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ises are taken out of the category of accidents. In our opinion the case comes within the same principle with Mich. Cent. R. Co. v. Austin, 40 Mich. 247. (2) Where railroads consolidate the new company is subject to the duties and liabilities of its predecessor as if originally incurred by it. Batterson v. Chicago, etc. Opinion by Campbell, J.

[Decided March, 1884.]

MORTGAGE-FORECLOSURE BY ADVERTISEMENT-NOTICE-ESTOPPEL.-Where a party procures an assignment of a mortgage to himself, and by advertising it in a newspaper, not circulated in the neighborhood, succeeds in foreclosing without the knowledge of a half-owner of the land, who is its occupant, such partowner has an equitable claim to have the mortgage set aside; but if with a knowledge of the fraud perpetrated upon him, he purchases the equity of redemption or accepts half of the surplus money paid at such sale, he is not in position to be entitled to the relief asked for, nor will any tender less than the whole amount which was paid at the foreclosure sale be effectual, Norton v. Sharp. Opinion by Champlin, J. [Decided March, 1884.]

TAXATION-CONSOLIDATION OF CORPORATIONS ORGANIZED IN DIFFERENT STATES-STATUS.-It is familiar law that every corporation has its existence and residence, so far as the term can be applicable to the artificial person and within the territory of the sovereignty creating it (Marshall v. Baltimore, etc., R. Co., 16 How. 314; Chicago, etc., R. Co. v. Whitton, 13 Wall. 270; Miller v. Dows, 94 U. S. 444; Vose v. Reed, 1 Woods, 647; Allegheny Co. v. Cleveland, etc., R. Co., 51 Penn. St. 228; Lake Shore, etc., Ry. Co. v. People, 46 Mich. 193; 9 N. W. Rep. 249), it comes into exist ence there by an exercise of sovereign will; and though it may be allowed to exercise corporate functions within another sovereignty, it is impossible to conceive of one joint act, performed simultaneously by two sovereign States, which shall bring a single corporation into being except it be by compact or treaty. There may be separate consent given for the consolidation of corporations separately created; but when the two unite they severally bring to the new entity the powers and privileges already possessed, and the consolidated company simply exercises in each jurisdiction the powers the corporation there chartered had possessed, and succeeds there to its privileges. It may well happen, as indeed it often has, that the consolldated company will be a corporation possessing in one State very different rights, powers, privileges and immunities from those possessed in another, and subject to very different liabilities. Del. Railroad Tax, 18 Wall. 206, 228; Lake Shore, etc., Ry. Co. v. People, supra. And after the consolidation each State legislates in respect to the road within its own limits, and which was constructed under its grant of corporate power the same as it did before. Peik v. C. & N. W. Ry. Co., 94 U. S. 164. And it cannot follow the new organization with its legislation into another] State. Chicago & N. W. R. Co. v. Whitton, 13 Wall. 283. It has been said that the consolidated company exists in each State under the laws of that State alone (Miller v. Dows, 94 U. S. 444, 447), and this is the effect of the decision in Delaware Railroad Tax, 18 Wall. 206, and in many other cases. It also follows necessarily from the doctrine maintained by the Federal Supreme Court in respect to the citizenship of corporations. That doctrine is that a corporation is deemed to be a citizen of the State which has created it, and an organization of members who are citizens of that State. When therefore two corporations created in different States consolidate, though for most purposes they are not thereafter to be separately regarded, yet in each State the consolidated company is deemed to stand in the place

of the corporation to which it there succeeded, and of its members, and consequently to be a citizen of that State for many purposes, while in the other State it would stand in the place of the other corporation in respect to citizenship there. Ohio, etc., R. Co. v. Wneeler, 1 Black, 286; C. & N. W. R. Co. v. Whitton, supra; Allegheny Co. v. Cleveland, etc., R. Co., supra; Texas, etc., R. Co. v. McAllister, 12 Am. & Eng. Ry. Cas. 289. Chicago, etc., v. Auditor-General. Opiniou by Cooley, C. J. [See 5 Am. Rep. 344.] [Decided March, 1884.]

