the trial to the jury. The institution and prosecution of proceedings under Rev. Stat. U. S., § 4285, in a District Court of the United States, followed by a decree, is a bar to an action in this court to recover damages for personal injuries received in the marine collision which was the basis of the proceedings in the District Court. Rounds v. Prov. & Stonington S. S. Co. Opinion by Durfee, C. J. as a highway to be repaired by the town. In the opinion that that question could be better passed upon in ion, Judge Williams specifies acts of the town or selectmen which would constitute the adoption of a highway by a town-such as the shutting up an old road, leaving no other avenue for travel except on a road which they had made, and putting the same into the rate bills of the highway surveyor. The same learned judge says, in Page v. Weathersfield, 13 Vt. 424, that a public highway may be proved by showing that the town had recognized it as such by doing labor thereon, or authorizing the highway surveyors to expend money thereon. In Folsom v. Underhill, 36 Vt. 580, it was held that neither the fact of a dedication of land to the public as a highway, nor the use of the land by the public as a road for public travel, would be sufficient to impose upon the town a duty to keep the road in repair as a highway. The use of a road for public travel however extensive that use may be, is not sufficient to constitute such road a highway by adoption so as to impose the duty upon the town to keep it in repair. The plaintiff claimed that her horse became frightened at a dump-cart "tipped-up" on the side of the street opposite a carriage shop. Held, that what one of the selectmen said immediately after the accident, namely, "the road was always full of something there," was not admissible, as the admissions of selectmen unconnected with any official act cannot be used to charge the town with liability. The cart was left at the shop for repairs at about ten A. M., and the accident happened about two P. M., of the same day; aud the question being where the cart stood and whether the selectmen knew of it, held, that evidence was inadmissible to prove that customers, when bringing their carriages to this shop for repairs, were accustomed to leave them on the margin of the highway and sometimes outside the sidewalk. Tower v. Rutland. Opinion by Royce, C. J. RHODE ISLAND SUPREME COURT ABSTRACT.* SHIP AND SHIPPING UNITED STATES REVISED STATUTES, SECTIONS 4283-5-APPLICATION-BAR.-The United States Limited Liability Act of March 3, 1851, in favor of ship owners, etc., Rev. Stat. U. S., §§ 42834285, applies to injury to the person as well as to injury to property. In the case of the Epsilon, 6 Ben. 378, this point was carefully examined by Judge Benedict, of the Eastern District of New York, and his conclusion was that the sections prescribing procedure could not be held "to engraft any restriction upon the language" of the section granting the limitation. His opinion was that the United States District Courts have power to carry the limitation into effect under their general admiralty jurisdiction independently of the provisions for procedure. The construction applied by Judge Benedict was approved and followed by Judge Choate, of the Southern District of New York, in the case of the Seawahnaka, 5 Fed. Rep. 599, 624, in which he held that claims for damages for personal injuries "cannot be distinguished from claims arising out of loss of cargo." See also Norwich Co. v. Wright, 13 Wall. 104. Providence & New York Steamship Co. v. The Hill Manf. Co., decided in the Supreme Court of the United States, October Term, 1883. We therefore decide that the limitation of liability extends to personal injuries. The case of Wallace v. Providence & Stonington Steamship Co., 14 Fed. Rep. 56, is not in conflict with this decision; for in that case the court held simply that it was not necessary to determine on demurrer whether the limitation of liability extended to personal injuries, being of the opin*To appear in 14 Rhode Island Reports. MECHANICS' LIEN-ASSIGNABILITY-PRIORITY OVER SUBSEQUENT MORTGAGE.