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15 id. 9: Demeritt v. Lyford, 27 id. 541, 547; Lamprey Robinson, 7 B. & C. 90; Wright v. Jacobs, 1 Aik. 304; v. Nudd, 29 id. 299, 303; Hollister v. Abbott, 31 id. Lazell v. Lazell, 12 Vt. 443; Hough v. Barton, 20 id. 42, 447; Tebbetts v. Tilton, id. 273, 287; Hall v. 455. The case of Hopkins v. Adams, id. 407, is not Dodge, 38 id, 346, 350; Gove v. Lyford, 44 id. 525; in conflict with this rule. Vermont Sup. Ct., January Sanderson v. Peabody, 58 id. 116; Bigelow v. Winsor, Term, 1883. Adams v. Edmonds. Opinion by Powers, 1 Gray, 299, 301; Foote v. Gibbs, id. 412; Story J. (55 Vt). Eq. Pl., $ 793; Story Eq. Jur., $ 1528. (2) To charge a

WARRANTY-THERE IS NONE OF SOLVENCY IMPLIED trustee, it must be shown, first, that he bas money,

'UPON SALE OF NEGOTIABLE PAPER.--Where one sells goods, chattels, rights or credits of the defendant in

negotiable business paper in good faith without enhis hands; second, that they are open to attachment, dorsing it, making no misrepresentations respecting it, either becanse the defendant has a right of action

and at a rate of discount indicativg that the purchaser against the trustee to recover them, or they are held

has a compensation for his risk, there is no implied by the trustee by a title fraudulent as to creditors. warranty on the part of the seller as to the past, presWhen a creditor of A. seeks, in foreign attachment.

ent or future solvency of the makers or indorsers. In to charge B., the trustee, for property which the

cases of sale or barter of commercial paper as of other creditor alleges was bought by B. of C., and paid for

personal property the rule of careat emptor applies. In by B., upon an agreement between A. and B. that B.

an action to recover the purchase money for which a should buy and hold the property for A., the creditor negotiable promissory note of the Dennison Paper Manis estopped by a judgment, recovered by B. against A.,

ufacturing company was sold, the defendant requested establishing the fact that there was no such agreement; the following instructions: “That if at the time of the and the creditor does not aroid the estoppel by proof

sale plaintiff had knowledge of a fact obtained in conof fraud in the agreement the existence of which he,

versation with A. C. Dennison, materially impairing as a privy claiming under B., is estopped to assert.

the financial credit of the Dennison Paper ManufacGreat Falls Co. v. Worster, 45 N. H. 110; Vogt v.

turing company and which he knew or had reason to Ticknor, 48 id. 242, 248; Granger v. Clark, 22 Me. 128;

know was unknown to defendant, it was his duty to Candee v. Lord, 2 N. Y. 269, 275; Burgess v. Simonson,

communicate such knowledge to defendant when he 45 id. 225, 229; Christmas v. Russell, 5 Wall. 290; Fland

sold said notes to him, and if he did not do so, such ers v. Davis, 19 N. H. 139, 149; Dickinson v. Lovell, 35

concealment would be a fraud upon defendant and id. 9, 16 ; Stacy v. Thrasher, 6 How. 44; Haven v.

authorize him to rescind the trade." Held, that the Wentworth, 2 N. H. 93; Adams v. Barrett, id. 374;

instruction was properly refused. Baxter v. Duren, Greenleaf v. Perrin, 8 id. 273; Paul v. Paul, 10 id. 120 ;

29 Me. 434, partially affirmed, and Hussey v. Sibley, 66 Boardman v. Cushing, 12 id. 112; Getchell v. Chase, 37

id. 192, considered. See also Whitbeck v. Van Ness, id. 110; Richards v. R. R., 44 id. 127, 139; Banfield v.

