The question is an important one, and I hope that it will be more fully and thoroughly examined than it has been by the profession. JOHN HALLUM. Notes and Queries. CONDITIONAL SALE-PROMISSORY NOTE-ANSWER TO W. M. Q. LOUISVILLE, KY, May 18th, 1875. EDITORS CENTRAL LAW JOURNAL:-In reply to W. M. Q. (ante, p. 323). I would cite you to the case of R. W. Vaugh & Ricketts v. John Hopson, recently decided by the Kentucky Court of Appeals. One Hull purchased a mule from appellee for $175.00, for which he executed his note on the following condition annexed, viz. : This note is given for a mule, and the mule is bound, or the title to remain in Hopson until he gets his money." The mule passed by sale into the hands of a bona fide purchaser; and the without notice of the lien or reservation of title in the vendor, hold title States; but the court, Chief Justice Taney delivering the opinion, held that the whole act must be construed together, that the act of confirmation provided for a patent which was necessary to pass the title of the United States. The same doctrine was again announced in West v. Cochran, 17 How. The Supreme Court of the United States have often held, that in all cases of incomplete titles to land acquired by the United States, by treaty, conquest, or cession, the legal title vests in the United States, and that it rests with Congress to indicate to whom the fee shall be given. Lesbois v. Brunt, 4 How.449; Chouteau v. Eckert, 2 How. 344; McGuire v. Tyler, 8 Wal. 650; Menard's Heirs v. Mussey, 8 How. 293. And these cases, so far as they relate to the point under consideration, are all overruled by Langdeau v. Hanes, unless there is some magical distinction, never before disclosed to the profession, between a deed of cession and a treaty containing the same stipulation. In Lang-question presented was, “Can a bona fide purchaser from the first vendee, and deau v. Hanes, Bagnell v. Broderick, 13 Peters, 436; Fenn v. Hume, 21 How. 481; Wilcox v. Jackson, 13 Peters, 498, were all cited by plaintiff's counsel in connection with Gibson v. Chouteau, 13 Wallace, 96, in support of the doctrine enunciated in all of these cases, that the states have no power to pass limitation or other laws divesting the title to lands derived through the United States before the fee is passed, and not that there is any other similarity between a claim founded on a New Madrid location, in which the fee is confessedly in the United States until it is passed by them, and a claim originating or having its inception under the laws of some other power than that of the United States. Gov. Koerner's attempted explanation of the non-relation between Langdeau v. Hanes and Gibson v. Chouteau, implies a dullness of comprehension amounting to folly on the part of counsel for plaintiff, which could never be reached short of an insane asylum.estate. The position which his explanation implies, was never assumed by plaintiff's counsel, either in the circuit or supreme court, or anywhere else. I owe this explanation to the Governor, that I may not so innocently forfeit his good opinion, and to the profession that they may not be so innocently misled by him, in a cause which draws about it so much borrowed light. I now briefly pass to the doctrine hypothetically stated, and decided by the court in the second point; that if the confirmation was of a certain quantity, then undefined and incapable of identification, the title became perfect when the quantity was surveyed in 1820. In other words the doctrine of relation is applied in aid of a stranger to the title, in aid of whom a fiction of law is resorted to by the court to defeat the acknowledged legal title, by letting in the statute of limitations to cut it off. This is certainly as new as it is a strange doctrine, and it reverses and overrules the doctrine enunciated by the same learned judge, in Gibson v. Chouteau (supra), and Lynch v. Bernal, 9 Wal. 315. In Gibson v. Chouteau the Supreme Court of Missouri is reversed for applying the doctrine of relation in aid of a stranger, so as to let in the statute of limitations to cut off the acknowledged legal title, precisely as it is now applied in Langdeau v. Hanes. quote from the learned judge who delivered the opinion in both cases. In speaking of the error of the Supreme Court of Missouri, the court say: "The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title. The defendants in this case were strangers to that party and his equitable claim, or equitable title as it is termed, not connecting themselves with it by any valid transfer from the original, or any subsequent holder." In Lynch v. Bernal, 9 Wal. 325, the same learned judge, speaking of the doctrine of relation, says: "That doctrine is applied only to subserve the ends of justice, and to protect parties deriving their interest from the claimant." In Langdeau v. Hanes the defendant relied solely on the limitation laws of Illinois, and set up no title or claim whatever through the heirs or confirmees of the land in question. against the latter?" It was held that he can. This case overrules the old distribution of the proceeds among his seven heirs, the real estate becomes, 1. As A.'s will imperatively directs the sale of his real estate, and the equal on the death of A., impressed with the character of personalty. 