Where Transcript has been Filed in District Court. In a proceeding to revive a judgment in the county court, where the judgment debtor, on an order to show cause why the judgment shall not be revived, for such cause shows, by affidavit, that the judgment has been paid and satisfied, it is error for the county court to render final order of revivor without hearing testimony as to such payment or satisfaction. There being a presumption in favor of such payment and satisfaction, the burden and proof is on the judgment plaintiff to show that the judgment is unsatisfied. When the transcript of a judgment rendered in a county court is filed in the district court of the same county, all proceedings should thereafter be had in such district court; but, in the absence of a statute prohibiting the court in which the judgment was rendered from proceeding further in the case, a judgment of revivor rendered in such court will be valid. The county court possessing such jurisdiction, it is not error to exercise it. Garrison v. Aultman, S. C. Neb., Nov. 4, 1886; 30 N., W. Rep. 61.

20. LANDLORD AND TENANT-Lease-Construction -Steam Furnished by Landlord.-A demised to B certain premises known as the fonndry building yard space for necessary stock and materials, the joint use of a pattern-shop, and the engineroom adjoining the foundry, for the annual rent of $500. It was further provided by the lease that B "shall pay fifteen cents per hour for the steam furnished to his engine" by A, "and he shall have the right to use the tools in the pattern-shop; but, in consideration therefor," A" shall have the use without charge of the power of the engine " of A whenever required in the pattern-shop. Held, that this was not a covenant on the part of A that he would furnish the steam necessary to carry on the business of B, nor that B should take any steam. Penn Iron Co. v. Diller, S. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 272.

21. Rent-Joint Tenants-Amendment-Liability of Landlord for Failure to Repair-Custom.-One joint tenant of real estate can not maintain in his own name an action for rent of premises leased in the name of both; but after a plea in abatement for non-joinder, a justice's court may make the other joint tenant a party to the suit, and permit the case to proceed to judgment on its merits. A landlord is not bound to repair, unless there is a covenant or agreement on his part to do so, and in an action for rent a tenant cannot recover for damnges to his goods caused by a leaky roof, of which the landlord had notice; nor is it admissible, in such an action, to show a general custom of the place for landlords to repair. Weinstein v. Harrison, S. C. Texas, Oct. 26, 1886; 1S. W. Rep., 626.

22. LEGACIES - Decree-Action-- Pleading-Debts, Charges and Expenses-Action at Law-Statute. -In an action against an executor to recover a legacy on the decree of the probate court, where the statute provides that after the payment of debts, funeral charges, and expenses of administration, the legatees shall be ascertained and their gifts fixed, the complaint need not allege the payment of these debts, charges and expenses. In an action against an executor to recover a legacy, it need not be alleged that the legacy is in the possession of the executor. An action at law against an executor to recover the amount of a legacy, can be maintained without the aid of a statute. Weeks v. Sowles, S. C. Vt., Sept. 8, 1886; 22 Reporter, 639.

23. LESSOR AND LESSEE-Renewal Lease-Waste. -A court of equity will interfere to restrain a tenant holding under a perpetual renewable leaes from removing buildings on the leased premises when it appears that such removal would greatly impair and endanger the security for the rent reserved, so long, however, as the rent reserved is not rendered insecure by the acts of the tenant holding under snch a lease, his right to manage the property in his own way cannot be interfered with. Crowe v. Wilson, Md. Ct. Appls., June 23, 1886; 7 East. Rep.' 314.

24. MORTGAGE-Future Advances-Validity-Bill to Redeem- Interest - Payment for ServicesDemand. A mortgage given to the defendant to secure him for advances which he had made, and which he might make thereafter, for the benefit of the mortgageor in the settlement of the latter's affairs, and for the services rendered by the defendant in such settlement, is valid, though first given to a person for the benefit of the defendant, and afterwards assigned to the latter; and upon a bill brought to redeem, by the holder of a second mortgage on the same property, who took with knowledge of the origin and character of the first mortgage, the latter, before he can redeem, must pay the debt intended to be secured by the first mortgage. One who holds a mortgage to secure payment for services rendered to the mortgageor cannot recover interest on the sum due for services, for which no demand of payment has been made. Upon a bill brought by the holder of a second mortgage, where it appears that the defendant held the first mortgage to secure him against liability upon an indenture, the purposes of which have been fully executed, the latter will not be permitted to continue to hold the mortgage as security for an alleged liability which does not exist. Taft v. Stoddard, S. J. Ct. Mass., Oct. 22, 1886; 8 N. E. Rep. 586.