11 Johns. 409; Evans v. Whyle, 5 Bing. 485. Supreme Wiggin, 58 id. 155; Insurance Co. v. Weeks, 7 Mass.

Court of Maine, June 26, 1883. Milliken v. Chapman. 38; Hooper v. Hills, 9 Pick. 435. Forrist v. Bellows.

Opinion by Barrows, J. (75 Me. 306). Opinion by Stanley, J.

WILL-DEVISE NOT VOID FOR UNCERTAINTY, – A devise of the use, occupation and improvement of

CORRESPONDENCE. land for the support of A. H. and his wife during their natural lives, with remainder in fee to such person or

TENURE OF THE JUDGES. persons as shall take care of and support the said A. H. and his wife in their old age, is not void for un- Editor of the Albany Law Journal : certainty. Harriman V. Harriman. Opinion by In giving his views as to the term of the addi. Clark, J.

tional Supreme Court justices, does not your corres

pondent, A. J., put too much stress on the words, FINANCIAL LAW.

and including the first day of January,” etc.? If the words “and including were left out, the rule in com

puting time would exclude the first day of January at NEGOTIABLE INSTRUMENT – NOTE PATENT

the beginning of the term, and include it at the end, RIGHT.-The presumption is that a note given for a

making the term in fact begin with the 2d day of patent right bas a legal consideration, where there is January. To prevent this construction it would seem no evidence either that the patent was valuable or

that the words “and including ” were used to prethat it was worthless. The purchaser of such a note

scribe a rule of computation only, so as to make the before, due is not put upon inquiry. Vermont Su

term begin and end with the calendar year. If that preme Court, January Term, 1883. Gerrish v. Bragg.

were the purpose with which the words were used, no Opinion by Ross, J. (55 Vt).

other meaning should now be imported into them, and NEGOTIABLE INSTRUMENT—PAYMENT OF LOST NOTE the question of when the term of the new judges beMUST BE ENFORCED IN EQUITY.-The payee of a lost gins cannot be answered by any argument which has note, which is negotiable and payable to him or for its construction of those words as meaning more bearer, capnot sustain an action at law to recover the than a provision as to a rule of computation of time. amount. A court of equity alone can give relief. A

March 1, 1884.

TEMPORA. note payable to bearer imparts a legal liability of the maker to pay any holder who may present it, and if lost it may come to the hands of a bona-fide holder for

NEW BOOKS AND NEW EDITIONS. value before maturity and thus be enforceable even though it had been paid to the true owner. This rule

SCHOULER'S PERSONAL PROPERTY. of law doubtless springs from the custom of merchants The first volume of the second edition of this work, which requires the surrender of the note, on payment, published by Little, Brown & Co., of Boston, is before to the maker, that he may have a voucher showing Of the merits of the original work we spoke payment. Without such voucher the maker is ex- somewhat at length in 7 Alb. Law Jour. 271, and in 14 posed to the hazard of litigation with an unknown id. 298, and we can but reiterate the praise we then holder. A different rule prevails in some of the States, gave it. In the present edition the material is divided but this court has uniformly followed the English into sections with head-lines, and has been revised, rule, which is thoroughly discussed in Hansard v. and references to the later decisions bave been added.



The second volume is announced to appear early this spring.

of which is manifested industry and conscientious work; and those for whose use it is especially prepared can ill afford to be without it.


A Treatise on New Trial and Appeal and other proceedings

for review in civil cases. By Robert Y. Hayne. San
Francisco, Sumner, Whitney & Co., 1884. 2 vols. pp.

HE following decisions were handed down TuesThis is a thorough and methodical work adapted and

day, March 4, 1884. mainly limited to the practice of California. The gen

Judgment affirmed with costs-Morton A. Bowen, eral subject has been but little treated, and this work respondent, v. William F. Mandeville, appellaut; appears to be timely and useful. From the examina- William J. Callahan, exr., respondent, v. John S. Bantion which we have given it-cursory, because of the

croft and another, appellants. -Order affirmed with limited application of the work-we should judge costs, People ex rel. Clinton B. Smith, appellant, v. it to be well done and worthy of reliance by practi

Board of Trustees of village of Flushing, respondents; tioners in that State.

