taken information they received from the auditor, would not constitute a defence even as between natural persons, so long as such officer acted in good faith, and without intention to deceive-that the doctrine of estoppel in pais is based upon a fraudulent purpose, and a fraudulent result, and if the element of fraud is wanting, there is no estoppel, There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth; citing 2 Story's Eq. Jur. sec. 1543. 2. The doctrine on this subject we understand to be, that, when a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things. Text writers denominate this estoppel by conduct, in order to which all of the following elements must be present: I. There must have been a representation concerning material facts. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention it should be acted upon. 5. It must have been acted upon. In this connection, it is said, the representation here spoken of is one external to, and not necessarily implied in, the transaction itself, and fraud, or something tantamount thereto, is now the distinctive character of this kind of estoppel. Bigelow on Estoppel, introduction, p. 60. Some of these necessary elements appear in this transaction, but the essential one, fraud, is wanting. There is no pretence the auditor designedly misrepresented the state of the sheriff's account, and the extent of his liability. That officer is presumed to employ competent clerks and assistants, on whose fidelity and accuracy he must, in most cases, implicitly rely, and must base his official statements on such communications or reports as they make to him. If they err, as they may sometimes, the error goes into his statements, and without any just impeachment of his fidelity, may be the cause of loss and injury to another. As between individuals, it is no doubt true, if one, by words or conduct, wilfully causes another to be believe the existence of a certain state of things, and induces him to act upon it so as to change his previous condition, he will be estopped to deny the truth of the representation. As between the government and an individual, we have found no case holding the former would be estopped by any statement of its officials from recovering its own. It is a familiar doctrine, that the state is not embraced within the statute of limitations, unless specially named, and, by analogy, would not fall within the doctrine of estoppel. Its rights, revenues and property would be at fearful hazard, should this doctrine be applicable to a state. A great and overshadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus trheatening the very existence of the govern ment. The doctrine is will settled that no laches can be imputed to the government, and by the same reasoning which excuses it from laches, and on the same grounds, it should not be affected by the negligence or even wilfulness of any one of its officials. The state not being estopped by the mistaken statement of the auditor, judgment must be entered for the plaintiffs for the amount admitted to be due, without interest, namely: twelve hundred dollars and fifteen cents, for which execution will issue. JUDGMENT FOR the Plaintiff. -PAPERS have been filed by Britton, Gray and Drummond, in the land office at Springfield, Illinois, laying claim to a portion of the land on which stands the City of Chicago. They have been forwarded to the general land office at Washington, but will not be reached for a month or two. Selections. JUDICIAL LEGISLATION AND its Effects.-The term judicial legislation is more applicable to decisions of courts of last resort than to other courts whose decisions may be reviewed by appeal or writ of error. Public opinion and self-respect are all that prevent courts of last resort from being as arbitrary as the most wicked and cruel tyrant that ever lived, and as unstable as the wind "which bloweth where it listeth." Seven tyrants are seven times as bad as one tyrant, because their acts are sanctioned by numbers, and this gives an appearance of right, and popular opinion may therefor say they "all concurred," without knowing the reason or motive which induced it. Our state constitution which establishes our courts and law-making power designates what our laws are, and what they shall be under it. Our law must be the common law of England subject to such changes as the legislature have made or may make, limited only by the state constitution and the laws and government of the United States (Art. I sec. 17). Judicial legislation, besides being without authority, is very harmful and unjust, but it must be very extended in order to be felt sufficiently to have public opinion expressed against it. The old court of errors of this state, which existed for seventy years was at last destroyed by public opinion in 1847. The principle reason that produced the constitutional convention of 1846, was to obtain a more harmonious and reliable system in the administration of justice. The court of errors was accused of a disregard of the stare decisis, and this was claimed to be the effect of allowing the court of last resort to be composed of many persons who were not lawyers, and that a court should be organized that will not be "unstable in its decisions," and that not fail in paying all respect to uniform rules and established precedents." Argus Debates, 372. will The conduct of the court of errors was also criticized