but made no payment or deposit of the award. The company then appealed from the award of the commissioners to the district court, where judgment was rendered against it. It afterwards assigned all its rights to the Atchison & Nebraska Railroad Company, which seemed to claim as an innocent purchaser; but the court held that the assignee took no greater interest than was possessed by the assignors, and that, the money not being paid or deposited, the owner of the land had his choice of three remedies, 'viz., he could bring an action for the award, sue for damages occasioned by the trespass, or enjoin the operating of the road across his premises until the amount should be paid.' That opinion was rendered nearly ten years ago, and has never, so far as the writer is advised, been questioned,―certainly not in this court-and it is the law of this State. The corporation.must see to it, therefore, before it enters upon the land of another to construct its road, that it has so far complied with the statute as to possess the authority. If it has not, it is, like any other trespasser, liable in damages."] Republican Valley R. Co. v. Fink, S. C. Nebr. Sept. 17, 1885; 24 N. W. Repr. 439.

9. EXECUTION SALE. [Arkansas.] Title Acquired by Purchaser.-In Arkansas a judgment creditor purchasing land at execution sale, on his own judginent, acquires the title and the rights of a bona fide purchaser for value against third persons claiming the same through the judgment debtor by secrets trusts, or unrecorded instruments, of which he had no notice, actual or constructive, before the sale, and he buys subject to all the equities and rights of third persons, of which he has actual or constructive notice before he purchases. Newman v. Davis, U. S. Cir. Ct. E. D. Ark., Aug. 1, 1885; 24 Fed. Rep. 609.

10. INFANCY. [Contracts Disaffirmance.] Cannot disaffirm and retain Benefit.-Contracts of an infant, other than for necessaries, are voidable only, and upon coming of age he may affirm or avoid in his discretion. But if an infant purchase personal property and give his promissory note therefor, he cannot, upon arriving at the age of 21 years, retain the property and plead infancy as a defense to the note. [In the opinion of the court by Maxwell, J., it is said: "There is a want of harmony in the decisions in regard to the liability of an infant upon his obligations Thus Coke states the rule to be that an in nt will not be bound by a penal obligation, ever where it is given for necessaries. Co Litt. 1726. In Keane v. Boycott, 2 H. Black 511, Chief Justice Eyrie laid down the doctrine that where the court could pronounce the contract for the benefit of the infant, as for necessaries, it was valid; where the court found the contract prejudical to the infant it was void; and, in cases where the benefit or prejudice was uncertain, the contract was voidable only. Judge Story declared these distinctions to be founded in solid reason. U. S. v. Bainbridge, 1 Mason, 82. In this country the courts, at the present time, generally divide the contracts of an infant into those for necessaries, which are binding upon him, and other contracts, which are voidable at his election on coming of age. The well-settled rule, therefore, is that a negotiable note of an infant is not void, but voidable only. Goodsell v. Myers, 3 Wend. 479; Wright v. Steele, 2N. H. 51; Best v. Givens, 3 B. Mon. 72; Keil v. Healey, 84 Ill. 104; Irvine v. Irvine, 9 Wall. 617. After an infant has