2. Until the seven heirs shall unite in the election to change the character thus impressed on such real estate, and to take it in its original character, all the interest that B., as one of the seven heirs, can be said to have is an interest in the execution of a trust; he has no interest in the real estate as real 3. The deed made by B. to C. of an undivided one-seventh part of the real estate, made as it is in the absence of such an election by the seven heirs, and before the real estate is sold by the executor in the execution of his trust, fails of effect at law because of B.'s want, at the date of the deed, of a vested interest in the real estate it purports to convey; and it certainly can not be of such avail in equity,-viewing it in the light of an executory agreement to convey,-as to entitle C. to B.'s share of the proceeds of the sale; for any such after-acquired interest by B., as can in equity be made to inure to the benefit of C. in virtue of the deed, will have to be an interest in what appears on the face of the deed to be the thing conveyed-an interest in the U. J. H. real estate itself. SPRINGFIELD, ILLS., May 21, 1875. EDITORS CENTRAL LAW JOURNAL:-Gentlemen: In CENTRAL LAW JOURNAL, Vol. 2, No. 20, page 323, under head of "Notes and Queries," "B." desires to know the effect of a deed executed by one of the heirs of a testator purporting to convey the heir's interest in certain realty devised by the testator, who directed, in his will, his executors to sell the realty and distribute the proceeds of the sale equally among his heirs. In Baker v. Copenbarger et al., 15 Ill. 103, it is decided in a case very similar, that a devise of real estate, which by the provisions of the will is to be converted into money, and that money distributed among the devisees, must be treated as a devise of money and not of lands, and that the character of the devise can not be changed from money to land without the consent of all the devisees. And in such case one devisee can not sell and convey a valid title to any part of the land, nor could the interest of one of the devisees be sold on execution. This is the only authority I have found on the subject. Respectfully. J. W. P. HUMBOLT, KANSAS, May 11th, 1875. EDITORS CENTRAL LAW JOURNAL:-Gentlemen: We take your CENTRAL LAW JOURNAL, also many other lawyers of our district, and considerable interest generally will be found in the following query: "A." was a citizen of Kansas, and “B.," a railroad company, is also a citizen of Kansas operating its road through Missouri, Kansas, Texas, and the Indian Territory. B. employs A. as a brakeman, at Denison, Texas, and by the negligence of B., its employes, agents, and the mismanagement of its engineers, etc., A. is killed at a point on the line of the road in the Indian Territory. The widow and personal representatives of "A." bring suit for damages for the wrongful killing of her husband, in a Kansas court. Are the rights of the parties governed by the law of the Indian Territory, where A. was killed, or the law f Texas, where the company hired him as a brakeman, or the law of Kansas, where the suit is brought? H. D. S. ANSWER.-The courts will presume that the common law is in force in an other state, and that no action can be maintained for a homicide occurring in tor, appointed in this state, can not maintain an action in the courts of this Recent Reports. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF OHIO. (OHIO STATE) Vol. 24. By E. L. DEWITT, Attorney at law. Cincinnati: Robert Clark & Co. 1875. We are much indebted to the publishers for this very valuable volume sent to us for review. Many of the cases contained in it have been already noticed in the "Summary of our Legal Exchanges," from the advance-sheets, kindly forwarded to us by the publishers, some time since, and will be found in the following pages of the present volume: 34, 68, 82, 259 and 260. The volume is all that could be wished in style and finish, containing over seven hundred pages, and about one hundred and seventy cases, and presents one of the few instances where lawyers are fortunate in receiving the full worth of the money they so liberally invest in books; the price of these reports in the present edition and series, being only $2.50 per volume. The enterprise of the publishers in supplying the profession with so excellent a set of reports at such a price, is receiving, as it deserves, the strongest recognition and encouragement, and it is a pity that the plan of publication should not be introduced and adopted by all the states. The work of the reporter is fairly done, but we can not forbear noticing that fifteen of the cases are entirely without syllabus, and although they are short, and generally upon questions of inferior importance, yet the insertion of a syllabus, indicating briefly the points decided, could not fail to save the careful searcher after authorities, much valuable time necessarily spent in reading them. The table of cases is defective in giving only the name of the plaintiff alphabetically. It should include the alphabetical arrangement of the names of both parties. Another improvement must be suggested, viz., the employment of black-letter head lines, or catch words, at the beginnig of each paragraph of the syllabus, indicating its contents. Enclosure of Railroads-Cattle Running at Large.-Marietta & Cincinnati R. R. v. Stephenson, p. 48. Where a railroad running through a large field was protected at its entrance thereto by cattle guards, but had no fence along its line through the field, such railroad was held not to be fenced in accordance with the statute.-Where cattle, running at large, had broken into such field and been injured by a passing train, the owner of such cattle was not guilty of contributory negligence. Criminal Law-Discharge of Jury before Verdict.-Hines v. The State, p. 134. The discharge of the jury without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative; and the record should show the existence of such necessity; otherwise the defendant will be entitled to discharge. See Bell and Murray v. The State, Ala. Sup. Ct., I CENT. L. J. 630. Priority of Judgment against Mortgage-Commencement of Term.