25.

- Priorities Promissory Notes · Interest-Foreclosure-Sale-Civil Code hy.-W executed his note to J for money borrowed, payable in a limited time, with interest from maturity at 8 per cent. per annum. At the time he executed to her six other notes, with F & B as sureties, for a certain sum each, which became due, respectively, during the time, as semi-annul installments of interest. W, to secure the payment of seven notes, executed to her a mortgage on land, in which it was stipulated that, if F & B were compelled to pay any of the interest notes, they were to be substituted to her rights, but subject to her superior lien. Afterwards, W borrowed of F & B a sum of money, for which he gave his note, bearing a certain rate of interest until paid, and payable in a given time, and to secure the payment of this note he executed to them a mortgage on the same land. F & B also paid to J for W the interest notes. Subsequent to this loan by F & B to W, and at the maturity of the principal note, J agreed with W in writing to extend the time of payment of the notes three years further, and to reduce the rate of interest payable thereon to 7% per cent. In proceedings to foreclose the mortgages, held, that no part of the proceeds of the property should be applied to pay interest on the semiannual installments of interest on the principal debt in favor of J until the debts of F & B were satisfied. Where, in an action to foreclose a

mortgage, the sum of money to be raised amounts to upwards oi $20,000, and the court directs that $2,000 of this amount shall be paid in cash, and the balance in six and twelve months, a sale on these terms is not a sale on reasonable credit, within the meaning of Civil Code Ky. Willett v. Johnson, Ky. Ct. Appls, Nov. 6, 1886; 1 S. W. Rep. 674.

26. NEGLIGENCE.-Proximate Cause-Defects not Causing Injury — Railroads. Plaintiff, in uncoupling defendant's cars, caught his foot in a brake-beam. He signaled the engineer, but his signal was not at once seen. When perceived, the engine was reversed, and the train stopped immediately, but too late to prevent injury to plaintiff. The engine was defective, and hard to reverse, which is plaintiff's ground of action. Held, that the defect in the engine was not the cause of the injury, and defendant was not liable. Bajuse v. Syracuse, etc. Co., N. Y. Ct. Appls., Oct. 12, 1886; 8 N. E. Rep. 529.

27. NUISANCE Railroad Company EngineHouse Next to Dwelling Justification Under Legislative Authority-Legislative Sanction Not Inferred.-The erection by a railroad company of an engine-house and coal-bins in the city of New York, on a lot adjoining property used as a residence, and their maintenance in such a manner as to render such property unhealthy and unfit for a residence, and to depreciate it in value, creates a private nuisance for which, as between individuals, an action would lie for damages, and for which a court of equity would grant a remedy by injunction; and the company cannot, in such proceedings, justify under an act of the legislature giving the company a right which they had not had at the time of the erection of such enginehouse, to enter the city on the tracks of another railroad "on such terms, and to such point, as might be agreed upon between the companies." A statutory sanction cannot be pleaded in justification of acts which by the general rules of law, constitute a nuisance to private property, unless they are expressly authorized by the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred. Cogswell v. New York, etc. Co., N. Y., Ct. Appls., Oct. 5, 1886; 8 N. E. Rep. 537.