by the supreme court in Butler v. Van Wyck, 1 Hill, 438. In regard to judicial legislation the court in 1 Hill, 459, said: "Statutes are usually made to operate prospectively, and do not disturb rights already acquired. But when the law is changed by judicial decision, especially on a question of such widely extended influence as that relating to conveyance of personal property among a commercial people, it is impossible to foresee all the evil consequences which may follow. Such decisions act upon the past, as well as the future, and no man can feel secure in a community where that which is settled law to-day may be overthrown to-morrow, in a mode which has an ex post facto operation, and thus either legalizes acts which were originally void or makes those things vicious which were faultless when they happened. To say nothing of personal security, there can be no stable title to property where great and sudden changes in the law are brought about without the intervention of the law-making power." The Lord Chancellor of England says: "By the constitution of this United Kingdom, the House of Lords is the Court of Ap-peal in the last resort, and its decisions are authorative and conclusive declarations of the existing state of the law, and are binding upon itself, when sitting judicially, as much as upon all inferior tribunals. The doctrine on which the judgment of the house is founded must be universally taken for law, and can only be altered by act of Parliament." 6 Jurist, N. S. 834. * * * * * * The court said in 1 Hill, 462: "It may be remarked in relation to the House of Lords when sitting as a court of review, that it not only abides by its own judgments, but considers itself bound by the law as it has been settled by other courts, whatever may be its own notions of the matter as an original question. When there has been a uniform course of decisions' in England, on a statute or any other branch of the law, especially in cases where those decisions affect the title to property, the House of Lords, however erroneous those decisions may be deemed, does not feel itself competent to apply a remedy without the concurrence of the House of Commons." The judge then mentions a number of reported cases, showing that the court for the correction of errors did not abide by its own decisions, and then continues: "These examples are sufficient to show that our court of dernier resort does not regard its own decisions as conclusive by way of precedent; and if not so regarded by that court, it would be strange, indeed, if other courts were bound to follow them at all events, and without looking into the reasons on which they stand." There is a further reason why the decisions of the court for the correction of errors should not be implicitly followed. It is well known that some of the members of that court do not consider themselves tied down to what are sometimes called the strict and technical rules of law, but feel at liberty to decide according to their own sense of what is right in the particular case under consideration, without much regard to legal precedents. That this sentiment has not often found its way into reported cases may be accounted for by the fact that it is more commonly adopted by those members of the court, who are not in the habit of preparing written opinions, than by others, and besides, cases in which such opinions have been expressed to say nothing of those in which such opinions have been acted upon in silence-would be less likely to be reported than others, for the reason that lawyers-to which fraternity reporters usually belong -are in. the habit of adhering with much zeal to legal precedents. I Hill, 464. and its inadequacy to the present wants of the people. If the members of the bar throughout the United States will take the matter in hand, I feel quite confident that Congress will provide some plan by which the grievance can be remedied. I beg to suggest the following: 1. Abolish the several circuit courts, and clothe the district courts with the jurisdiction now confided to the circuit courts, in addition to their own, so that we shall have nothing but the district courts in the several states. 2. Organize in each judicial circuit a court of appeals, to be composed of one of the justices of the supreme court, and two or more additional judges. For instance, the present circuit judges, and one or more of the district judges. 3. Extend the right of appeal, or of persecuting writs of error to all cases civil and criminal. 4. Let an appeal or writ of error lie from the court of appeals in all cases where the principle of the sum in controversy amounts to $10,000, or whenever the constitutionality of an act of Congress, or or of some state law is involved, or in those cases, in which the court of appeals may think the public interest requires it. 5. In cases at law, give to litigants the right to make motions for a new trial, and to except to the judgments of the district court in granting or refusing the same, to the end that such judgments may be reviewed. In other words, adopt the Mississippi statue upon The court of errors defended or excused itself against the above this subject. It is next to impossible now to present any case at in the case of Hanford v. Artcher (4 Hill, 271). law fairly before the supreme court, inasmuch as the finding of the The chief cause of litigation is to ascertain what the facts are, lower court is conclusive of the facts involved. Under our law when these are settled by a trial or otherwise. you get your whole case before the appellate court. 