-Hemminway v. Davis, p. 150. The time of the commencement of a term of court is to be determined by the record of the court, in connection with the statute under which the the term is held, parol evidence not being admissible. Where a mortgage was filed for record on the first day of the term, and the record fails to show the hour at which the court met, the session of the court will be presumed to have commenced at 10 o'clock of that day, as required by the statute. Partnerships-Payment of Private Debt by Liquidating Partner.-Corwin v. Suydam, p. 209. An appropriation of partnership assets by one partner, without the assent of his co-partners, in satisfaction or security of his private debt, in the absence of proof to the contrary, is presumed to be fraudulent and collusive, as against the other members of the firm, and may by them be set aside. This presumption, however, is not conclusive, but may be rebutted. Where the sole acting member of a dissolved partnership, with full power to dispose of its property and pay its debts, himself became a creditor of the firm, by advancing his private funds in payment of its debts, and then in good faith and with no intention to defraud the company, disposed of the property of the firm to an amount less than the sum so due to him, in satisfaction of a debt due from him to a third person, who received the same in like good faith, and in the belief that such sale was authorized by the firm: Held, that this disposition of the property can not be avoided by another member of the firm, it appearing that all the outside debts of the firm are paid or secured, and that there is nothing due to such other member from the firm, unless he includes in his account against it a part of the same claim of A. upon the firm, transferred by A, to him in satisfaction of a debt due to him from A. Cited for plaintiff in error: An act done by one partner in the name of his firm, if unauthorized, may be either ratified or rejected by his co-partners, but they can not both ratify and reject the same act. They can not take the advantages and reject the disadvantages. Highway v. Pendleton, 15 Ohio, 757; Benedict et al. v. Smith et al., 10 Paige, 127; 1 Comst. App. (N. Y.) 434; 12 Mees. & Wels. 553; 3 Story, 689; 2 Vt. 252; 6 Clark & Finnelly, 232. A partner, certainly the acting partner, has power to transact the whole business of the firm, whatever that may be. Winship et al. v. Bank of United. States, 5 Pet. 429; Gano & Thoms v. Samuel, 14 Ohio St. 582; Story Part., sec. 307 and note I; Parsons Part., 159, 160, and note c, 440-442, 471-476; Coll er Part., secs. 110, 545; Horton's Appeal, 13 Penn. St. 67; Ayer v. Ayer, 41 Vt. 350; Talcott v. Dudley 4 Scam. 435, Eden v. Williams, 36 Ill. 252; Kingman v. Spurr, et al, 7 Pick. 235; Marquand v. N. Y. Manuf. Co., 17 Johns. 525 Rodiquez v. Heffernan et al., 5 Johns. Ch. 417; Nicoll v. Murford, 4 Johns. Ch. 522; Cochran v. Perry, 8 W. & S. 266; Lockwood v. Mitchell et al. (as to rights of surviving partner), 7 Ohio St. 410; Ex parte Nor cross, 5 Law Rep. (Boston) 124. Cited for defendant in error: Roxborough v. Messick et al., 6 Ohio St. 448. Unincorporated Religious Society-Legitimate Succession. — Harrison v. Hoyle, p. 254 Civil courts, in determining the question of legitimate succession of an unincorporated religious society, where a separation has taken place, will adopt its rules and enforce its polity in the spirit and to the effect for which it was designed. Where public policy or the positive law of the land, is not contravened, the decisions and orders of such society, when made in conformity to its polity, should have the same effect, in civil courts, which the society intended should be awarded to them when pronounced by its own judicatories. If such society be composed of several bodies or branches, whether co-ordinate or subordinated, the rules of the society, for the management of its internal affairs, and for the adjustment of the relations between its branches, constitutes the rule by which they should be governed. This action was prosecuted to recover the possession of certain lands in Jefferson county, Ohio, belonging to the Ohio Yearly Meeting of the Society of Friends, the legal title thereto having been conveyed by the vendor thereof, to the trustees of said Ohio Yearly Meeting, to-wit, John Street, Jacob Holoway, Benjamin Hoyle and Henry Crew, the survivor of them and the heirs at law of said survivor, forever, in trust and for the use of said Ohio Yearly Meeting of the Society of Friends, subject to any disposition which said yearly meeting might at any time make. At a subsequent meeting, the society appointed new trustees to re-convey the property to them, and directed the above-named trustees to re-convey the property to them. Hoyle refused to convey the same as directed, and undertook to convey to others whom he designated as trustees. This action resulted in a separation or division of the society into two distinct bodies, which are represented by several parties to this action. The contest, like all church quarrels, was bitter and protracted. The evidence was enormous in volume, and the space required in its report nearly eighty pages. Insurance-Certificate of Intermediate Insurance-Authority of Agent-Notice of Additional Insurance.-Dayton Ins. Co. v. Kelly, p. 345. Where an agent of a company entrusted with certificates for interme. diary insurance, duly signed by the secretary of the company, with authority to deliver the same to applicants, erases therefrom without authority a material stipulation, the company will be bound to the same extent as if the era sure had been authorized, if the insured had no notice of the agent's want of authority. A condition in the usual printed policy of the company, that the insured shall give notice of all additional insurance, prior and subsequent, must be mentioned in, or endorsed on the certificate of intermediate or present insurance, containing a stipulation that it is granted, subject to the conditions of the policy.