MARYLAND SUPREME COURT ABSTRACT.*

SPECIFIC PERFORMANCE-WHEN NOT DECREEDEQUITABLE MORTGAGE FOR MONEY ADVANCED.-G. having purchased with his own money a vacant lot of ground, conveyed the same to his wife, who had no property of her own before marriage, and acquired none afterward, except what she received from her husband. Desiring to build a house on the vacant lot, G., by the authority of his wife, applied to a building association to borrow money for that purpose, agreeing to mortgage the property to secure the same. Finding that he could obtain the money from his sister, who was then unmarried and living with him, negotiation with the building association was discontinued. The sister had a mortgage of $3,325, not due, which was paying her seven per cent interest. To accommodate her brother, she sold this mortgage at considerable loss, and out of the proceeds paid to him the sum of $2,965, all of which was applied to the building of the house. The sister with her husband filed a bill to have the lot with the improvements thereon made responsible for and charged with the payment of whatever was due and owing to her. The testimony showed that the wife of G. knew the money was borrowed from his sister; that it was borrowed for the purpose of building a house on the lot, and that it was so applied. It also showed that she knew the money was borrowed on the faith of the property. Held (1st), that the agreement to give a mortgage, as alleged in the bill, was not so satisfactorily established by the proof as to authorize a decree for specific execution; (2d) that inasmuch as the money was borrowed for the improvement of the wife's property, with her knowledge, and was so applied, the sister was entitled to be compensated to the extent of the amount actually abvanced, and the property was answerable therefor, but not for the loss she sustained on the sale of the mortgage. The well-considered cases of Bowie v. Stonestreet, 6 Md. 418; Green v. Drummond, 31 id. 71; and Powell v. Young, 45 id. 494, fully establish that where specific performance cannot be decreed, because of uncertainty in the terms of the agreement, insufficiency of proof to clearly establish the precise contract alleged or by reason of the statute of frauds being relied on in defense, a court of equity will, when there is no remedy at law, render relief by way of compensation to the extent of money actually paid upon the alleged contract. An unreported case in this court, decided in July, 1858, Jacob Eackle v. George W. Smith et al., also maintains this doctrine. We agree with the Circuit Court that it is perfectly competent for a husband and wife to make a binding agreement for the improvement of the wife's estate; and if it is performed by the other party the money actually advanced ought to be charged to the wife's estate. To justify a court of equity in so charging the estate it is not indispensably necessary that the intention to charge the separate estate should be evidenced in writing. It may appear aliunde. Koontz v. Nabb, 16 Md. 549; Jackson v. Cole, 29 id. 71. Girault v. Adams. Opinion by Irving, J.

*To appear in 61 Maryland Reports.

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Exemption from jury duty is not a disqualification to act as juryman. It is a personal privilege which may be claimed or waived. This, so far as we know, is the opinion which has always prevailed in this court as a matter of practice, although there is no reported decision. The opinion is however in accordance with the reported decisions of other States. Munroe v. Brigham, 19 Pick. 368; State v. Forshner, 43 N. H. 89; State v. Wright, 53 Me. 328; Davis v. People, 19 Ill. 74; Murphy v. People, 37 id. 447. Sup. Ct. Rhode Island. State v. O'Brien. Opinion per Curiam. (To appear in 14 R. I. Rep.)

