show that he has in view the thing of which he has the power to dispose. When this question has arisen in the construction of wills, it seems to have been firmly settled that a mere general devise or bequest, however unlimited. in terms, will not comprehend the subject of the power, unless it refer to the subject, or to the power itself, or unless an intent to execute it becomes apparent from circumstances tending to such a conclusion. Lowson v. Lowson, 3 Brown, Ch. 272; Molton v. Hutchinson, 1 Atk. 558; Hales v. Margerum, 3 Ves. Jr. 299. In 3 Ves. Jr. 301, Lord Alvanley distinctly stated the true rule to be that in the execution of a power 'there must be a direct reference to it, or a clear reference to the subject, or something upon the face of the will, or, independent of it, some circumstance which shows the testator could not have made that disposition without having intended to comprehend the subject of his power.' In recognition of this doctrine, Chancellor Kent says that 'in the case of wills it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power there must be a reference to the subject of it, or to the power itself; unless it be in a case in which the will would be inoperative without the aid of the power, and the intention to execute the power became clear and manifest.' 4 Kent Comm. marg. p. 334. This court has recognized and adopted the rule as settled in England, and so clearly and concisely stated by the eminent jurist just mentioned. Mory v. Michael, 18 Md. 241; Maryland Mut. Ben. Soc. of Red Men v. Clendine, 44 Md. 429; Foos v. Scarf, 55 Md. 309. In the case in 55 Md. 309, it is said that 'the intention to execute the power must appear by a reference in the instrument to the power, or to the subject of it, or from the fact that the instrument would be inoperative without the aid of the power." Patterson v. Wilson, Md. Ct. of App., June 24, 1885; 1 Atl. Repr. 68.

CORRESPONDENCE.

TELL HIM WHERE TO LOCATE. To the Editor of the Central Law Journal:

I am a fully qualified English lawyer, and am wishful of entering the bar in this country.

My desire is to know if any State will admit me on presenting my credentials, without passing the usual examination.

Minnesota is the State in which I wish to make my future home, but I am not averse to qualify in any other, if the bar there will admit me by courtesy.

Any of your readers who will help me by answering my queries, giving me a list of books I should get, and any advice and information to enable me to attain my object, will materially help, Yours truly,

AN ENGLISH LAWYER.

DISPUTING A LANDLORD'S TITLE. To the Editor of the Central Law Journal:

It is a well recognized maxim in the law of Landlord and Tenant that a tenant "cannot dispute his landlord's title;" but this maxim, like the other maxims with which both law and equity abound,must not, of course, be applied too rigidly.

A case is now en route for the Supreme Court of Ohio, which I think contains interesting facts to the profession. It involves the application, or the misapplication of the above maxim.

A. enters into possession of premises under a verbal lease from B. Subsequently B. brings an action of forcible detention and seeks to oust A. from the premises. After B. has rested his case A. offers to show that the term for which he leased from A. has expired, and that he is now holding under a lease from C. Also that B has no title to the land, and is not entitled to possession; also that B has by his own acts and his own words abandoned the lease. All this testimony was excluded on the ground that a tenant cannot dispute his landlord's title. A reviewing court held that the exclusion of this testimony was crror, the court making a distinction between showing that there is no title, or showing that the title has lapsed, or showing an abandonment of the lease.

It seems to us, speaking extra-judicially, that the reviewing court was right, and that any other rule would work a manifest injustice. The plaintiff's action was based upon the alleged fact that he was entitled to the immediate possession of the premises, but the fact was that he had no interest in or title to the premises; if he could not show these facts the defendant is cut off from making a defense. H. HARPER. Painesville, 0.

LIABILITY OF MUNICIPAL CORPORATION ON CONTRACTS BEYOND THE CORPORATE SCOPE.

To the Editor of the Central Law Journal:

It is more in a spirit of inquiry than of criticism that I wish to call attention to the decision of the United States Circuit Court for the Eastern District of Missouri, in the case of the City of St. Louis v. The Steamboat Maggie P., reported in the CENTRAL LAW JOURNAL of November 6. The decision seems to me to be in conflict with certain established principles of law, and without going much into detail, let me ask you, or some of your learned correspondents, to point out how it can be reconciled with the following:

"The general principle of law is settled beyond controversy that the agents, officers, or even city council of a municipal corporation cannot bind the corporation by any contract which is beyond the scope of its powers or entirely foreign to the purposes of the corporation. The inhabitants are the corporators; the officers are but the public agents of the corporation. The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only know, but are bound to know." Dillon, Munic. Corp., 3d Ed., § 457.

"A municipal corporation has at common law few powers beyond those of electing, governing and removing its members, and regulating its franchises and property. The power of the governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated." Willcock, Munic. Corp.