-Such condition is waived by accepting the risk on application, when the question as to prior insurance had been erased by the agent, and not answered. Tax Titles-Millitary Warrant-Patent.-Matthews v. Rector, p. 439. In an action to recover the possession of land, by a person holding a patent from the United States, based on an equitable right acquired by the entry of the land on a military warrant, such person can not recover where it appears that the defendant is in possession under a tax title, and that his right to the land after tl.e tax sale, and before the issuing of the patent, was fixed by the decree of a court of competent jurisdiction, against the person making the entry, under whom, as heir, the plaintiff obtained the patent. In such case the naked legal title remains in the United States, in trust for the person holding such equitable right to the land, and when the patent issues, it inures in equity, to the benefit of the holder of such equitable right. Cited for plaintiff in error: Railway Co. v. Prescott, 16 Wall. 603, 607; Reed v. McGrew, 5 Ohio, 385; Hollingworth v. Barbour, 4 Pet. 466; Tiernan v. Beam, 2 Ohio, 283. Cited for defendant in error: Buchanan v. Roy's Lessees, 2 Ohio St. 251; Gwynne v. Niswanger, 20 Ohio, 556; Lessee of Fowler v. Whiteman, 2 Ohio, St. 270, 286, and cases there cited; Bigelow v. Bigelow, 4 Ohio, i38; 6 Wheat. 109; 1 How. 134; 12 Pet. 492. See LeBeau v. Armitage, 2 CENT. L. J. 321. Brightly's Dig. 10, and note a, 265, sec, 9, note k; 1 Ohio, 259; 13 Pet. 312, Cited by the court: Cases supra; Brown v. L. & D. R. R. Co., 2 Beasley Eq. 191; Dobson v. Pearce, Kernan, 156, U. S. Bank v. Bank of Baltimore, 7 Gil. 415. Motion overruled. Homestead-Excess after Satisfying Mortgage-Lien-Voluntary Dispersion of Family.-Cooper v. Cooper, p. 488. The homestead of a debtor, being subject to mortgages and judgment-liens, was sold, at the suit of the lienholders, for $472 more than sufficient to satisfy the mortgages, which sum the debtor, being then the head of a family, moved the court having custody of the fund to decree to him in lieu of a homestead as against the judgment lienholders; but before the fund was disposed of by the court, he voluntarily permitted his family to separate and abandoned the maintenance of a family homestead. Held: That the right of a debtor to the fund must be determined upon the state of facts existing at the time the fund was finally disposed of by the court; and that the debtor had then ceased to be the head of a family within the meaning of the homestead exemption act, and was not entitled to any of the exemptions therein provided. Contribution Between Co-sureties-Measure of Contribution Liability.-Wilson v. Stewart, p. 504. Plaintiff and defendant were cosureties for M. on a note payable to K. Plaintiff and others were also cosureties for M., on divers other notes. M. conveyed certain lands to plaintiff by deed of mortgage, the condition being that the deed should become void if the grantor should "pay, or cause to be paid, all said several notes according to the tenor and effect thereof," and should save the plaintiff from the payment of money on account of the same. M. being insolvent, failed to pay the notes or to cause them to be paid according to the condition of Jurisdiction-Decree in Chancery.-Burnley v. Stevenson, p. 474. A the deed. The mortgage property was insufficient to pay all the notes mencourt of equity in one state, having acquired jurisdiction over the persons of tioned in the mortgage. For the purpose of paying the note of K. in full, the parties, may enforce a trust, or the specific performance of a contract, in the plaintiff afterward released the mortgage as to a part of the lands, and relation to land situate in another state. Although the decree in such case, procured M. to convey the same in fee to K. The note of K, was thus fully or the deed of a master executed in pursuance thereof, can not operate to satisfied, and the defendant discharged from liability thereon. The balance transfer the title to such lands, yet the decree is binding upon the consciences of the mortgaged property was subsequently subjected to the payment, pro of the parties, and concludes them in respect to all matters and things prop-rata, of the other notes mentioned in the mortgage, leaving, however, a large erly adjudicated and determined by the court. When the decree in such case finds and determines the equities of the parties, in respect to such land, and directs a conveyance by the parties in accordance with their equities, such decree, although no conveyance has been executed, may be pleaded as a cause of action, or as a ground of defence, in the courts of the state where the land is situated; and it is entitled, in the court where so pleaded, to the force and effect of record evidence of the equities therein determined, unless it be impeached for fraud. Argued for the motion for a petition in error: The issue is reduced to the single question: Can the decree of a court of general jurisdiction, if you please, of a sister state and the deed of a commissioner of said court, made in pursuance of such decree, divest the title of the defendants in such decree, to land in the state of Ohio? The title to land in Ohio can only be divested under and in pursuance of the laws of Ohio. Lessee of Shepherd v. The Commissioners of Ross County, 7 Ohio, (pt. 1), 272; Watts v. Waddle, 6 Pet. 400; United States v. Crawsby, 7 Cranch, 115; Watkins v. Holman, 16 Pet. 25. deficit, for which the plaintiff and his co-sureties therein