1. ACTIONS-EX CONTRACTU AND EX DELICTO. The distinction between actions founded in contract and those founded in tort is, in general, very clearly defined. If the cause of action is a wrong, with a resulting injury, the action is ex delicto. The sale of forged bonds, with a knowledge of the forgery, is a tort dependent upon a contract, and a suit to recover the consideration paid may properly be maintained, either as an action ex delicto, for the breach of duty, or as an action ex contractu, for the breach of contract. Shippen v. Tankersley, U. S. C. C., D. Col., June, 1882; 13 Fed. Rep. 537.

2. ADMINISTRATION REMOVAL OF ADMINISTRATOR-DRUNKENNESS-JUDICIAL COGNIZANCE. In a proceeding to remove an administrator from his trust, because of habitual drunkenness, it is not necessary to charge and prove that, by reason of the alleged drunkenness, such administrator is "rendered incapable of discharging his trust to the interests of the estate." The court will take judicial coguizance of the fact that habitual intoxication does incapacitate a man for the discharge of such trust. It is not necessary for the court to inquire, beyond the fact of habitual intoxication, whether in the particular case the drunkenness is or is not likely to affect the interest of the trust. Gurley ". Butler, S. C. Ind., October 31, 1882.

3. ACENCY-AUTHORITY TO SELL REAL ESTATE. An authority to a real estate agent to sell real property is only an authority to find a purchaser, but not to conclude and execute a contract binding upon his principal. Ryon v. McGee, S. C. District of Columbia, October 8, 1882; 10 Wash. L. Rep. 644.

4. CHATTEL MORTGAGE-STOCK IN TRADE-POSSESSION IN MORTGAGOR.

A mortgage providing that the chattels may remain in the possession of the mortgagor, with a secret understanding that the mortgagor may sell and trade with the property as usual, is void as against creditors; it creates no lien upon the substituted property. Smith v. Cooper,S. C. N. Y.; 15 Ch. Leg. N., 58.

5. COMMON CARRIERS PASSENGER'S BAGGAGE-CONNECTING LINES-WHAT IS BAGGAGE.

1. Where different railways, forming a continuous line, run their cars over the whole line and sell tickets for the whole route, and check baggage

through, each carrier is the agent of all the others to accomplish and complete the carriage and delivery of the goods, and an action will lie against either carrier for the baggage lost. 2. Articles not intended to be used on the passenger's trip, but being transported merely for future or prospective household use, is not considered baggage in that sense whereby the railway company would be liable for its loss, and a refusal of a charge asking such instruction to the jury was error. Texas, etc. R. Co. v. Ferguson, S. C. Tex., Austin Term, 1882; 1 Tex. L. R. 458. 6. CONSTITUTIONAL LAW

LIQUOR LAW — "RE

PUTE." A statute providing that persons who shall keep a place in which it is reputed' that liquors are sold without a license, shall be fined and imprisoned or both, is unconstitutional, as violating fundamental rights of property and freedom. State v. Kartz, S. C. R. I.; 15 Chi. Leg. N., 59. 7. CONTRACT-APPROPRIATION OF FUNDS TO PAR*TICULAR DEBT-CREDITOR'S RIGHTS.

A man who was in debt handed money to his wife, telling her to put it in the bank and saying that it would go towards paying the creditor. The wife deposited it, but afterwards withdrew and used it. Held, that the money had not been specifically appropriated to the payment of the debt in any such way as not to be subject to the debtor's control; and that after his death the creditor could not recover the amount in an action against the wife. Ryan v. O'Neil, S. C. Mich., October 18, 1882; 13 N. W. R., 591.

8. CONTRACT-BREACH-MITIGATING DAMAGES. A brewer contracted with an ice company for ice at not over two dollars a ton during the season. In May the company refused to furnish ice at that rate any longer, and the brewer arranged with them for a supply at four dollars a ton, but sued them for the breach of the first contract. Held, that it was for the jury to decide whether the later arrangement was merely a modification of the first contract, as claimed by defendant, or whether plaintiff made it, as he clai...ed, in pursuance of his duty to use reasonable efforts to mitigate the damages. Endriss v. Belle Isle Ice Co., S. C. Mich., October 18, 1882; 13 N. W. R., 590.