Commenting upon the above, Judge Cooley says: "But without being expressly empowered so to do, they may sue and be sued; may have a common seal; may purchase and hold lands and other property for corporate purposes and convey the same; may make bylaws whenever necessary to accomplish the design of the incorporation and enforce the same by penalties,' and may enter into contracts to effectuate the corporate purposes. Except as to these incidental powers

the charter itself or the general law under which they exist is the measure of the authority to be exercised." Const. Lim., 5th Ed. 233. In the same connection the learned author says, page 235: "It must follow that in case a party assumes to deal with a corporation on the supposition that it possesses

powers which it does not, or to contract in any other manner than is permitted by the charter, he will not be allowed, even though he has complied with the undertaking on his part, to maintain a suit against the corporation based upon the unauthorized action."

He adds that even when a party has been induced by false representations as to the facts concerning the corporate power to enter into a contract, no right of action against the corporation can grow out of the contract if it was beyond the scope of corporate power. The plea of ultra vires may be interposed by a municipal corporation, setting up its own want of power to enter into the contract. Dillon, Munic. Corp. secs. 457-935.

In this country acts ultra vires derive no legal sanction from usage. The same, secs. 92-93. Corporate powers vested in the governing body cannot be delegated to subordinate officers or agencies. Cooley's Const. Lim. 249.

In the case under consideration the moral sensibilities of the court seem to have been shocked at the idea that the corporation could profit by an unauthorized contract and yet not be liable in case of its breach. But could it have recovered if the other party had refused to pay for the services rendered for him on its behalf? Even if it could, does it follow that there must be liability whenever there is an undertaking for profit?

Suppose the mayor should authorize a fire company to pump the water out of a citizen's cellar for a consideration to be paid to the city, and through the carelessness of the firemen the walls of the building were destroyed. There was no authority for making the contract on behalf of the city. The work was not at all within the scope of corporate authority or purpose. Yet there was no harm in allowing it to be done; the municipal treasury profited by it, and the citizen engaged the fire company because he could get the work done much cheaper in that way than by employing a regular contractor. But he knew the work was not municipal or public in its nature. He was bound to know that the action of the mayor was unauthorized.

Will anybody pretend to say that he could hold the city liable for the injury to his walls? If the firemen had abandoned the work before completion, even wantonly, would there have been a liability on the part of the city? Surely the answer must be "No." Suppose that small-pox should attack a member of a poor family in the suburbs of a city, and the city authorities should consent, for a small consideration, to receive the patient into its hospital, and there, by reason of the negligence of its physician or nurses, the patient should be so exposed that death resulted; who could suppose that the city would be liable? If the city authorities, for a consideration from the State or county should send a squad of police to guard the jail during a riot, and through the inefficiency of these police the jail should be destroyed by the mob, on what principle of law could the city be made to pay for it?

If the mayor and treasurer should conclude to use corporate funds and issue evidences of debt in the name of the city, even under its seal, for the purpose of speculating in cotton, or wheat and should make several fortunate investments, pass the profits into the treasury, and finally make an unfortunate venture and lose, what court would entertain a suit upon the evidence of debt against the city, even if the whole municipal government had been cognizant of the illegal proceedings of the officers? I have been taught that municipal corporations are public agencies created by the State mainly for its own convenience, clothed in a measure with its powers and immunities.

35. LIABILITY OF STOCKHOLDERS.-A corporation was organized with a capital stock of $50,000, of which $45,000 was paid in cash. After the concern had been running about two years the remaining $5,000 of the capital stock was issued to the stockholders in proportion to the amounts previously held by them. No money was paid for the $5,000 stock thus issued, but the real estate account was increased $5,000, or in other words, the $5,000 was watered stock. Shortly after this issue of stock the concern made a statement showing a surplus made up in part of fictitious value placed on the real estate. Shortly afterwards the capital stock was increased, and the increase sold to outsiders who had no knowledge of the issue of the watered stock as above stated. The concern never paid a dividend, and two years later became wholly insolvent. Are the original stockholders liable to the new stockholders on the facts stated; and, if so, what is the measure of damages?

36. NOTE PAYABLE IN THE ALTERNATIVE TO A. OR B.-A. sells real estate belonging to him, and in payment thereof takes a note from the vendee payable to A. or B., his wife (in the alternative). A dies and B. takes the note. The administrator of A.'s estate claims the note as belonging to A.'s estate, and B. claims it as her property and refuses to surrender it. Query. Who is legally the owner of the note, A.'s administrator, or B., the widow? S. & T.

37. LIABILITY OF WIFE FOR PHYSICIAN'S BILL DURING LAST ILLNESS OF HUSBAND.-A. and B. were husband and wife, living together as such; A., the husband, was taken sick, and employed C., a physician, who attended him during his last illness. Question. Is the wife liable for said physicians bill under the following statute? "The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately." EDW. H. A.

Jacksonville, Ill.