In re Security Life Insurance Co. and Annuity Co.;
James McNulty, appellant, v. John B. Solly, respond-

ent; Emigrant Industrial Savings Bank, respondent, v. PIERCE ON MORTGAGES OF MERCHANDISE.

Thomas J. Clute, impld., appellant; In re Application Fraudulent Mortgages of Merchandise. A commentary on of Adelaide Clements, etc.- -Order affirmed without

the American phases of Twyne's Case. By James O. costs to either party. No opinion. All concur-PeoPierce. St. Louis, F. H. Thomas & Co., 1881. Pp. v, 308. ple v. Empire Mutual Life Insurance Co.-Order afThis is an interesting monograph, by one of the best firmed without costs to either party-Attorney-General of our recent law-writers, on mortgages of stocks of

v. Reserve Mutual Life Insurance Co.- -Motion to adgoods in trade reserving a power of sale to the mort

vance cause as of date of first return, granted-City gagors, a topic of every-day importance, and of great National Bank of Poughkeepsie, respoudent, v. William difficulty and discrepancy of holding. The author well Phelps, appellant. —Motion to set cause down for quotes on his title page, “Crescit in orbe dolis." | day certain, granted and hearing set down for the This subject illustrates the office of codification. Mr. first day of next term unless the parties otherwise Pierce reviews the cases in all the States, and in con- agree-Robert L. Croke and others v. John D. Prince ; clusion con demns such mortgages.

Same v. County of Kings.- -Motion to dismiss appeal, granted with costs, unless the appellant within twenty

days gives an undertaking pursuant to section 132 of MYER'S FEDERAL DECISIONS.

the Code and pays $10 costs to the respondent-Frank Federal Decisions. Cases argued and determined in the Su- Wilson, exr., v. Henry R. Reynolds. -Motion to sus

preme, Circuit and District Courts of the United States, pend proceedings, denied with costs, Thomas Henry comprising the opinions of those courts from the time of

Boules and infant v. Frederick Haberman.- -Motion their organization to the present date, together with ex

to dismiss appeal granted with costs, unless the appeltracts from the opinions of the court of claims and the

lant serves printed copies of cause within twenty days attorney-general, and the opinions of general importance of the territorial courts. Arranged by William G. Myers.

and pay a five of $10 costs-Phillips Weeks, respondent, Vol. 1, Accounts-Appeals; vol. 2, Appeals-Award. St.

V. Wm. H. Clark & others, appellants. -Motion to Louis, Mo. The Gilbert Book Co., 1884. Pp. 1649.

amend denied with costs-Ann Reese, respondent, v. This is a great undertaking, requiring acute critical

Talcott R. Russell, appellant, Thomas Boes, respondjudgment. The plan is to give the important portions

ent. Reese v. Smyth.- Motion for reargument de

nied with custs-William P. Clyde and another, reof every leading opinion under their appropriate heads, arranged in the manner of a digest, divided into sec

spoudents, v. Amos Rogers, appellant; Union Dime tions with head-lines, and with a digest of other cases

Savings Bank, appellant, V. Francis J. Clark and in point, and cross-references. Each volume is to bave

others, respondents; Daniel M. Porter, appellant, 5. an index, and tables of cases digested and cited. The

Isidor Wormser and others, respondents. work will necessarily be very voluminous, as one letter takes two volumes. The publishers hope-we do

NOTES. not see any ground for it-to bring every other letter into one volume. The publishers announce that they have secured the editorial services of Messrs. Abbott

66THE Manitoba Law Journal,” published at Win(B. V.), Baldwin, Benedict, Bennett, Bigelow, Bump,

nipeg, is a new venture, the first number of Chase, Crosswell, Daniel, Hamilton, Hammond, High,

which is before us, a comely octavo of 24 pages, with Jones, McCrary, Mills, Schouler, Wood, and others- interesting contents. We regret to see that the Dencertainly all very competent and experienced writers.