9. CONTRACT-MENTAL UNSOUNDNESS-BURDEN OF PROOF-PARTIAL INSANITY.

1. The burden of proof is upon one alleging mental incapacity to make a valid contract, unless it is shown that the party contracting was insane prior to the date of the contract, when the burden is shifted, and those claiming under the contract must prove that it was executed during a lucid interval. 2. Partial insanity, in the absence of fraud or imposition, will not avoid a contract unless it exists with reference to the subject of it at the time of its execution; but in cases of fraud it may be considered in determining whether a party has been imposed upon. McNett v. Cooper, U. S. C. C., W. D. Mich., September 28, 1882; 13 Fed, Rep., 586.

10. CONTRACT-UNDUE INFLUENCE EVIDENCE. An old lady of feeble health and deaf,[made a deed of a considerable portion of her property to a young man in whose family she had resided for two years, and between whom and herself a strong attachment had sprung up-the young man being present when this lady gave her directions to an attorney for its preparation. It appearing that she had read the deed over before signing it, and

had full knowledge of what she was doing, and no coercion of the donor's will being shown, the deed was sustained, and it was held, that there was nothing in the relationship between the parties to raise the presumpfion of undue influence, or to avoid the deed for constructive fraud. Pressly v. Kemp, S. C. S. C., 1882; 14 Rep., 528.

11. CRIMINAL LAW-EVIDENCE-ASSAULT TO COMMIT MURDER.

The wounded men pointed at one of the defendants, and told the witness to arrest such defendant, when he, the defendant, was only twenty feet distant, and thereupon such defendant ran away. Held, this was sufficient to justify the admission of the evidence concerning such defendant's flight. People v. Lock Wing, S. C. Cal., Sept. 15, 1882; Pac. C. L. J., 190.

12. CRIMINAL LAW-MURDER IN THE FIRST DEGREE. A conviction for murder in the first degree can not be sustained on evidence that the accused, after quarreling with deceased and while retreating before him, had fired at him after warning him "to keep back or he would shoot," and while in apprehension of serious personal injury. People v. Kohler, S. C. Mich., Oct. 20, 1882; 13 N. W. R., 608.

13. DAMAGES-DEFECTIVE APPLIANCES-EXEMPLA RY DAMAGES.

When the party was injured while operating a defective engine while the same was being taken to the machine shops for repairs, the company should not be held liable for exemplary damages. Houston, etc. R. Co. v. O'Hare, S. C. Tex., Austin Term, 1882; 1 Tex. L. R., 500.

14. DAMAGES-MEASURE OF DAMAGES FOR LOST BAGGAGE-INTEREST.

1. The market value of the articles lost is deemed an ultimate compensation, and this is the proper measure of the right of recovery. 2. Damages can not be recovered for expense incurred in making search for lost baggage. 3. Interest, as a general rule, is not recoverable on unliquidated demands, and it can not be said that the recent modifications of the rule has unsettled the rule heretofore applicable in this State. Texas, etc. R. Co. v. Ferguson, S. C. Tex., Austin Term, 1882; 1 Tex. L. R., 458.

15. EQUITY-UNCONSCIONABLE CONTRACT. Where a conveyance of land was obtained in exchange for property of about half its value by taking advantage of the grantor's ignorance ani unfounded apprehensions that if he did not convey, it would be taken on a judgment, the transaction was held to be unconscionable, and the conveyance was set aside. Wooley v. Drew, S. C. Mich., Oct. 18, 1882; 13 N. W. R., 594.

16. JURY TRIAL-INCOMPETENCY OF JUROR-INABILITY TO UNDERSTAND ENGLISH- DISCRETION OF COURT.

Held, that reasons sufficient for the challenge and exclusion of persons drawn as jurors, may be found outside of the statute; that inability to speak or understand the English language is a sufficient reason; and that such exclusion is so largely in the discretion of the trial court, that its action "will not be made the subject of revision unless some violation of law is involved, or the exercise of a gross or injurious discretion is shown." Sutton v. Fox, S. C. Wis., Oct. 10, 1882; 5 Wis. Leg. N., 41.

