both herself and her husband. 4.And in such a case the wife will not be heard to claim that she gave the money to her husband; and that it was a fraud on her part as a reason for not charging her estate. 5. The court, in view of the circumstances of this case, refused to recommit a report made under the act of 1878 (secs. 724 to 731 inclusive, R. L.), when the master, though requested to do so, had neglected to file some portions of the evidence; because, by the said statute, a reference is to be tried by the master upon oral testimony; and then it did not appear that there was any order of the court that the testimony should be filed, or that the master kept minutes of the tesmony. Sargent v. French, S. C. Vt., Reporter's Advance Sheets.

1. Whether bonds of a city issued to make a donation to a manufacturing company managed by private enterprise are, in the sense of the law, for a municipal purpose or not, yet where those bonds recite on their face that they were issued for municipal purposes, the city is estopped, as against a bona fide holder, from setting up that they were not issued for a municipal purpose. 2. By the decision of the Illinois court of last resort, municipal bonds payable to bearer, or to some named person or bearer, are negotiable by delivery only, so as to authorize the holder to sue in his own name, and do not require any indorsement to pass title, City of Ottawa v. First Nat. Bank, U. S. S. C., April 24, 1882, 4 Morr. Trans., 679.

19. MUNICIPAL BONDS - NON-COMPLIANCE WITH CONDITIONS OF ISSUE.

A city which has by a local statute the right to make a subscription on condition in aid of a railroad can not, when its officers have issued its bonds containing no notice in their recitals of any condition, set up as against a bona fide holder,that the bonds are void for non-compliance with certain conditions, even though the statute authorizing their issue expressly provides that they shall not be valid till such conditions are complied with American Life Ins. Co. v. Town of Bruce, U. S. S. C., April 24, 1882, 4 Morr. Trans., 664. 20. MUNICIPAL BONDS-SUBSCRIPTION TO RAILROAD

STOCK.

1. The city of Louisiana had, under the twentyninth section of the legislative act incorporating the Louisiana and Missouri River Railroad, the right to subscribe to the stock of said railroad, and, under the tenth section of the city charter passed February 16, 1865, the right to issue bonds to pay for such subscription, if authorized by popular vote. 2. Nor is this power so conferred by the charter repealed by the Constitution of Missouri that took effect on July 4, 1865, that being entirely prospective; nor by the seventeenth section of the general railroad law of Missouri of 1866, which is a mere enabling act, containing no words of prohibition and not inconsistent with the special power previously conferred by the charter. City of Louisiana v. Taylor, U. S. S. C., April 24, 1882, 4 Morr. Trans., 596.

21. MUNICIPAL CORPORATION-COUNTY'S CONTRACT TO SELL LAND-SPECIFIC PERFORMANCE. 1. Where the officer of a county enters into contracts to sell different pieces of land of the county to different parties, who subsequently, on the failure of the county authorities to comply with the contract, all sell their interests to one party, and he tenders the amount necessary to entitle him to

enforce such contracts, the matter in dispute, as regards his right to appeal, is the amount so tendered, even though his separate vendors would not have had the right of appeal; and the county and its officers are real parties in interest in such a suit, although it was the duty of the governor of the State to issue the patent. 2. The contents of a contract, in the sense of section 629 of the Revised Statutes of the United States, are the rights created by it in favor of a party in whose behalf stipulations are made in which he has a right to enforce in a suit founded on the contract; and a suit to enforce such stipulations is a suit to recover such contents. 3. Hence, where a county commissioner sells different pieces of land to different parties, who sell and convey their interests to one party, and he tenders the amount necessary for the enforcement of the contracts, the Federal Circuit Court has no jurisdiction of a suit brought by him to enforce such contracts, unless his assignors might also have sued on it. Corbin v. Black Hawk County, U. S. S. C., April 24, 1882, 4 Morr. Trans., 632. 22. NEGLIGENCE

CORPORATION.

