as enacted in 1880. Albany: Weed, Parsons & Co., 1880. Pp. xi, 1114.
“PROBABLY NOT. -- The doctrine of ancient lights
does not prevail in Kansas (Hogan v. Manners, 23 Kans. This volume will prove a very valuable aid in the in- 551).” -- London Law Journal. - There are two beterpretation of the nine chapters of the Code, contain- knighted lawyers in England - Mr. Rupert Kettle and ing, as it does, the official explanation of the intended Mr. L. S. Jackson. The honor to the former is on purpose and scope of the importaut modifications
account of the establishment of boards of arbitration wrought by the statutory enactment. It forms an in
between employers and employed; to the latter on dispensable supplement to the similar publication con
account of judicial service in India. - The 4th volcerning the thirteen chapters, and completes that
ume of the North-western Reporter contains all the work.
decisions of tho Supreme Courts of Minnesota, Wis
consin, Iowa, Michigan, Nebraska and Dakota, from OBITUARY.
January 17 to April 10, 1880.
MOS R. MANNING, ono of the associate judges
The correspondents of the ALBANY LAW JOURNAL of the Supreme Court of Alabama, recently died in New York city, whither he had gone to be treated
are continuing the discussion of tho constitutionality for a disease from which he had been suffering for six
of the County Courts Jurisdiction Act of 1880. Thus
far the negatives have the advantage in the debate, in years. He consulted a surgeon, who decided that the only hope of cure was in a surgical operation, which
respect of the positive conviction and unqualified as
sertion of the law; the affirmatives have the advanwas very likely to prove fatal. Judge Manning, however, decided to have this performed, and it was ac
tage of extent of argument. Meanwhile the county cordingly done on the 14th ult. The operation lasted
courts are not very desirable tribunals for litigation ou about fifty minutes and was performed by several sur
money demands exceeding $1,000.– New York Daily
Register. geons. Judge Manning failed rapidly after tho opera
The following from the New York Daily tion, and died on the next Friday. The body was
Register, on lawyers returning from vacation, seems taken to Perth Amboy, N. J., where the funeral took
somewhat ambiguous in the closing adjective: "The place. Judge Manning was born in Amboy, N. J., in
returning absentees are seen in the streets and offices, 1810 While he was a boy his family removed to
bronzed and full-cheeked." On the motion for reHuntsville, Ala. About 1870 he became an associate
argument on the question of tho adoption of the Injudgo of the Supreme Court of Alabama. His opinions their original ruling, by a vote of three to two, the
diana constitutional amendments, the court adhere to were remarkable for care and research.
judges dividing as before. The London Law Times,
speaking of the course of study recommended by the NEW YORK COURT OF APPEALS DECISIONS.
committee of the American Bar Association on
Legal Education, says: "Tho law student who I E following decisions were handed down Tuesday,
has mastered even the general principles of this
wide range of subjects will have, it is scarcely Sept. 28, 1880:
necessary to remark, a far larger stock of theJudgment affirmed with costs - Babcock v. Libbey; oretical knowledge at his command than is posTist v. City of Buffalo. Judgment affirmed sessed by the majority of practicing lawyers." Reinhardt v. People; Goldstein v. People; Mack, alias McEnery v. People. - Judgment reversed and nire de novo — Therasson v. People. Judgment reversed The St. Louis Globe-Democrat, in an article entitled and new trial granted, costs to abide event - Dodge v. “ A Legal Dilemma, says: “If the Hudsou river tunCounty of Platte. Order affirmed with costs - nel deaths had resulted from willful malice instead of Twombley v. Cassidy, in re Village of Middletown; incurable stupidity, the crime would be equally beyond Cowing v. Altman; Durkin v. Sharp. Order of the purview of the law, as it is held that no murder General Term reversed, and that of Special Term af- can be proved unless the body of the victim can be firmed with costs - In re Depierris. Order of produced before a legal tribunal. Such absurdities General and Special Term reversed, and motion and inconsistencies are gradually disappearing from granted with costs — In re Sanger. Order modi- the codes of the States, but they survive with all the fied so as to require the values of annuity bonds to be tenacity of all abuses. Under the old doctrine recomputed by the American Experience Table with in- quiring the corpus delicti, a man might throw his victerest at four and one-half per cent, and as thus modi- tim over Niagara Falls in the sight of a thousand fied affirmied, costs of the receiver and of annuitants, persons and go unpunished if the waters refused to who appealed to this court and have succeeded in pro- give up their dead. Such a case would be an extreme curing a modification of the order appealed from, to be one, but it would differ in degree only and not in kind paid out of the fund – In re Attorney-General v. North from the New York case, where the coroner's inquests American Life Insurance Company. Appeal dis- are postponed to await the arrival of the remains that missed with costs – In re Friedman. Order af- are never going to come." This is indeed news, but firmed without costs – In re Eldridge.