remain liable. These co-sureties, afterward compelled the plaintiff to account and pay to them the value of so much of the lands which had been conveyed to K., as was in excess of the proportion of the property properly applicable to the payment of K.'s note. Thereupon the plaintiff brought his original action, in the court below, to compel the defendant to contribute a moiety of the amount which he had been thus compelled to pay to his other co-sureties Held; That upon the above state of facts, the plaintiff is entitled to an account and contribution from the defendant. The amount of such contribution should be a moiety of the value of so much of the lands conveyed to K., as was in excess of the amount which would have been applicable to the payment of K.'s note, upon a pro rata distribution of the whole property, among the several notes mentioned in the mortgage. The plaintiff's right to contribution, upon the above state of facts, would not be defeated by the mere additional circumstances, that at the time K, accepted the conveyance in payment of his claim, and as a part of the same transaction, M. procured from K, a contract in relation to the lands conveyed, beneficial to himself alone. The question is not whether the court had jurisdiction, but whether the If, however, the plaintiff released the mortgage, for the sole benefit of the court had the power to change the title. Equity may aid a deed, rendered inoperative by accident or mistake, when the grantor had power to convey, but it can not supply the want of power. Nowler v. Coit, 1 Ohio, 522; Wells v. Cooper, 2 Ohio, 124, Tiernan v. Beam, 2 Ohio, 393; Henry v. Doctor, 9 Ohio, 49; Salmon v. Rice, 13 Ohio. 368; Watkins v. Holman, 2 Pet. 25. Argued contra: To entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the state or county, where the suit is brought. 2 Story's Eq. Jur. secs. 743, 744, 899, 900; Sutpha v. Fowler, 9 Paige Ch. 280; Massie v. Watts, 6 Cranch, 148, and cases there cited and commented on. The Fayette Circuit Court of Kentucky, being a court of competent and general jurisdiction, and having the persons of all the then owners of the land, the defendants, before it, the decree rendered by said court is binding, and can not be impeached in this or any collateral action. Elliott v. Piersol, I Pet. 340: Thompson v. Tolmie, 2 Pet. 157; Voorhies v. Bank U. S., 10 Pet. 449; Sheldon v. Newton, 3 Ohio, 494; Boswell v. Sharpe, 15 Ohio, 447; Buchanan v. Roy, 2 Ohio St. 250; Herman on Estoppel, 211; Story's Conflict of Laws, sec. 598, 2 Smith's Leading Cases (top paging), 667, 686; Anderson v. Anderson, 8 Ohio, 108. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings, of every other state. Art. 4, sec. 1, Constitution; I mortgagor, or for the purpose of obtaining his own discharge from liability on K.'s note, without exercising good faith toward his co-surety therein, he ought not to have contribution from him, though his conduct, incidentally, but unintentionally, resulted also in discharging the co-surety from liability on the note. Will-Bequest to Charitable Purpose when Upheld.-Miller v. Teachout, p. 525. A testator provided in his will that the residue of his estate, which consisted of personal property, after paying legacies, should be retained by his executor and invested by him during the life of his wife for her use, and that at her death it should be appropriated by the executor to the advancement of the Christian religion, and be applied in such manner as, in his judgment, would best promote the object named. The executor accepted the trust; and during his life and that of the widow, the heir brought suit to annul the will for uncertainty as to the object of the trust. Held, that the testator had conferred ample power upon the executor to relieve the bequest of all objections arising from its indefinite character, and that so long as no obstacle exists to the exercise of the power at the proper time, the courts of this state will not, in advanee of that time, interpose, on the application of the heir, to prevent its exercise. Argued for plaintiff: that the bequest and the trust sought to be created by the third item of this will, is inoperative and void: I. Because it is too general, vague and indefinite to be applied to any certain charitable use. II. Because there is no cestui qui trust or beneficiary in esse, or who can hereafter be ascertained or made certain, named in the will creating the trust. III. Because it is impossible ever to establish a breach of the trust by the defendant, on account of its uncertainty—the trustee having the sole and exclusive right to expend the fund in such manner as, in his judgment, will best promote the object named. IV. Because, in case of the failure or refusal of the trustee to execute the trust, the beneficiary (if any there be) is so uncertain and indefinite, and the object of the testator's charity so vague and intangible, that no court of equity could define, carry out, or enforce the trust by judicial decree. Citing, Owens v. Missionary Society of the Methodist Episcopal Church, 13 N. Y. 380; Grimes' Ex'rs v. Harmon, 9 Amer. 960; 35 Ind. 198; Phelps' Ex'r v. Pond, 23 N. Y. 69; Philadelphia Baptist Association v. Hart's Ex'rs, 4 Wheat. 1; Beekman, Adm'r, v. Bonsor, The People, et al., 23 N. Y. 298; Fountain v. Ravenel, 17 How. 369; Norris v. Thompson, 4 C. E. Green (N. J.). 