*

be an intent to dedicate. In Rees v. City of Chicago, 38 Ill. 327, it was also held that a dedication is to be proved, not alone by a deed, but by matter in país, cousisting of the acts and accompanying declarations of the owners of the land alleged to be dedicated. Such acts, coupled with evidence of acceptance by the public, may make a case of dedication. In City of Cincinnati v. White's Lessee, 6 Pet. 431, it is declared that no particular form or ceremony is necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. In Hunter v. Trustees of Sandy Hill, 6 Hill, 407, it was held that "dedication * * is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner." It was also held that lands may be dedicated to persons and charitable purposes, as well as for public ways, commons, and other easements in the nature of ways, so as to conclude the owner who makes the dedication. In Godfrey v. City of Alton, 12 Ill. 29, in the discussion of the question of dedication, it was held that the statute of frauds does not apply to the dedication of ground to the public. A dedication may be made by grant or written instrument. It may be evidenced by acts and declarations without writing. No particular form is required to establish its validity, it being a question of intention. (2) A court of equity will enjoin the owner of land from defacing and meddling with graves on land dedicated to the public for burial purposes, at the suit of any parties having deceased relatives or friends buried therein. (3) Two persons, residents in the neighborhood of a public burying ground, having friends buried there, filed a bill to enjoin the party owning the tract of land on which it was located from defacing the graves, and to preserve the ground for the public use for burial purposes. Held, that they could maintain the bill in their names, for the benefit of themselves, as well as if all others directly interested had joined. Davidson v. Reed. Opinion by Craig, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

TENANTS IN COMMON-PERSONALTY-SALE-RATIFICATION PARTNERSHIP-STATUTE OF LIMITATIONS.

Where parties are joint owners of a chattel, the right of each to the possession is equal; and if one sell the chattel the sale passes to the vendee the individual interest only of the vendor. Given v. Kelly,85 Penn. St. 309. Each joint owner has an interest in the whole, and each has a right of possession. One cannot sell the entirety; the vendee must take the seller's interest and hold the chattel as the seller did. Trout v. Kennedy, 47 id. 387. The possession of one co-tenant is the possession of all, and he who has the present possession cannot be ousted. Nor can one co-tenant object to the mere sale by the other of his interest in the common property and delivery of the chattel to the purchaser. A sale of the whole by one co-tenant does not impair the legal rights of the other. Weld v. Oliver, 21 Pick. 559. A. and B., partners in the lumber business, were tenants in common of a portable saw-mill. B.'s interest was sold at sheriff's sale to C. A. remained in exclusive possession for a month after the sale, when he sold the entire property as his own to D. and E., who had at the time notice of C.'s claim to an interest therein. D. and E. remained in uninterrupted possession for five years longer, when they sold the property. Nearly a year and a half later, more than six years having elapsed since the sale to D. aud

E., C. brought assumpsit against them for his share of the purchase-money resulting from their late sale. Held, that A. by the sale had passed only his own interest; that the possession of D. and E. was the possession of C.; that the latter having ratified the sale by them, was entitled to his share of the purchasemoney. Held, further, that the statute of limitations constituted no bar to the action. Browning v. Cover. Opinion by Trunkey, J.

[Decided March 30, 1885.]

CONTRACTS -CONSIDERATION - PUBLIC POLICY

AGREEMENT TO ABANDON PROSECUTION FOR OBTAINING MONEY BY FALSE REPRESENTATIONS-PROMISSORY NOTE. The obtaining of money by false and fraudulent representations is an offense which may lawfully be settled by an agreement between the parties after the institution of a criminal proceeding. Hence a promissory note given to the prosecutor to abandon the prosecution of such an offense is founded upon a valid consideration. It is well settled that an agreement in consideration of stifling or compounding a criminal prosecution or proceeding for a felony or a misdemeanor of a public nature is void. Riddle v. Hall, 3 Out. 116. There are however misdemeanors of an inferior class in which the public is presumed to have less interest. They are assumed to affect chiefly the parties especially aggrieved thereby. The settlement of offenses of this class is not illegal, and therefore an agreement between the offender and the party aggrieved to settle one of this kind is not invalid. Section 9 of the act of 31st March, 1860 (Purd. Dig., 377), authorizes the magistrate or the court to which the proceedings have been returned, to permit the settlement of such offenses. The obtaining of money by means of false and fraudulent representations, with intent to cheat and defraud, is an offense for which there would also be a remedy by action, and may be settled. There was therefore no error in entering judgment for want of a sufficient affidavit of defense. Geier v. Shade. Opinion by Mercur, C. J. [Decided March 16, 1885.]