we hope po more like it is "going to come."
The Albany Law Journal.
a Consular Court for the trial of criminal cases. The presiding consular judge associates with him
five English subjects, a majority of whom must conALBANY, OCTOBER 9, 1880.
cur with the judge in order to convict. The writer in the Saratogian observes: “As to a 'trial by jury,'
as contemplated by the Constitution, in any of the CURRENT TOPICS.
countries where we exercise extra-territorial jurisHE Daily Saratogian, of Sept. 27th, contains a
diction by virtue of treaties, it is simply out of the
Constitution does not extend to these countries, any Mirzan, a naturalized American citizen, in Egypt, for murder, which is from the pen, we presume, of
more than to the so-called civilized powers of the Judge Batchelder. It seems that the United States
earth, or else abandon our pretension of criminal Revised Statutes prescribe that in a trial for a cap
jurisdiction in the domains of the sultan, in China, ital offense, before the consul, he shall associate with Japan, Madagascar, and other non-christian princihim at least four citizens to be selected by the United palities, and submit our subjects temporarily residStates minister from a list furnished by the consul, ing there, as regards criminal justice, to the local
authorities. As to exercising our complicated sysand that a concurrence of all would be necessary to convict. The statutes also clearly give original juris- would be impossible, if for no other reason, for want
tem of criminal jurisprudence in those countries it diction to the minister to try cases of a capital nature, but it is clear that there is no provision for asso
of a sufficient number of domiciled subjects to conciates in case the trial is by the minister. Out of
stitute the trial jury, not to speak of the 'grand inconsiderable conflict and confusion it seemed set
quest' and the extra panel to supply changes.” “In
case the 'American citizen' is not satisfied with this tled that in capital cases the consul and the minister had concurrent original jurisdiction, and either
system of justice, let him remain within the jurismight try the case with the important difference
diction of the Constitution, or refrain absolutely
while abroad from the commission of crimes." But that the consul would be associated with at least four assessors or associate judges, whereas the min
he recommends the institution by treaty of some ister would sit alone. These questions were referred
more numerous and deliberate tribunal; to which we to the department at Washington, and were subjects
agree. of grave consideration and correspondence during
The Weekly Jurist, in speaking of Bradwell's the year that elapsed between the murder and the Reports, says: “A larger per cent of the decisions trial. At length it was decided that Mirzan should
of the Appellate Courts are affirmed than those of be tried by the minister, and his excellency was con- the Supreme Court of New York, thus rendering sequently ordered by the State Department to pro- this series more valuable than the reports of that ceed at once to Alexandria for that purpose and in court, which have such a large circulation.” Now conformity with the Statutes and the orders of the
if we were only informed of the comparative numsecretary of State. He had no other alternative
ber of appeals from our Supreme Court and the than to sit alone. By the invitation of our govern
Illinois Appellate Court, we could tell whether this ment, Judge Batchelder
, of the International Court, reasoning has any force. We have examined both acted as prosecuting attorney, his judicial functions
series with considerable care, and must say that in being temporarily suspended. (That court, it seems, the variety and importance of the questions considpossesses no jurisdiction in such cases.) The pris- ered, and the learning and ability of the opinions, oner was ably defended, and was convicted, and
we do not think the advantage lies with the Illinois sentenced to death. This case has excited a great series. Then again, Bradwell's series reports only deal of comment and criticism, from the singularity reversals, with a very few exceptions. Whatever of a capital conviction by a single judge without a
might prove to be the fact in respect to the correctjury.
