mus to compel railroad to construct private crossing, where defendant claimed that bridge in highway which it had constructed complied with Code, § 2022, the fact that the cost of an overhead crossing would greatly exceed the benefits to be derived by plaintiff held not a defense. Herrstrom v. Newton & N. W. R. Co., Iowa, 105 N. W. Rep. 436.

153. RAILROADS-Injury to Person on Track.-Where trainmen see a person on the track they must give the alarm signal at such distance before reaching him as will enable him to hear it and get off the track.-Kelley v. Ohio River R. Co., W. Va., 52 S. E. Rep. 520.

154. RAILROADS-Operation of Trains.-Railroad operating train on tracks of steamship company held not bound to give a truckman on steamship company's pier notice of the approach of a train.-Wieber v. New York Cent. & H. R. R. Co., 96 N. Y. Supp. 28.

155. RECEIVERS-Actions by Discretion of Court.-A court is not bound, as a matter of course, to direct a receiver to sue on a note or account stated on the books.Sterling Electric Co. v. Augusta Telephone & Electric Co., Ga., 52 S. E. Rep. 541.

156. REMOVAL OF CAUSES-Separable Controversy.-An action to recover for wrongful death, where plaintiff has exercised his right to proceed against a railroad company and its employee, cannot be converted into a separable controversy for purposes of removal to a federal court.-Cincinnati, N, O. & T. P. Ry. Co. v. Bohon, U. S. S. C., 26 Sup. Ct. Rep. 166.

157. SALES-Warranties.-Statement in letter offering to sell and install certain grates and blowers held not a warranty that the operation of the buyer's plant will not be delayed after the apparatus was installed.-Beggs v. James Hanley Brewing Co., R. I., 62 Atl. Rep. 373.

158. SHIPPING-Injury to Cargo.-A vessel owner who receives goods in good condition as evidenced by the bill of lading and delivers them damaged has the burden of proof to establish that the damage arose from an ac. cepted risk.-The Presque Isle, U. S. D. C., W. D. N. Y., 140 Fed. Rep. 202.

159. SPECIFIC PERFORMANCE-Time for Tender. - In an option contract for the sale of land, time is of the essence, and a tender or offer of payment must be made within the time specified by the party seeking to enforce the option.-Herman v. Winter, S Dak., 105 N. W. Rep.

457.

160. STATUTES-Penal Clause.-A penal clause in a general statute, embracing a given subject, which simply provides for the punishment of the violation of the provisions of such act, is not the intermixing in such act of things which have no proper relation to each other.State v. Twining, N. J., 62 Atl. Rep. 402.

161. STREET RAILROADS-Duty to Protect Passenger.A passenger on a street car may presume that all neces sary precautions for his safe transportation have beeu and will be taken -Union Traction Co. v. Sullivan, Ind., 76 N. E. Rep. 116.

Agreed Case.

163. SUBMISSION OF CONTROVERSY Where questions were decided on appeal on the assumption that the facts were found and not agreed, the only remedy of the defeated party was by an application to the superior court for a trial of the question of fact.Dame v. Woods, N. H., 62 Atl. Rep. 379.

164. TAXATION-Payment of Taxes by Volunteer.-Payment of taxes on land by one who has no color or claim of right to do so on his own behalf inures to the benefit of the owner.-Siers v. Wiseman, W. Va., 52 S. E. Rep. 460.

165. TAXATION -Return of Sales.-The word "do," used as an abbreviation for ditto, in a return of sales of land sold for taxes, to designate the purchaser, will do so if the name of the purchaser appears in the same column

167. TAXATION-Transfer Tax.-Transfer of remainder in realty in New Jersey under power of appointment in will held not subject to transfer tax.-In re Hull's Estate, 96 N. Y. Supp. 93.

168. TENANCY IN COMMON-Adverse Possession. The law will not presume a grant of his undivided share from one joint tenant to another from silent possession by one for a long time.-Logan's Heirs v. Ward, W. Va., 52 S. E. Rep. 398

169. TENANCY IN COMMON-Adverse Possession. - One tenant in common may assert an adverse title against his co-tenant if his holding is adverse and to the exclu sion of such co-tenant.-Tarplee v. Sonn, 96 N. Y. Supp. 6.