ASSAULT-PISTOL WILLFUL OR 'ACCIDENTAL — EVIDENCE-DOLI CAPAX.-A boy some twelve years of age was indicted for an assault with a pistol. He testified at the trial that he thought the pistol was unloaded when he fired it. Held, that the State in crossexamination could inquire into his knowledge and experience of the weapon and hence could ask him how many times he had fired it before that day. Two other boys testified that the defendant had fired at them the day before the assault charged. Held, that the evidence was admissible as tending to show the assault to be willful, not accidental, and as tending to affect the defendant with knowledge of the criminal nature of his act. Regina v. Dossett, 2 Carr. & K. 306; Rex v. Voke, R. & Ry. 531. We think it was also admissible for the purpose of showing, in connection with the other testimony, that the defendant was doli capax, or had such a knowledge of the nature of the act as would make him criminally responsible. Roscoe 'Crim. Ev. 92-98; Wharton Crim. Ev., § 46; Rex v. Mogg, 4 Carr. & P. 364; Bottomley v. United States, 1 Story, 135, 144. The prosecution called a witness who after stating his acquaintance with the defendant testified that the defendant was an "intelligent boy." Held, that this testimony, though vague and of not much value, was still admissible. A defendant under fourteen years of age is presumably incapable of crime; the presumption is not conclusive unless he is under seven; if over seven his capability when evidence is adduced to prove it becomes a question of fact for the jury. Sup. Ct. Rhode Island. State v. McDonald. Opinion by Durfee, C. J. (To appear in 14 R. I. Rep.)

ATTEMPT TO COMMIT CRIME-LOCUS PENITENTIÆ.— Defendant having made preparations for burning a building, left his supposed accomplice at the building, saying he would go and get some matches, but did not return, and an hour or so afterward was arrested, held, that his failure to return was not proof that he had abandoned his purpose. Anywhere between the conception of the intent and the overt act toward its commission there is room for penitence, and the law in its beneficence extends the hand of forgiveness. But when the evil intent is supplemented by the requisite act toward its commission, the offense is complete. Sup. Ct. Mo. State v. Hayes. Opinion by Philips, Com. (To appear in 78 Mo.)

EVIDENCE-RES GESTA.-The moment after a shot was fired resulting in death, defendant's right hand fell to his side and he struck out with his left at the deceased, when a bystander exclaimed, "Don't strike him, for you have shot him now." Held, that such exclamation was admissible in evidence as part of the res gesta; that it was called out by, and was illustrative of, the affray while still in progress. 1 Wharton Ev., § 259; Newton v. Ins. Co., 2 Dill. 154; Insurance Co. v. Mosley, 8 Wall. 397; Parker v. Steamboat Co.,

109 Mass. 449; Mobile R. Co. v. Ashcraft, 48 Ala. 15; Galena R. Co. v. Fay, 16 Ill. 558; People v. McCrew, 32 Cal. 98; State v. Reed, 62 Me. 129; Martin v. State, 39 Ala. 523. Sup. Ct. Missouri. State v. Walker. Opinion by Sherwood, J. (78 Mo.) [See 28 Eng. Rep. 592; 31 id. 741.-ED.]

THE COUNSELLOR AND HIS JESTERS.

A SCENE IN COURT.

(F. J. Parmenter, Troy Press, June 28, 1884.) A lawyer one day stalking into the court Weighted with precedents, papers and port, Marched up to the table, and casting thereon His burden-or all save the heaviest one, That would not be laid like the rest at his side, How eager soever the counsellor triedAnd then with the lofty and dignified air That gentlemen placed in such circumstance wear, Proceeded to say to his Honor: "May't please Y'onor!"-but ere he could steady his knees Or hammer his thought into speech, the rude bar Roared with a laughter was echoed afar.

The judge-if I may be permitted to write Somewhat of his weakness, somewhat of his might

So intent to be just, hesitating too long,

He oft missed the right through his fear of the wrong;

Endowed with a temper so even 'twould take
Earth's aggregate evils its balance to shake;
And while too complaisant his foe to offend,
Too weak in the back to stand firm by a friend;
Poring over all matters with patience and care,
Most active, obliging, refined, debonair;
Now hearing the hubbub convulsing the court,
Nor fully aware what occasioned the sport,
Looked up with his pleasantest smile: "Pray pro-

ceed,

And let there be order in court." The bruis'd reed, Though bent, was not broken; from which you'll conclude

The counsellor, stung by the laughter so rude, Struck back with a vengeance. He possibly might, For he turned not the left cheek when smote on the right;