ness of the intermediate court, it would be difficult
to find an equal number of reversals of the trial In Egypt, the French, Italian, Austrian and Ger
courts in any other State. The last volume of Bradman authorities simply examine their criminals be
well contains about 130 cases, all reversals but two fore the consular officer in the country where the
or three, and this volume is the sixth issued since crime was committed (like an American police jus- 1877. tice), reducing the examination to writing, signed by the witnesses and the accused. These so-called There has been a recent instance of a marriage “instructions” are sent up to a bench of three or ceremony by telegraph. Doubtless there is somefive judges, at home, who listen to arguments by thing very romantic in the idea of sealing the marthe procureur-general for the government and coun- riage bond by electricity, and very likely if the parsel for the defense. These arguments are based upon ties thus contracted would always preserve the same the “instruction," and other judges may, on de
distance between themselves and restrict their command of either party, examine additional witnesses. munications to wire or cable, their lives would be In most cases none are called, and the judges there- more harmonious than the average married life. upon decide the case and pronounce sentence accord- Doubtless a marriage contract thus entered into ing to the degree of crime. England has established would be legal between parties situated in communi
Vol. 22.- No. 15.
ties having the same or similar laws of marriage, but are thoroughly reviewed, and the argument, in our there is danger of running against conflicting laws of opinion, completely overthrown. There is a referdifferent States, and there might arise a difficulty of ence in the digest to a case in 42 N. Y. Superior proof in case the marriage were not consummated by Court Reports, where the point seems to have been cohabitation. People in love (for the first time) do held as it was in Massachusetts. We have been unnot stop to consider these things, and are so afraid able to procure that volume, but we presume it adds that they shall never see the like of one another nothing to the reasoning of the court in Commonagain, that lightning is barely swift enough to seal wealth v. Green. This case we have given a very their vows.
Getting married in a balloon, or up in attentive consideration without being at all conthe dome of the National Capitol, both of which vinced by it. The court adduces a number of rearesorts we believe have been recently adopted by sons in support of its conclusions, but rests upon importunate lovers, is just as sentimental and rather no one of them as a conclusive ground of decision. safer than the telegraphic medium, although em- The argument to which most weight seems to be blematically these modes are not the most satisfac- attached is, that a State will not enforce the penalty tory, for balloons are structures of gas
and prone to of a crime committed beyond its jurisdiction, and collapse, and the National Capitol was once in sad the denial to a convict of the right to testify, they danger from disunion. On the whole we should say, is a part of this punishment. This argument counsel people bent on marriage to wait until they is very satisfactorily met, and entirely refuted in can literally join hands, and then to be content both the North Carolina and New Hampshire cases with terra firma and the ordinary modes.
above referred to. They say, in effect, that the
ground upon which a convict is held incompetent A very important practical decision has just been to testify is that there is no presumption that he pronounced by the General Term of the Supreme will speak the truth; he is excluded, not for the Court for the third department of this state, namely, purpose of punishing him, but for the protection of that under section 1623 of the new Code, and other
the party against whom he offers to testisy; if it sections touching the subject, a judge or referee thereby results incidentally that he is subjected to cannot be required or permitted to make additional humiliation and disgrace, this is an inconvenience findings of fact or law, upon the settlement of the
which it is entirely within the power of the State case, after his report or decision has been rendered.
to impose, and of which he has no more right to Mr. Thiroop, in his note to section 1023, in speaking complain than an atheist had to complain of the disof the old practice, says: “It is always awkward credit which the laws of many countries formerly and inconvenient, and is often insufficient adequately
attached to his oath. Without further comment to protect the rights of the defeated party.” Ie on these cases we content ourselves with saying that, adds: “ It has not been abolished; but an additional
in our opinion, the weight of authority and the method of securing the desired result has been pro
soundest reasons support the doctrine that a person vided by this section."
convicted of an infamous crime in another State is thereby rendered incompetent to testify in our
This is directly contrary to Sims v. Sims, NOTES OF CASES.
75 N. Y. 466, and National Trust Co. v. Gleason, 77
id. 400. The New Hampshire and North Carolina N State v. Foley, Supreme Court of Nevada,
cases were reviewed in the Sims case, and denied.