6. Let the jurisdiction of the Supreme Court of the United States remain in all other respects as it now is. The effect of the present system is to drive litigants from the United States courts; under that proposed, they would rather prefer them. The plan suggested would not necessitate the displacement of a single judge, and could be readily perfected. I hope the subject may excite the attention of lawyers generally. There is no reason why the administration of the law upon them should not be an exact science. There are definite rules for statutory construction, for statutes need not be drawn indefinite and uncertain; and as to all other law it is an old and true definition that law is the perfection of reason, and it is established by preçedents. In almost every question of pure law the premises are settled, and but few cases in the court of appeals can be reviewed on questions of fact, and if all the courts were always to reason with correctness, no decisions would be reversed, no judgments RESPONSIBILITY OF INSURANCE COMPANIES FOR THE FRAUDS OF overruled, and all would arrive with certainty at the same conclusion. It may be remarked in closing, that Blackstone has truly said that if ever the constitutional government of England was destroyed, it would be because the legislative department was more corrupted than the judiciary and the executive. We may say of our American constitutional governments, that they can never be destroyed unless the supreme judicial departments are corrupted or negligent of their duty, and this may be in concurrence with the legislative department, or may be independent of it. All persons who desire to preserve our existing systems of constitutional government must be in favor of each of the three departments—the legislative, the judicial, and the executive-being kept distinct and separate. It requires no historical examples to call to mind the importance and value of this principle of good government. [The Daily Register. Correspondence. DELAY OF BUSINESS IN THE SUPREME COURT OF THE UNITED STATES-ANOTHER SUGGESTION. JACKSON, MISS., Aug. 10, 1875. EDITORS CENTRAL LAW JOURNAL :-I am glad to see public attention called to the defects in the judiciary system of the United States. The dalay involved in appealing a case to the supreme court, with the cost and attendant difficulties, amounts to an absolute denial of justice in a large number of cases. Besides, the recent act of Congress limiting the right of appeal, can only be justified upon the ground that the supreme court would be unable to dispose of the business which would otherwise be brought before it. This reason demonstrates the inefficiency of the system, W. L. NUGENT. THEIR AGENTS-LEE V. GUARDIAN LIFE INSURANCE CO. LOUISVILLE, KY., August 12, 1875. MESSRS. EDITORS :-In the CENTRAL LAW JOURNAL of date, the 30th of July, 1875, pp. 495 to 498, I find reported the charge of Mr. Circuit Judge Sawyer, of the United States Circuit Court, for the District of California, to the jury sworn to try the case of Hannah Lee v. Guardian Life Insurance Company. Your editorial commendation of the "high judicial tone" of the charge made my surprise all the greater, when I read the language of the learned judge : "I instruct you, gentlemen, that a waiver or matter of estoppel, to be effectual, must be made by an officer or agent of the defendant authorized to make it. If there has been no evidence of any waiver or matter of estoppel of this kind, except by a local agent only, employed to solicit applications, there must be additional proof of specific authority given him, or the company will not be bound. Unless Mr. Wright had authority to thus represent to this party, and to prevent him from knowing the answers that were given, and to induce him to sign, in ignorance of the answers, even if he did it, it is not binding upon the company, and it is not estopped by that act." In short, this means, that in the opinion of Judge Sawyer, the insurance company must say expressly to its agent, "go and commit this, that, and the other fraudulent act, upon applicants," and the agent must precisely pursue instructions, or the company will not be in any wise affected by any wrongful acts. We should have had difficulty in finding a reason for so wide a departure` from the legal rules and principles applicable to agencies, where only individual members of society are concerned; but further on Judge Sawyer states his reason to be that, otherwise insurance companies "will be at the mercy of any of the multitude of per sons it necessarily employs, who choose to practice these frauds ing the doctrine for which we contend. See May on Insurance, upon it." Inasmuch as the companies themselves select and voluntarily (and not otherwise "necessarily" than as their private interest seems to require), employ these agents and pay them, the justice of saying that outsiders who deal with them shall guarantee their good conduct, rather than the company that sends them out, is not very obvious, unless it be to that class who think that the insurance companies, rather than the people, need protection—a class that must be small and confined exclusively to insurance circles, and to those who have little practical acquaintance with the