170. TENANCY-Oil Lease by Co Tenant. - Where a cotenant executes an oil lease purporting to cover the whole of the property, subject to a royalty, it is proper to require the lessor and lessee jointly to make repara. tion to the injured co-tenant of the proceeds of the oil.McNeely v. South Penn Oil Co., W. Va., 52 S. E. Rep. 480. 171. TRIAL-Right to Open and Close.-Where, in proceedings by a county to condemu land for the widening of a highway, the ownership of the land was not in issue, but was expressly admitted, defendant had no right to open and close the argument.-Mendocino County v. Peters, Cal., 82 Pac. Rep. 1122.

172. TRESPASS-Recovery Against Part of Defendants. -In a suit against several persons as trespassers, some of the defendants may be found to be trespassers, and a recovery may be had against them, while some may be found not to be trespassers, and a verdict rendered in their favor.-Ivey v. Cowart, Ga., 52 S. E. Rep. 436.

173. UNITED STATES - Principal and Surety. - Labor and materials used on public works, whether furnished to the contractor or subcontractor, held within the obligation of a surety company under bond executed under Act Aug. 13, 1894, ch. 280, conditioned for prompt payment by contractor for labor and materials.-United States v. American Surety Co., U. S. S. C., 26 Sup. Ct. Rep. 168.

174. VENDOR AND PURCHASER Damages for Overcharge. Where a purchaser in a contract for the sale of land pays more than the amount due, he may, on a breach of the contract by the vendor, recover the excess, with interest, in addition to damages for the breach.Kean v. Landrum, S. Car, 52 S. E. Rep. 421.

175. VENDOR AND PURCHASER -Tender in Action for Breach of Contract.-A purchaser, suing for breach of contract to convey on the vendor's repudiation of the contract, held not required to tender payment according to the contract.-Kuhlman v. Wieben, Iowa, 105 N. W. Rep. 445.

176. WITNESSES-Competency.-Certain testimony held within and other testimony held not within Code Civ. Proc. § 829, prohibiting the examination of a party as a witness in his own behalf to transactions with a deceased person. In re Knibbs' Estate, 96 N. Y. Supp. 40.

177. WITNESSES-Privileged Communications.-Testimony of a physician as to the condition of plaintiff's mother when she executed a bill of sale of property, for which notes in question were given, held properly admitted on the waiver of professional secrecy by plaintiff as executrix.-Twaddell v. Weidler, 96 N. Y. Supp. 90.

178. WITNESSES-Transaction with Deceased Persons. -On a claim against decedent's estate, claimant held incompetent to testify to certain payments made thereon by deceased in her lifetime to avoid the defense of limi tations.-Pierce v. Stitt, Wis., 105 N. W. Rep. 479.

Central Law Journal.

ST. LOUIS, MO., MAY 11, 1906.

UNITED STATES COURTS IN PORTO RICO, MUST ADMINISTER CIVIL AND NOT THE COMMON LAW, WHEREVER THE FORMER PROVIDES A REMEDY.

A decision of far reaching importance, at least to all territories now belonging to the United States which were recently acquired from Spain, is that contained in a decision handed down by the Supreme Court of the United States, April 23, 1906, an attested copy of which we have received through the courtesy of Hon. James S. Harlan.

It

This important decision, handed down by Mr. Justice Day, who delivered the opinion of the court, is simply to the effect that where the civil law, as existing in Porto Rico at the time of its acquisition by the United States, provides a remedy for a certain condition of facts, that remedy is exclusive, and the United States court of the district cannot apply any other remedy known to the common law. The facts in this case show a proceeding for the recovery of damages for the seizure of property upon writs of attachment issued maliciously and without probable cause. seems, however, that there is no provision in the civil code existing in Porto Rico for a remedy of that kind. On the contrary, the remedy against the plaintiff in attachment suits where the attachment writ is subsequently dissolved, is in the same proceeding, the Porto Rican code (War department translation), sec. 1410, providing that "when an attachment is vacated by a final ruling, because it is not included in any of the cases of said Art. 1398, the plaintiff shall be taxed all the costs and be adjudged to indemnify the defendant for any losses or damages he may have suffered, which shall be recovered in the manner prescribed in Art. 1415."