UNSAFE HIGHWAY-MUNICIPAL

In a suit against a city for injuries caused by the unsafe condition of the embankment leading to a bridge to which a street of the city ran, the fact that the city owned stock and had advanced money to the corporation which held the title to the bridge does not make the city responsible for its defects, but the question is, whether the city by its action had treated the embankment as a street or an extension of a street, which is a question of fact for the jury, and an instruction taking from the jury the right to pass on this question is erroneous. City of Manchester v. Ericsson, U. S. S. C., April 3, 1882, 4 Morr. Trans., 567. 23. RAILROAD MORTGAGE-RECEIVER-STATUTORY RIGHT OF REDEMPTION.

1. A judge of a circuit court in Illinois can not, in vacation, appoint a receiver of a railroad corporation. The possession of a receiver so appointed is not that of the court. 2. Section 49 of chapter 37, Rev. Stats. Ills. 1874, p. 332, is to be construed as if there was no comma between the words "to hear and determine motions" and the words "to dissolve injunctions." Punctuation is no part of a statute. 3. The statutes of Illinois, giving the right to redeem mortgaged lands sold under decree, do not embrace the real estate of a railroad corporation mortgaged in connection with its franchises and personal property. Its real estate, personalty and franchises, so mortgaged, should be sold as an entirety, and without the right of redemption given by statute. 4. The chattelmortgage statute is inapplicable to an ordinary railway mortgage. Hammock v. Farmer's Loan and Trust Co., U. S. S. C., April 24, 1882, 4 Morr. Trans., 613.

24. REVENUE-ERRONEOUS ASSESSMENTS OF COM MISSIONER OF INTERNAL REVENUE.

While there may be cases in which an assessment made by the commissioner of internal revenue must stand as an entirety or not at all, e.g., where an erroneous rate has been adopted by the officer, or where its validity depends upon his jurisdiction, yet, where the question is as to the quantity of spirits produced on which taxes were not paid, Every material fact on which the assessment was made is open to proof, and it will stand to the extent in which it is not impaired. United States ». Rinaskopf, U. S. S. C., April 24, 1882, 4 Morr. Trans., 652.

25. REVENUE-OFFICERS REMOVAL OF CAUSESTAX ON SNUFF.

1. Section 643 of the Revised Statutes, providing for removal from State courts of civil suits against revenue officers, is not superseded by the act of March 3, 1875. 2. The tax on snuff is thirty-two cents per pound. Granulated tobacco, whatever it may be, was not snuff, within the meaning of the statute. Venable v. Richards, U. S. S. C., May 8, 1882, 4 Morr. Trans., 688.

26. TRUST-FAILURE OF TRUST-RECONveyance. Where a party conveys land to trustees by a deed containing a provision that if a certain event did not happen in a certain time the deed should be void, and the event did not happen, and in fact became impossible, it will be presumed in a suit brought three years after such failure of the trust. in the absence of proof to the contrary, that a reconveyance had been made by the trustees to the grantor, but such presumption is only prima facie, and not conclusiye, and must yield on the production of contrary proof. Lincoln v. French, U. S. S. C., May 8, 1882, 4 Morr. Trans., 684. 27. WILL CONSTRUCTION GIFT OVER ON CONTINGENCY.

The testator gave his residuary estate upon trust for his wife for life, provided that she should survive him twelve months, and gave her power to leave the half of the property by her will at her death, and gave the other half, after his wife's death, to his sister. He further directed that during the first year of her widowhood his wife should receive £400 by equal quarterly payments, and in case of her dying within twelve months of his own decease, he left the whole of his estate to his sister, and in case of his wife not making a legal will he left the whole of his estate to his sister. The wife died in the testator's lifetime. Held, that the contingencies guarded against were the wife not being alive twelve months after the testator's death, or her dying after that time, and not making a will, and, therefore, that the gift over took effect, though the wife had died before the testatrr, and, therefore, had not strictly died within twelve months of his decease. Davies v. Davies, Eng. High Ct., Ch. Div., June 10, 1882, 30 W. R., 916:

28. WILL-IMPLIED TRUST-CONVERSION TOREALTY. A mere gift of personalty by will, with limitations appropriate only to real estate, can not justify an implied trust to convert personalty into realty. If the only ground for inferring that a testator's intention was to convert personalty into realty be that it is limited to uses applicable only to realty, such conversion can not be inferred. Evans v. Ball, Eng. H. L., May 15, 1882, 30 W. R., 899.

LEGAL EXTRACTS.