28. PARTNERSHIP-Dissolution-Parol Proof of What Figures, Used as Basis for Dissolution Mean Estoppel Evidence Settlement Set-Off and Counter-Claim Depreciation in Stocks Taken by One Partner - Interest Mistake-Demand- Costs — Appeal · Unnecessary Abstract Printing. In an action by one partner to recover a balance due him by the other on a settlement and division between them when the partnership was dissolved, the plaintiff may be asked if there was anything in certain figures which had been made between the parties at the time of the dissolution intended to show the difference in value between the property he got and the property the defendant got on the division; it not appearing from the figures themselves what they were intended for. When partners who are about to dissolve partnership agrees as to how the figures should be ascertained, or the value of the firm property determined, and the course agreed upon is pursued, and the property divided on that

basis, one partner cannot, in a subsequent suit by the other for a balance due him under the settlement, set up the fact that the property transferred by him to the other did not amount to as much as he supposed it would. One partner who, at a settlement on a dissolution of the partnership, transfers to the other certain stock of two manufacturing corporations, in which both partners were interested, the stock being then at par, is not liable to have set-off against a judgment subsequently recovered by him against the other partner for a sum due him on the settlement, but omitted by mistake, a depreciation in the stock of one of the companies, caused by the failure to collect a note executed to it by the other corporation subsequent to the settlement, although at the time the transfer was made the partner making it agreed to pay the other a certain proportion of the accounts of such company as should prove uncollectible. The fact that, upon a dissolution of partnership, it was agreed between the partners that each should give the other demand notes, without interest, for the balances found due between them, does not deprive one partner, who subsequently recovers a judgment against the other, for a sum not paid him on the settlement by mistake, of interest on his claim; and interest runs, not from the discovery of the mistake and demand, but from the date of settlement. An abstract setting out, among other things. what is called the decision of the court below, showing detailed findings of facts, and the opinion of the court thereon, is not properly a part of the record, and the costs of printing should be taxed to the appellee, who filed it. Donahue v. Mc Cosh, S. C. Iowa, Oct., 27, 1886; 30 N. W. Rep. 14.

29. PAYMENT-Presumption-Possession of Note and Contract.-Plaintiff sold a piano to defendant on a contract, taking her promissory notes for the unpaid purchase price, stipulating that the title was to remain in him until the notes were paid. The defendant's husband obtained the notes and contract from the a.torney who held them for collection, and delivered them to his wife, informing her he had paid them, and receiving in consideration the release of a debt he owed her. The plainttiff, not having received the proceeds of the notes, brought this action of replevin. Held, the production of the notes and contract by the defendant raised the presumption of their release and discharge according to their tenor, and was a good defense; and proof that they were received from the attorney, and the proceeds not received by plaintiff, did not rebut the presumption or amount to proof of non-payment. Hollenburg v. Lane, S. C. Ark., Oct. 23, 1886; 1 S. W. Rep. 687.

where the defendants, having pleaded a general denial, rely upon an alleged sale and delivery thereunder to defeat the plaintiff's claim, and there is evidence tending to show that the agent of the vendee by whom the alleged purchase was made had no authority to make such a contract, it is not error for the court to overrule a motion by the defendants to direct the jury to return a verdict for them, and, if the defendants elect to stand upon their motion, to direct the jury to return a verdict for the plaintiff. Where the court overrules a motion by the defendants to direct the jury to return a verdict for them, and the defendants elect to stand upon their motion, they thereby waive any errors in the admission of evidence that had previously occurred. Battis v. McCord, S. C. Iowa, Oct. 26, 1886; 30 N. W. Rep. 11.

32. SALE-Bona Fide Purchaser--Conditional Sale -Notice Possession. Where the vendee takes possession under a conditional sale, in which the title remains in the vendor until payment, and mortgages the goods to one ignorant of the condition and of the right of the vendor, and the vendor is never paid, the possession gives no right to pass title, the vendor is not estopped from asserting title, and the mortgagee gets no title which he can assert against the vendor. McIntosh v. Hill, S. C. Ark., Oct. 16, 1886; 1 S. W. Rep. 680.

33.