-A. by special contract, made July 29, 1880, engaged to build a house for B. December 1, 1880, A. assigned the contract to C. At the time of the assignment A. had taken no steps to secure a mechanics' lien. B. consented that C. should proceed under the contract and finish the house. Held (1) that B.'s consent to C.'s proceeding under the contract was a consent to the transfer of the contract to C. (2) That C. was entitled to perfect and enforce a mechanics' lien, using the name of the assignors. Caldwell v. Lawrence, 10 Wis. 331; Pearsons v. Tincker, 36 Me. 384; Murphy v. Adams, 71 id. 113. Held further, that a mechanics' lien, though inchoate, is assignable, passing in equity with the debt or contract for which it is security. It is not for the debtor to say that it shall not follow the debt; and evidently it is greatly to the advantage of the creditor to have it to do so; for if it follows the debt, it enhances its value, because of the security which it affords. Phillips on Mechanics' Liens, § 55; Tuttle v. Howe, 14 Minn. 145; Iaege v. Bossieux, 15 Gratt. 83; Skyrme v. Occidental Mill & Mining Co., 8 Nev. 219; Rogers v. Omaha Hotel Co., 4 Neb. 54; Mason v. Germanie, 1 Mont. 263; Davis v. Goff v. Papin, 34 Mo. 178; Murphy v. Adams, 71 Me. Bilsland, 18 Wall. 659; Kerr v. Moore, 54 Miss. 286; 113. The defendant contends that the lien did not pass because McDonald & Co. had taken no steps to perfect it before making the assignment. He refers to Brown v. Smith, 55 Iowa, 31, and Langan v. Sankey, 55 id. 52. These cases hold that a mere right to a mechanics' lien, before the lien has been perfected by the filing of the claims, is not assignable. These cases were decided under a statute which declared that 'Mechanics' liens are assignable and shall follow the assignment of the debt." It not appearing that C. entered into any contract with B. or that A. was ever released by B., held, that C. proceeded properly in using the name of A. A mechanics' lien has, under Pub. Stat. R. I., ch. 177, § 1, precedence over any other lien which originates after the work has begun, hence over a mortgage given after the work has begun. McDonald v. Kelly. Opinion by Durfee, C. J. CRIMINAL LAW ARSON - CONVICTION FOR LESSER OFFENSE PRESUMPTION AS TO CHARGE OF COURTMOTION IN ARREST. * - - The indictment charged the 66 a cerrespondent with having set fire to and burned tain barn of one " B., * * "it being an outbuilding adjoining the dwelling-house of the said " B. amended by the act of 1882, No. 84; the offense proved The offense charged was punishable by § 4126, R. L., as was punishable by § 4128, R. L. Both sections are to prevent the unlawful burning of buildings; the former to protect the dwelling-house; the latter, every building by one section the offender, could be imprisoned for life; by the other, not more than ten years. Held, that a conviction under the indictment can be had for the lesser offense. That it is to be presumed, in the absence of any statement to the contrary, that the court properly instructed the jury to return a verdict for the lesser offense, the charge of the court, the sentence, and the evidence, being appropriate to such conviction. State v. Downer,8 Vt. 424; State v. Burt, 25 id. 373; State v. Carpenter, 54 id. 551, and in many other cases. This indictment on its face is sufficient; hence the motion in arrest was properly overruled, as such a motion is addressed to errors apparent upon the record. Sup. Ct., Vermont, Jan., 1884. State v. Thornton. Opinion by Ross, J. (60 Vt. 35.) adopter signed a paper stating that she could "have her son (the adopted child) at any time she calls for him." Held (1), that under the statute (Rev. Stat. 1879, § 601), by joining in the deed she relinquished her parental rights over the child; (2) that the subsequent paper could not be construed to work a revocation of the deed; it was evidently intended to allow her only the temporary custody and society of the child. Matter of Berenice S. Scarrett, 76 Mo. 565; Reinders v. Koppelman, 68 id. 499. Matter of Clements. Opinion by Hough, C. J. CORPORATION ASSIGNMENT FOR BENEFIT OF CREDITORS-ULTRA VIRES-LIABILITY OF STOCKHOLDERS. (1) An assignment of all the assets of an insolvent corporation for the benefit of creditors, if made by the board of directors without the consent of the stockholders, is ultra vires and void, but only as against the stockholders. A creditor of the corporation cannot make the objection. Field on Corp., § 151; Abbott v. American Hard Rubber Co., 33 Barb. 580. (2) An insolvent corporation may include in an assignment for the benefit of its creditors the liability of its stockholders for unpaid stock for which no call has been made. Ex parte Stanley, 4 De G. J. & S. 407; In re Sankey Brook Coal Co., L. R., 10 Eq. Cas. 381; Ohio Life Ins. Co. v. Trust Co., 11 Humph. 