pression of the Supreme Court on the subject is in New England Mut. L. Ins. Co. v. Woodworth, 111 U. S. 138; where Mr. Justice Blatchford says:

"In the courts of the United States it is held that a corporation of one State, doing business in another, is suable in the courts of the United States established in the latter State, if the laws of that State so provide, and in the manner provided by those laws." See also Eaton v. St. Louis, Shakspear Min. & S. Co., 7 Fed. Rep. 139; West v. Home Ins. Co., 18 id. 622. At the time these suits were brought Massachusetts had no local law making foreign corporations doing business in the State amenable to suits, except foreign insurance companies, and except the provisions in relation to attachment, which under a well-settled rule could not give this court jurisdiction. Recently however, feeling the necessity for such a law, a statute has been passed requiring all foreign corporations doing business in the State to appoint an agent upon whom service can be made. Act 1884, ch. 320. The plaintiffs rely upon the case of Hayden v. Androscoggin Mills, 1 Fed. Rep. 93. A similar question of jurisdiction there arose on a motion to dismiss, and the decision was based primarily on the impropriety of the motion. Judge Lowell however goes on to discuss the merits of the question, and while he intimates at the close that if the question was brought up in some new form, his decision might be different, yet he gives it as his opinion that a foreign trading corporation doing business in the State of Massachusetts may be sued in the Circuit Court by summons duly served upon an officer of the company, the fact of attachment being immaterial. We cannot adopt this view in the light of what we believe to be the great weight of authority on this question. Cir. Ct. D. Mass. Boston Electric Co. v. Electric Gas Lighting Co.; Same v. New England Electric Manuf'g Co. Opinion by Colt, J. [Decided May 20, 1885.]

IOWA SUPREME COURT ABSTRACT.

TENANTS IN COMMON-ACCOUNTING FOR RENTS-RECEIVER.-It is the right of a tenant in common to occupy the common property, and such occupancy alone does not render him liable for rent. Such liability, if it existed, would tend to deter each tenant in common from occupying, and might keep the property vacant. Austin v. Barrett, 44 Iowa, 488; Reynolds v. Wilmeth, 45 id. 693; Israel v. Israel, 30 Md. 124. If the occupying tenant should refuse to allow his co-tenant to occupy with him, such refusal might be deemed an ouster (Noble v. McFarland, 51 Ill. 226), and in case of an ouster the occupying tenant may be held liable to account. Sears v. Sellew, 28 Iowa, 501. If in the case at bar the defendant is occupying under such circumstances that he is not liable to account, it follows that he has done no wrong, and such mere occupancy does not afford a ground for the appointment of a receiver. If it were otherwise, it would follow that whenever a tenant in common enters upon the common property his co-tenant might have a receiver. We do not say that there might not be a case where a tenant in common out of possession would be entitled to a receiver. Perhaps it would be if the occupying tenant was occu pying under such circumstances that he was liable to account, and was at the same time irresponsible. Varnum v. Leek. Opinion by Adams, J. [Decided April 22, 1885.]

WILL-CONSTRUCTION-LIFE ESTATE.-T. devised all the rest and residue of his property, after payment of debts and certain legacies, in the following words: "To my present wife, C. A., all my estate, and

all of which I may die seized or possessed, to be by her held, owned and possessed during her natural life; and at her death it is my will, wish and desire that it shall descend to her own children, S. T. and A. T., share and share alike; and I hereby will and bequeath it to them, subject to the devise therein before made to my said wife, C. A., and subject to all her just rights by virtue of such devise." Held, that the wife took only a life estate in the property. Lowrie v. Ryland. Opinion by Adams, J.

[Decided March 20, 1885.]

CONTRACT-OPTION-NO DELIVERY CONTEMPLATED. -It is well settled that when the parties to an execu. tory contract for the sale of property intend that there shall be no delivery thereof, but that the transaction shall be settled, by the payment of the difference between the contract price and the market price of the commodity at the time fixed, the contract is void. Gregory v. Wattowa, 58 Iowa, 711; Murry v. Ocheltree, 59 id. 435; Pixley v. Boynton, 79 Ill. 353; Logan v. Musick, 81 id. 415; Corbett v. Underwood, 83 id. 324; Bigelow v. Benedict, 70 N. Y. 202. See also Irwin V. Williar, 110 U. S. 499; Thompson v. Cummings, 68 Ga. 125; Barnard V. Backhaus, 52 Wis. 593; Flagg v. Baldwin, 38 N. J. Eq. 219; 48 Am. Rep. 308. First Nat. Bank v. Oskaloosa Packing Co Opinion by Rothrock, J. [Decided April 23, 1885.]