38. A TOO CONFIDING HUSBAND.-A husband being the owner in fee, and equity, of a tract of land, conveyed the same to his wife, through a trustee with the agreement and understanding between them, that she was to hold the same in trust for him. Afterward the husband joined with the wife in a conveyance to a third party for a valuable consideration. The purchase price being paid to the wife, who agreed with the husband to hold the proceeds of said sale in trust for

him. Both conveyances were made by the husband upon the representations and promises of his wife to hold the same in trust for him. Soon after the last conveyance the wife deserted the husband and appropriated to her own use the entire property. Can the husband recover? If so, how? Please give citations. J. M. H.

39. RIGHT TO PAY A PROMISSORY NOTE BEFORE DUE.-A. makes a note to B., reading, "On or before January 1st, A. D., 1886, I promise to pay," etc., note bearing ten per cent. interest. Can A. tender to B. the principal and amount of interest up to date of tender before maturity of said note and be discharged? Cite authorities. ARKANSAS.

QUERIES ANSWERED.

Query No. 21. [21 Cent. L. J. 323]. On July 1st, 1884, I promise to pay G. Jarlison or bearer, fifty dollars without interest. JNO. SMITH.

What interest, if any, is collectible on the above note in September, 1885, in Iowa?

as

Answer. A line of cases hold that, until maturity, the agreement regulates as to interest; after maturity the statute regulates. Thus, contract was to pay three per cent., and court allowed six per cent (the legal rate) after maturity. 5 Watts & Serg. 51-60. And again contract was to pay more than legal rate, but from and after maturity, the legal rate only was allowed. U. S. Supreme Court, 22 How. 118. In Hand v. Armstrong, 18 Iowa, 324, our Supreme Court established a contrary doctrine, holding that a contract to pay a greater than the legal rate should be enforced after, as well before maturity, we quote: "As long as the use was granted on the one hand, and the payment thereof delayed on the other, the agreed rate of interest should run." Now, where the "agreed rate" is nothingshall this rate run till payment? This has not been decided; neither has our court expressly determined that a contract for less than the legal rate must run at the agreed rate after maturity; but the above portion of their opinion seems to indicate that this would be their holding. But where the note contains the words "without interest," I do not think these cases apply. Our statute declares that "money due by express contract" bears six per cent. interest when not otherwise agreed, Code, § 2077, and I think the words "without interest" do not prevent the operation of this statute after maturity of the note. If this position is correct it follows that the interest on the note in question should be six per cent. after maturity, viz.: July 1, 1884. K. C. P.

Shenandoah, Iowa.

JETSAM AND FLOTSAM.

THE U. S. SUPREME COURT.-The first opinions of the term were delivered on Monday last. This court has a heavy docket and is much behind in its work. Speedy justice is the requirement of the age. Congress at its next session should not allow politics to prevent it from passing the necessary bill to relieve the court of last resort of the nation, and enable it to keep up with the constantly increasing business that is brought before it. Congress has full power in the matter. If nine judges are not enough to dispose of the business brought before this tribunal by its increased jurisdiction and the growth of the country, then let Congress either take away some of its jurisdiction or add judges enough to do the business. Chicago Legal News.

HON. B. D. MAGRUDER.-The Democrats at their convention made no nomination of their own for judge of the Supreme Court to fill the vacancy occasioned by the death of Judge Dickey, but indorsed the nomination of Hon. B. D. Magruder, previously made by the Republicans for the position. This insures the unanimous election of Mr. Magruder to the highest judicial office within the gift of the people. To be elected under such circumstances is a compliment of which any member of the profession might well feel proud. Mr. Magruder goes on the bench not at the beck or as the servant of any party, but as the choice of all the people of the district. He will be perfectly free to decide all constitutional questions and all cases where the other judges are equally divided without party bias and in accordance with law and justice.-Chicago Legal News.

PATERNAL AFFECTION.-A gentleman, a physician by profession, living in Montana was ambitious to make a lawyer of his son, and accordingly sent him to the University of Virginia, and maintained him there until he had taken his degree. The young man then returned to Montana and "hung out his shingle to the breeze." In a short time he and his father had a serious difference about the proper management of some mining interests which the latter owned, and the son, thinking his father a crank, instituted lunacy proceedings against him, and upon the evidence of several witnesses (rival physicians it is said) had the old man adjudged a lunatic and sent off to an asylum. He managed, however, to escape incarceration, and returning found letters of probate issued against his estate, and things in a very confused state. He then determined to see a lawyer himself. Upon the statement of the case the attorney was greatly surprised, and asked why the father had permitted the case to go so far. Whereupon the latter replied, "Well, you see I had spent $3,000 in educating that boy for the law; of course I could have beaten him, but I did not want him to lose his first case."-Kentucky Law Reporter.