ver Law Journal threatens to discoutinue. It is an At present we cannot say more than that the purpose

excellent publication and ought to have ample local aud plan are excellent, and the execution seems very

support. —The American Law Register for February good. We shall endeavor to speak more specifically of

contains a leading article on State Legislation regulatthe merits of the work hereafter. The paper and print- ing railroad traffic, by Charles Chauncey Savage, and ing are good.

the following cases: Hughes v. Percival (House of Lords), on liability of owner for negligent injury to

adjoining property by his contractor in rebuilding his SLOANE ON LANDLORD AND TENANT.

house, with note by Lucius S. Landreth; Horne v. A Treatise on the Law of Landlord and Tenant, with special Boston, etc., R. Co. (U. S. Circ.) on citizenship of rail

reference to the law of the State of New York, to which road company whose road runs through different are added appendices of statutes and forms. By Charles States, with note by John F. Kelly; Olson v. CrossW. Sloane. New York, S. S. Peloubet & Co., 1884. Pp.

man (Minn.), on innkeeper's liability for theft of xxyii and 261.

guest's goods by another guest occupying same room, This is an amplification of the little volume issued with note by M. D. Ewell. - In a recent report we in 1878 by the same author. It presents the result of find the following head line: “Wills, reprobate of." an examination of over 1,100 cases, in the arraugement That must be in the court of reprobates."

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The Albany Law Journal.

It is perhaps arguing after decision to say any thing more about the judges' gowns, but the follow

ing from the Washington Law Reporter, although ALBANY, MARCH 15, 1884.

rather late for our own State, is worth attention

from our heretical western brethren: “A president CURRENT TOPICS.

who would attempt the display that even WashingN commenting on Mr. Carter's pamphlet on Codi- ton did, would probably excite ridicule, and much

of the official display of the early days of the Re“The arguments of Mr. Carter are not altogether public would not meet with public approval to-day. new. Mr. Austin offered most of them at an earlier Still there is a very grave question whether we are period in a logical treatise of extraordinary merit

, not drifting to the other extreme. Too little rebut they present in an attractive shape the objec- spect for the proprieties and formalities of official tions which are usually urged against the measure.

position is far more injurious than too much, and Mr. Carter does not add to the force of his arguments certainly there can be no position which it is more by attacking Mr. Field. To say that Mr. Field has important should command the very highest respect been tampering with the laws to get a name, that

than that of judge of the high courts, of both the

States and the United States. There is no question, the 'cherished passion of the gentleman referred to for the enactment of a civil code bearing his image ridiculed, that the appearance of the Supreme Court

however much the statement of the fact may be and superscription has survived his concern for the merits of the performance,' is not, it seems to us, a

of the United States clothed in their gowns has a fair way of meeting his antagonist, but rather an

salutary effect upon the citizen who goes into the exhibition of exceeding bad taste on the part of the in the presence of this court with their shawls,

presence of that great tribunal. Lawyers do not sit writer. Whatever he has to say on the matter in cloaks or overcoats wrapped around them, or with hand is much more to the point.” The writer how their feet on chairs or tables, but there is a decorum ever does not give his own opinion on the merits.

on the part of the bar and a respect for the court The New York Post does not approve Mr. Babb's observable in no other judicial body in this country. scheme for a convention on the subject of divorce, If gowns for the judges will give more dignity to a but prefers an amendment to the Constitution in the court and enable it to command more respect from ordinary way. It says: “We would suggest to Mr. the public and the profession, why not have gowns ?” Babb that this is unwise. The study of our institutions has no doubt made him familiar with the