Yet he did nothing vulgar unless you should think

Refinement and graces inconsistent with drinkAnd he looked an archangel-aye, "“ruined," you'll add,

But I cannot subscribe to a judgment so sad,
For he had great virtues, and eke was a man,
Albeit immoderately fond of the can,
Retained our respect even when he had grown
So lost to himself as to forfeit his own.
His head, in its fine classic contour sat well
On his athletic shoulders; and, quick to repel
Any insult or sneer when occasion arose,

He spared not his friends, but he tortured his foes.
His thin, bloodless face, full of character, drew
Attention at once, and your sympathy, too;
His greatest tormentor, and weakness-aside
From the one I have mentioned was family

pride.

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He never forgot that ancestral renown
More bright from the distance, o'ershadowed his

own.

This spurring his ardent ambition, he made
Such efforts at times as were rarely displayed
In the brilliant arena that lies far away,
And can only be seen by the mind's eye to-day.

But do what we might, some pert blockhead would claim

He never could equal his ancestor's fame!

And at the fool's whisper his proud heart would sob,

Judgment affirmed with costs-Smith v. The State. -Judgment of General Term and that entered on the report of the referee reversed, new trial granted, costs to abide the event-Jacob P. Finley et al., appellants, v. Edwin Tracy, respondent.-Order affirmed and judgment absolute ordered against the plaintiff on the stipulation with costs-Robert S. Hayward, appellant, v. Fred. A. Conkling, respondent.- Appeal dismissed with costs-Charles G. Hill, respondent, v. Wm. H. Van Schoonhoven et al., appellants.-Order when the judge did im- affirmed with costs-Catherine W. Prentiss, respondent,

Yet conceal with grim hauteur each agonized throb.
But in the meantime he had taken his seat,
Where too long I have left him, perhaps, to com-
plete

This imperfect sketch

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Order and silence, he haughtily rose!
So sudden the transfiguration, no trace
Of recent indulgence appeared in his face.
Every eye was upon him; so still was the stop
Of hilarity's ball you might hear a pin drop.

"In this throng of jesters, if any there be
Faultless, let him cast the first stone at me!"

He paused, and the stately head, solemn and slow,
Stooped for the missile none ventured to throw;
Then erect, he proceeded in deep, measured tone,
While genius or something akin to it, shone
From his piercing dark eye-" If ever man strove
With high aspirations, and bravely, to prove
Himself worthy of man's noblest aim,

And to leave at God's bidding an unsullied name
To those who come after, revered, and enshrined
To Time's latest sands, in the love of his kind,
'Tis he you subjected to insult just now!"

He dashed with his white hand the bead from his
brow,

O'er the hushed bar a scornful, defiant glance threw,

Bent low to his Honor, and sternly withdrew.

NEW BOOKS AND NEW EDITIONS.