17. MALICIOUS PROSECUTION-PROBABLE CAUSE. An action for malicious prosecution can not be maintained against the complainant in a criminal proceeding for which there was probable cause, no matter how evil or malicious his motives may have been in making complaint. Nor can it be maintained if complainant, after fully and fairly disclosing to the prosecuting officer everything within his knowledge which would tend to cause or to exclude belief in plaintiff's criminality, left him to determine on his sole responsibility whether the proceeding should be instituted, even though the case were not a proper one for prosecution. Smith v. Austin, S. C. Mich., Oct. 18, 1882; 13 N. W. R., 593. .

18. MARRIAGE PROMISE-BREACH-EVIDENCE. In an action for breach of promise of marriage in which the plaintiff testifies positively to the making of the marriage contract, and in which there is testimony of long continued attentions paid by the defendant to the plaintiff, it is not error to instruct the jury that they may take into consideration in support of the express contract testified to by her, the facts and circumstances accompanying the acquaintance of the parties, his visits to her, his escort of her to meetings and social gatherings, and in fact the whole of their intercourse. Johnson v. Leggett, S. C. Kan.

19. PROHIBITION, WRIT OF-WHEN DEMANDABLE. The writ of prohibition is an extraordinary remedy and should be issued only in cases of extreme necessity, and not where there is a remedy at law or in equity, or by appeal. It is not demandable as matter of right but of sound judicial discretion. An order denying a motion for a writ of prohibition is not appealable to the court of appeals. People v. Westbrook, N. Y. Ct. App., May, 1882; 2 Civ. Proc. Rep. 180.

20. SALE-TITLE OF CHATTEL NOT TO PASS UNTIL PAID FOR.

Machinery was transferred with a written stipulation that title should not pass until it was paid for, and that when all the terms and conditions were fulfilled the vendor would give a bill of sale; that the vendor might resume possession at any time for breach of contract, but that the purchaser might remove it, and should insure it and assign the insurance policy to the vendor to secure deferred payments. Held, that such transaction was valid and that, until the property was paid for. creditors of the purchaser could not levy thereou. Marquette Mfg. Co. v. Jeffery, S. C. Mich., Octo. ber 18, 1882; 13 N. W. R., 592.

21. STATUTE OF FRAUDS-INDUCING PROMISE TO INDEMNIFY SURETY OF ANOTHER.

A verbal promise by one that if another will be come surety on a note for a third person, he, the promisor, will indemnify such surety if the surety signs relying upon such promise, is not within the statute of frauds. Dermit v. Bickford, S. C. N. H.; 15 Ch. Leg. N. 57.

QUERIES AND ANSWERS.

1*.* The attention of subscribers is directed to this depart ment,as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases

must, for want of space, be invariably rejected. Anonymous communications are not requested.

QUERIES.

45. In the sale of real estate in Missouri, where there is no special agreement, is there any implied legal obligation on the part of the vendor to furnish the vendee with an abstract or chain of title for examination? Kansas City, Mo. R.

46. In 1862 G B went into insolvency; an assignee was duly appointed, and real estate of G B conveyed to assignee by letter of assignment. AB had real estate on which there was an outstanding mortgage, a right of homestead, and a right of dower in the equity of redemption. The assignee did nothing with reversionary interest, nor with equity. The insolvent was discharged, and estate settled. The insolvent and heirs continued to occupy until 1882. In 1882 suit was begun by heirs founded upon their title as heirs at law of insolvent. Title is set up in assignee. Query. 1. Was there an abandonment by as. signee? 2. Would such abandonment reverse the title in insolvent? E. P.

Fitchburg, Mass.

47. An execution is issued against L, who possesses an equitable interest in a lot, which is about to be subjected to the payment of same. The said lot was purchased from A to be paid for in instalments, A giving to La bond for a deed which was to be exeeuted when the terms of the bond were complied with. A, who was the regular attorney of L in all matters wherein the services of an attorney was needed, came to L when the execution was issued, with a paper drawn up in writing, the nature of which L did not know, and informed him, L, if he would sign the same it would save his property from being subjected to execution. And, upon this representation, L signed it. The paper L signed proved to be a release to A of the equity he had in said lot, and a forfeiture of all rights he had therein, a fact he was in entire ignorance of at the time of signing. L afterwards tendered to A the full amount of the purchase money, and brings an action against him for specific performance of the said bond. Can he sustain said action? Will the rule that applies to a person who conveys his property for the purpose of defrauding his creditors apply in this case? J. O'H. Winheld, Kan.