It has come, just as we predicted — the breeze fact that even the Constitution of the United States

from the west. The Central Law Journal says of was the result of a movement started by a conven- the action of our judges in putting on gowns: tion of a few States, called to consider the necessity “They will be held responsible for this arrogant of a uniform commercial system; and that in those assumption of superiority and contempt for the early days there were conservatives who dreaded, people, and the day may come when they will rejust as he does now, any change in the fundamental pent that they have heeded the counsel of those law. Yet it was found, as Bancroft and other his

men who have but used this movement to demontorians have shown, that uniformity could not be strate their influence.” It is earnestly hoped that obtained without a new Constitution. This was

the Central will forgive the judges before the next felt to be a dreadful step toward centralization; and judicial election. But the new judges, whoever they yet we have survived it, and so it is possible that may be, will go into the gowns all the same, unless a we might survive a change giving Congress the statute or constitutional amendment shall forbid it. right to pass a uniform law, at least on the subject of

To be consistent, the Central should never again marriage and divorce.” We regard the amendment

use the phrase, “soiling the judicial ermine." scheme as impracticable. The States will not adopt it. Probably they never will adopt any uniform law, but it may be well to try Mr Babb's experiment. In The application of Mrs. Kilgore to be admitted as connection with this subject we cut from the an attorney was lately denied by the Philadelphia Chicago Legal Adviser the following divorce statistics common pleas, Judge Biddle delivering the prevailof Cook county:

ing opinion. Judge Pierce dissented, and in his Marriage Divorce licenses

opinion uttered some very sound sense of his own Year.

begun. and quoted some from others. He labors under the 1875...


526 delusion that a woman is a “person," and that 1876.


446 marriage does not destroy her personality. He con1877.


474 tinues: “In the recent case of the application of 1878..


487 Mrs. Mary G. Miller for a certificate of qualification 1879.


607 to command a Mississippi steamboat, Secretary 1880.


831 Folger, brushing away the sophistries of Solicitor 1881.


824 Raynor, who had denied to her the right of exami1882.


1,048 nation, said with straightforward, manly sense: 1883..


986 • There is no need of talk pro or con on social VOL. 29 - No. 11.




status or woman's rights. Mistress Miller having The other portrait is of Mr. Barnum's White been put on God's footstool by Him, she has the Elephant, just imported at an alleged expense of right to win her bread in any moral, decent way $200,000. This is probably intended as a satire on which is open to any of His toiling creatures. If the common law, which is equally clumsy, costly, she chooses to do so as the master of a steam vessel, and blindly worshipped. it is an honest calling — and if she is fitted for it, though clothed in skirts rather than breeches, she has a right to follow it, and no man should say

A most singular case was tried in January last, at her nay.' To which the New York Evangelist

the Winchester (Eng.) assizes, as we learn from the

Law Journal. pertinently adds; "There is no danger, we take it,

It was an action of assault, brought of any severe competition with men in this particu

against the governor of Portsmouth jail and two lar vocation, the Mistress Millers whose tastes run

of his wardens, for improperly treating the plaintiff in this direction being very few. But would that

while an inmate of the jail. The plaintiff, a comshe or some other vigilant woman had had charge

mercial traveller, was ordered by a magistrate for of the City of Columbus off Gay Head on the night

the county of Sussex to cause his daughter, Charlotte of January 17.' There are inherent reasons why

Mabel Kennard, aged three, to be vaccinated. This women should be admitted to practice law, growing

he refused to do, “on principle," as he said. He out of the necessities of her fellow-women. There

was consequently summoned before the magistrates are cases involving questions of delicacy in which

and fined. He refused to pay this fine. A distress woman would rather cuffer injustice and wrong than

was accordingly levied on his goods, but was reconfer with a man. There are also questions touch

turned unexecuted. The magistrates accordingly ing the relations of the wife with the husband which

ordered the plaintiff to be imprisoned, but without a wife, from motives of prudence and a sense of hard labor, for fourteen days, in the Portsmouth