4 MYER'S FEDERAL DECISIONS.

v. Charles M. Cornell et al., appellants.- Appeal dismissed with costs-John R. Duff, respondent, v. Wm. J. Hutchinson et al.-Appeal dismissed with costsPeople v. Knickerbocker Life. Ins. Co.; claim of Borda. Order affirmed with costs-People v. Globe Mut. Life Ins. Co.; claim of Oeslerte.- -Order affirmed with costs-People ex rel. Ernest Drevet, respondent, v. New York Fire Commissioners, appelants.- -Order affirmed with costs-Remington Paper Co., appellant, v. Anna M. Dougherty et al.-Order affirmed with costs; in two cases-Attorney-General v. Continental Life Ins. Co.-Order of General Term reversed and that of Special Term affirmed with costs-In re Petition of Hearn to vacate assessment.-Order affirmed with costs-Irving C. Cooper et al., respondents, v. William Jolly, appellant.- Appeal dismissed with costsPhilip Weeks, respondent, v. Wm. H. Clark, et al., appellants.Appeal dismissed with costs-Nelson C. Reed et al., respondents, v. Equitable Life Ins. Co., appellants. -Order affirmed with costs-Toronto General Trust Co., respondents, v. Chicago, B. & Q. R. Co. et al., appellants.- Appeal dismissed with costsNorthampton Nat. Bank, respondent, v. Lucien H. Niles, appellant.-Order affirmed with costs-Mary F. Rogers v. Sarah James et al.-Order reversed and appeal to General Term dismissed with costs-In re Edna Elvira Larson.-Order affirmed with costsChristine Erickson, an infant, respondent, v. Gonzalo Polly et al., appellants.--Order affirmed with costsAmerican Tool Co., appellant, v. George J. Smith, respondent. Order affirmed with costs-Horatio G. Onderdonk, respondent, v. Wm. Conselyea et al., appellants. Order affirmed with costs-Kate Moebus, appellant, v. Henry Harmon, respondent.—Order of Special and General Terms reversed, and motion to change place of trial to Albany county granted, with costs of appeal in the Supreme Court and in this court and $10 costs of motion-David D. Acker et al., respondents, v. Charles E. Leland and another, appel

This volume contains the titles Bonds-By-Laws The subject of Bonds is supervised by Mr. John W. Daniel, the well-known author of the best treatise on Negotiable Instruments, and covers 926 pages. The table of cases reported and digested covers 10 pages; that of cases cited, 14 pages; and the index 39 pages. Certainly so far the work is amply fulfilling the pub-lants. Appeal dismissed with costs-In re Petition lisher's promises, and our confidence in its practicability increases with every issue.

SHARSWOOD'S LEGAL ETHICS.

An Essay on Professional Ethics. By Hon. George Shars-
wood, LL. D. Fifth edition. Philadelphia, T. & J. W.
Johnson & Co., 1884. Pp. 214.
We are glad to see that a new edition of this admir
able and celebrated production is required. So much
grave, pure, and mild wisdom is not contained in
equal compass in any other words ever addressed to
our profession. It will constitute an invaluable
legacy to us and a lasting monument to its revered
author. The volume is prefaced by an excellent me-
morial of the late chief justice.

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of Prescott H. Butler, administrator, etc.-Appeal dismissed with costs-Alex. T. Arthur, appellant, v. Sol. H. Kohn, respondent.-Order affirmed with costsThomas Kelly, respondent, v. Emeline W. Kerr, individually, etc., et al., appellants.-Order affirmed with costs-In re Bank of Sing Sing, appellant, v. Horace Baker, respondent. Judgment of General Term and proceedings of commissioners removing relator reversed, with costs in the court and in the Supreme Court-People ex rel. Edward A. Damahout, appellant, v. New York Fire Commissioners, respondents. Judgment affirmed with costs-John Logan, respondent, v. Ogdensburgh and Lake Champlain R. Co., appellant. -Motion to amend remittitur granted and judgment ordered as specified in memorandum-Herman Veeder et al. v. Wm. Neudget, et al.-Motion to amend remit titur denied-People v. Joseph Bork.

Ordered: That this court take a recess from this date to Monday, October 6, 1884, at ten o'clock A. M., at the Capitol, in the city of Albany, then to proceed with the call of the present calendar.

He

The Albany Law Journal.

ALBANY, JULY 12, 1884.

CURRENT TOPICS.