PETER BENNETT'S CASE. Some years ago, a doctor named Royston,down in Georgia, had sued Peter Bennett for his bill, long overdue, for attending the wife of the latter. Alex. H. Stephens was on the Bennett side, and Robert Toombs, then Senator of the United States, was for Dr. Royston. The doctor proved his number of visits, their value according to local custom, and his own authority to do medical practice. Mr. Stephens told his client that the

physician had made out his case, and as there was nothing wherewith to rebut or offset the claim, the only thing left to do was to pay it. "No," said Peter; "I hired you to speak to my case, and now speak."

Mr. Stephens told him there was nothing to say; he had looked on to see that it was made out, and it was.

Peter was obstinate, and at last Mr. Stephens told him to make a speech himself, if he thought one could be made.

"I will," said Peter Bennett, "if Bobby Toombs won't be too hard on me."

Senator Toombs promised, and Peter began: "Gentlemen of the jury-You and I is plain farmers, and if we don't stick together these 'ere lawyers and docters will get the advantage of us. I ain't no lawyer nor doctor, and I ain't no objections to them in their proper place; but they ain't farmers, gentlemen of the jury.

"Now, this man Royston was a new doctor, and I went for him for to come an' to doctor my wife's sore leg. And he come an' put some salve truck onto it, and some rags,but never done it one bit of good, gentlemen of the jury. I don't believe he is no doctor, no way. Thar is doctors as is doctors, sure enough, but this man don't earn his money, and if you send for him, as Mrs. Sarah Atkinson did, for a negro boy as worth $1,000, he just kills him and want's pay for it."

"I don't," thundered the doctor.

"Did you cure him?" asked Peter with the slow accents of a judge with the black cap on.

The doctor was silent, and Peter proceeded: "As I was a sayin', gentlemen of the jury, we farmers, when we sell our cotton has got to give valley for the money we ask, and doctors ain't none too good to be put to the same rule. And I don't believe this Sam Royston is no doctor, nohow."

The physician again put in his car, with "Look at my diploma, if you think I am no doctor."

"His diploma!" exclaimed the new fledged orator, with great contempt. "His diploma! Gentlemen, that is a big word for printed sheepskin, and it didn't make no doctor of the sheep as first wore it, nor does it of the man as now carries it. A good newspaper has more in it, and I pint out to you that he ain't no doctor at all."

The man of medicine was now in a fury, and screamed out: "Ask my patients if I am not a doctor!"

"I asked my wife," retorted Peter, "an' she said as how she thought you wasn't."

"Ask my other patients," said Dr. Royston. This seemed to be the straw that broke the camel's back, for Peter replied, with look and tone of unutterable sadness:

"That is a hard sayin,' gentlemen of the jury, and one as requires me to die or to have power as I've hearn tell ceased to be exercised since the Apostles. Does he expect me to bring the angel Gabriel down to toot his horn before his time, and cry aloud, 'Awake, ye dead, and tell this

court and jury your opinion of koyston's practice? Am I to go to the lonely churchyard and rap on the silent tomb, and say to um as is at last at rest from physic and doctor bills, 'Git up here, you, and state if you died a nateral death, or was hurried up by some doctors,' He says, ask his patients, and, gentlemen of the jury, they are all dead! Where is Mrs. Beazley's man Sam? Go ⚫ ask the worms in the graveyard where he lies. Mr. Peake's woman Sarah was attended by him, and her funeral was appinted and he had the corpse ready. Where is that likely Bill as belonged to Mr. Mitchell? Now in glory a' expressin' his opinion of Royston's doctrin' Where is that baby gal of Harry Stephen's? She are where doctors cease from troublin' and the infants are at rest. "Gentlemen of the jury, he has et chicken enough at my house to pay for his salve, and I furnished the rags, and I don't suppose he charges for makin' of her worse, and even he don't pretend to charge for curin' of her, and I am humbly thankful that he never give her nothin' for her inwards, as he did his other patients, for somethin' made um all die mighty sudden—”

Here the applause made the speaker sit down in great confusion, and in spite of a logical restatement of the case by Senator Toombs, the doctor lost and Peter Bennett won.- Kentucky Law Journal.