AGENCY-MISAPPROPRIATION OF FUNDS-SET-OFFEVIDENCE.-An agent who by virtue of special authority receives his principal's moneys, to be applied by him in a certain manner, cannot, when sued for a misappropriation thereof, set off a debt due by the principal to him and arising out of the agency, even though the interest on said debt was an ultimate object of the special authority. A. gave B. a letter of attorney to collect the rents of a certain property, and pay them first, to discharge taxes and water rent on the property, and then to apply them to the interest on the first, second, and B.'s third mortgage on certain premises successively; the balance was to be paid to A. B.collected some seven hundred dollars, a sum insufficient to pay the taxes, water rent, and accrued interest charges prior to his incumbrance, and appropriated it solely and entirely to his own debt. In a suit by A. against B. to recover the amount so misappropriated, held, that the latter was bound to pay the money collected to the creditors named, in their designated order. And failing in this, the amount being less than the prior charges, he could not set-off the principal or interest of his own security, but was liable to his principal for the moneys so collected. It was never intended that our defalcation act should be used as the means of rewarding perfidious conduct. Public policy forbids that its provisions should be invoked for any such purpose. Defalcation is a legal right, secured to a defendant who has demands against a plaintiff due in the same right and payable when suit was commenced; but it may be waived by contract express or implied. An agreement to waive the right,

It is

if founded on a good consideration, is undoubtedly binding. The receipt of money by one person from another, to be applied to a specific purpose, implies an agreement, on the part of the former, not to apply it to any other use, and of course not to his own by pleading a set off. Smuller v. Union Canal Co., 1 Wright, 68; Bank v. Macalester, 9 Barr. 475; Ardesco Oil Co. v. North American Oil and Mining Co., 16 P. F. S. 375, 380. In Simpson v. Pinkerton, 10 Weekly Notes, 423, we held that an attorney-at-law or in fact employed to collect a claim, when he has received the money, has no right to set-off an antecedent debt or claim of his own against his constituent without first showing that the latter agreed he might retain his demand out of the money. It was also ruled in Middletown and Harrisburg Turnpike Road v. Watson, 1 Rawle, 330, that an agent of the company, who had received money to its use, could not in a suit against him set-off debts of the company which he had paid without showing he had authority to pay them. there said: "As long as the agent acts within the scope of his authority, and no longer, he is protected. It was the duty of Watson to collect and pay over the funds as they came into his hands. It was for the company to direct the application of the money, when in the treasury or under their control, to the discharge of their debts, the repair of the road, or whatever purposes they might suppose most beneficial to the corporation. This they have been prevented from doing by an assumption of power by their agent and a misapplication of the funds of the company. If such a breach of trust should be permitted it would, in practice, lead to great abuses by introducing a scene of speculation and fraud the most disastrous, and of the most secret and dangerous nature. A principal may give a special authority to his agent to settle and liquidate his debts; but previous to the introduction of such a defense to a suit brought for money had and received as agent, the special authority should be shown." Other cases bearing on this subject might be cited, but it is unnecessary. The principle underlying all of them is, that an agent or attorney who, by virtue of special authority, has received money, cannot, when sued by his principal, set-off a debt due to himself in a matter not arising out of his agency. By accepting the special trust he waives the general right of set-off. Moreover the debts, not being due in the same right or capacity, lack that mutuality which is essential to the right of set-off. Tagg v. Bowman. Opinion by Sterrett, J.

[Decided Feb. 9, 1885.]

INSURANCE LAW.

LIFE CHANGING BENEFICIARY BY WILL. An insurance company issned to W. a policy on his life, by which it agreed in consideration of the payment by him of certain premiums during his life-time to pay to his daughter, C. M. W., the sum of $1,300. W. paid the premiums as agreed, but at his death left a will by which he bequeathed to C. M. W. the sum of $500, on condition that she would assign to his estate her interest in the policy, and directed his executor, if she refused, to claim the amount of the policy. C. M. W. refused to assign her interest, and the executor sued the company. Held, that the company were bound to pay the money to C. M. W. under the policy; that W. could not alter the contract; and that the executor was not entitled to recover. Sup. Ct. of Iowa, June 8, 1885. Wilmaster v. Continental Life Ins. Co. Opinion by Reed, J. (23 N. W. Rep. 903.)