308; Perry on Trusts, 658 et seq.; Brown v. Yeall, 7 Ves, 50, n. 76; 9 Ves. 4c6; Holland v. Peck, 2 Ired. Ch. 255; Green v. Allen, 5 Hump. 170; Bridges v. Pleasants, 4 Ired. Ch. 26; White v. Fisk, 22 Conn. 31; Ellis v. Seley, 1 Sim. (Eng.) 352; Vesey v. Jamson, 1 Sim. & Stu. 69; Morice v. Bishop of Durham, 9 Ves. 399; James v. Allen, 3 Mer. 17; Attorney-General v. Haberdashers' Co., I Myl. & K. 428; Williams v. Kershaw, 5 Law Jour. (N. S) Ch. 84; Ommanney v. Butcher, I Turn. & Russ. 260; Downing v. Marshall, 23 N. Y. 366; Levy v. Levy, 33 N. Y. 97; Bascomb v. Albertson, 34 N. Y. 584; Wildeman v. Baltimore, 8 Md. 550; Methodist Church v. Warren, 28 Md. 338; Dashiel v. Attorney-General, 1 Bland, 529; Beaty v. Kuntz, 2 Pet. 566; Gallego's Ex'r v. Attorney-General, 3 Leigh, 450. Wooden, 1 Ohio St. 160, and authorities there cited. In addition to persons capable of taking legal estates, the equitable interest in both real and personal estate may be held for the benefit of many objects as cestui qui trusts, whose separate existence, as the recipient of property, are not recognized by the common law. Hill on Trustees, 35. Such are all public charities. Such is the Christian religion. McIntire Poor School v. Zanesville Canal and Manufacturing Co., 9 Ohio, 287. It is immaterial how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to those objects. Whitman v. Lex, 17 Serg. & Rawle, 88; Vidal v. Girard Ex'r, 2 How. 127. from an approaching train; and the omission to do so, without a reasonable Book Notices. A DIGEST OF THE REPORTED DECISIONS OF THE COURTS OF OHIO. In his preface Mr. McVey says: "The design of the author of this work Argued for defendant: It is considered a settled rule that gifts inter vivos, case digested, except when the work of the court, nor the statement of the or by will, to charitable use, are to receive a most liberal construction.-points decided, as presented in the reporters' notes, have been relied upon, as Zanesville Canal and Mfg. Co. v. Zanesville, 20 Ohio, 483; Umbrey v. they have been found in many instances incorrect, and in others to convey an imperfect idea of the ground covered by the decision; the language of the court has, however, been preserved so far as consistent with the brevity required. The arrangement and analysis of the work have been made as complete as possible, without presenting the same point under different chapters and headings. To supplement any inconvenience thus occasioned, and to render the facility of reference as complete as may be, an analytical Index to the points decided and applications, has been carefully prepared, and will be found at the close of the second volume. A table of overruled cases will be found at the beginning of the first volume, the point overruled being given, which, in many instances, is only a part of the decision rendered. A short account of the several courts of the state, and of the different series of reports and magazines, more especially for the imformation of members of the profession resident outside of the state, has been prefixed to volume first. The date of every decision has been given, thus putting the practitioner upon notice as to whether any subsequent modification of the law may have taken place. * The digest of the decisions of the inferior courts has been placed in smaller type, thus being readily distinguished from those of the court of last resort. The digest of the statutes will be found in foot notes, with the date of the enactment prefixed, and the volume and page where found, appended. A table of cases cited, followed, criticised, limited, doubted and approved; and a list of statutes construed; and also a table of cases which have in any way illustrated or expounded the constitution of 1851 will be found in the second volume. These tables, which have been prepared with great labor, will, it is believed, be found full and complete. The author desires to acknowledge his obligations for courtesies shown by many members of the Ohio bar, and Benjamin Vaughan Abbott, Esq., of New York, whose complete system of digesting has greatly benefitted the profession." From time immemorial, courts of chancery have compelled the executor or trustee to perform the trust, at the suit of the cestui qui trust, if there is one capable of bringing suit; if not, then at the suit of the attorney-general, in England. In Ohio, formerly, probably by the prosecuting attorney of the proper county (9 Ohio, 290), and now certainly by the attorney-general. Swan's Rev. Stat., 1854, sec. 14, pp. 51, 52. For the decisions of the English courts as to the validity of gifts, this court is referred to 2 Story's Eq. Jur., sec. 1164, n. 7; Hull v. Burns, 2 Dow. & L. 102; Powerscourt v. Powerscourt, 1 Molloy, 616; 7 Ves. Jr. 39; 1 Keen, 224; Hill on Trustees, 80, 333; Townsend v. Carns, 13 Law Jour. (N. S.) Ch. 169. The attention of the court is especially called to Bryant v. McCandless, 7 Ohio (pt. 2), 135; McIntire Poor School v. Zanesville Mfg Co., 9 Ohio, 287; Umbrey v. Wooden, 1 Ohio St. 160; Wills v. Cowper and Parker, 2 Ohio, 131; Whitman v. Lex, 17 S. & R. 88; Inglis v. Trustees of the Sailors' Snug Harbor, 3 Pet. 99; Williams v. Williams, 4 Seld, 525. Judgment for defendant. Partnership-Use of Name of Retiring Partner.-Speer v. Bishop, p. 598. A copartnership consisting of a father and son, carried on business under the firm name of H. S. & Co. H. S., the father, who was a man of means, and gave the firm its credit, sold his interest in the firm to his partner and another son, who, by agreement with the father, continued the business as theretofore in the firm name of H. S. & Co. In an action by a creditor who had trusted the new firm on the faith that the father was a member: Held, that the father, by allowing his name to be so used, held himself out as a member of the new firm, and was thereby estopped from denying the fact, although publication had been made of the dissolution of the old and the formation of the new firm, of which the creditor had, in fact, no notice. * * The preface does not overstate the kind or quality of the work done for the profession in the preparation of these volumes. In fact, we have in addition, in