arrived at the age of 21 years he may disavow or ratify any contracts not made for necessaries. In the absence of any statute providing how a contract shall be ratified, any one of three modes ordinally will be sufficient: (1) An express ratitication; (2) acts which imply an affirmance; (3) the omission to disaffirm in a reasonable time. The particular acts which constitute a ratification must necessarily depend, to a great extent, on the nature of the contract. Where it is executed and beneficial to the infant, as where he has purchased real estate, it vests in him the freehold until he disagrees to it, and the continuance in possession after he is of age is an implied confirmation of the contract. So as to a lease. Delano v. Blake, 11 Wend. 85; Jones v. Phoenix Bank, 8 N. Y. 228. And an infant cannot be permitted to retain personal property purchased by him, and at the same, time repudiate the contract upon which he received it. Kitchen v. Lee, 11 Paige, 107: Lynde v. Budd, 2 Paige, 191; Deason v. Boyd, 1 Dana, 45; Cheshire v. Barrett, 4 McCord, 241; Ottman v. Moak, 3 Sandf. Ch. 431. He who asks equity must do equity. In the case at bar the purchase was a joint one. The plaintiff, after coming of age, so far as appears, made no offer to return the property, but still retains possession. He also made payments on the notes. This we regard as a sufficient affirmance of the contract. The law which enables a party who has purchased property during infancy to disaffirm on coming of age is to be used as a shield and not as a sword; as a means by which he may be discharged from a contract which he deems prejudicial. The object is not to enable him to rob others of their property, but, upon making restitution, to be discharged from the contract. The fact that when Philpot made the promise, after coming of age, to pay the notes he did not know that he was not legally liable to pay said notes, is not material in this case, and need not be considered, there being a sufficient ratification by other acts of the plaintiff. The plaintiff in error has the property, the fruit of the contract. There is no claim or charge that it was of less'value than the price agreed to be paid. Honesty and fair dealing require that he should pay for the same."] McClay v. Worrell, S. C. Nebr., Sept. 4, 1884; 24 N. W. Repr. 429.

CORRESPONDENCE.

"LATE WITH.”

To the Editor of the Central Law Journal:

In a recent issue of your JOURNAL (page 242), you cite the recent decision of Judge Westbrook, of the Supreme Court of New York, as also the criticism of the New York Herald, stating at the same time that the latter "seems hard to answer." It only seems so, for it is not hard to answer. The principle, as stated by the New York Herald is, that "when a person has been for a long or considerable time in the service of a business house or firm widely and favorably known, that fact raises a presumption of his capability to carry on the same business for himself." This is undoubtedly true so far as it relates to a person's engaging in a similar employment with the same facilities at his command and working under like circumstances; but it does not raise a presumption that he is qualified in every respect, or even at all, to carry on a business similar to the one with which he was formerly identi

fied in some particular capacity. It does not necessarily follow that, because a man successfully filled the position of treasurer in one company, he would be equally successful as manager of another of the same kind, nor that, because he was a good superintendent of one concern, he would make a good secretary for another, nor that, because he was a good porter for one banking house, he would make a good president or cashier for another. The question is, however, whether, as stated by the New York Herald-"it is a fact which, in the absence of fraud or unfair dealing, he has a right to announce to the public." In music or art the student seeks the best tuition at his command, for the purpose of enabling him to prosecute his studies to the best advantage, as well as to be able eventually to advertise himself as having had efficient instruction. This is exactly what he pays for. Not so with a man who identities himself with a commercial house; in the latter case he is paid for his services, and he does not pay for anything; his employer has a right to expect and insist that he shall display his utmost abilities in the conduct of the business which he is called upon to handle, and any developments made in the prosecution of the same belongs to the employer; the combined efforts of the employees make the reputation of a business; and for a single one of them to engage in another business of the same kind and announce himself as "lately with" such and such a house is misleading to those for whom it is intended as information, unless the announcement states most distinctly the exact character of the "late" occupation. We thus see that the principle, as applied to an employee, is quite different from that of a pupil seeking instruction in art or music, and afterwards advertising himself as having been under the tuition of the best artists. Again, it is different in the case of a partnership, the partners contribute to the firm's success, which becomes its reputation, and which upon dissolution can be divided in no other way than by each one's announcing his former connection therewith. An apprentice engages to work for a manufacturing concern for a certain length of time on a certain scale of wages for the purpose of learning the trade. He is paid less than the journeyman, although his work is oftentimes quite as good. At the termination of his apprenticeship he seeks employment elsewhere, by advertisement or otherwise, on the strength of having learned his trade with his late employers; this is the implied understanding of such engagements. Not so, however with the expert · workman; he is employed because of his skill; his employers make and place upon the market a product of his workmanship chiefly; they do so at a loss of time and money, at the same time demonstrating its feasibility; its continued production will eventually remunerate them for their expenditure and trouble; the reputation of the article has been made by the employer; the workmanship is but one of the essential elements of that reputation; and for which workmanship the servant has been paid an agreed price. Has, then, the employee a right to trade on such reputation by announcing himself as "late with" the now reputable employer, which is most obviously for the purpose of sharing in a trade established by his employer, and not solely for the purpose of revealing his identity? Fewer attacks by the general press on the decisions of our Supreme Courts would be more in consonance with the spirit of our institutions. Cleveland, Ohio