48. Suppose by law a conveyance of homestead by husband is void. Suppose, by statute, that a dedication of streets and alleys must be made by owner to public when a town is laid out. Suppose, by statute, that one-half in value of all real estate, in which husband at any time during marriage had a legal or equitable interest, which has not been sold on execu tion, or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall be set off to her, etc. Suppose husband lays off a town and dedicates school house, court house and city park and streets and alleys, and duly acknowledges same and records it, but tha the wife did not join in the dedicatory plat. Suppose that the family move off the land, wife joins in deeds to lots from time to time. Suppose that husband dies-what is the interest of the wife in streets, etc., and what the remedy? A. R.

QUERIES ANSWERED.

Query 36. [15 Cent. L. J. 320.] A, while sick at Indianapolis, made his will on Sunday, and lived about a year thereafter. When he made the will, and

up to the time of his death, he was fully competent to make a will. There was no urgent necessity for making the will on Sunday. Is the will void because made on Sunday? Cite authorities. C. G. B.

Answer No. 1. The execution of a will on Sunday is not within the prohibition of the statute. The will is not void because made on Sunday. Bennett v. Brooks, 9 Allen, 118, holds a will made on Sunday valid under a statute similar to the statute of Indiana, and says the execution of a will on Sunday is not "work, labor or busines" within the meaning of the statute. A contract made on Sunday may be subsequently ratified, and then becomes valid. Banks v. Werts, 13 Ind. 203. An instrument which does not take effect at the time it is signed, is not void because signed on Sunday. A will does not take effect until the death of the testator; placing a will on the same ground with a contract in respect to the time it is to take effect, the principle cited prevents the will from being held invalid. Beitenman's Appeal, 55 Penn. 183; Perkins v. George, 1 Am. Law Rev. 755. P. MCHUGH.

Chicago, Ill.

Answer No. 2. A will may be executed on the Lord's day, although the testator was then in usual health. Bennett v. Brooks, 9 Allen, 118, and cases therein cited. M. H. C.

Worcester, Mass.

Answer No. 3. A will made on Sunday is valid. George v. George, 47 N. H. 27; Bennett v. Brooks, 9 Allen (Mass.), 118; Beitenman's Appeal, 55 Pa. St. 183. In Bennett v. Brooks, supra, the will in controversy was executed Jan. 12, 1862, which was Sunday, by the testatrix, in the presence of three witnesses. The testatrix died March 31, 1863, at the age of eighty-seven years, six months and fourteen days. When the will was executed, she was in her usual condition of health, and able to be about the house. The court say: "A just interpretation of the statutes for the due observance of the Lord's day, does not require us to hold that the execution of a will on that day is an act within the implied prohibition of the law." This case and the one supposed in the query are parallel. The Massachusetts and Indiana statutes are similar on this subject. See, also, Redfield on Wills, Part I., page 729-730.

Indianapolis, Ind.

L. D.

Answer No. 7. This question does not seem to have been much before the courts. "The execution of a will on the Lord's day is not work, labor or business within the meaning of the statute, and a will so executed is valid." Bennett v. Brooks, 9 Allen, 118. Parsons cites this case and Beitenman's Appeal, 55 Pa. St. 183. 2 Parson's on Contracts, 761. Washburn says: "A will made on Sunday is valid" (3 Washburn on Real Property, 4th ed., p. 504), and cites Bennett v. Brooks, supra, and George v. George,

Answer. J. T. A. can find the opinion of the Supreme Court of Maine upon the questions he raises, in the case of Keeley v. Boston, etc. R. Co., 67 Me 163; s. C., 24 Am. Rep. 19. A party had there purchased a ticket having on it the words, "Portland to Boston," and afterwards attempted to ride from Boston to Portland on the strength of the ticket. The conductor refused to receive it, and, upon the passenger's refusal to buy another ticket or pay fare, ejected him. The passenger sued the railroad company for damages, but was non-suited, the court holding that he was not entitled to a passage on the ticket from Boston to Portland, and further, that the fact that he had been before allowed to ride in that way on the same road, and with a similar ticket, and that one of defendant's agents had, after the purchase of the ticket, expressed the opinion that it was good for a passage either way, did not entitle him to such passage. The reporter, in his note to this case, 24 Am. Rep. 22, refers also to the case of Coleman v. New York R. Co., 106 Mass. 160, and to articles in the Atlantic Monthly for December, 1872, and May, 1873. Battle Creek, Mich.