manner of working insurance business. It is obviously just that no applicant guilty of a fraud shall be entitled to recover on a policy obtained by that means, but it is remarkable to announce that where the applicant is entirely truthful and innocent, and the company's agent is guilty of a fraud in which the applicant in no degree participates, the insured cannot recover unless he proves that the company expressly authorized the fraud; and yet that in effect is the general principle announced by Judge Sawyer. Space will not admit of a discussion of the principles involved (although the subject is exceedingly interesting and important), but it will suffice to say, that a vast majority of the courts of this country have adopted as equally applicable to insurance companies as to individuals, certain familiar rules which have been well settled in the law of agency, but which application Judge Sawyer in effect denies. Among these is the doctrine" that the act of the agent is the act of the principal," and, that the prima facie presumption may be justly indulged by the applicant, that the authority of the agent is co-extensive with that of the company, from which will follow the result that the applicant is not bound to enquire as to any limitations upon the authority of the agent, but may safely rely upon the presumption stated as to the extent of the agent's authority, and deal with him as though he were the company itself. The courts of Massachusetts and Rhode Island perhaps agree with Judge Sawyer, and possibly dicta in the later Connecticut cases may seem to favor him. pp. 119, 120, 121, 143, 144, 605, 607, 609, 622, 623; 2d Phillips on Insurance, section 1876, and cases cited; 2 American Leading Cases, 915, 916, 917, 918, 919, 922. These authorities sustain the view, that there is no peculiar sanctity about insurance companies, nor their modes of business, that entitles them to exemption from the operation of the ordinary and well established rules governing agencies. I may add that my only purpose has been to notice what is the general and effective vice in the charge of Judge Sawyer, and what seems to be the radically wrong tendency of the opinion expressed by him. Very respectfully, W. E. RAILWAY NEGLIGENCE-KILLING CATTLE-OMISSION TO RING BELL OR SOUND WHISTLE. EDITORS CENTRAL LAW JOURNAL:-In the case of Owens v. H. & St. Jo. R. R. Co., 58 Mo., on page 392, the court, per Vories Judge, say: "If it was found by the jury that the bell had not been rung, nor the whistle sounded as the law requires, that was sufficient of itself to create a liability on the part of defendant, unless some contributory negligence was shown on the part of the plaintiff." In the case of Stoneman v. A. & P. R. R. Co., 58 Mo., on pages 504 and 505, the court, per Napton, Judge, say: As a matter of law, the court correctly declared the failure to ring the bell, or sound the whistle at the point designated, was negligence; but whether that negligence occasioned the damage complained of, was a question of fact upon which the jury had a right to pass. The court had no right to declare as a matter of law, that the jury had nothing to find but the killing of the animal at a crossing of a public highway, and the failure of the company to have the bell rung or the whistle sounded. There may have been no connection whatever between the negligent omission and the damage, and the very terms of the statute indicate that the damage must be the result of the negligence." It strikes me that these opinions require reconsidering. Summary of Our Legal Exchanges. AMERICAN LAW REGISTER FOR JULY.** H. The Law Applicable to the Negotiation of Contracts by Teleraph.-Hon. Isaac F. Redfield has contributed an article to this number of the Law Register, under the above caption, preceded by the following synop I. 1. The sender of a message for the purpose of initiating a contract, it would seem, should be held responsible for the correctness of the agency employed in its transmission. 2. Those cases which dissent from this rule, sometimes adopt the same principle, in holding the sender responsible when he employs a special operator. 3. The English courts adopt a different rule, not holding the sender bound by the errors in transmission. But whether this be so or not, and whatever may have been the justice of the case before Judge Sawyer, the following authorities would seem to refute the general doctrine he announced, in the most satisfactory and conclusive manner, as all who will take thesis of its contents: pains to examine them will find. Many others to the same effect might be cited Franklin v. Insurance Co., 42 Mo. 457; Combs v. Insurance Co., 43 do. 149; Insurance Co. v. Maguire, 51 Ills. 343; Schettler v. Insurance Co., 38 Ills. 166; Aurora, etc., Insurance Co. v. Eddy, 55 Ills. 213; Insurance Co. v. Jones, 62 Ills. 458; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Lyons, 38 Tex. 271; American Ins. Co. v. McLanathan, 11 Kan. 549; Rawley v. Insurance Co., 36 N. Y. 550; McBride v. Insurance Co., 30 Wis. 563; Olmstead v. Insurance Co., 21 Mich. 246; Harris v. Insurance Co., 18 Ohio, 116; Clarke v. Insurance Co., 40 N. H. 333; Campbell v. Insurance Co., 37 N. H. 35; Beebe v. Insurance Co., 25 Conn. 51; Malleable Iron Works v. Insurance Co., 25 Conn. 465; Woodbury Sav. Bk. v. Insurance Co., 31 Conn. 526; Miller v. Mut. Ben. Ins. Co., 31 Iowa, 219. Cases in 26 Iowa, 69; 23 Penn. St. 50; 59 Penn. St. 116; 22 Mich. 146, 473; 27 Wis. 693; 25 Wis. 291, and 18 N. Y. 392, are to the same effect. In the case of Cheek v. Columbia Insurance Co., I CENT. L. J. 465, the Supreme Court of Tennessee recently, in a very clear manner, sustained views adverse to Judge Sawyer's, and in har mony with the cases above cited. A concise statement of this case may be found in 2 CENTRAL LAW JOURNAL, page 318, in an article which may be very profitably consulted in this connection. The elementary writers strongly support what is known as the New York rule, rather than the Massachusetts rule, the former be 4. The telegraph is the agent for the party in interest, whoever employs it. 5. Grounds of the English decisions discussed. 