SPECTATORS AT PRIZE FIGHT.

When the full Court for the Consideration of Crown Cases Reserved meets, it nearly always differs. This is partly because so many as a dozen lawyers, even when they are judges, are not likely to agree upon any subject, but more substantially because the full court is not suminoned except in very doubtful cases. The result usually obtained from so numerous a concilium is seldom in proportion to the labor involved. The knot required to be untied is either of an exceptional character, not likely to occur again; or it is found, after all, to be a matter of fact rather than of law. This last consideration accounts a great deal for the difference of opinion in Regina v. Coney, heard before eleven judges, and reported in the June number of the Law Journal Reports. Upon the only pure question of law involvednamely, whether a prize fight is an assault by the combatants on one another-there is no difference of opinion; but the judges are eight to three on the character of the evidence necessary to convict a spectator of aiding and abetting the assault. As Mr. Justice Manisty points out, the purely legal question was not before the court. No point of law was reserved, in reference to the principals in the fight, who were convicted without an appeal. The case stated in regard to Coney and two others, who were by-standers, was consistent with the fight not being a prize fight. All that was stated was that the men fought, and there were blue stakes and a rope forming a ring. Nearly all the judges, however, assumed in the

prisoners' favor that the fight was a prize fight, and so put beyond future controversy the principle that a public prize fight is an assault between the combatants. The majority of the judges further held that to prove a defendant to have been at a fight and looking on, without other evidence, is not enough to justify a conviction for aiding and abetting the fight.

We have described the unanimous decision of the judges as having reference to a public, as distinguished from a private prize fight, and this was the only question before them upon the facts stated in the special case. Probably, in practice, there can be no prize fight without spectators. Two men in anger may well fight alone, either with fists or weapons, but they are not likely to do so for money. Yet most of the judges appear to rely, in part at least, on the publicity of the fight as making the consent on both sides immaterial. Mr. Justice Stephens- in a judgment which, in some places, takes a high flight into the philosophy of judges' decisions-says: "The consent is no defense if the injury is of such a nature, or if it is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured." Lord Coleridge says: "As the combatants in a duel can not give consent to one another to take away life, so neither can the combatants in a prize fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace." Lord Coleridge's illustration suggests that it is doubtful whether the distinction in question was present to his mind. If the immateriality of consent depends on the same principle in a prize fight as in a duel, it does not matter whether the fight was public or private. If a man kills another in a duel in a room in an empty house, let us say, on Dartmoor, the survivor is clearly guilty of murder. And yet there is no breach of the peace in the sense of public scandal. It may possiby be that there is a distinction between the case in which two men agree to do their best to kill one another, and the case in which they do their best only to maim one another. Mr. Justice Stephen seems to think there is; and Lord Coleridge appears to think so, unless his phrase "breach of the peace" means nothing more than breach of the law. Mr. Justice Cave-who delivered judgment first, taking the place of Mr. Justice North, and whose careful examination of the authorities formed the basis of the judgments of most of the other judges-leaves the matter in doubt. We are a little disappointed to find that, after all, we do not get to the bottom of the reason why consent is no defense to a criminal assault. Even Mr. Justice Stephen, who is generally clear and fearless in his views, after the passage already quoted, adds: "The injuries given and received in prize fights, are injurious to the public, both because it is against the public interest that the lives and health of the combatants should be endangered by blows, and because prize fights are disorderly exhibitions and mischievous on many

obvious grounds." If the first reason is true, the second is totally unnecessary. We believe that the first reason is the only true one. Consent excuses what would otherwise be a criminal assault when the blows are given in sport, but not when they are given in earnest. Two men may spar with boxing gloves, if the gloves are not a mere pretext; but they may not fight, although they both agree. The principle is that of public policy, and rests on the same ground as the law against suicide. In this view public scandal does not affect the question. The elements of a breach of the peace may be present at a genuine boxing match as well as at a fight, and yet it is not suggested that the competitors would be guilty of an assault on the ground of the public scandal of the exhibition. For the reason that the distinction referred to was not clearly present to the minds of the judges, the decision is not so valuable as it might have been.