1; Sagory v. Dubois, 3 Sandf. Ch. 466; Terry v. Anderson, 95 U. S. 628; Marsh v. Burroughs, 1 Woods, 463; Lionberger v. INDICTMENT-CHARGING COMMISSION OF OFFENSE ON PARTICULAR DAY-CONTINUANDO-EVIDENCE- BILL OF PARTICULARS, DISCRETIONARY.- An offense may be charged to have been committed either on some one particular day, or if it have continuance, on a series of days, under a continuando. A charge in the latter form is usually made by charging the commission on two days, more or less widely separated, the latter generally being designated as the day of the finding of the indictment or of the making of the complaint, and on divers days and times between them. When it is so made, testimony is admissible to prove the commission of the offense at any time within the period alleged. It has been held that the offense of illegally keeping intoxicating liquors for sale may properly be charged under a continuando. Commonwealth v. Snow, 14 Gray, 20; Commonwealth v. Chisholm, 103 Mass. 213. When the offense is alleged to have been committed on some one particular day, it is well settled that testimony may be adduced to prove the commission either on the day mentioned or on any other day before the finding of the indictment or the making of the complaint, within the period of limitation, but not to prove the commission on more than one day. Commonwealth v. Kelly, 10 Cush. 69; Whar-Broadway Sav. Bank, 10 Mo. App. 499. (3) A deed of ton on Crim. Ev., § 103. When the offense is charged as having been committed on a particular day, and the prosecutor has testimony which he wishes to intro-eration to the assets embraced in the schedule, but duce applying to other days, it is advisable for him, in order to avoid any misunderstanding, to specify beforehand the day on which he undertakes to prove the offense. If he neglects to do this, and begins by introducing testimony which directly tends to prove the charge on some particular day, he will be held to have elected that day as the day on which he is to prove the offense, though he may prefer a different day. State v. Bates, 10 Conn. 372; People v. Jenness, 5 Mich. 305, 327; Stante v. Bricket, 1 Camp. 473; Sedly v. Sutherland, 3 Esp. 202; Pierce v. Pickens, 16 Mass. 470. A motion for a bill of particulars is a motion addressed to the discretion of the court, and as such is not revisable for error on a bill of exceptions. Commonwealth v, Giles, 1 Gray, 466; Commonwealth v. Wood, 4 id. 11; Chaffee v. Soldan, 5 Mich. 242; State v. Hood, 51 Me. 363. Sup. Ct., Rhode Island. State v. Nagle. Opinion by Durfee, C. J. (14 R. I.) assignment, which makes no reference to a schedule of assets accompanying it, will not be limited in its op will pass any which come within its terms. Eppright v. Nickerson. Opinion by Henry, J. DOGGEREL FOR DOG-DAYS. HE following is from the Portland Advertiser. It is Ta faithful report of State v. Harriman, Is Me. 562, S. C., 46 Am. Rep. 423, holding that dogs are not "do- MISSOURI SUPREME COURT ABSTRACT.* Though for ruinous beauty no town can surpass it. MARRIAGE-WIFE ABANDONED BY HUSBAND MAY SUE ALONE.-A married woman may sue as a femme sole in all cases where her husband has abandoned or deserted her, and taken up his abode in another State or jurisdiction. This was the rule of the common law and the statute has not changed it. 2 Wag. St. 1001, 8 8; Rev. St. 1879, § 3468; Co. Litt. 132, 133; Viner Abridg. 151, 152; 1 Black. Com. 443; Rose v. Bates, 12 Mo. 33; Musick v. Dodson, 76 id. 624; Danner v. Berthold, 11 Mo. App. 351; Gallagher v. Delargy, 57 Mo. 37; Abbott v. Bailey, 6 Pick. 89; Gregory v. Pearce, 4 Met. 478: Gregory v. Paul, 15 Mass. 31; Bean v. Morgan, 4 McCord, 148; Rhea v. Rhermer, 1 Pet. 100; Cornwall v. Hoyt, Conn. 427; Clark v. Valentine, 41 Ga. 143; Love v. Moynehan, 16 Ill. 277; Roland v. Logan, 18 Ala. 307; Osborn v. Nelson, 59 Barb. 375. Phelps v. Walthen. Opinion by Martin, Comr. PARENT AND CHILD - ADOPTION. A widowed mother joined in executing a deed of adoption of her child. A day or two afterward, at her request, the *Appearing in 78 Missouri Reports. This well-behaved creature, in no mischief caught, "What that means, said the client, "I ha'int an idea. But 'twill gravel the court I see very clear." So the court took the plea, and over the tangle The old chief on one side with his strong common sense, D--th-most of the court sustain him- "The common law doctrine, as clear as the