Reaping Machine-Delivery in PartsRescission-Delay in Delivery.-Under a contract for the purchase of a reaping machine, the delivery will not be complete until the different parts, which none but an expert can put together, have been set up so as to form a machine. Where the testimony for the defendant tended to show that he purchased a reaping machine, with the understanding that it should be delivered to him, fit for use, on or before a certain day, when it was necessary for him to begin his harvest, and the machine was only delivered in parts, boxed up, on that day, the vendor's expert not offering to set it up until three days later, the defendant's right to refuse the machine should go to the jury upon the theory presented by him. Wood Mowing-Machine Co. v. Gaertner, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep. 106.

34. SETTLEMENT Descent Wife's PropertyClaim of Next of Kin-Agreement Between Husband and Wife.-Where husband and wife, natives of Germany, by their equal labor and thrift accumulated property in real estate, and the husband deeds it to his wife, and, on her death, never having had children, her lands go to her next of kin, who live in Germsny, and who, upon demanding the lands of the husband, are met by his statement that there was an agreement between him and his wife that the property should go to the survivor of them, to be by said survivor devised equally among the relatives of each, and the parties finally settled by mutually deeding a moiety to each other, this settlement, in the absence of any overreaching by the husband, will be upheld as eminently fair and equitable. Seive v. Steinreide, Ky. Ct. Appls., Oct. 30, 1886; 1 S. W. Rep. 672.

note, defendant pleads that it was without consideration, as given for an alleged balance of old transactions, which included two notes actually paid in a settlement, in which a farm was deeded to plaintiff in full liquidation of all debts, leaving a balance coming to defendant of any excess obtained on sale, it is competent for defendants to introduce the deed in evidence, not as conclusive proof of the consideration for the farm, but as an element of the settlement relied upon in determining the question whether the notes which were the consideration of the note sued on were included in the settlement made when the deed was given. Duflo v. Juif, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep.

105.

36. SURETY-Principal and Surety-Liability of Surety Receiver Settlement of Partnership Affairs. In an action for a settlement of partnership affairs and the appointment of a receiver, the defendant was allowed by the court to remain in possession, on giving his bond, with a surety, to "abide by the future orders of the district court in the case." Held, that such bond will hold the surety for the amount of the final order of settlement, and his liability under it will not be restricted to the duties of the defendant as receiver merely. Stull v. Lee, S. C. Iowa, Oct. 25, 1886; 30 N. W. Rep. 6.

37. TRESPASS-When may be Maintained- Vendor and Vendee Timber License. A agreed in writing to sell to B the timber standing on certain land, and provided that the same should be cut and removed in two years. Afterwards he agreed verbally with B to extend the time for cutting and removing the same, but before the time had expired A made a sale of the land to C, who had actual notice of the the parol agreement with B, and who forbid his cutting any more of the timber. In an action of trespass on the case, brought by B against C for the value of the timber, held, that the agreement for extension was a license to B, which C had a right to revoke; that B had a right only to remove the timber which he had cut until forbidden by C to cut any more; and that he could maintain no action against C for the value of the standing timber. Williams v. Flood, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep. 93.

38. WILLS-Construction-Contingent Remainder --Distribution Based on Contingency.-A testator having provided in his will: "If, at my death, there shall be any surplus stock or personal property, or any cash or cash notes, on hands, it is my will and desire that the stock and personal property may be sold, the money collected and loaned out during the life of my wife, and, at ber death, I desire that it may be divided between my said daughter and granddaughter:" Held, that the words created a contingent estate, dependent upon the death of the wife, in the daughter and granddaughter, both as to the principal and interest of the "money collected and loaned out" after the sale mentioned. When the gift is created simply by directing the payment or distribution of the legacy at some future period of time after the decease of the testator, or upon the happening of a contingent event, and there is no provision in the will for vesting the legacy immediately, then the future time fixed, or the happening of the contingency, is of the essence of the gift. Willett v. Rutter, Ky. Ct. Appls., Oct. 5, 1886; 1 S. W. Rep. 640.