The attention of the judges was directed so closely to the second point on which they disagreed, that the first was not determined with scientific accuracy. The direction given by the chairman of the Berkshire Quarter Sessions is probably the same which most lawyers would have given off-hand, although such opinions have often to be modified on consideration. The law, as laid down, had crept into the text books, and is supported by Russell on "Crimes." in a passage based on the opinion of Mr. Justice Littledale in Regina v. Murphy, 6 Car. & P. 103. The direction given to the jury was to the effect that if they thought the defendants were present at the fight not casually, but as spectators, they were guilty of aiding and abetting it. Upon this direction a verdict of "guilty" was returned, but this verdict was set aside by a majority of the judges. The burden, it seems to us, lies on those who maintain that the mere looking at a crime is criminal in itself. We are not convinced by the arguments with which Lord Coleridge, Baron Pollock and Mr. Justice Matthew discharge themselves of this burden. The line of argument which Lord Coleridge adopts, is that the view maintained by the prosecution is desirable in itself, because if there were no spectators there would be no prize-fights, and that there is respectable authority in support of it. But is not this reasoning based on much too narrow an appreciation of the materials upon which a judge should act? His decision ought to be in consonance with the whole law in question as laid down by the best authorities, and with the general considerations involved in the subject. It ought not to be content to rest merely on expediency eked out with a little authority. Baron Pollock treats the question as pure fact, drawing inferences from the posts, and the cord, and the other indications of a deliberate fight. His judgment amounts to little more than that, as a juryman, Baron Pollock would have drawn an inference sufficient to convict Coney. The same observation may be made on the judgment of Mr. Justice Mathew. But ought not

the jury to have been asked whether, in their opinion, the presence of the defendants with the surrounding circumstances amounted to aiding and abetting? Was it right to tell them that merely standing to see the assault was a crime? It is difficult to answer this question in the affirmative upon general principle or upon authority. There is no statute creating the offense out of the materials laid before the jury. There must be an aiding and abetting of the assault which one combatant was committing on the other. No doubt the crowd of spectators is one of the incidents which encourage a prize fight. But is every individual in the crowd responsible for the whole crowd? If there had been evidence that a dozen men agreed to attend the fight, the proof would have gone far to establish the case insisted on by the dissentient judges. As it was, merely to stand still is not to aid; merely to look is not to abet. The passages cited by Mr. Justice Cave from Hale and Foster tend to support this view as strongly as do general principles. In fact, Mr. Justice Littledale and Mr. Justice Patteson had gone a little too far in directing juries. They had applied a test which turns out to be incomplete. The decision of the court, we think, does not amount to more than this, and can not be said to settle any great rule of criminal law. In fact, the judgments of the court of Crown Cases are rather interesting from the insight which they give into the modes of thought of individual judges, than useful as clear expositions of a branch of the law. We doubt whether there is advantage in numbers on the bench; and the time, we hope, is not far distant when points of criminal law will go to the Court of Appeal and the House of Lords, like other points of law.— Law Journal.

RECENT LEGAL LITERATURE.

REISSUED PATENTS. Comments on the Decisions of the United States Supreme Court in the case of Miller v. The Bridgeport Brass Co. Practical Effects of the Decision, and its Warning to Inventors. Philadelphia, 1882: T. & J. W. Johnson & Co.

Much has been said and written peo snn con upon the subject of reissued letters patent since the decision of the Supreme Court of the United States in the case of Miller v. Brass Co. (November, 1881, 21 O. G. 201).

That apprehensions of a grave character, concerning the attitude of the court on this important subject of property, have arisen from its opinion in the case is manifest, from the anxious inquiries of manufacturers and owners of this species of property, as well as the discussions of the subject by gentlemen learned in the profession, who have seen fit to express their views upon it in the press. That a spirit of innovation upon old rules and customs has characterized the action of the judges is manifest in the recent de