The United States Supreme Court, through Mr. Justice Day, thus expresses itself on the conflict of civil and common law systems in the jurisdictions acquired from Spain: "The case affords a striking illustration of the difficulty of undertaking to establish a common law court and system of jurisprudence in a country hitherto governed by codes having

their origin in the civil law, where the bar and the people know little of any other system of jurisprudence. The action in this case was begun and tried upon pleadings and under principles which are controlling in a state following the common law, having its origin in England, and the case was submitted to the jury upon general principles governing such actions for the recovery of damages for the seizure of property upon writs of attachment issued maliciously and without probable cause. probable cause. The action proceeded in all respects in form and substance as it would had it been begun and prosecuted in a common law state. Cases which have come to this court from the Philippines and Porto Rico, where we have had occasion to consider the enactments making changes in the laws of those islands, show the disposition of the executive and congress not to interfere more than is necessary with local institutions, and to engraft upon the old and different system of jurisprudence established by the civil law only such changes as were deemed necessary in the interest of the people, and in order to more effectually conserve and protect their rights. Kepner v. United States, 195 U. S. 100, 122. This policy has been followed in dealing with the Porto Ricans. President's Message, Dec. 5, 1899; Walton's Civil Law in Spain and Spanish America, 594. The new civil government was established by the act of April 12, 1900, commonly known as the Foraker act. 31 Stat. 77. Section 8 of that act provides: "That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended or modified hereinafter, or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not consistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Rico or by act of congress of the United States.'

The court, in further construing the provisions of the civil code of Porto Rico relative to attachments, says: "The theory of these sections of the code is that when the court which issues the attachment is satisfied that the same has been wrongfully issued, it will proceed in the manner pointed out in the stat

ute to ascertain the loss and damages which the defendant has suffered, and in the same action to tax the costs against the plaintiff and to adjudge him to indemnify the defendant for such losses and damages. And these losses and this recovery are adjudicated in the manner pointed out in Art. 927 et seq. of the Code of Civil Procedure. These articles are found in Title VIII. of that code, entitled 'Execution of Judgments.' The defendant in the attachment having been declared entitled to recover damages, proceedings follow for the purpose of ascertaining the amount thereof. Sec. 927 et seq. provide for the man ner of making up an issue, taking testimony and hearing witnesses, and, upon final order or decree made by the court, an appeal can be prosecuted. This full and comprehensive statutory method of ascertaining and adjudgang the damages to be recovered in cases where attachments are wrongfully issued and vacated for any cause, would seem to preclude the application of general provisions of the code giving a right of recovery for acts of fault or negligence. We are not cited to any decision of the Supreme Court of Spain expressly adjudicating this matter, but are referred by counsel on both sides to a treatise on the law of civil procedure, 'Commentario a la Ley de Enjuiciamiento Civil,' Edition of 1891, p. 412, by Senor Jose Maria Manresa y Navarro, said to be a textwriter of the highest authority in Spain. The English translation of his text is given as follows: 'We do not think that this rule (relating to indepen 1ent actions for damages under the mortgage law) is applicable to attachments, because on the motion to vacate an attachment no discussion or proof of the existence of losses and damages is allowed, and because the law itself provides, in addition to this, that, when by final order of the court, an attachment is vacated, the plaintiff be adjudged to pay the defendant his losses and damages, they being ascertained in the manner provided in Art. 1417 (Art. 1415, Porto Rican Code), that is, according to the procedure in Art. 928, et seq. Such a proceeding permits of a discussion, if the issue is made, not only of the amount but of the existence of losses and damages. It follows that the court can decide on both questions without the necessity of a new suit, which is precisely what the law has sought to avoid.' This seems to be a direct authority

for the proposition that this plan of recovery of damages for wrongful attachments is exclusive. In the absence of authority to the contrary, and in view of the plain provisions of the code, we accept it as properly declaring the existing law upon the subject. We reach the conclusion that the Porto Rican system in force at the time of the passage of the Foraker act, and binding until changed or amended, provided in the state of affairs shown by this record, a recovery for damages in the method pointed out in the attachment suit, by the special statutory method provided for, and not otherwise. The difference between the liability of one wrongfully levying an attachment at common law and the assessment of costs and damages under these provisions of the Porto Rican code is not one of form merely. The former action is substantially one for malicious prosecution, and can be maintained only upon proof of malice and want of probable cause. Under the code remedies given in Porto Rico the court is required to assess damages, although malice or want of probable cause in suing out the attachment may not be expressly shown. The remedy given seems to cover all cases, where the attachment is vacated, irrespective of the motive in suing it out."