THAT promised pamphlet on "Codification in the State of New York," which we predicted would make Mr. Carter sorry, has been published. It is by Mr. Robert Ludlow Fowler, who needs no introduction to our readers, for his "Organization of the Supreme Court of Judicature of the State of New York," and his "Observations on the Particular Jurisprudence of the State of New York," published in this journal, are familiar to them all, and to all legal scholars in this country. Mr. Fowler is a student of the greatest patience and exhaustiveness of research, and he writes in a style of singular elegance, exactness and clearness, disfigured by none of the affectation of abstruseness which characterizes too many of our modern law-writers who treat of the scientific or philosophic side of the subject. possesses a sufficient amount of vigor, too, when vigor is necessary, and yet he is never offensively personal. He justly deprecates the personalities into which the argument on Codification has fallen, in newspaper and legislative discussion. We have read Mr. Fowler's pamphlet with great pleasure and instruction. It seems to us quite conclusive. It is evident that the author knows what he is talking about, and if he leaves the impression that Mr. Carter did not always exactly know what he was talking about, we must charitably assume that as all things are not to all men, it is too much to expect that one man can at once be a leader of the bar in these times and a profound civil law scholar. We heartily wish that we could find room for some adequate extracts from this admirable essay, but really it deserves a consecutive reading by every lawyer who has any care for any thing beyond bills of costs. We cannot however deny ourselves the pleasure of quoting a few words in answer to Mr. Carter's argument that Codes savor of despositism. Mr. Fowler says: "In this State where the people make the laws, the people alone codify them, and they are not likely to be frightened by shadows into remaining buried under a mountain of laws, statute and non-statute -a very Pelion on Ossa - because once under other circumstances and conditions a people with a despot had a code." We can safely assure our readers that this essay is the most accurate and condensed statement of the origin, growth, characteristics and capabilities of Codification that has been written in English, and that there is not a dry or obscure paragraph in it.

We have had England cited to us all our days as a country where fewer judges than we have in this State keep up with the business of the courts. But now it seems that the business is getting the upper hand of the judges. The Law Times says; “in a VOL. 30 No. 2.

continuous sitting of thirty-seven working days the Court of Appeal cannot try appeals as fast as new ones are set down, and the labor of five judges of first instance can only reduce the arrears by two matters apiece, and this at a time when the slackness of new business is the subject of universal complaint. Much as we deprecate the unnecessary increase of the judicature, it now seems inevitable." (Sic).

The Massachusetts Supreme Court in the Cowley case have made a decision that will be a surprise to the bar and to the public. This was an action of libel, against the Boston Herald, for publishing a petition for the disbarment of the plaintiff, before hearing. At the trial the action was dismissed, on the ground that the publication was privileged, but the Supreme Court have reversed this. They observe: "It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of preliminary written statements of a claim or charge. not constitute a proceeding in open court. edge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege further than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause a sufficient foundation might be laid for scattering any libel broadcast with impunity, and we waive consideration of the tendency of a publication like the present to create prejudice, and interfere with a fair trial." This sounds to us

They do

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like good sense. It will teach the newspapers not to be too "previous."

Mr. John D. Lawson has prepared the third and concluding volume of his "Leading Cases Simplified," devoted to criminal cases. This is perhaps the most interesting volume of the series, and fully establishes the author's claim to be admitted into the select "circle" of American humorous law reporters, hitherto consisting of Mr. Rogers and ourought not to be admitted by reason of his eloquent selves. (We have some doubt whether Mr. Wallace

head-notes.) It is probably supposed that we carefully read every law book through before we review it, but this is a mistake. We do not read every law book clear through, but we read enough to get hold of the plot and see how it turns out. We have however substantially read this volume ot Mr. Lawson's through, and any lawyer taking it up will find

it hard to lay it down. It is not only beautifully clear and concise in its statement of the cases, to say nothing of its lambent humor, but it is furnished with most excellent notes. In short, as a serious and useful handy treatise on criminal law it has no rival. We commend it to all our brethern for vacation, as not only palatable but nutritious. Especially do we commend Mr. Lawson's "Assize Sermon to the Judges of Appeal," appended as a note to the Chicago newspaper contempt case of People v. Wilson, 64 Ill. 195. Would that all clergymen had as

much sense as our learned and reverend brother! The book is published by F. H. Thomas & Co., St. Louis.

When we published Mr. Parmenter's verses last week we expected to be overwhelmed with letters of inquiry as to the originals of the complaisant judge and the inebriate attorney, and we even anticipated receiving some remonstrances from bench and bar on the score of the evident "personality" of the verses. So we wrote Mr. Parmenter, asking who the attorney was. To which he replied that it is a fancy sketch, and exhorts us not to be distressed for ourselves, as he has never heard of our being intoxicated!