the first volume, the rules of court of general application throughout the state, and in the second volume, a table of the cases digested, with references to the original reports and the pages of the digest. The work is a complete index to the case and statute law of Ohio, as it exists to-day, and must be of very great convenience to the courts and bar of that state. A feature not commonly found in state digests is that of citations from English reports, and the reports of the other states, and of the United States, corroborating or bearing upon the point decided. Such citations, if carefully selected from leading cases are of great value, and give to the work an importance it would not otherwise have in the libraries of the profession outside of the state of Ohio. It would seem, however, that the convenience of these volumes would have been enhanced by more careful condensation. With a complete and accurate table of cases, the tables of overruled and cited cases could have been dispensed with as separate parts of the work. These should have been incor porated in the body of the work, so that the reader could have seen, at a glance, when looking at the digest of a case, whether it had been overruled or not, and when, and where cited. The greater part of the labor was accomplished when the table had been prepared. A little more labor would have saved labor and trouble to the profession, and space in the volume. Take, for instance, in the table of overruled cases, that of Card v. Patterson, 5 O. S. 319, said to have been overruled by Wend v. McIntosh, 12 O. S. 231. On page 10 of Vol. 1, where this case is digested (232), no statement is made that the case has been overruled, nor is 12 O. S. cited; while in 28 on same page the case is digested in another form, and 12 O. S. 231 is cited as though confirming the decision. There is a misprint in the table of cases as to this same case of Card v. Patterson. Vol. 2, p. 484. Instead of "ii, 19, 191, 337," read i, 10, 191, ii, 337. The case of Bigelow v. Bigelow, 4 O. 147, is omitted altogether from the table of cases. On page 125 of Vol. 1 is found, under the title "Contracts," the following: "86. IN RESTRAINT OT TRADE-WHEN ENFORCEABLE.-Before a con tract in restraint of trade can be enforced, it must appear from the pleadings and proofs, first, that the restraint is only partial; second, that it is founded upon a valuable consideration; and, third, that a contract is reasonable and not oppressive. 1853, Lange v. Werk, 2 O. S. 519; 1 P. Wms. 181; Willes 328; 3 Bing. N. C. 113, 3 Bro. P. C. 349; 8 East. 83; 3 Bing. 328; 5 T. R. 118; 7 Bing. 743; 5 M. & W. 548; 13 Id. 695." On the next page is the following: "88 IN RESTRAINT OF TRADE. All contracts in general restraint of trade are opposed to public policy and void; and contracts in partial restraint are illegal, except when founded upon a valuable consideration and reason able. 1853, Lange v. Werk, 2 O. S. 519; 11 O. S. 349; Niles 328; 3 BingN. C. 113: 3 Bro. P. C. 349; 8 East. 83; 3 Bing. 328; 1 C. & J. 331; 5 T. R 118; 7 Bing. 743; 5 M. & W. 548, 62 Eng. C. L. 721." It is submitted, in behalf of over-worked lawyers, and they are the men who are obliged to make the largest use of digests, that one or the other of the above paragraphs should have been omitted. More accurate proof-reading would not have allowed the citation Willes, 328," in one paragraph, and "Niles, 328," in the next but one. The mechanical execution of these volumes, save in the matter of proofreading, is very creditable In regard to typographical errors the writer has detected many more than are noticed above. It is much to be regretted that a little more time had not been given to a thorough revision of the whole work in this respect. The arrangement of titles is on the general plan adopted by Abbott in the United States Digest, and it is to be hoped that other compilers of state digests may follow the same plan, that we may have some uniformity of classification. E. T. A. THE LAW OF TRES PASS IN THE Two FOLD ASPECT OF THE WRONG AND THE REMEDY. BY THOS. W. WATERMAN, ESQ. New York: Baker, Voorhis & Co. 1875. Vol. I. The first volume of Mr. Waterman's new work well satisfies the expectations its announcement created. The work will be completed with another volume, now in press, which is devoted solely to trespass on real property. The present volume, complete in itself, relates to trespass to the person and to personal property. It is our purpose, when the entire work is before the profession, to give it such a notice as its merits require; but in the meantime we desire to say that it is manifest, from the volume before us, that the author, who is well-known to the profession by his previous writings, has brought to this work all his industry, skill and experience. His subject is one eminently practical, and it is treated in a practical and extremely satisfactory manner, This work can not fail to advance the already enviable reputation of its learned author. J. F. D. Legal News and Notes. -THE Saint Louis Globe and the Saint Louis Democrat have consolidated, and the united journal instead of showing an improvement, or even maintaining the standard of the Globe, has sunk to the level of the Democrat. -NEW HAMPSHIRE is so far behind the age, that it has a provision in its constitution prohititing Catholics from holding office; and Rhode Island has a like discrimination against persons of foreign birth. A SEWING MACHINE DECISION.