LIFE-DEATH OF INSURED BY HIS OWN HAND-INSANITY-ELECTION TO REFUND PREMIUMS OR PAY

SUM INSURED.—A policy of life insurance provided

that in case the insured should die by his own hand the policy should be void, except that in case he should die by his own hand while insane, the amount to be paid by the company should be the sum of the premiums actually paid thereon, with interest. Held, that it was competent for the company thus to contract and thus to limit the extent of its liability upon the happening of the contingency named. It is competent for an insurance company to stipulate against intentional self-destruction, whether it be the voluntary act of an accountable moral agent or not. Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284. In the opinion of the court in that case, Mr. Chief Justice Davis said: "The insurers in this case have sought to avoid altogether this class of risks" (meaning risks in case of suicide, ssue or insane). "If they have succeeded in doing so, it is our duty to give effect to the contract as neither the policy of the law nor sound morals forbid them to make it. If they are at liberty to stipulate against hazardous occupations, unhealthy climates, or death by the hands of the law, or in consequence of injuries received when intoxicated, surely it is competent for them to stipulate against intentional self-destruction, whether it be the voluntary act of an accountable moral agent or not. It is not perceived why they cannot limit their liability if the assured is in proper language told of the extent of the limitation, and it is not against public policy." Held also, that there was no repugnancy between the different clauses in the policy declaratory of liability, and it appearing that the insured committed suicide when insane, the company was only liable for the amount of the premiums paid by the insured, with interest. But upon the theory of repugnancy between the different provisions of the policy in relation to liability, counsel for the plaintiff invokes the rule as to repugnant clauses sometimes applied to conveyances of real estate or other instruments under seal, namely, that a grant in general cannot be restrained by subsequent clauses limiting the extent of the grant; or as the maxim is stated in 4 Greenl. Cruise, 177: "Where there are conflicting declarations of the use in the same instrument, the first shall prevail, the maxim being the first deed and the last will." And Barney v. Miller, 18 Iowa, 466; Drew v. Drew, 28 N. H. 489; Thornhill v. Hall, 2 Clark & F. 22; Green Bay & M. Canal Co. v. Hewett, 55 Wis. 96, 104, are cited as authorities in support of the proposition that the limitation of liability expressed in the exception in this policy is valid. It was stipulated in a certain other policy of life insurance that in case the insured should die by his own hand the policy should be void; but if the insured at the time at taking his life was insane, the company would pay the sum insured or refund the premiums actually received, with interest, according to its judgment of the equities of the case; which option was declared to be distinctly reserved by the company, and made part of the contract. Held, that it was competent for parties so to contract, and that the stipulation was valid. Held also, that the right of the company to exercise the option reserved in the policy could not be waived until it should be shown that the insured at the time of taking his life was insane, and that the company was not required to elect which sum it would pay within the time named in the policy for payment, which was sixty days after notice and proof of death, regardless of the actual time, when it was shown that the insured was insane when he committed the act of self-destruction. Cir. Ct. E. D. Wis., June, 1885. Salentine v. Mutual Benefit Life Ins. Co. (24 Fed. Rep. 159.)

The Albany Law Journal.

ALBANY, AUGUST 29, 1885.

CURRENT TOPICS.

HE announcement of a live topic of discussion drew a larger attendance than usual to the

convention of the American Bar Association last week at Saratoga. Instead of fifty or sixty, there were actually one hundred and two of the seventy thousand American lawyers present. There was some preliminary skirmishing, which we were not privileged to witness. Mr. Biddle, it is said, read some infidel sentiments about jury reform, i. e., infidel, from the Pennsylvania standpoint. Mr. Rawle read a very learned paper, more than an hour long, reviewing all the authorities and guessing at the rest of the law, on Car Trust Securities; — a paper which in itself demonstrated the need of codification. Then came the main battle on the report of Messrs. Field and Dillon on Delays and Uncertainties in the administration of Justice. We count these distinguished gentlemen among our friends, but really they ought to be ashamed of themselves for stirring up such strife among brethren hitherto harmonious. It was cruel thus to distract their pious thoughts from Chief Justice Marshall and the Constitution, and the good old times, and the good old law, and the good old things, and remind them of all these unpleasant facts of delay and uncertainty and extortion and oppression and general discontent and growing disgust with law and lawyers.