RECENT LEGAL LITERATURE.

M.

KANSAS REPORTS. Reports of Cases Argued and Determined in the Supreme Court of the State of Kansas, A. M. F. Randolph, Reporter. Vol. 27. Containing Cases decided at the January Term, 1882. Topeka, Kansas, 1882: Kansas Publishing House.

This volume of nearly 900 pages is gotten up in excellent style, well printed on good paper, contains one hundred and twenty-seven cases, many of which are extremely interesting, a fact attested by their appearance in these columns. There are few abler and better courts in the country than that of Kansas.

LEGAL EXTRACTS.

OATHS IN FRANCE-THE SUPPRESSION OF RELIGIOUS EMBLEMS IN THE COURTS.

Some considerations of a judicial nature are suggested by the French Oaths Bill, and by a clause which the Chamber of Deputies added to it on the motion of M. Jules Roche, suppressing all religious emblems in the courts of justice. When the code, which is called after Napoleon, was being framed by a commission of the Council of State in 1802, two of the most eminent juris

consults, Portalis and Tronchet, gave it as their opinion that oaths tendered to witnesses and jurymen should be rendered as religiously solemn as possible, because, according to their experience, such oaths had a much more sobering effect than affirmations, even upon persons who were not religious. Portalis was anything but but a bigot, and Tronchet was a Voltarian, but both of them had seen the tribunals of the revolutionary era when witnesses were sworn "upon their faith as citizens," upon their love of "la patrie," etc., and they had noticed that these oaths were held of little account. Peasants, and peasant women especially, could not be brought to understand the sanctity of a mere promise to tell the truth unless it were accompanied by an invocation to God. In certain districts where this or that saint was held in particular veneration, it had been the custom of judges before the revolution to administer oaths upon relics, and where piety was wanting in the witness, superstition often served to produce in him that recueillement, or thoughtful gravity, which makes a man weigh his words. French law has never allowed a witness to be silent on the ground that his answers might criminate him, and this has always made it additionally necessary that the strongest moral pressure should be brought to bear on deponents. Under the First Republic, open, defiant perjury became so common in the courts, that the Code Napoleon, while restoring the religious oath, punished false swearing with far heavier penalties than are to be found on the English statute book. Articles 361 to 366 of the seventh section on crimes, decree that perjury in an assize court is to be punished by penal servitude for not less than five years; but if a witness, by committing perjury, has caused an innocent man to be convicted, he shall suffer whatever punishment the convict had been sentenced to undergo. Perjury might, therefore, become a capital offense. False swearing in a correctional court is punished by a minimum of two years' imprisonment, and in a police court by a minimum of one year, with fines in both cases, deprivation of civil and political rights, and police surveillance at the discretion of the judges. These enactments remain in force to this day, except as regards the death penalty, which was eliminated in 1857, when the capital offenses were reduced to two-murder and arson. Perjury may, however, still be punished by penal servitude for life. Now, it is not contended that the religious oath in law courts ever put a complete stop to perjury, even among the most superstitious peasants, but, considering how severely perjury is punished, it has seemed to almost all the judges now in office, and to a great number of procureurs, who are stanch Republicans, that any innovation tending to lessen the solemnity of oaths must produce serious mischief. In Belgium, where clericalism is by no means in the ascendant just now, the invocation to all the saints" is still retained in the judicial oath, because it is known to be of potent effect on the consciences of the peasantry. The