In commenting on the fact that a federal court must administer the law of the state in which it may be sitting, the court said: "We think it was the intention of congress in the Porto Rican act to require the district court exercising the jurisdiction of a circuit court, in analogy to the powers of the circuit courts in the states, to adapt themselves, save in the excepted cases in equity and admiralty, to the local procedure and practice in Porto Rico. This conclusion is in accord with the policy of the United States, evidenced in its legislation concerning the islands ceded by Spain, and secures to the people thereof a continuation of the laws and methods of practice and administration familiar to them, which are to be controlling until changed by law. In the revised statutes of the United States, section 915, it is provided as to attachments: 'In common law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held,

for the courts thereof; and such circuit or district courts may from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process: Provided, that similar preliminary affidavits or proofs and similar security, as required by such state laws, hall be furnished by the party seeking such attachment or other remedy.' By analogy it would seem that the District Court of Porto Rico, exercising the jurisdiction of a circuit court in its practice as to the issuing of attachments, is to adapt itself to the local practice recognized and established in Porto Rico. Circuit Courts of the United States are not governed by any separate attachment law, but are required to administer the remedy in attachment provided in the laws of the state in which the courts are held."

This decision shows a decided disposition on the part of the supreme court to enter heartily into the scheme of the administration in undertaking to secure for the colonies acquired from Spain as wide a latitude of local self-government as is consistent with the sovereignty of the United States government. The result is that the study of the civil law in the civil law courts of the United States will receive a renewed and practical impetus. The fact that nearly ten millions of American citizens are to be governed by the provisions of the civil law will compel our commercial attorneys, and others having to do with commercial litigation in our Spanish colonies, to familiarize themselves with the principles of law governing rights, remedies and modes of proçedure under the civil law.

NOTES OF IMPORTANT DECISIONS.

DEPOSITIONS DE BENE ESSE-PLAINTIFF COMPELLED TO TESTIFY WHEREVER HE IS FOUND, IRRESPECTIVE OF THE DISTANCE FROM HIS PLACE OF RESIDENCE.-Judge Finkelnburg, United States District Judge for the eastern district of Missouri decided a very interesting point of procedure in the recent case of Blood v. Morriss, 140 Fed. Rep. 918, when the court held that a plaintiff in a federal court, who is a citizen of another state and resides more than 100 miles from the place of trial, may be compelled by the defendant to appear and testify by deposition de bene esse in advance of the trial, under Rev. St. § 863, and such deposition may be taken at any place where he is found and served with subpœna.

It appears that the plaintiff, a Mr. Blood of

Buffalo, N. Y., brought suit in the federal court in St. Louis against a Mr. Morriss, a resident of that city for an alleged libel. During a visit of Mr. Blood to the city of St. Louis the defendant served him with a notice to take depositions in said city. By the advice of his counsel plaintiff failed to appear and declined to submit to an examination. Thereupon, on October 17, 1905, defendant's attorney filed a motion for an order to show cause why the said Blood should not be punished for contempt in failing to appear before the said notary to give his deposition, which motion the court sustained.

It seems that plaintiffs, counsel relied principally on the decision in Ex parte Fisk, 113 U. S. 713, as a justification for the advice he gave to his client and claimed that under the decision defendant had no right to take plaintiff's testimony at all in advance of the trial. The facts in Fisk case, briefly stated, were these: Fisk, a resident of New York city, was the defendant in a suit removed from a state court of New York city to the United States Circuit Court for the southern district of New York sitting in New York city. An order for the taking of the defendant's deposition in advance of the trial was made under a statute of the state of New York, providing for such examinations. The defendant refused to be examined, whereupon he was imprisoned for contempt of court, from which he was released on an application for a writ of habeas corpus, the Supreme Court of the United States holding that he could not be compelled to give his deposition in advance of the trial under the circumstances prevailing when the order was made. The reasoning in the Fisk case was in substance as follows: Section 861, Rev. St. U. S. provides that the mode of proof, in the trial of action at common law, shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided. The taking and reading of depositions was not oral testimony, and examination of a witness in open court within the meaning of the foregoing provision. It followed that depositions could not be taken and read, unless they came under one of the exceptions referred to at the end of the foregoing section. These exceptions related to cases where it is admissible to take depositions de bene esse under section 863, or in perpetuam rei memoriam, or under a dedimus potestatem as provided in section 866. None of the things required to take depositions under the first of these exceptions (de bene esse) were shown to exist, viz., that the witness lived more than 100 miles from the place of trial, or was bound on a voyage to sea, or was ancient and infirm, etc.; nor did the case come within the principles of section 866 relating to testimony in perpetuam rei memoriam, etc. Hence it followed that the deposition of the defendant could not have been lawfully taken in advance of the trial.