The wifely propriety, would not communicate to a man,

prison, in derault of payment of the fine. but about which she would feel at liberty to advise

plaintiff was accordingly arrested and conveyed to with her fellow-woman. Is she to be denied these

Portsmouth jail. There he was ordered to take a rights and privileges because men, a thousand years

bath, and whilst he was in the bath his ordinary ago, assuming and asserting their claim to superi

clothes were taken from him and prison clothes ority, when they were in a state of ignorance far

substituted, which he was compelled to wear. below the ordinary intelligence of the women of to

deceased wife's wedding-ring, which he always day, and largely actuated by selfish motives, struck

wore, was removed from his finger. He was also down their rights and bound them in the swaddling

throughout the fortnight compelled to pick oakum, clothes of what they are pleased to term feminine to sleep on a plank bed, and to take his exercise propriety, and by the manly protection of depriving allowed to procure his own food, although he offered

with the ordinary prisoners. He was also not them of their property as tenants by the curtesy, and of reducing to their own possession their per

to pay for it, but was compelled to live on the sonal estate when they became their wives ? And as

prison fare. Counsel contended that he was not if this were not enough, denying to them the right

a criminal, subject to prison discipline. Lord Justice of earning their own livelihood by the talents which

Lindley gave judgment for the defendants. This God has conferred upon them! How long are these break the laws they must not expect any lenity be

seems prima facie a hard case, but if men choose to relics of semi-barbarism to be perpetuated ? I am in favor of admitting Mrs. Gilgore to practice law as

cause they act on principle." an attorney in this court." It may be that a woman under existing laws is not competent as an attorney,

NOTES OF CASES. but if so, the sooner such ridiculous laws are repealed the better.

N Haigh v. Royal Mail Steam Packet Co., Court of

Appeal, July 50, 1883, 49 L. T. Rep. (N. S.) We have received two recent additions to our 802, the ticket of a passenger by a steamer of picture gallery, which by the way is a rather exten- defendants contained a notice that the defendants sive one. The Travellers’ Insurance Company of would not be responsible for any loss, damage, or Hartford send us a capital lithograph of Mr. Evarts. detention of luggage under any circumstances; and We have not understood that Mr. Evarts is an agent that they would not be responsible for the mainor even an attorney of that company, and we do tenance or loss of time of a passenger during any not understand the motive of the publication, but detention of their vessels, nor for any delay arising we are none the less grateful for a likeness of one out of accidents, nor for any loss or damage arising of the most eminent lawyers and one of the wisest from perils of the seas, or from machinery, boilers, and brightest men at the American bar. Some or steam, or from any act, neglect, or default whatpeople may suspect that the publication in the year soever of the pilot, master, or mariners. Held, of the presidential election has some political (affirming the judgment of Cave and Day, JJ., significance, but we hope not. It would be a pity demurrer), that this provision exempted the defendto spoil so great a lawyer by sinking him in the ants from liability in an action for the loss of life of presidential chair.