6. The reasons for the rule first stated seem to preponderate. II. At what time contracts negotiated by telegraph become complete. reason. 2. The delivery to the post-office of the acceptance of a definite offer closes the contract. 3. The same rule has, with reason, been applied to negotiations by telegraph. Suggestions as to the mode or proof. 4. The reason of the thing and the decisions concur in there being no difference in negotiating contracts by mail and by telegraph. III, Discussion of the difference between the English and American decisions on this topic. 1. Statement of the English rule. 2. Reasons for dissenting from it. This mode of negotiating contracts between merchants, their agents and factors, has become so almost universal, both at home and abroad, that it becomes more and more important to have precise and definite notions in regard to the law applicable to such transactions. IV. The right to countermand, by telegraph, offers and acceptances sent by mail. *Philadelphia: D. B. Canfield & Co. Boundary-Middle of Highway or Stream.-Woodman v. Spencer, | Supreme Judicial Court of New Hampshire. Opinion by Ladd, J., followed by a commendatory note by Judge Redfield. [14 Am. Law Reg. (N. S.) 411.] Where a conveyance of land describes it as bounded by a stream not navigble, or by a highway, whatever terms may be used in describing such boundary, it must be construed as extending to the middle of the same, unless there is a clear expression of an intention to limit it to the margin of such stream or way. The reason of this rule is the strong and controlling presumption that it was not the intention of the grantor to retain in himself a strip of land subject to an easement in the public which might be perpetual, and therefore of no comparative use to him, and that is was equally not the intention of the grantee to cut himself off from the privileges of an adjoining owner in the fee of the highway, and to run the risk of leaving his land inaccessible in case the public easement in the road should be surrendered. Devise-Partition--Bill of Review-Res Judicata.-Wadham v. Gay, Supreme Court of Illinois. Opinion by Shelden, J. [14 Am. Law Reg. (N. S.) 419.] A testator devised to his nephew an estate in fee in remainder, to take effect on the falling in of three lives, and the devisee survived to take. After the testator's death, but before the estate in remainder became absolute, partners to affect each other by new contracts ceases, but each retains the power to settle up the former business, and hence the dishonor of a note by either partner, is sufficient, even after dissolution, to charge an endorser. 4. The notice of dishonor to an endorser, is only required to be such as will reasonably apprise him of the particular paper on which he is to be charged Therefore, in the absence of evidence to show that the endorser was misled, or that there was any other note to which it might apply, a notice which gave the maker's name, the date and amount of the note, the date when, the place where, and the person of whom demand was made, and the refusal to pay, was held sufficient, although it did not expressly state the time when the note came due. ADVANCE SHEETS OF 54 NEW HAMPSHIRE REPORTS.* Practice in Equity-Reformation of Lease-Construction of written contract-Words necessary to pass a Fee.-Cole v. Lake Co. [54 N. H 243.] Opinion by Ladd, J. 1. Where neither the rights nor liabilities of the assignor of a lease will be affected by a decree upon a bill in equity brought to reform the instrument, there is no rule of practice which imperatively requires that such assignor should be joined as plaintiff in the bill. The assignment of the lease by the plaintiff after the commencement of such proceeding is not cause for dismissing the bill, the lis pendens being sufficient notice to the asignees so that they will be bound by the decree. 3. The court, at the law term, do not receive and consider additional evidence upon the hear " 2. certain quantity of water from a canal of the lessors to the mills of the lessees, etc. It contained various covenants, and among them a stipulation by the parties that "all the covenants and agreements therein contained shall extend to and bind their legal representatives." It also contained this reservation: Excepting and reserving to the said lessors, however, the control of the water in W. river, and in all mill-ponds, bays, lakes, and reservoirs at and above said premises, with the right of holding back and retaining and discharging the water therefrom at their pleasure, an abatement of the rent hereinafter mentioned, being made in case said lessees shall be interrupted in the use of said mills thereby." Upon a consideration of the whole instrument together, it was held, that the lessors could not, at their pleasure, erect a barrier to prevent the flow of water from their reservoir into the canal, and in that way terminate the lease, when such course was not necessary in their general control and management of the water. 