39. WITNESS-Discrediting-Refusal to Answer— Interrogation as to Crime.-Where the issue is whether notes have been paid, the refusal of the former clerk of plaintiffs, on being examined as to business transactions concerning the notes in suit, to answer interrogatories as to whether he had embezzled the funds of plaintiffs, falsified their books to cover his embezzlement, and used one of the notes, which was a renewal of the original note, for that purpose, cannot go to the jury to discredit the witness; the issue not being his embezzlement. Slocum v. Knosby, S. C. Iowa, Oct. 27, 1886; 30 N. W. Rep. 18.

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.

Query 32. A sells to B, at public sale, a pure bred Hereford cow, and states that she is in calf by a certain famous Hereford bull, owned by A. In order to get a representative from such a noted sire, B bids to $1,000, and gets the cow. The calf comes in due season, and proves to be a male. B uses this calf as a yearling, breeding him to some twenty or thirty cows, among them a number of pure bred cows. The distinctive outward features of the Hereford cattle are a white face, red body and quite prominent horns, and the exception to this rule is very scarce. When the calves come that are sired by this yearling, they prove to be of all colors-red, white, black, yellow, etc., some horned and some hornless, and this out of pure bred Hereford cows, as well as out of ordinary cows. These same cows, to a different Hereford sire, brought calves properly marked. A insists that the pedigree of the young sire is all right, and declines to take any steps in the matter, claiming that he could not be held responsible for the second generation from animals sold by him. B claims, however, that he paid a high price for the cow in the hope of getting a male, and having him hand down in his turn the distinctive features of the Hereford cattle, and that the failure to do so is a damage that A should make good. In other words, A sells B a cow in calf for breeding purposes in a Hereford herd. The calf breeds all right, except his calves lack the color and formation of Herefords, as established in their herd book, and consequently are of but little more value than common stock. Who should stand the loss?

ARBITRATOR.

RECENT PUBLICATIONS.

as

OHIO CORPORATIONS, other than Municipal, Authorized by the Old and New Constitutions, and Regulated by Statute, with Notes of Decisions, and a Complete Manual of Forms for Organizing and Managing all Kinds of Companies and Associations. By A. T. Brewer and G. A. Laubscher of the Cleveland Bar. Second Edition, enlarged. Cincinnati: Robert Clark & Co., 1886.

This is a local book which seems to have been favorably received by the profession in its appropriate habitat, and from the examination which we have given it, deserves well of the lawyers of Ohio, and all

other lawyers who may have any professional connection with the corporation law of that State.

That such a compilation cannot fail to be highly useful is abundantly clear from the consideration, that of late years nearly every variety of useful and profitable enterprises is prosecuted by corporations which in fact, are fast absorbing, in one form or another, all the business of the country, except such as from its very nature is incapable of aggregation and co-operation. In every State, therefore, there should be a judicious and carefully prepared system of corporation law, and it is equally important that it should be given to the profession and the public in as complete a form as possible, well arranged and carefully annotated. This has been very well done in the work before us, and we have no doubt that the second edition will be received with increased favor by the profession in Ohio.

JETSAM AND FLOTSAM.

PATTERN CROSS-EXAMINERS THE CORKSCREW PATTERN. This great cross-examiner, like a few other great men, proceeds upon a theory. He has observed that the situation of truth, in modern times at least, is best described, not as at the bottom of a well, but rather as in a tightly corked bottle. He regards a witness much as he does a bottle of Appolinaris water; and the object of cross-examination is to get the cork out. The art of doing this is to do it without an explosion and waste of the contents.

Since he discovered this principle he rarely has any difficulty with the process of cross-examining. He appreciates the importance of not shaking the bottle before the cork is drawn. So he disarms the witness entirely. His suave and plausible manner puts the witness at his ease. You would think they were great friends; or that he was ingratiating himself with a great man or an admired woman preparatory to asking some considerable favor.

He believes in a good long course of introductory questions to be continued until he finds the stream of testimony running freely. So he takes whatever

comes.

From the reserved or taciturn witness he accepts short answers, and follows graciously with a question just enough different from the one unsatisfactorily answered to invite a better answer. From the voluble witness he allows long answers, hoping in this way to get at the bottom of it.