Belgian Parliament, wiser than that of France, is aware that the minds of the masses are not to be educated abruptly to a contempt of names and symbols long revered. . It may delight' a narrowminded Parisian skeptic to see the pictures of the crucified Savior removed from courts of justice, and to hear no more allusions to the Divinity in any of the formalities of procedure; but the question is as to whether the interests of justice will be served by the new state of things. The testimony of judges and magistrates is surely of some value on this point, and it is given decidedly in the negative. The most recent commentators on French law, Faustin Helie, H. Riviere and Paul Pont, are at one with Portalis and Tronchet in declaring that the religious oath has been of inestimable assistance to judges in arriving at the truth. M. Faustin Helie, who was President of the Court of Cassation, quotes in his "Cases from the Appeal Courts," several instances of witnesses who were checked from committing perjury by judges who observed that they jumbled the words of the oath and tried to avoid lifting their hands. These persons evidently regarded an oath as not binding unless it was sworn by a Holy Name; and when compelled to articulate every word distinctly, they appeared to be seized with a salutary fear. One may deplore the benighted moral condition of men who think that a lie is less a lie because it is not told after a certain fashion; but taking human nature as it is, and seeing that ignorant rustics are more numerous in France than enlightened freethinkers, it can not be said that a law which assumes that the many can be made at once to reason like the few, is a wise piece of legislation. But unquestionably a serious feature in the oaths bill is the fact of its having been passed in open contempt of the opinions of the judicial body. It may be asked whether it speaks well for the condition of a country when the men who make the laws so lightly testify their want of respect for the judges who are to administer them. -London Times.

CURIOSITIES OF EVIDENCE.

Some of the more ignorant of the Roman Catholic Church have a curious idea of the sanctity of an oath. We remember an old Irish woman being called as a witness at a recent assize at Liverpool to prove on the part of the defense an alibi as to the prisoners. She was duly sworn, and gave evidence utterly irreconcilable with the statements of other witnesses of undoubted veracity. It was quietly suggested by a clergyman in court that the Testament used in administering the oath had no cross upon the cover. On this representation another book was sent for which bore the sacred symbol; and being somewhat reluctantly resworn on the new volume, she did not hesitate to say, on being questioned, that all her testimony just given was false, quietly remarking, in answer to a remonstrance from the counsel, that she supposed she might say what she pleased as long as she had not "sworn on the blessed crucifix," The custom

of kissing the thumb instead of the book was considered by many an evasion of the moral obligation attached to an oath, while to others, holding the Testament upside down was deemed an equally efficacious release. These and other disreputable artifices are, however, very little indulged in at the present day.

When the celebrated Sergt. Hill conducted a defense at the bar of the House of Lords, he propounded a question to a witness which the counsel on the other side objected to. After much had, been said on either side, the law lords themselves disagreed, and the bar and all strangers were ordered to withdraw. After an absence of two hours they were readmitted and the Lord Chancellor informed Mr. Hill that the House decided

the question might be put. "Please you, my lords," said the Sergeant, "it is so long since I asked the question that I forget what it was, but with your lordships' permission I will put another!"

A witness was lately called on a trial at the Old Bailey to prove an alibi. He solemnly swore that the prisoner on the night and at the hour in question (11.25 p. m.) was at home and in bed at a distant part of the parish. Nothing could shake his testimony, for he said he had looked as the clock just as the prisoner went up-stairs, and he had set the clock right with the church clock himself the same day, and it was certainly 11.25 P. M., etc. "Pray what do you make the time now?" blandly asked the counsel who cross-examined, pointing to a grea white dial over the dock. No answer was given. "Don't be confused-take your time. I ask you again-what is the time by that clock now?" The question was repeated several times, and the witness was eventually bound to confess that he could not tell the time by a clock at all. Singu. larly enough, the clock in the court was standing at 11:25 when he made this avowal.

We remember a country witness being called at the assizes to prove that at a particular hour on a certain night the moon was shining and at the full. There happened to be no almanac in court, but the evidence seemed to be satisfactory, for he had obtained his information from "a regular good London stationer's almanac." The question was asked in cross-examination, "How did you obtain this London stationer's almanac? Did you buy it?" "Buy it! No; my father pasted it behind my kitchen door nine years ago-the day I was married!" It need hardly be said that information as to the moon's age during a day in the current year was of little value from an almanac nine years old.

We may remark that all evidence of a "circumstantial" character is received with great caution, and no doubt rightly so, on a trial. Take, as an illustration of this, the evidence offered against a prisoner, of footmarks. Nothing is more commonly found than the impression of boots or shoes near to a murdered body, or to premises which have been broken into. A policeman is