LORD COLERIDGE AND THE NEWSPAPERS.-A little more than a year ago, Chief Justice Coleridge, in passing sentence in the Yates case (7 Leg. News, 137), made some rather severe remarks upon society journalism. It may be suspected that there is a spice of malignity in the perseverance, with which journals of the class censured have since pursued his lordship. First, in connection with his daughter's engagement and the libel suits growing out of it, the Chief Justice was not spared. And more recently, on the occasion of his marriage (Aug. 13) to Miss Lawford, it has been rumored that the ceremony was only forced by a threat of an action for breach of promise, a cruel and malicious report to which the friends of the lady have hastened to give an emphatic contradiction.—Montreal Legal News.

GENERAL "BOB" TOOMBS is reported to be dying at his home at Washington, Ga. His mind is seriously affected, says The Philadelphia Press, and absolutely void as regards certain topics. His imagination carries him back twenty years, and he cannot be convinced that he is at home, but believes himself to be either in New York, Richmond, Montgomery or Boston, or else travelling the old court circuit of his district which he covered forty years ago. He makes eloquent arguments before visionary bars, and during the week entered into an elaborate discourse to prove that West Virginia was responsible for her share of Virginia's bonded debt. He sometimes imagines himself in the army. He awoke one night and asked to be raised from his bed, as "the enemy were coming." He then re-led his charge at Antietam and asked to be laid down again, as "the fight had finished."

man in the employment of another is injured by the carelessness of a third man, who is also employed by the same man, the common employer is not responsible for the carelessness of the one who injured the other. There is that general principle. It is liable to a great many exceptions, such as that they must be in the same common employment. I say to you, and relieve you of all trouble about that, that these men, the plaintiff and the others, were not in the common employment of the railroad company with the party who had charge of the cars that injured the plaintiff; so that it is out of your way." The correctness of this ruling was re-affirmed by the learned judge after reargument upon motion for a new trial, and he took occasion to use the following language: "And this, my personal judgment as a matter of sound principle, is also the necessary result of the latest decision of the Supreme Court of the United States on the same subject, in the case of the Chicago, Milwaukee & St. Paul Railway Co. v. Ross. The length of time that case was held under consideration by the court, and the ultimate dissent of several of its members, show the serious attention it received, and by it I am governed."

AN ENGLISH VIEW OF THE POINTS IN RIEL'S CASE.-American lawyers will read with interest the following view of the points in Riel's case. Nothing could throw into stronger light the difference between the British and the American constitution. The difference is about this: In England the legislature is omnipotent; but in America it would be omnipotent if it were not for the judiciary. The judiciary in this county is a sort of a ball and chain fastened to the legislative leg. If General Lee had been tried for treason and murder and convicted, under a statute similar to the Canadian statute which governed the trial of Riel, by two justices of the peace and a jury of six men, it can scarcely be doubted that the Supreme Court of the United States would have gotten possession of the record and of the prisoner by its writs of certiorari and habeas corpus, and would have held the statute unconstitutional and the conviction void. They would undoubtedly have

8 112 U. S. 377.

held that a trial of such a crime by a jury of six. men is not a trial by jury as it existed at common law, and hence does not answer the mandate of the Constitution of the United States that "the right of trial by jury shall remain inviolate." We can equally well understand why an English lawyer should regard such points as mere quibbles, when viewed from the British standpoint of parliamentary omnipotence. Indeed, it would really seem as though Riel's lawyers must have received a part of their legal education on this side of the St. Lawrence. The Law Journal (London), says of Riel's case:,"Quibbling for a man's life is justifiable if it be ever justifiable; but it was not to be expected that the strong bench of judges representing the Judicial Committee of the Privy Council at the hearing of the petition in the case of Regina v. Riel would accept the quibbles put forward in behalf of the condemned man. If it be true that the Dominion Parliament, under powers from the Imperial Parliament to 'legislate for the due administration and the peace, order, and good government of Her Majesty's subjects in the North-West Territories,' cannot put a jury of six in place of a jury of twelve and allow six challenges instead of thirty-five, it is difficult to see what that legislature can do. Experience in the county courts of England shows that twelve jurymen are the smallest number from which impartiality and common sense can reasonably be expected; but the Dominion Parliament was allowed its own opinion on such subjects, and it has altered the English common law accordingly, probably to the necessities of a sparsely-populated country. To say that of a particular alteration of the ex

isting law when made that it is ultra vires because it does not in fact conduce to good order and government, is to revoke the legislative powers conferred. The stipendiary magistrate presiding at the trial was required to have 'full notes of the evidence' taken down 'in writing,' which was done in shorthand. If shorthand is not writing, what is it? In the middle ages it would, perhaps, have been called magic, but in these prosaic times it is writing. It is curious but unnecessary to observe that the Act happens to use a phrase peculiarly appropriate to shorthand -namely, 'a full note,' which is the technical