H. W. BAIRD.

REMARKS.-It is perfectly consonant with the spirit of an institution for the general press to criticise judicial decisions, in a fair manner, in so far as it is competent to do so. Decisions which announced rules which are consonant with good sense and with the

people's habit of thinking and acting will stand; others will give way. When a court announces a rule of law as an original proposition, it legislates for people; it makes a rule to which they must conform their conduct. They are concerned with it, and consequently they have a right to criticise it through their organs of opinion. ED. CENT. L. J.

THE LAW TIMES CRITIC.

To the Editor of the Central Law Journal: This gentleman is very hard to please. The other day he told us that "to pass upon" in the sense of to judge was an Americanism. Did he never read Magna Charta, as it stands in the statutes at large? Chap. XXIX says, "Nor will we pass upon him nor condemn him, but by lawful judgment of his peers," etc. Now, he falls foul of "judgment," and tells us "the universal practice of lawyers in modern times" ought to have been followed. If he will take the trouble to look at any official copy of a Privy Council judgment, he will see that the word is there always printed "judgement." I grant that judgment is the more usual form, but as the Judicial Committee of the Privy Council consists of lawyers not quite unknown, "universal practice" can hardly be alleged for it. ALFRED B. MAJOR. Montreal, Can.

A DIFFERENT KIND OF A CRITIC. To the Editor of the Central Law Journal: "An Ailanthus tree held to be a nuisance." (21 C. L. J., 261.) Ailantus; commonly, but improperly, spelt Ailan thus. See Webster's Unabridged Dictionary. JOHN C. WATSON.

Nebraska City, Neb.

Our friend who last writes is a different kind of a critic from the Law Time's critic. He hints that we ought to adopt Webster's spelling, although it is not the common spelling; but the Law Time's critic complains because the revisers of the Old Testament have not adopted the common spelling. By the way, does our friend remember what Lord Brougham said about Daniel Webster? All English spelling is arbitary, unscientific and bad. Three years of every boy's life is wasted in mastering it. Bad spelling is like bad laws. The latter never become "settled" while they remain bad; the former will never become stable until it is purely phonetic. ED. CENT. L. J.

JETSAM AND FLOTSAM.

HIS SUMMER HOME.-Attorney-General Garland's summer home, "Hominy Hill," is a sequestered nook in the dense forests near the banks of the Arkansas River. The house is a log cabin containing only one room and scarcely any furniture.-Ex.

A NEW TERROR.-General Booth's followers appear to have invented yet another mode of tormenting the long-suffering British householder. This consists in kneeling down upon the persecuted one's doorstep and vociferously praying for the salvation of his soul. Such a proceeding is surely aggravating enough to provoke the proverbial saint, but the subject of the prayers must not think he has a right to take the law into his own hands, however just his indignation may appear. In a Durham village last week a Salvationist knelt on an old woman's doorstep, and prayed loudly for her soul. The old woman retorted by pouring over him a bucket of water, but the Salvationist summoned her for assault, and the lady was fined half-acrown. If praying on other people's doorsteps be legal, a new terror has most decidedly been added to existence.-London Truth.

ST. LOUIS, OCTOBER 30, 1885.

CURRENT. EVENTS.