The reasons stated are, first, that it is the sentence, conviction in one State, which disqualifies the con
and not the commission of the crime, that disqualivict from testifying, also disqualifies him from testi
fies; and second, that a record of conviction for a fying in another State. The court said: “But does
crime is not conclusive, if any, evidence, in a civil a conviction in one State disqualify the convict from
action, of the facts on which it is based. testifying in another State? It was conceded in the argument, and we have thus far assumed that it does. The question, however, is vital to the case, In O'Connor v. Chicago, Milwaukee & St. Paul R. and we should not feel justified in deciding it in the Co., Minnesota Supreme Court, September 13, 1880, affirmative merely because counsel has admitted that 6 N. W. Rep. 481, it was held that in case of an acit must be so decided. Mr. Greenleaf, 1 Ev., § 376, cident by a railroad train running upon and injuring declares that the weight of modern opinion is the horses on the track, what was said by the engineer to other way; and Mr. Bishop, 1 Cr. Law, $ 976, takes the conductor of the train immediately after the accithe same view. There is but one case, however, dent and after the train had stopped, and while they which supports this declaration, Commonwealth v. were examining to ascertain what mischief had been Green, 17 Mass. 539, while there are at least two done, indicating where he first saw the horses on the well-reasoned and more recent decisions directly to track, there not appearing any thing but the occurthe contrary. The first of these, State v. Chandler, rence to cause or procure the statement, may be 3 Hawks, 393, was decided very shortly after the proved by the plaintiff as part of the res gestæ. The Massachusetts case, and apparently without any court said: “To make declarations of an agent eviknowledge of the grounds of that decision; but in dence against his principal they must not only have the other case, Chase v. Blodgett, 10 N. H. 22, the been made while he was engaged in the business of grounds of the decision in Commonwealth v. Green the principal, but they must be a part of the trans
action out of which the controversy arises. It is on the time which has elapsed between them, though not enough that they refer to or narrate the transac- it must always be an important element in the contion after it is past; they must be so connected in sideration of the question; a considerable time may time and circumstances with the principal fact as to elapse and yet the declaration be a part of the res be a part of it. When declarations of an agent or gestæ. It may be made immediately upon the fact, of a party himself are so closely connected with the and the circumstances be such as to exclude it. principal fact as to be a part of the res gestæ, is often Each case must depend on its own peculiar circuma very nice question to determine. There are on the stances, and be determined by the exercise of sound point many decisions which appear difficult to recon- judicial discretion." cile with each other.” This ruling is supported by the following cases: Where the action was for in- An interesting question of description of a legajury from a train of cars running over plaintiff's tee came up in Patching v. Barnett, Eng. Ch. Div., wagon and horses, driven by his servant, it was held Sept. 11, 1880, 43 L. T. (N. S.) 50. A testator bethe defendant might prove a conversation with the queathed a bust, after his wife's death, to “J., now servant at the time of the accident and relative to Duke of B.," on condition that he caused it to be it. — T. & W. Ry. Co. v. Godilard, 25 Ind. 185. In placed and remain in W. Abbey, and at the time of an action against a railroad company for damages, the delivery of it to him settle it so as to be held as caused by delay in the carriage of cattle, the state- an heirloom by the persons who under the limitaments relating to the delay of the conductor, made | tions to which the abbey should then be subject while he had control of the train in which the cat- should then be entitled to the possession thereof, tle were, were held part of the res gesta. Sisson v. with a gift over in case J. should neglect so to do C. & T. R. Co., 14 Mich. 489. In an action against for twelve months after request by the trustees. J., a railroad company for wrongful expulsion from one Duke of B., had died in 1839. F. was Duke of B. of its trains, a conversation had immediately after at the time of testator's will and death, and was the expulsion, and serving to illustrate its character, owner in fee of W. Abbey. F. died during the between plaintiff and the offending brakeman, was life-time of the tenant for life, and consequently held part of the res gesta. - Bass v. C. & N. W. Ry. never received the bust. The present Duke of B. Co., 42 Wis. 654; S. C., 24 Am. Rep. 427.