-A case came before one of the courts in New York city recently, involving the right of sewing machine companies to reclaim machines for non-payment of installments of the purchase-money without refunding the amount already paid. It seems that the Howe Sewing Machine Company, like many other companies, in selling their machines, make it a condition that whenever payment is to be made by installments, the machines are to be considered as leased, and the purchasers are to forfeit all the money paid, upon a failure to pay any installment when due. The plaintiff in the case was a widow who brought suit to recover $65 that she had paid on account of a sewing machine which was valued at $70, but which was taken from her because the last installment of $5 was not paid when due. When the machine was taken from her she offered to pay the $5 which was overdue, but this was refused. The plaintiff also denied that the signature to the contract of sale, including the forfeiture, was hers. The judge, in deciding the case, said that sales of this character, with the right to take the machines back by force, when nearly the full value has been paid, without refunding what has been paid or any part thereof, are contrary to public policy, and unjust and oppressive to a deserving class of people. Judgment was, therefore, given for the plaintiff, and the $65 was paid over.-[The Legal Chronicle. -JESTING.-Nothing would tend so much to sharpen our wits and improve the general tone of conversation as a knowledge that the perpetrators of poor or ill-timed jests were liable to be mulcted in heavy damages by a court of law. A step in this direction was taken lately at Nairn, in Scotland, where a fish-curer named Rose sued an auctioneer named Gordon, in the small debt court, for £12 damages, for using insulting and contumacious language towards him at a public sale. It appeared that the auctioneer was selling, among other things, some wires for filing letters, and when some of them were purchased by the fisherman, remarked that they would "do fine for hanging cod." This observation cut Rose to the very quick, inasmuch as it called public attention to his profession in such a manner as to make him "a laughing-stock to the crowd." On the other hand, Gordon, while admitting that he had made a remark to the effect stated, urged that it was simply harmless joke, at which he never dreamt Mr. Rose would be offended." Judgment was given in favor of the defendant, the sheriff thinking the joke was "a poor one," but not such as to justify the award of damages. Gordon has had a narrow escape, for, if the poverty of the jest had been actionable, the decision would evidently have gone against him; he was only saved by its harmlessness. All's well that ends well; but the fact that one joker has only escaped narrowly is sufficient to create a widespread feeling of uneasiness in jocular circles.-[The Irish Law Times. " -THE Council of the Association for the Reform and Codification of Law of Nations, have issued a circular in which they state, that with refer to private international law, "it was, at the last conference, determinea →→ direct attention primarily to the following subjects: 1. Bills of Exchange; 2. Foreign Judgments; 3. Copyright; 4. Patent Law; 5. Trade marks. The consideration of the existing state of the law in different countries on these questions, and the best plan for adopting some systematic mode of obviating the conflicts existing with regard thereto, was then entrusted to a special committee nominated for that purpose. This committee has, after mature consideration, felt the necessity of devoting attention to these subjects one by one. In the belief that no question affects so large a section of the commercial community as that of bills of exchange, and that public opinion is already ripe seriously to consider the importance of the assimilation of the laws and practice relating thereto, this committee has determined that its first efforts should be directed to the best mode of bringing about a uniform system of law and custom in regard thereto." The committee have issued a series of questions which they have forwarded to chambers of commerce, bankers, jurists, and others in various countries, seeking their opinion, alike as to the difficulties now found to exist with reference to the subject, and the best method of providing a remedy. If the questions are at all generally answered, the result will be curious and instructive.-[Solicitor's Journal. -COMPROMISING A FELONY.-A capital story is told of a German convict in Lichtenstein. There being no prison in this little principality, the convict, who had stolen some silver spoons, was lodged in a room of the palace, the sentence being a year's imprisonment. The thief was kept in considerable comfort, and upon good, substantial diet, so that he rather enjoyed his quarters. But the princess, having got over the novelty of staring at the thief through the keyhole, decided that it was not pleasant to live under the same roof with a man of dishonest principles. Accordingly, negotiations were entered into with the thief to discharge him if he would only amend. But the thief not only declined to give any such promise, but energetically claimed his This was most right to be fed and housed for the full term of his sentence. embarrassing. His Highness's financial counsellor reduced the question to one of money, and offered the thief a certain sum, on condition that he would embark for America. The thief met this proposal in an accommodating spirit, but pointed out, reasonably enough, that the negotiators were bound to take account of the perils of the voyage, and also to indemnify him for his willingness to spend the remainder of his life in exile. Eventually the matter was settled by the thief receiving nearly double the sum originally offered, and being escorted to the station by one of the princess's footmen. Of course he never went to America, but settled in England, "where," says the cynical relator of this anecdote, "he has been either hanged or knighted."-[The Law Times. a |