day- A dog being worthless, unfit for food, An indictment for stealing him would not be good. But such is loose language falsely applied. A dog is domestic when he is tied. Every loose dog is wild, and so you see hence it is Is a very good thing.' But when they are bred Civil damage, in books see cases recorded." To this dictum dogmatic the rest gave consent, But you can't tell a dog as a tree by his bark. From the time of the pyramids down to our own, In walks through the fields by his side has he strayed, But so were all beasts, cattle, horses and hogs- If the law has not learned of his domestication The law, behind times in its education, Had better read up; and as I estimate, Is itself in a feræ-natural state. The dog, by the Romans esteemed very much, The hunters afield their canes venaticos; The shepherds thought much of their canes pastorales; Quales conditiones in nomine tales. In Greenland, where even the reindeer would perish, To the wild canine species? Wolf, jackal, and bear Was as docile to man as to-day he is shown. But who the dog's father was you care not, for, ah! I see you think more of his ma than his pa. He is taxed too in some States-let us look at the facts- So the dogs being property, creatures domestic, RE NOTES. EADERS of the Journal have already been informed of the fact that the Hon. Rufus W. Peckham is the owner of a summer villa and a tract of land at Knowersville, delightfully situated. Since occupying his villa Judge Peckham has manifested some interest in agriculture, and his hay-field has shared that interest. A few days since, it is said, he gave his man instructions to harvest the hay, and coming into the city was soon deeply immersed in solving some difficult legal questions which had been argued before him. On returning to the country seat in the evening the hay-field was the first object of his attention. "Well, I see you have cut the hay," he remarked to his man as he adjusted his gold-rimmed eye glasses and glanced over the field. "Oh, yes, sir," replied the man deferentially. "But you haven't cleaned it up very well, I should judge," continued His Honor as he poked his cane toward two or three small heaps of the freshly-mown and sweet-scented grass, "what's that?" "That!" exclaimed the man somewhat taken back, "Why that's the crop."-Albany Evening Journal. The American Law Register for July has a leading article by Adelbert Hamilton, on Discrimination in Railway Facilities, and the following cases in full: Nichols v. Pitman (Ch. Div.), on property in public lectures, with note by Marshall D. Ewell; City of Denver v. Bayer (Colo.), on rights of abutting owner in highway owned by the public, with note by Lucius S. Landreth; Heenrich v. Pullman, etc., Co. (U. S. Dist. Ct.), on liability of master for unauthorized act of servant, with note by John F. Kelly; Lydecker v. Bogert (N. J. Chan.), on effect of mortgagee's purchase of the mortgaged premises on foreclosure, with note by John H. Stewart. The Albany Law Journal. THE ALBANY, AUGUST 30, 1884. CURRENT TOPICS. THE meeting of the American Bar Association at Saratoga last week was fairly well attended. Judge Poland, the pole star of the association, was there, so of course everything went well. Much of the success of the arrangements is due to the indefatigable secretary, Mr. Edward Otis Hinckley, of Baltimore. We missed the familiar face of Mr. Phelps, and on the other hand Judge Peabody and Mr. Field made their appearance their first, we believe. Mr. Storrs was absent, probably finding the stump more interesting than the wells of Saratoga. The address by the president, Mr. Courtlandt Parker, was well spoken of, but we did not have the opportunity of listening to it. By the courtesy of Mr. Hinckley, we shall be enabled to give it in full to our readers next week. Probably Mr. Parker did not mean it as a joke, but it must have been funny to hear his prognostication that the spirit of the married woman's act would abolish "the institution of home." Better not have "home" than that it should be a place where onehalf the human race steal away the natural rights of the other half to liberty and property, say we. Right is superior to sentiment which simply disguises oppression. On Wednesday evening Mr. Andrew Allison, of Nashville, Tennessee, read a paper on the Rise and Probable Decline of Private Corporations in America." This was a thoughtful production, in excellent literary form, and very effectively read. We