It fell like a bomb-shell and all hands tried to get out of the way. Mr. Cortlandt Parker, of New Jersey, (the Yellowstone Park of common law pleading, as Lord Coleridge called it) piteously moved for a "discontinuance," or at least for a "continuance" of a year. But that did not work. The convention had to face the music, and under the leadership of the committee, and Mr. Willis, of New York, a discussion was had, and a little the liveliest circus that the grand old A. B. A. ever witnessed. We can hardly keep our face straight from laughing over it. But we must. The opposition said it was too bad to ask for action right off, for they had only had a year's notice, and this was the most important topic ever brought before the association. When, in Heaven's name, was any thing else of importance ever brought before it ?- except the subject of the relief of the Supreme Court, which they have been discussing for three years? We never saw a lawyer before who would confess that he hadn't an opinion, but here were forty without. Then arose a wail from the District of Columbia, from a prematurely aged young man, who confessed that his soul yearned for more 66 form," because it was so hard for him to tell by what name his antagonist proposed to call any particular action. Then Pennsylvania chimed in the State where they talk about sur-rebutters, and use all the ancient French and the Latin names VOL. 32-No. 9.

for writs, one gentleman denouncing this "attack on our alma mater, the common law." Alma mater, forsooth! rather a mother that devours her children, and would long since have rendered this world unendurable had it not been for the tender "nursing mother," Equity. Then Mr. Parker cheerfully asserted that there are no delays in New Jersey! Well, Mr. Parker, like Dr. Hammond, ought to take to writing novels. Such an imagination is wasted on the dry fields of the law. Then somebody read a long denunciation of codification by Minister Phelps. But this is not the first time that charming and cultivated gentleman and scholar has got off the track of American affairs. Perhaps he will think better of codification now that it is in favor in

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--

England, along with our beef and apples. But to cap the climax, when Mr. Field challenged anybody to mention any community which having had a civil code had repealed it, a man from Florida hopped up and specified his State, - it had adopted and repealed the New York code and with a flourish declared that he never, never would dare go back to his "constitooents" if it were known that he had favored another code. This excited a tempest of applause from the opponents. But when Mr. Field calmly explained that that was merely a code of procedure, and that Florida never had any general code of the law, the gentleman from Florida probably wished himself down the mouth of one of his "constitooents" on the bank of some Floridian river, but he could not have felt half so cheap as those who had betrayed their ignorance and prejudice by applauding him. Some men made sensible and moderate speeches on the same side, especially Mr. Bonney, who is by no means an opponent of codification indeed, he wants Congress to codify the law of negotiable instruments but he wanted delay. On the other side, Mr. Willis, of New York, was active and adroit; Mr. Eyre, of California, Mr. Semmes, of Louisiana, and Mr. Hill, of Georgia, testified to the success of codfication in those States. Mr. Hill's remarks were especially noteworthy, because few had known that Georgia has had a code for twenty years. Judge Dillon made a few earnest and influential remarks. But the weight of the discussion of course fell on Mr. Field, who rose to a great occasion in his grandest manner. The upshot of the whole was this: the argument in the report in favor of codification could not be accepted, but all the conclusions of the report were adopted except the last, and it was ordered that five thousand copies of the report should be printed and distributed. The last recommendation was that "so far as possible the common law should be reduced to statutes." It was evident that there was a majority of about ten in favor of this, but the minority then cried for mercy and an adjournment, and finally, on the earnest pleas of Messrs. Lawton, of Georgia, Sherman, of Illinois, and others, not opponents of codification, that disposition was made by a vote of seventy-six to eighteen. Then the convention heaved an audible sigh of relief. So happy they had not to think of this bugbear for a whole year. One