Too LONG.-We do wish that Mr. Justice Green, of the Supreme Court of West Virginia, would not write such long opinions. We have tried to make an abstract of his opinion in Kyle v. Harveys, holding that a provision in a deed of assignment for creditors, that the property should be sold by the assignee at private sale, does not render it fraudulent as a matter of law; but we find that an abstract of the point decided, together with the review of analagous authorities made by the learned judge in his opinion, constructed on our recent patent plan, would consume at least four pages of the JOURNAL, and we have therefore concluded to let it lie until some of our readers begin to clamor for its publication. We have much respect for the learning and judicial talents of Mr. Justice Green, and this particular opinion is a bonanza to the lazy brief maker; but, seriously, most of his opinions are too long. We know of but one other judge who equals him as a searcher for authorities, and that is Mr. Justice Cassoday, of Wisconsin. But Mr. Justice Cassoday contrives to keep his opinions somewhat within bounds as to length. Query, whether a judge does himself justice by getting into the habit of making such an ending search for precedents whenever novel question arises? Is it not better for a judge to train his mind to original thinking? Are not a good many of the absurdities and monstrosities of the law due to the fact that judges, instead of reasoning, with an intelligent desire to do justice, have suppressed their reasoning faculties and merely exercised their memories upon precedents?

un

CRIMINAL PROCEDURE. [MISTRIAL ONCE IN JEOPARDY.] WITHDRAWAL OF a Juror beCAUSE HE HAS BEEN IN A HOUSE INFECTED WITH SMALL-Pox.-We clip the following from the Montreal Legal News: "The small

125 W. Va. 716 (adv. sheets). Vol. 21.-No. 18.

rise to a discussion on a point of criminal law. In the Queen's Bench, Crown Side, a jury had been impanelled in a capital case, and the trial had proceeded for some time, when it was discovered that one of the jurors came from a house in which a bad case of small-pox had just been detected by the medical inspectors. Mr. Justice Baby, after taking time for consideration, decided that it was prudent to discharge the jury, which was done, and the court room was disinfected. The counsel for the prisoner, who had offered to allow another juror to be substituted for the objectionable one, subsequently opposed the swearing of another jury, on the ground that the prisoner's life had already been in jeopardy. This objection was overruled by the court. It may be added that this case of Reg. v. Considine is rather unfortunate, because after the second jury had sat for a day or two, they also were discharged, owing to the illness of one of their number, who was attacked by so-called 'Canadian cholera.' The effect of the discharge of the jury without verdict was fully discussed in the famous case of Winsor v. Reg.'

DID NOT OPEN COURT.-The bar, the litigants, the jurors and the witnesses assembled at the opening of a day's session of the special term of the Supreme Court of New York, at Troy, on the 6th instant; but the presiding judge, the Hon. Theodore R. Westbrook, did not appear. At eleven o'clock, the judge not having appeared, a messenger was sent for him to the Troy House, where he was a guest. The messenger returned, reporting that the Judge's room was locked, and that no response could be obtained from it. Several members of the bar then repaired to the Troy House, obtained a duplicate key from the proprietor, and opened the door of the Judge's room. He was found lying dead on his bed with nothing on but his drawers. He had evidently taken a bath and had commenced to dress himself, when he had suddenly died of heart disease. He was a jurist of considerable reputation; had been in large practice at the bar and a mem

2 L. R., 1. Q. B. 289, 390.

ber of Congress for a single term. He was a great worker and a total abstainer from intoxicating drinks. He presided at the trial of the celebrated civil suit against William M. Tweed, brought to recover money stolen from the public, involving over six million dollars. At the time of his death he was sixty-three years of age.