5. The habendum was to the lessees "for and dur ing their pleasure." Held, upon the whole instrument, not to create a s trict tenancy at will, but a covenant for perpetual enjoyment by the lessees. 6. The lease did not contain the word "heirs," but th language used, in its common and natural sense, showed a clear and unmistakable intention to convey a perpetual right or fee. Held, that the court were bound to give effect to the intention and contract of the parties as thus expressed; and that there is in this state no rule of law that a fee can never pass by deed, without the word 'heirs" be used. the nephew and his children were impleaded in a bill in equity for partition of the testate estate, and a decree passed purporting to be by consent, which, by mistake, erroneously declared the nephew's estate to be for life only, with remainder in fee to his children. That decree, made in 1851, omitted to ordering of questions reserved in equity. 4. A lease conveyed the right to draw a deeds to execute the limitations of estate thus declared to the children, and no such deeds were made. Afterwards a bill of review was prosecuted by the nephew, and there was a decree on that, reversing the partition decree. Soon after, the nephew's estate in fee under the will became absolute; and, he dying, his daughter sued out a writ of error, and on that procured a reversal of the bill of review decree, and then brought the present suit "to obtain execution of the decree in partition, and to supply the omission therein, which is necessary to the efficacy of the decree, as giving a remainder in fee to the children." The bill was against the purchasers, holding by deeds in fee from the nephew, or from his grantees, with warranty of title from him. Held: First. -Of those acquiring title while the bill of review decree was in force: I. They were entitled to rely upon that decision, as the law which determined what estate they took by purchase. 2. The subsequent reversal of that decree did not affect their rights. 3 A decree need give no day to a minor to show cause against it; it is absolute in the first instance. Barnes v. Hazelton, 50 Ill. 429, approved. Second. Of purchasers acquiring title while the consent decree in partition was in force, and before its reversal by decree in review: 1. As to such, the principle applies that, on a bill to execute a decree, the court will deny relief when it is seen the decree is unjust. And a decree, appearing to proceed by consent, where in fact there was none, and none was intended, can not be deemed fair and just. 2. A decree in partition in chancery, before the statute of 1861, could not pass a legal title to land; and such a decree, omitting to order deeds, is in that respect imperfect, and but the expression of a purpose without accomplishing or providing the means to accomplish the object. 3. Where there is no valuable consideration, a court of equity upon its general principles can not complete what it finds imperfect. 4. In the case of an intended gift of a legal estate, capable of a legal conveyance not made, the gift is revocable; there being a locus pœnitentiæ as long as it is incomplete. 5. A gift or trust, capable of being made by a legal conveyance, is as imperfect when created by an executory decree providing no means of execution, as when created by an executory contract. 6. The prosecution of a bill of review to a decree, and also the making of warranty deeds in fee, by the nephew, were an exercise on his part of the right to revoke, while he occupied the locus pænitentiæ. 7. A consent decree, incomplete and ineffective, is not res judicata. For the court on an application to render it effective, to look into its real nature and charac, ter, does not militate with the doctrine of res judicata. If otherwise, the true nature of the bill would be to enforce a technical estoppel. 8. Though error of law shall not be alleged against a decree proceeding by consent, so as to reverse it; still, on an application to execute it, the court will look to see if it be rightful or not, in determining whether it will act or remain passive. Walker, Ch. J., and Craig, J., dissented. In a note, Judge Redfield expresses the opinion that the conclusion of the majority rests upon most unquestion able grounds, both of principle and authority." Partnership Note -Liability of Endorser- Notice. Gates v. Beecher, Court of Appeals of New York, opinion by Folger, J. [14 Am. Law Reg. (N. S.) 440.] 1. In order to charge the endorser of a joint note, demand must be made on all the makers. 2. The note of partners does not come within this rule, as they are but one maker in contemplation of law, and a demand on any of them is a sufficient demand on all. 3. After a dissolution of a partnership by bankruptcy or otherwise, the powers of the several Partnership.-Caldwell v. Scott. [54 N. H. 413]. 1. One partner can not employ the partnership funds or securities to the discharge of his own private debt without the consent of the other partners, either express or implied. 