expiring kick was made in an attempt to order a recommitment, but it failed. Now let us hope that in another year the gentlemen who need "light" will have some opinions on a subject on which it is a disgrace to any American lawyer not to have a definite opinion, with a reason for it, one way or the other. Thus closed the greatest and most striking legal discussion of the last thirty years. Thus was received the ablest, the most important, the most interesting, and the most conclusive legal essay presented to the American people for thirty years. The American bar and the American people owe Mr. Field a debt of gratitude. He should be congratulated on the great measure of success attained - greater than he had any reason to hope. Not that we expect much influence from this action or any other action of this association. It will probably have as little at large as the action of our own State association, denouncing codification, has had in this State. But it is an event. Mr. Parker aptly spoke of the common law as fossilized in our institutions." That is just it. Let us put these fossils into the museum of the Yellowstone Common-Law Pleading Park, and appoint to guard them all these eminent gentlemen, who have grown gray and rich by pronouncing the common-law oracles, and are afraid that law is to be made certain, swift and cheap. But so it is, gentlemen, and don't you forget it. This ghost will not down. Fifty-five millions of people have grown tired of being ground and palavered over by seventy thousand lawyers (of whom we were one for twenty-two years), and they are going to have a change. A distinguished Federal judge of New England told us last week that in his opinion, a great cause of the unpopularity of lawyers and the decay of the legal profession is their extortionate charges. We believe it. We know it. We deprecate it. Brethren, you had much better mount on this wave and ride safely, than try to go through it and get swamped.

The association became almost as much excited over an attempt to change the "banquet" to a "collation"--whatever these are. And if we correctly understand the matter, the same reckless iconoclasts who would bang the members of the "alma mater" succeeded by a majority of two in effecting this radical overturn. But the opponents will get something to eat, all the same, which is more than they feel sure of under a code.

The association did one sensible thing, any way they elected Mr. William Allen Butler, of New York, president for the next year. This is a compliment (at least, we are expected to say so) which Mr Butler does the association a favor by accepting, A profound lawyer, an elegant scholar, an earnest law reformer, but we are sorry to suspect, on the wrong side of this question of questions. Now how sorry we are that we shall have to wait twelve months for another meeting! We would fain have one once a month! It would not do any good, of course, but it

would amuse and cheer, and give one hundred eminently respectable gentlemen an opportunity to drink congress water and praise the good old times, and bewail and doubt and prophesy evil of these innovators.

A correspondent in Dakota sends us an account of a criminal conviction, where the prisoner was induced by the court to waive his exceptions and right of appeal, before sentence, in expectation, probably, of a light sentence, and asks us if such a waiver is binding. Of course it is not,, and it must be a very primitive court that could ask for or accept such an agreement. The prisoner is under duress. He cannot waive a jury. In felony he cannot waive a jury of twelve. His plea of guilty, extorted by fear of being lynched, may be avoided. Sanders v. State, 82 Ind. 818; S. C., 44 Am. Rep. 29.

Another correspondent, in New York, sends us some newspaper clippings headed respectively, "A Lawyer's Quarrel" and "The Befouled Bench," the latter written by him, and calls on us to take sides, and impugns the transactions of Judge Benedict's court. He calls our attention to an old editorial in this journal against Judge Benedict in the Lange case, asking us to "read it with care." Well, we have read it; in fact we wrote it. Then he

speaks of "the philanthropist, Dr. Foote," and the shocking conviction of D. M. Bennett. We do not remember any thing about the philanthropist; we do know, and said in substance at the time, that Bennett got just what he deserved a dirty rascal. Then he says we may or may not have the moral courage" to pitch into Judge Benedict's court in the particular matter in question. We confess we have not the "moral courage" to abuse a judge on ex parte statements of counsel and partisans in newspapers! We have shown our disposition to expose judicial tyranny and corruption on evidence. Of Judge Benedict's conduct in the Lange case we spoke severely because we had good evidence. So we have spoken of others. But what do lawyers take us for when they ask us to take their inflammatory newspaper tirades for granted? We have no general retainer to denounce Judge Benedict or any other judge,

IN

NOTES OF CASES.

Me Collin v. Reed, Pennsylvania Common Pleas, June 11, 1885, 16 Week. Notes of Cases, 287, a tailor was held liable for a watch and chain stolen from the plaintiff's clothing while he was being fitted with new clothing in his shop. On the trial plaintiff testified: "I wanted to buy a coat and pants. I was introduced to a salesman, who showed me some clothes, and showed me a compartment in which to try them on. It was one of six. The compartments were not separated by doors but by curtains, and so was the entry from the main store. I was not directed to any particular compartment, but took