was willing to allow F.'s executors to place the cident being the running of a railroad train against bust in the abbey. Held, that the bust belonged to a peddler's wagon, and the destruction of his goods, F.'s executors. Malins, V. C., said: “This testathe trial court admitted evidence of what was said tor had many articles of taste and vertu. Amongst at the time of the accident, by the engineer in charge other things he had an original bust of Oliver Cromof the train, as to negligence in running it. This well, which was of very great value; at all events, was held no error by the Supreme Court, which said: he evidently attached very great value to it. Now
We cannot say that the declaration of the engineer he makes this bust a particular object of his will. was no part of the res geste. It was made at the time First of all he gives it to his wife for her life, and of the accident, in view of the goods strewn along then he says, “and from and immediately after the the road by the breaking up of the boxes, and seems decease or second marriage of my said wife, which to have grown directly out of and immediately after shall first happen, I bequeath my said marble bust the happening of the fact. The negligence com- of Oliver Cromwell to the most noble John now plained of being that of the engineer himself, we Duke of Bedford, upon condition that he cause it cannot say that his declarations made upon the spot to be placed and to remain in the library or some at the time, and in view of the effects of his con- conspicuous place in Woburn Abbey,' and so forth. duct, are not evidence against the company as a Now the first argument is, that this bequest fails alpart of the very transaction itself.” H. R. Co. v. together because Jolin Duke of Bedford had died Coyle, 55 Penn. St. 396. In Luby v. H. R. R. Co., seventeen years before the will was made. It is 17 N. Y. 131, the plaintiff was run against and in- gravely argued that the testator must have intended jured by a car drawn by horses. The car was John Duke of Bedford who had for many years been stopped, and the driver arrested by a policeman. dead, and who therefore could not take the bust or In the trial the policeman was allowed to testify perform any of the conditions imposed by the testhat upon arresting the driver as he was getting off tator with regard to it. It is said that I am to be the car and out of the crowd surrounding it, he guilty of the absurdity of thinking that the testaasked bim why he did not stop the car, to which tor meant a dead man instead of a living man, when the driver replied the brake was out of order. This he said, 'I bequeath my said marble bust of Oliver was held error. The court said: “The declaration Cromwell to the most noble John now Duke of Bedwas no part of the driver's act for which the de- ford.' The testator mistook the name; he thought fendants were sued. It was not made at the time that the then Duke of Bedford was John, whereas, of the act, so as to give it quality and character. in point of fact, he was Francis. There is no magic The alleged wrong was complete, and the driver, in a name; the testator did not know whether the when he made the statement, was only endeavoring duke's name was Thomas, John, William, or Francis; to account for what he had done.” The court in the what he did mean was that the now Duke of Bedprincipal case also observe: “It is evident that ford,' that is, the living Duke of Bedford, should whether the declaration is directly connected with, have this bust. There could have been only one and growing out of, the main fact does not depend Duke of Bedford at the time; it is a case in which
the Christian name has been mistaken, which is a defendant's knowledge. Held, that the defendant very common occurrence. When there is nothing was liable, and it was immaterial that he did not but the Christian name to go by, I entirely adhere know that the purchaser was in the habit of becomto the rule laid down by Fry, J., in the case of Gar- ing intoxicated. Dudley v. Sautbine, 49 Iowa, 650, land v. Beverley, L. R., 9 Ch. Div. 213. In that p. 165. case there was a devise of certain lands to 'William ARREST AND BAIL. — An undertaking of bail for the eldest son' of the testator's nephew; but it murder, entered into on Sunday during vacation, is turned out that John was the eldest son. It was a case of necessity and valid. Hammons v. State, held that the devise was to William, therefore the 59 Ala. 164, p. 13. name prevailed. The name will prevail if there is ASSIGNMENT FOR BENEFIT OF CREDITORS. -- An nothing to contradict it or to lead the court to a assignment for the benefit of creditors authorizing contrary conclusion. Here it is a gift to the 'now the assignee to “sell and dispose of the property Duke of Bedford;' it is a gift to ‘John now Duke and generally convert the same into money, upon of Bedford.' The duke's name happened to be such terms and conditions as in his judgment may Francis, but the testator thought it was John." appear just and for the interest of all parties inter
ested,” is not void upon its face. Brahmstadt v. Me
Whirter, 9 Neb. 6, p. 396. THIRTY-FIRST AMERICAN REPORTS.