2. Nor does it make any difference whether such creditor knew that it was partnership property or not, that was thus applied in payment of his debt. 3. When one partner retires from the firm and releases all his interest in the assets to the other partner, who agrees to pay all the company debts, the right of priority still continues in the partnership creditors in respect to such assets. *Received through the courtesy of John M. Shirley, Esq., Reporter. Notes and Queries. RIGHT TO RECOVER PRICE OF LIQUOR SOLD BY THE DRINK. VIRGINIA CITY, NEV., Aug. 6, 1875. EDITOR CENTRAL LAW JOURNAL:- Under the laws of the state of Nevada, is one entitled to sue and recover in an action for liquors sold by the glass? The first section of the compiled laws of the said state, reads as follows: The common law of England, so far as it is not repugnant to or inconsistent with the constitution, or laws of the United States, or the laws of the territory of Nevada, shall be the rule of decision in all courts of this territory." The Supreme Court of Nevada, in commenting upon this section of the compiled laws, in the case of Hamilton et al. v. Kneeland, Ist. Nev. 57, say: The common law of England as adopted in this country. usually to be taken as modified by English statutes, passed prior to th declaration of American independence." By Statute 24th Geo. II., Chap. 4, Sec. 12, it is enacted" that no person shall be entitled to sue for, or recover any debt or demand for, or on account of any spiritous liquors, unless such debt shall have been bona fide contracted for at one time, to the amount of twenty shillings or upwards," etc. There has been no legislation on this subject in the territory or state of deceased, that "h's irritability was like a summer cloud, and passed away in Nevada. The English statute referred to, so far from being contrary to the public policy of this country, or unsuited to the condition of our people, is unquestionably conducive to the welfare and prosperity of the community. SUBSCRIBER. MUNICIPAL CORPORATION AND TOLL BRIDGE COMPANY. A private corporation, organized under a general law, erected a toll bridge in a street over a stream in an incorporated city, and used and controlled the same for four years without objection. The city opened and improved the street and built the approaches to the bridge, immediately after its completion The bridge company has no rights on the premises, except such as it obtained by the foregoing facts. What are the relative rights of the city and the bridge company, with respect to the permanent use and control of the bridge? -IT seem that if Senor Mariscal, the Mexican envoy, brings suit for the gold he had on deposit with Duncan, Sherman & Co., his suit will have to be brought in the Supreme Court of the United States, that court being the only one which has original jurisdiction in suits where a foreign ambassador is a party. -AT a recent meeting of the Lancaster (Nebraska) County Bar Association it was resolved that the president and secretary be requested to extend an invitation to all bar associations and members of the bar throughout that state, to meet at the state capitol at the next session of the supreme court, for the purpose of forming a State Bar Association. -THE New York Supreme Court denies the legality of marriage by force. It has decided this in the case of a man in Livingston county, who was forced by another to marry a girl against his will, a revolver being used to aid the coercion. The court made a decree declaring the marriage null and void, and giving both parties the privilege of again marrying.-[The Legal Chronicle. -PASSPORTS.--American travellers complain of frequent annoyance from officers of foreign governments in consequence of their not being furnished with passports. American citizens about to proceed abroad, would, therefore, do well to provide themselves with these safeguards, which if not procured at the Department of State can be obtained at any of the United States legations in foreign countries. THE proceedings of the English Court of Probate at Westminster, were recently enlivened by the reading of the following codicil to the will of Thomas Morrals Kelly: I have neither kith nor kin, Bequeath all what I've named herein To Harriet, my dearest wife, To have and hold the same for life. -JUSTICE in England seems in some cases at least not a respecter of persons. Colonel Valentine Baker, of the Tenth Hussars, was recently tried before Sir William Baliol Brett of the Common Pleas, for committing a libidinous assault upon a young lady in a railway carriage. The learned judge refused him a special jury, thinking that a common jury was good enough to try the issues of fact presented. He was convicted, and sentenced to a year's imprisonment, and was subsequently dismissed the service. Colonel Baker had previously borne an honorable reputation in the army, and is, it is said, a relative of Sir Samuel Baker, the great African explorer. -A VERY remarkable lawyer has recently died in Philadelphia. A meetng of the Philadelphia bar was held on the 7th instant, as usual in America, to convey their sympathy to the bereaved family. The deceased was Mr. Robert Bethell. He had been fifty years at the bar. During that eriod he "bore with patience and blamelessness the cares of life," never lost his temper," | and "died without leaving behind a single enemy.' "His want of fame was owing to the gentleness of his character." The Philadelphia bar is evidently distinguished for amiability, for we are told of Judge Stroud, also recently 44 a moment." This learned Judge was, however, obviously not faultless, for "to the very last he criticised with vigor and ability the decisions of the higher courts,"- —a piece of impertinence in a retired judge which is simply inexcusable.