The court in the principal case in distinguishing the Fisk case said: "The difference between the

case at bar and Ex parte Fisk is that in the case at bar one of the exceptions referred to in section 861 does exist, viz., the plaintiff lives at a greater distance from the place of trial than 100 miles, and beinga competent witness his deposition could be taken de bene esse under section 863. The Fisk case is not in conflict with this right, on the contrary it is recognized by the court, for after referring to the right to take depositions de bene esse when the witness lives Lore than 100 miles from the place of trial, or is ancient and infirm, etc., the court says: None of these things are suggested in regard to petitioner, nor were they thought of as a foundation of the order of the state court or of the circuit court. The statute of New York under which both courts acted, makes no such requirements as a condition to the examination of the party. It is a right which, if the judge may possibly refuse to grant, he is in that matter governed by none of the conditions on which the depositions may be taken under the act of congress.' The case of Hanks Dental Ass'n v. Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. Rep. 700, 48 L. Ed. 989, also relied on by plaintiff, was another case in which the federal court of New York compelled a defendant to give his deposition in advance of the trial, not de bene esse under the act of congress, but under a statute of the state of New York. The decision in this case follows the decision in the Fisk case. Shellaberger v. Oliver (C. C.), 64 Fed. Rep. 306, also relied on by plaintiff, was another case in which plaintiff undertook to take the deposition of the defendant although defendant resided in the same city where the suit was pending, and none of the conditions prescribed by section 863 for depositions de bene esse existed. Ever since the year 1865 parties to suits have been made competent witnesses in the courts of the United States. The provision making them such is now embodied in section 858 of the revised statutes. U. S. Comp. St. 1901, p. 659. In Railroad Co. v. Pollard, 22 Wall. 341, 350, 22 L. Ed. 877, the court says: We have decided at the present terin in Texas v. Chiles, 21 Wall. 488, 22 L. Ed. 650, that in the courts of the United States parties to a suit are by acts of congress put upon a footing of equality with other witnesses and are admissible to testify for themselves and compellable to testify for the others. So that I do not see how the fact that it was the plaintiff whose deposition was to be taken in the case at bar makes any difference. The question is, could any competent witness be examined by deposition in advance of the trial under the circums ances prevailing in this case? It appears from the record that the plaintiff resided in the city of Buffalo, state of New York. The court will take judicial notice of the fact that the city of Buffalo is more than 100 miles from St. Louis, Mo., the place of trial. Plaintiff expressly avers his residence in Buffalo. N. Y., as a jurisdictional fact, and we cannot accept the suggestion of plaintiff's counsel that for the purpose of testing the right to take his deposition de bene esse he should be

considered as living in St. Louis merely because he was here in this city when the subpoena was served on him. He cannot be a resident of Buffalo, N. Y., for one purpose, and a resident of St. Louis, Mo., for another purpose, growing out of this suit; and, as his right to sue at all in this court is based on his alleged residence in Buffalo, we must accept that as the test for all other purposes involving the question of residence. I do not think that the language used in Mutual Benefit Life Ins. Co. v. Robinson, 58 Fed. Rep. 723, 732, 7 C. C. A. 444, 22 L. R. A. 325, applies to the circumstances which exist in the case at bar.

competent witness behalf of defendant. (2) Plaintiff lives at miles from the place

The case at bar then resolves itself into this: (1) Plaintiff is a compellable to testify on Section 858, Rev. St. U. S. a greater distance than 100 of trial. (3) The process of this court will not issue to compel a witness to travel a greater distance than 100 miles to attend the trial of a cause (section 876, Rev. St. U. S. [U. S. Comp. St. 1901, p. 667]). Tuerefore (4) defendant has a right to take plaintiff's deposition de bene esse under section 863, Rev. St. U. S. (U. S. Comp. St. 1901, p. 661). It is nowhere provided that a deposition de bene esse must actually be taken at the place where the witness resided, and we cannot read such a limitation into the law. A witness who resides more than 100 miles from the place of trial may travel to and from many places during the interval between the bringing of the suit and the day of trial, and it may be necessary in order to secure his testimony to take it at some place other than the place of his residence. If this were not permissible, he could easily avoid giving his testimony de bene esse altogether by absenting himself from his place of residence until the day of trial. Such a construction cannot reasonably be put upon a law, the object of which is to secure the testimony of nonresident witnesses whose personal presence cannot be secured at the place of trial.' "'

THE BEARING OF CUSTOM UPON THE QUESTON OF WHAT IS "MISTAKE OF LAW," AND WHAT IS "MISTAKE OF FACT."

Articles have been written on the subject of mistake of law as a defense to criminal prosecution, but one especially has interested the writer, though appearing too many months since to warrant special reference, and having appeared over initials only. The article involved one of the later Illinois cases, in which there was no departure from the rule that mistake of law is no defense, and no extenuating circumstance found in the fact of misinformation from an attorney to his