"For a

In a very excellent after-dinner speech in Arkansas recently, Judge Caldwell, of the United States Court, thus spoke of the common law: thousand years judges have been talking about the common law and affecting to decide cases according to that law. What the common law is, who made it, and where it is to be found, not one of them can tell you. They tell you the United States has no common law of its own and that the States have none, but that the English common law is our inheritance. I am sorry we fall heir to any such myth. You all recollect Mrs. Gamp, Sarah Gamp, Dickens' celebrated professional nurse. During a long life she was constantly quoting the opinions of Mrs. Harris, a purely imaginary person, in order to give more weight to her own. When we come to the common law the judges are all Sarah Gamps and the common law is Mrs. Harris. Notwithstanding that the common law is the invisible and intangible thing I have described, it is the most difficult law to get rid of in the world. You can repeal one statute by another, but it takes three statutes to repeal a rule of the common law. This results from the maxim that a statute contrary to the common law shall be strictly construed, which is interpreted by the judges to mean, shall be construed to have no effect. This maxim is applied by the judges until the Legislature has re-enacted the statute in different forms about three times.

* * *k

Law like everything else is amenable to the law of evolution. It must grow, expand and develop to meet the altered conditions of society. Judges and lawyers, as a class, are extremely conservative. They are slow to adopt new methods of procedure, or change rules of decision, although it may be obvious that justice would thereby be promoted. It is probably

well that this is so. In a country where changes of opinion and policies are so frequent it is well to have one conservative department. For much of the uncertainty of the law judges are not justly censurable. The law is not an exact science, and neither legis. lation nor judges can make it so. Science is truth ascertained in law you can never feel certain you have reached that point."

IN

NOTES OF CASES.

N Norton v. Knapp, Iowa Supreme Court, June 10, 1884, 19 N. W. Rep. 867, it was held that the words "kiss my foot," with the drawee's signature written on the face of a bill presented for acceptance, do not constitute an acceptance. The court said: The rule we understand to be, if the drawee does any thing with or to the bill, or writes thereon any thing which does not clearly negative an intention to accept, then he can or will be charged as an acceptor. The question then is what construction should be placed on the words 'kiss my foot,' written on the bill and signed by him? They cannot be rejected as surplusage. Such language is not ordinarily used in business circles or polite society. But by their use the defendant meant either to accept or refuse to accept the bill. It cannot be he meant the former, therefore it must be the latter. It seems quite clear to us that the defendant intended, by the use of the contemptuous and vulgar words above stated, to give emphasis to his intention not to accept or have any thing to do with the bill or with the plaintiff. We understand the words, in common parlance, to mean and express contempt for the person to whom the words are addressed, and when used as a reply to a request, they imply, and are understood to mean, a decided, unqualified and contemptuous refusal to comply with such request. In such sense they were undoubtedly used when the defendant was requested to accept the bill. The question asked upon this point must be answered in the negative."

In Merchants' Bank v. Schulenberg, Michigan Supreme Court, June 11, 1884, 19 N. W. Rep. 741, it was held that when a defendant has given notice of a set-off, and claims a balance, the plaintiff cannot discontinue without consent of the defendant. Sherwood, J., said: "The right of the plaintiff at common law to voluntarily submit to a non-suit, or to discontinue his suit at any time before the jury have rendered their verdict is well supported by the authorities, and has always been the practice in this State when no set-off has been pleaded. 3 Chit. Pr. 910; 1 Burrill Pr. 241; Wooster v. Burr, 2 Wend. 295; Circuit Rule 26; 1 Greenl. Pr. 447, 279; Slocomb v. Thatcher, 20 Mich. 52. I think that when the set-off is purely defensive, and no affirmative action is required on the part of the court or jury, the right of the plaintiff to become non-suited at his pleasure, before verdict or judgment, should be in the discretion of the court; which discretion

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