-[The Law Times. -SOCIAL SCIENCE CONGRESS.-The following are the legal questions selected for discussion at the meeting at Brighton :-I. Jurisprudence Depart ment.-International Law Section.-What, if any, are the modifications required in the existing Law of Nations? And how may Municipal Law best be brought into Harmony with International Obligations? Municipal Law Section.-I. Is it desirable that a prorogation of Parliament should affect the position of bills and other matters in progress as it now does? 2. Is the codification of the law of England practicable, and, if so, in what form? 3. Is it possible, by the creation of a special tribunal or otherwise, to provide for the more satisfactory trial of claims for bodily injuries? Repression of Crime Section-1. Has the Prevention of Crime Act of 1871, proved satisfactory in its operation? 2. What improvements are required in the present treatment of prisoners in county and borough goals?—[The Law Journal. -JOHN A. FINCH, Esq., of Indianapolis, is publishing a series of valuable and forcibly written articles on life insurance, in the Indianapolis Journal. Some idea of Mr. Finch's views may be gathered from the concluding sentences of his fourth article, which appears in that journal for August 13: "It is needless to continue citations of cases. Enough have been given to show that there is only too much reason to believe-as so many do—that companies pay or withhold payment without regard to justice or equityfrom whim, caprice, or favor. There seems to be no safety, no åbsolute certainty, no irrevocable insurance. It will ever be useless for companies to exUntil there is a vital, pect popular regard while such defences are urged. radical change in the terms of the policies, in the selection and authority of agents, and in the method of paying losses, the present burden of disrepute will rest upon the life-insurance interests. The question of the existence and value of life insurance, depends upon how this imperative change is met, either by the companies voluntarily, or after enactments of legislatures. It is a great interest, and ought to be saved from its present degradation." --HON. JESSE O. NORTON, a prominent lawyer of Chicago, is dead. Before the war, he was on the bench in a circuit adjacent to Cook county, and filled the position with great acceptability to the people and the bar. The most memorable case, perhaps, which he ever tried, was the celebrated Burch divorce suit, wherein the then wealthiest banker of Chicago sued for divorce, charging his wife with adultery, the alleged guilty man being Hon. David Stewart, for some time a member of Congress. Mrs. Burch was very beautiful, a niece of Erastus Corning, of New York. The case was taken from Chicago to Naperville by change of venue, and tried by Judge Norton in 1860. Mr. Browning, afterwards secretary of the interior, was principal counsel for Mrs. Burch, who was successful. The trial elicited wide-spread interest at the time. Afterwards Mr. Norton was elected to Congress, but served only from March 4, 1865, to March 4, 1867. He was then appointed United States District Attorney, and filled this position with marked ability. In politics, Judge Norton was formerly a republican, but he went with Mr. Trumbull, Horace White, and the rest, in 1872, in support of Mr. Greeley. He was a man of high character and great personal popularity. -A SOMEWHAT NOVEL MODE of settling a dispute between neighbors appears to have been adopted by Lord Coleridge at the Leeds assizes last Saturday, in case of Hirst v. Lee. The action, says the Times reporter, was for damages for nuisances to the premises of the plaintiff by reason of the defendant's boiling bones near to the plaintiff's premises, and throwing manure heaps against the wall of the plaintiff's house, causing the damp to come through, and building a dovecote close to the window of the house, so that the plaintiff's children were bitten by fleas from the dovecote, and large quantities of flies came into the plaintiff's house from the manure heaps, etc. The house occupied by the plaintiff belonged to his wife, who swore that the damp from the manure heaps had come through the walls of the house, that the smell from the bones was offensive, that the fleas bit the children, and that the defendant boiled tripe and trotters and brought them past the plaintiff's windows. After the examination of this witness, counsel left the matter in his lordship's hands, and his lordship holding that the circumstances detailed by the plaintiff's wife disclosed "no substantial interference with the comforts of life," directed a verdict to be entered for the defendant, each party to pay his own costs, and he further directed that the house should be conveyed by the plaintiff to the defendant at his expense. The last conveyance of the property showed that it was worth £48. The value would therefore be taken at £50, and 10 per cent, should be added as for a compulsory sale, making the price to the defendant £55.—[The Solicitor's Journal, |