But as soon as he has got the first flow fairly going he claps in the cork again with an objection-Wait a minute; one thing at a time; then he rummages with his papers as if in search of something else, or confers with his associate, as if he had no desire to stop his friend the witness, but only wished to prepare to understand him.

From this time on his task consists in alternately uncorking the witness and corking him up again. Each of these meddling processes he accomplishes with the utmost urbanity; and sometimes, almost at the same instant, so that only a single gurgle of testimony may escape between two interrogatories and the witness hardly knows whether he has said anything or not.

In this our friend, the cross-examiner, prides himself, particularly in the art of "getting it out of the fellow;" but it must be admitted that he often gets out just what he doesn't want to. Spectators in the profession are more inclined to admire his tact in "stopping it in," which he generally succeeds in doing.N. Y. Daily Register.

ST. LOUIS, DECEMBER 10, 1886.

CURRENT EVENTS.

PRISONERS AS WITNESSES.-We return to this subject because we find in a recent number of the Albany Law Journal an article beginning thus: "The CENTRAL LAW JOURNAL has a long and strong editorial against the practice of allowing prisoners to testify in their own behalf, lest they should hurt themselves. This is too sentimental."

or

The gist of our editorial was simply that logic, justice, and common sense demand that a party who affirms a proposition shall be required to prove it; that a State charging a person with crime is subject to the same rule, and should be held to establish its accusation by its own witnesses; and that the prisoner shall not be compelled, either directly, under the disguise of a permission to testify, to accuse himself or furnish testimony in aid of the charges brought against him. These ideas may be "too sentimental," worthy, in fact, of a place in The Sorrows of Werter. If so, we are very sorry-we regret extremely to have so shocked the feelings of our prosaic contemporary.

The Journal seems to consider the supposed utterances of counsel for the defense, under one state of the law or under another, as having some bearing on the question. Of course, under any state of the law on the subject of evidence, counsel for prisoners will say whatever they may think will best serve the interests of their clients, and the inferences which the Journal draws from their supposedviews of the matter are unworthy of serious consideration.

Equally futile is the Journal's parallel between the exclusion of prisoners from the witness stand, and that of circumstantial evidence,created by the prisoner himself, which, the Journal supposes to stand on the same footing. It says: "But it would be just as logical to censure the use of circumstantial evidence which the prisoner has created against himself." Surely our contemporary has sufficient perspicacity to see the difference between proving, by competent and Vol. 23-No. 24.

facts pertinent to the issue, and, having failed to make out a case in the ordinary manner, striving to extort by the insidious devices of cross-examination from a prisoner, always presumed to be innocent, either an actual confession or damaging admissions. The fallacy, however, which most gravely this afflicts the Albany Law Journal on subject is the idea that the prisoner

is a witness because he wants to be. It

is very manifest to us that whether he is made, as Mr. Justice Stephen proposes in his Nineteenth Century article, "a compellable witness at very stage of the inquiry," or whether he is nominally free to elect whether he will testify or not, he is in neither case a free agent. The new system places the average prisoner in this dilemma; if he declines to testify he knows that his reticence will operate very severely to his prejudice with the jury, if he does testify he knows that very little of his testimony which might tend to exculpate him will be believed, and that every syllable adverse to him, which can be wrung from him by crossexamination will be received as "confirmation strong as proof from holy writ." To speak of free will in such a connection is certainly very unreasonble. This result follows from the law of human nature, higher than any statute of any State, more potent than the orders of any court. By this law, in spite of any thing that legislatures may enact or judges charge, juries will be governed.

The Journal has made a very notable discovery in moral science. It says: "At all events, it is bad logic and bad morals to say that a man, presumed to be innocent, shall not be a witness if he desires to be." We must say that we cannot see where the turpitude comes in. It may be illogical, and it may be even absurd, to say, that which the common law of England has said for a thousand years, and which the law of most of the States of this union still says. It may be that there is a fresh revelation of the laws of logic, which can only be seen under the new juridical light which flashes over the placid waters of the Hudson, and that by that revelation the long accepted views of the sages of the law on this subject have been abrogated. Still, the question remains, where is the au