AN APOLOGY FOR THE SHABBY TREATMENT OE CHIEF JUSTICE WAITE IN ENGLAND.-The Law Times (London), referring a second time to the manner in which the presence of Chief Justice Waite in England was ignored by the bar of that country, says: "One of the society journals has complained that the American Chief Justice was somewhat scurvily treated by the Bench and Profession when in this country. Undoubtedly American lawyers are far in advance of their English brethre in the matter of civilities to individuals. When members of their own body die, a funeral oration is almost inevitable, and, in the spirit of a young republic, they are always glad to give cordial welcome to eminent strangers. It was hardly to be expected that Chief Justice Waite would meet with a reception in this country similar to that which was accorded Lord Coleridge in America. His name was probably unknown to most, and his presence in England was known only to a few. Lord Bramwell and other eminent men showed him every civility, and perhaps at another period of the year there would have been a combined recognition of his arrival, and a public tribute paid to the high office which he holds, and which has been filled by so many distinguished men.' We are sorry to see the first legal journal in England apologizing for a circumstance about which English lawyers ought to be thoroughly ashamed.

It is a poor way to improve the manners of a profession whose manners (or incomes) apppear sadly to need improving. Even in the dullness and goverty of the long vacation, they might have gathered together some broken victuals to offer to the president of the greatest judicial

tribunal in the world.

NOTES OF RECENT DECISIONS.

WILL. [CHARITABLE TRUSTS]-BEQUEST TO PROCURE MASSES FOR THE REPOSE OF THE SOUL. In the case of Gilman v. McAdam, not yet reported, the Court of Appeals of New York has rendered a decision of great importance to the Catholic Church, in holding that a bequest of money to procure masses for the repose of the testator's soul, or of some one else's soul, is valid. The history of the case is thus stated in the columns of our accurate contemporary, the New York Daily Register: "In September, 1882, Margaret Gilman, then very aged and infirm, gave a sum of money to the defendant, Henry McArdle, with instructions after the death of herself and husband to use as much of it as necessary for their burial expenses and for the erection of a monument over their graves, and to expend the balance in having masses said for the repose of their souls. Both Mrs. Gilman and her husband died shortly afterward, the husband dying last. The action was brought by the administrator of the husband to recover the money from the defendant McArdle, upon the ground that the attempted disposition of the same by Mrs. Gilman was void. The case was tried in June, 1883, at Superior Court, Special Term, before Judge Freedman, who rendered a decision in favor of plaintiff, writing two elaborate opinions, which were published in full at the time, holding: 1st. That the trust was void for want of a competent beneficiary, the beneficiaries of it being, as he held, the souls of the deceased Mrs. Gilman and her husband; and 2d. That it was a mere deposit of money in the hands of defendant not sufficient to vest him with the title, and that his power over the same was revoked by thes death of the depositor. An appeal was taken by the defendant to the General Term of the Superior Court, where it was affirmed pro forma, it being the intention of the parties to carry the case to the Court of Appeals. The appeal in the Court of Appeals was argued in March, 1881, and the decision was handed down on Tues

day, reversing Judge Freedman's decision, and dismissing the complaint with costs. thus sustaining defendant's contention and the validity of the trust for masses. The case was conducted for the defendant by

Richard L. Sweezy as counsel and Charles W. Bennett as attorney, and for the plaintiff by W. L. Snyder as counsel and John Brice as attorney."

3

CIVIL PROCEDURE. [CHANCERY PRACTICE, NE EXEAT.] WHAT THREATS TO GO ABROAD ARE A SUFFICIENT GROUND FOR A NE EXEAT. -In Cary v. Cary, which was a suit by a wife for divorce and alimony, it was held by the New Jersey Court of Chancery that statements by a defendant who was subsequently arrested on ne exeat, made to the complainant's lawyer, that if suits should be begun against him, and he should be likely to get the worst of it, or if any order should be made against him by any court, his (defendant's) lawyer would find it out beforehand and would let him know, so that he could and would leave the State before they could do anything with him; accompanied by statements, that complainant and her father were both poor; that he would law them both to death if they attempted any suits against him; and that he had put all his property out of his hands, but still had the benefit of it-are sufficient, on an application for his discharge, to hold him in custody under the ne exeat. Mr. John H. Stewart, the learned reporter, cites in a note the cases given below, as illustrative of what threats to go abroad will be sufficient ground for a ne exeat.