think however that Mr. Allison exaggerates the potency of the "College decision," All our State Constitutions or our statutes or particular charters Mr. Alexander Porter Morse, of Washington, read a paper on "The Citizen in Relation to the State." The paper was very ineffectively read, much of it being inaudible, and was much too abstruse and heavy for the occasion. Mr. Morse has heretofore written well on this subject, but his writings are of the kind that ought to be studied rather than orally delivered. On Thursday morning Judge Dillon delivered the annual address, on the Legal Institutions of America as nearly as we could name it. The day was very hot, and for the first twenty minutes the speaker was beguiled into the notion that it was the fourth of July. But after getting over magna charta, habeas corpus, and trial by jury - and we are glad to learn that he believes in the latter he settled down to the merits of our legal institutions, and confessed that our laws are wanting in certainty, publicity and convenience. The remedy he suggested is codification and statutes. He does not advocate a detailed code, such as Bentham would have had, but he would make a code of simplicity, brevity and clearness, stating the great principles of our established decisions, and gradually reduce all these to a code or statutes. The address was generally admirable, always vigorous, frequently eloquent. It did our souls good to hear a live man on a live topic, and from the enthusiastic applause which frequently interrupted him we were led to believe that there really is life in the American Bar Association, appearances to the contrary notwithstanding. It is high time for it to come out of the grave-yard of the constitutional fathers, stop picking the moss off the grave-stones of the great old lawyers, lay aside its mourning and its laudation of the past time, and take hold of topics which are really agitating the minds of living people, such as codification, the jury, abuses in the administration of criminal justice, and the like. We revere Chief Justice Marshall and Daniel Webster as much as anybody, but we see no pro now reserve to the Legislature the power of amend-priety in sitting up nights, and mourning because ment, alteration or repeal of corporate charters granted by them. So that the effect of that decision is narrowed to the precise case of a charter that is unmistakably intended as a contract, and not as a mere franchise. Mr. Allison is also in error, we think, in attributing the decline in railroad-building about 1873, to the "Granger decisions," which, as we recollect, were not pronounced until much later. The decline is more correctly attributable, we think, to the general commercial depression of those years. We see no reason to believe that corporations are declining or are probably to decline. We believe in keeping a strong legislative control over them, and we disbelieve in the policy of long franchises. But in spite of this control capitalists will always be found in plenty to invest in them, and take their risks and their chances of managing the Legislatures. Their ventures will still be rather more certain than gambling in Wall street. VOL. 30 No. 9. they were and are not. We have several good men left- - a number of them are in the American Bar Association--and there is work for them to do It is very important for this country that we lawyers should contrive some way of rendering justice more speedy, cheap and certain, and of making our laws more respected and respectable. This is the proper work for the American Bar Association. Let it bend its thoughts to this rather than to futile lamenting that the old brooms cannot sweep back the rising tide. Another excellent point of Judge Dillon's address was his reprehension of submissions on briefs, and of assignment of the writing of opinions by the We cerjudges before consultation and decision. tainly agree with him as to the importance of oral arguments, and we do not know but the other point deserves the emphasis which he lays upon it. We shall print the address in full in the present number of this journal. An interesting discussion arose Thursday morning on Mr. Wm. A. Butler's report for the committee on law reform, mainly addressed to the consideration of Judge Seymour D. Thompson's paper of last year on the abuses of habeas corpus. Judge Poland and others participated. This was the last of the exercises which we were privileged to hear, and