cisions upon the subject of patents. Not that there appears to be any disposition to alter the general rules applicable to this class of cases, but rather an intention to lean toward greater strictness in the interpretation of them. It is claimed, and no doubt with great reason, that the unrestricted reissue of patents in patent office practice has become fraught with evil results, not only to the general public, but to inventors as well. A recent writer upon this subject (H. Hoson, Esq.) says: "Facilities for reissuing patents have engendered in the minds of inventors, a belief that a patent can be repaired and re-repaired at at any time when it is worth while to do so, or when the efforts of others suggest a reissue, and that the style of specification, claims and drawings is not matter for grave consideration. The very man who would measure every word of an agreement or other document relating to ordinary property or money matters will be heedless in the criticism of papers which must define his patent property, and in a great measure determine its value." In these two paragraphs the author gives a synopsis of the true causes which have actuated the court to bring about a reform. No class of men in the community have greater opportunities for judging of the uses and abuses of patent rights than the judges of our United States courts, when, therefore, it is declared that such an important monopoly as a valuable patent has been procured by reissue upon "a mere pretense," it is certainly high time to put on brakes and consider. Let us quote the language of the court, which, commenting upon the identity of device as shown in the reissue and original patent, says; "The latter was for a double dome without a chimney, the peculiarity of the supposed invention being the use of the double dome as a means of dispensing with the chimney. The reissue is for a single dome with a chimney. It is not only obviously not a different thing, but it is the very thing which the patentee professed to avoid and dispense with. But there is another grave objection to the validity of the reissued patent in this case. It is manifest on the face of the patent when compared with the original, that the suggestion of inadvertence and mistake in the specification was a mere pretense; or, if not a pretense, the mistake was so obvious as to be instantly discernable on opening the letters patent, and the right to have it corrected was abandoned by unreasonable delay." The latter sentence applying the rules of equitable estoppel, marks the only significant departure from established precedent in patent cases that we think can be found in the case of Miller v. Brass Co. The other features decided had already become the known and settled doctrine of the court. The statute itself prescribes that no new matter shall be introduced into the specification, nor, in case of a machine patent, shall the model or drawings be amended, except each by the other (i. e,, the model by the specification, or vice versa); but when there is neither model nor drawing, amendments may be made upon proof

satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident or mistake. Act July 8, 1870, sec. 53.

The court, therefore, has uniformly held that a departure from these requirements avoided the reissue. Batten v. Taggert, 17 How. 83. See, also, Manufacturing Co. v. Corbin, 103 U. S. 786; Wood Paper Patent, 23 Wall. 566; Russell v. Dodge, 93 U. S. 460; Ball v. Langles, 102 U.S. 128.

The idea advanced by another recent writer on this subject, Mr. Hosea, of Cincinnati, O., that merely expanding the patent "by a reissue, as far as may be necessary to fully secure and protect his real invention, and to measure the scope of his new claim by the original disclosure made to the public, either in drawings, description or model," is undoubtedly true; but it must be strictly construed. Mr. Howson has elaborated the benefits to be derived from the action of the court in the case upon which he comments, and speaks of the evils to be corrected in the Patent Office, and particularly in the eradication of incompetent solicitors by greater strictness on the part of the examiners; good must surely come from this decision to all persons bona fide interested in patents, while no loss can come from the dismay of those interested in them otherwise. As an evidence of the design of the court to change somewhat its custom in patent cases, we might instance the decision of Hartell v. Tilghman, 99 U. S. 547, which held that the operation of the United States patent laws did not extend so as to confer jurisdiction upon United States courts in a controversy arising out of a contract upon a patent, independent of citizenship, although the contrary rule had theretofore prevailed. The conclusions reached may be thus stated:

Where an inventor receives his patent, and upon inspection finds that his claim is not so broad as it should be, he should apply immediately to have it corrected, or his right to do so will be abandoned and lost by unreasonable delay. What is unreasonable delay must be determined by the circumstances of each case, but it may be as well to observe that by analogy to the statute R.. S., sec. 4886, making a non-pub-. lic use for two years prior to an application for a patent a condition precedent to the grant, the court meant that when it referred to an implied disclaimer as avoiding a reissue.

That upon the patentee's claim of a specific device or combination, and an omission to claim other devices and combinations apparent upon the face of the patent are in law a dedication to the public of that which is not claimed if the correction thereof is unreasonably delayed.

That if a patent fully and clearly describes and claims a specific invention, complete in itself, so as not to be inoperative or invalid by reason of a defective or insufficient specification, a reissue can not be had for the purpose of expanding and generalizing the claim, so as to embrace an in