the passenger by negligence of the defendants' ser


vants in a collision with another ship. Brett, M. R., in question by this bill, should be established by said: “The ticket, however, is also a passenger the judgment complained of, or by a correction of ticket, and contains the stipulation against respon- it; and as this would not be done by an injunction sibility and with regard to passengers on which the against the use of it, the bill could not be maindefendants rely. I confess this seems to me to be tained. If the plaintiff ought to have redress, & somewhat odd stipulation, for I cannot understand there should be, not an order forbidding the use of how there can be any loss or damage to a passenger, the judgment, but an order making the judgment as such, exclusive of loss or damage to his property, what it ought to be, so that both parties could use for which the shipowner could be liable if it were it justly. Being the settlement of a controversy, its caused by perils of the sea. Again, by reason of use is to be facilitated, not obstructed. The purpose the words from machinery, boilers, or steam,' if of the law, requiring a judgment to be rendered, is damage were caused by the accidental explosion of to be accomplished, not by depriving it of its operaa boiler, or from some accident not occasioned by tion and effect, but by making it right, and giving negligence, the shipowners would not be liable. it free course. A correction of the alleged wrong Therefore, if we exclude the words which are in- should be sought in some direct proceeding for the applicable to the present case, the stipulation as to reformation of the judgment, which cannot be repassengers will read as follows: "The company will formed on this bill, or in any proceeding in this not be responsible for any loss or damage arising State. Lyme v. Allen, 51 N. H. 242; Adams v. from any act, neglect, or default whatsoever of the Adams, id. 288. If the plaintiff had a remedy, it is pilot, master, or mariners.' It has been suggested in Illinois. The court of that State might find, as on the part of the plaintiffs that the word damage' matter of law or fact, that his only remedy was a cannot be correctly applied to personal injury, and motion for delay, and an opportunity to prove the certainly it is not a very usual expression to say that facts and show the falsity of Gilmore's testimony, a man is damaged; it seems more natural to say before the judgment was rendered. They might that he is hurt. Personal injury cannot be included think his counsel should have been fully instructed as under the word “loss;' but although 'injury' to all material facts, and should have taken such a would have been a more apt word, I think there can course, at the trial, or before the trial, as would be no doubt that 'damage' may include personal have enabled the court, upon sufficient evidence of injury. Here the sentence in which the word occurs the truth, to render a just judgment. Hearing all appears to be solely applicable to passengers per- the evidence the plaintiff has to offer, they might sonally, and we are unable to come to the conclusion be of opinion that Gilmore's testimony was true, or that personal injury not covered by the words of that, if it was inture, relief was barred by some the stipulation; and we think that personal injury fanlt of the plaintiff or his counsel.

On many to a passenger, caused by the negligence of the material points of law and fact, different conclusions pilot, master, or mariners, is an injury from which might be reached in Illinois and New Hampshire; the defendants have relieved themselves by the and there being no right of appeal from one State contract contained in ticket. After careful to the other, the questions of fact and law, raised by consideration of the case, and after considerable the complaint of perjury, should be settled in hesitation, we have come to the conclusion that we Illinois. When they are settled in that State, there cannot differ from the decision of the divisional will be no difficulty here in giving both parties the court, and we think that if the passenger had not benefit of the adjudication.” been killed, but only injured, he could not have recovered for the injury. If this is so, it follows that

In State v. Teissedre, 30 Kans. 476, the court said: his executors cannot recover under Lord Campbell's “It was no error for the court below to instruct the Act. We are therefore of opinion that this appeal jury that beer is presumed to be intoxicating, until ought to be dismissed.” We doubt.

the contrary is proved. In the absence of evidence

to the contrary, beer will always be presumed to be In Metcalf v. Gilmore, 59 N. H. 417, it is held that an intoxicating liquor. State v. Volmer, 6 Kans. 371; a bill in equity for an injunction against the use, in Briffitt v. State of Wisconsin, decided by the Supreme that State, of a judgment rendered in another State Court of Wisconsin, May 31, 1883; 28 Alb. Law cannot be maintained on the ground that it was Jour. 332; State v. Lemp, 16 Mo. 389; Markle v. obtained by false and fraudulent testimony. Doe,

Town of Akron, 14 Ohio, 586." C. J., said: “If the judgment had been rendered in this State, and the plaintiff were entitled to any

COMMON WORDS AND PHRASES. relief for the cause alleged in this bill, his remedy would be a new trial, upon the result of which the TOR.

“not to be liable for the ment rendered that would take the place of, or op- bursting of the boilers ” means that they are not to erate as an amendment of, the one alleged to be be liable for damages to the vessel on account of unjust. An injunction against the use of the judg- such bursting. The court said: “In my opinion ment would not be an appropriate remedy, because it is to be understood in the sense of 'on account the rights of the parties, so far as they are brought of,' by reason of,' or 'because of.' The word is

alleged wrong could be rectified, and a just judge Forme A provision in an insurance policy that

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