-In McCullis v. Allen,5 the defendant, falsely representing himself to be one of a firm of produce commission merchants in Boston, induced the plaintiff to send poultry to such firm to be sold on commission, with the fraudulent purpose of obtaining it without paying for it. The plaintiff, discovering the fraud, brought an action of trover, and the question was whether he had pursued his proper remedy. The court held that the action would lie; that the title to property does not pass where possession is obtained by fraud. In giving the opinion of the court, Royce, C. J., said: "Upon such a state of facts we are not inclined to be astute in criticising the form of action adopted by the plaintiff to recover for the property of which he has been so defrauded; but we think there is abundant authority to sustain this form of action. In the fourth edition of Benjamin on Sales, § 433, it is said that where one obtains possession of the goods of another by fraud, no property passes to him from the true owner. The title, remains in the owner; and he may maintain replevin to recover the possession, or trover for the conversion. That principle has been recognized and acted upon in this State, in the cases of Field, Morris & Co. v. Stearns, Poor v. Woodburn, Fitzsimmons v. Joslyn, and other cases referred to on page 614 of Roberts' Digest."

8

6

CORPORATIONS. [POWERS OF.]-MUST BE AFFIRMATIVELY GRANTED-WORDS OF PROHIBITION NOT NECESSARY.-The Law Times

3 39 N. J. Eq. 20 (adv. sheets).

+ Smithson's Case, 2 Vent. 345; Shearman v. Shearman, 3 Bro. C. C. 370; Oldham v. Oldham, 7 Ves. 410; Etches v. Lance, 7 Ves. 417; Jones v. Alephsin, 16 Ves. 470; Whitehouse v. Partridge, 3 Swanst. 374; Boehm v. Wood, Turn. & R. 342; Collinson v. Collinson, 18 Ves. 352; Darley v. Nicholson, 1 Dr. & War. 66; Baker v. Rowan, 2 Stew. & P. 361; Fitzgerald v. Gray, 59 Ind. 254; Lyon v. Lyon, 21 Conn. 199, note; McGee v. McGee, 8 Ga. 295; Bryon v. Ponder, 23 Ga. 480; Orme v. McPherson, 36 Ga. 571; Malcolm v. Andrews, 68 Ill. 100; Jones v. Kennicott, 83 Ill. 484; Baily v. Baily, 2 Md. Ch. 326; Yule v. Yule, 2 Stock. 138; Anshutz v. Anshutz, 1 C. E. Gr. 162; Denton v. Denton, 1 Johns. Ch. 364; Bushnell v Bushnell, 15 Barb. 399; Forrest v. Forrest, 10 Barb. 46; Mattocks v. Tremain, 3 Johns. Ch. 75; Dunham v. Jackson, 1 Paige, 629; Drausfield v. Drausfield, 6 Phila. 143; Smith v. Koontz, 4 Hayw. 189; Lehman v. Logan, 7 Ired. Eq. 296; Dean v. Smith, 23 Wis. 483; Ramsay v. Joyce, 1 McMull. Eq. 247, 253.

lock v. River Dee Company, reported by us last week the House of Lords decided that the law laid down in the well-known case of Ashbury Railway &c. Company v. Riche,10 is applicable to all companies created by any statute for a particular purpose, and not only to companies established under the Companies Act 1862. This being so, they further decided-applying the principle recognized in that authority-that whenever a corporation is created by Act of Parliament, with

557 Vt. 505 (advance sheets).

6 42 Vt. 106.

7 25 Vt. 234.

8 21 Vt. 129.

953 L. T. Rep. N. S. 62.

10 33 L. T. Rep. N. S. 450; L. Rep. 7 E. & I. App. 653