we regretted that we could not listen to Mr. Simon Stern's paper on "The Prevention of Defective and Slipshod Legislation." We hope to have an opportunity to give the substance of it, and comment on it hereafter. and injury produced to the occupant of adjoining premises by the noise and vibration. The court below held that the defendant was negligent in erecting his building without leaving an open space between it and the plaintiff's building, but that the amount of noise and vibration did not justify an injunction, even against the working of the machinery in the night. The court below said: “As it regards the second head we incline to think that the respondent was negligent in not adopting a precaution that would obviously have tended to lessen the inconvenience that his business might otherwise produce to the occupants of the adjacent houses. One who erects a manufactory in a neighborhood used for dwellings should pay due regard to the maxim, Sic utere tuo ut alienum non lædas,' and suffer some abridgment of his own rights rather than cause unnecessary injury to others. Had the respondent, instead of building a partywall, left three inches between his printing house and the buildings on either side, sound could not have been directly transmitted, and he would at all events have done all that was in his power to render the prosecution of his business consistent with the repose and tranquillity of his neighbors. We may now turn to the third head, the extent and nature of the disturbance which is alleged in the bill. Conceding that the respondent did not proceed with sufficient care aud foresight in the construction of his building it does not follow that he should be subjected to a restraint which may prove disastrous, by depriving him of his means of livelihood. In every judicial proceeding there should be a just proportion between the cause and consequence, the wrong complained of, and the redress afforded by the court. A willful injury may justly be prevented at whatever cost, but the case is different where one who is proceeding in the ordinary course of a business that cannot profitably be conducted in any other way, incidentally inflicts an injury on others. Under these circumstances the question is relative, depending be occasioned by granting an injunction, which, on the nature of the injury, and the loss that will the entire ground, and will compel the defendant though nominally confined to a single point, covers to close his present establishment and move elsewhere. The injured party is entitled to such compensation in damages as a jury may think fit to award, but a chancellor ought not to intervene unless the evidence is so clear as not to admit of reasonable doubt. In this instance the testimony is conflicting, but the weight of the evidence appears In one of the notes in its current number the American Law Review says: "In his speech on the platform in the Chicago Democratic convention, General Butler pointed to the picture of Washington above him, and said in substance that the father of his country could not have passed the present civil service examination for a twelve hundred dollar clerkship. In proof of this he mentioned the fact that in Washington's will, which was in his own handwriting, the word clothes' was spelled 'cloathes.' This allusion to Washington's will was another instance of a great lawyer going wrong. A hundred years ago the word was commonly spelled as Washington spelled it." This is true, but for all that, Washington, although "first in war, first in peace, and first in the hearts of his countrymen," would not have been first in the spelling-class. He was a bad speller. We recollect that in his diary he writes about the "elabaratory" at Cambridge, meaning the laboratory. We suppose there are not many lawyers past middle age who can pass the examination aforesaid. We know we could not, and we doubt that a single one of the United States Supreme Court judges can. to be that the noise which the bill describes as 'overpowering, intolerable, crashing,' and attended with a vibration which shakes the doors and windows, amounts to little more than the sound of the breakers on a distant beach, and that there is no vibration except that arising from the passage of vehicles through the street. This statement is to some extent fallacious, because the sound of the sea is associated with pleasing ideas, while that of the respondent's printing presses no doubt falls |