ATTORNEY AND CLIENT. - An agreement between
attorney and client, for the attorney's compensation THIS volume contains the leading cases reported for services rendered and to be rendered, will be
in 59, 60 Alabama, 53 California, 89 Illinois, jealously scrutinized, and will not be supported 64 Indiana, 49 Iowa, 22 Kansas, 30 Louisiana Annual, without clear proof on the part of the attorney that 69 Maine, 38 Michigan, 24 Minnesota, 56 Mississippi, it is fair and reasonable. Dickinson v. Bradford, 59 9 Nebraska, 75 New York, 81 North Carolina, 33 Ala. 581, p. 23. Ohio State, 2, 3 Lea, 51 Vermont, 31 Grattan, 13 The contract of an attorney for services as such West Virginia. The notes are as follows: Assign- before a department of government or a legislative ment for benefit of creditor, authority to sell on body is valid, but for lobby services is void, and credit; Carrier, perishable property, unreasonable where it is for both, the entire contract is vitiated. limitation of liability; Constitutional law, waiver of McBratney v. Chandler, 22 Kans. 692, p. 213. exemption from execution; of jury trial; Contract, CARRIER. — The last of several common carriers, place of, indorsement in another State; for service, forming a connecting line, cannot be held for the what authorizes rescission by employer; Corporation, negligent loss of goods by a prior carrier of the liability of stockholder, how enforced; Criminal law, same line. Lowenbury v. Jones, 56 Miss. 688, p. 379. abortion, intent; burden of proof of sanity; homi- A stipulation in a bill of lading given by a comcide by negligence; Former judgment, splitting mon carrier, that in case any claim for damage claim; Gift, savings bank deposit; Interest on dam- should arise for the loss of articles mentioned in the ages; Married woman's assumption of mortgage; receipt while in transit or before delivery, the extent Negligence, carrier, responsibility for manufactur- of such damage or loss shall be adjusted before reer's negligent construction of vehicle; contributory, moval from the station, and claim therefor made in infant trespasser; Negotiable instruments, ratifica- thirty days to a “trace agent” of the carrier, is an tion of forgery; “Public place” and “public unreasonable provision which the courts will not house;" Sale, piano on rent; Vendor's lien, statute uphold. Capehart v. Seaboard and Roanoke Railof limitations; Witness, rights of accomplice testi- road Co., 81 N. C. 438, p. 505. fying for State.
Where goods, specially accepted by a common We note the following cases of peculiar interest: carrier for transportation, are lost or injured, the
ABATEMENT. — An action by a husband against a burden of proof is for the carrier to show that the carrier of passengers for loss of services of his wife loss or injury was within the terms of the excepand expenses in consequence of injuries to her per- tion, and that he was not negligent. Shriver v. son, resulting from the defendant's negligence, is Sioux City & St. Paul Railroad Co., 24 Minn, 506, grounded in tort, but survives as an action for a wrong to the “property, rights or interests of an- If a carrier of passengers purchases his vehicles other,” within the statute. Cregin v. Brooklyn Cross- from reputable manufacturers, giving them such extown Railroad Co., 75 N. Y. 192, p. 459.
amination as is practicable and usual among prudent An action of damages for fraud of the defendant carriers using similar vehicles, he is not responsible in inducing the plaintiff to marry and cohabit with for defects not discoverable on such examination, him, by means of false and fraudulent representa- although they might have been discovered in the tions that his first wife was dead, is for injury to the manufacturing. Grand Rapids & Indiana Railroad person, and does not survive. Price v. Price, 75 N. Co. v. Huntley, 38 Mich. 537, p. 321. Y. 244, p. 463.
CIVIL DAMAGE ACT. - In an action under the AGENCY. — A statute prescribed a penalty for sell Civil Damage Act for injury to means of support in ing intoxicating liquors to any person in the habit consequence of intoxication, a recovery may be had of becoming intoxicated. The defendant instructed where the intoxication caused the death of the inhis servant not to sell liquors to any such person, toxicated person; and in estimating the damages the but the servant disobeyed the direction, without the condition of the family and the estate may be con