NEW TRIAL-VIEW BY JURY-MISCONDUCT OF PARTY -FEEDING JURORS.-Where a jury was sent in charge of a bailiff of the District Court, with the sheriff and county surveyor, a distance of eight miles, to view and examine real estate alleged to be damaged by the overflow of water, aud while examining the land, it being noon, the bailiff, by order of the sheriff, procured and caused dinner to be served at the house of defendant in error, without his solicitation or the solicitation of the jury, there being no other convenient place to procure it, the dinner being obtained by the bailiff, to be paid for by him, and where in such case it was affirmatively shown that the defendant in error had no conversation with the jury upon the subject of the case on trial, it was held, that no misconduct on the part of the defendant in error or jury was shown which would require a new trial. The case of Ensign v. Harney, 15 Neb. 330, is relied upon by plaintiff in error as a case in point, and it is insisted that the rule stated in that case must result in a reversal of the judgment in this case. But such is not our view. In that case a favor was received by the juror directly from the counsel of one of the parties, and the court says: "To permit him to accept favors from either party was to put him under obligations to such party, the tendency of which was to bias his judgment." As we have seen, the rule there laid down has no application to the case at bar. There was no misconduct on the part of the defendant in error. It is not shown that he furnished the dinner to the jury, or caused it to be furnished. There was no misconduct on the part of the jury, for they received no favor at the hands of the defendant in error. No improper or undue influence was exerted over them, and they were not in a position which made them liable to such influences. See Wilson v. Abrahams, 1 Hill, 210; Hil. N. T., § 8, p. 204. Johnson v. Greim. Opinion by Reese, J. [Decided April 29, 1885.]

ILLINOIS SUPREME COURT ABSTRACT.*

INJUNCTION-TO RESTRAIN COLLECTION OF JUDGMENT AT LAW-NO SERVICE ON DEFENDANT.- A court *To appear in 110 Illinois Reports.

of equity will not enjoin a judgment at law merely on the ground that the process in the suit in which the judgment was rendered was not served on the defendant. To justify the interposition of a court of equity in such a case, it must be further shown that if the relief sought be grauted, a different result will be obtained from that already adjudged by the void judgment. Freeman in his work on Judgments (§ 498), thus states the result of the authorities: "It has been held that a judgment rendered without service of process, and without the knowledge of the defendant, may be relieved against without any showing on the question of merits, for the reason that in such a case the injury consists in the rendition of a judgment against a party without notice and opportunity of defense, and that it is unjust and unconscientious to attempt to enforce a judgment so obtained," and for this he refers, in a note, to the Tennessee cases. Bell v. Williams, 1 Head, 229; Ridgeway v. Bank of Tenn., 11 Humph. 523. "But," he adds, "the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be other or different from that already reached," and to sustain this he cites, in a note, Taggart v. Wood, 20 Iowa, 236; Gregory v. Ford, 14 Cal. 138; Fowler v. Lee, 10 Gill & Johns. 363; Piggott v. Adkins, 3 G. Greene (Iowa), 427, and Crawford v. White, 17 Iowa, 560. An examination of these cases will show they sustain the author's position. In Secor v. Woodward,8 Ala.500, the court said: "A court of equity has no jurisdiction to enjoin a judgment at law merely because the process in that court has not been served on the defendant. It is necessary further to show that the party, by the irregularity, has been precluded from urging a valid defense." And to the same effect was the ruling in Crofts v. Dexter, 8 Ala. 767; Gardner v. Jenkins, 14 Md. 58; Harris v. Gwin, 10 Sm. & Mar. 563. Colson v. Leitch. Opinion by Scholfield, J.

NEGLIGENCE-JOINT AND SEVERAL LIABILITY.-For separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties cannot be jointly held liable to the party injured. If there is no concert of actionno common intent-there is no joint liability. This rule is very well settled by authority: Hilliard on Torts, 10, p. 315; Nav. Railroad and Coal Co. v. Richards, 57 Penn. St. 142; Shearman & Redfield on Neg. 58; Bard v. Yohn, 26 Penn. St. 482. But a different principle applies where the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of ac. tion between them. In such cases the party injured may have his election to sue all parties owing the common duty, or each separately, treating the liability as joint or separate. A familiar case illustrating the principle is, where a person is injured by the falling of a party wall erected on the dividing line between two lots owned by different persons, the action is maintainable jointly against both owners. It is for

the reason it was a common duty of both owners to make the repairs. Another instance is, where a passenger is injured by a negligent collision of the trains of two railroad companies, he may maintain one action against both. And so it has been held an action may be maintained jointly against towns, where the law will authorize such an action, for an injury result. ing from the insufficiency of a bridge which both towns are under an obligation to maintain. Klauder v. McGrath, 36 Penn. St. 128; Colegrove v. N. Y., B. N. & N. H. R. Co., 6 Duer, 382; Same v. Same, 20 N. Y. 492; Peckham v. Burlington. 1 Vt. 34. In Bryant v. Bigelow Carpet Co., 1 Mass. 491, it was held where

the negligent acts of two defendants combined to produce the injury to plaintiff, a joint action could be maintained against both negligent parties. It will be seen the rule recognized rests on sound principle, that is, where an injury results from the concurrent negligence of several persons, all being under a common duty to observe care, though that duty is separate with reference to that which causes the injury, all are jointly liable. Applying this principle to the case being considered, it would seem to be conclusive as to the point made the city and the owner are not jointly liable for the injury to plaintiff. If it shall be ascertained it was the duty of both the owner and the city to keep the sidewalk in repair, then the failure to do so was a common neglect, and the case comes precisely within the principle stated. Whether both or either party was under such duty, depends on facts to be found by the jury in the trial court. City of Peoria v. Simpson. Opinion by Scott, J.

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CONFLICT OF LAWS-INSOLVENCY LAWS OF ANOTHER STATE.-The courts of this State will not enforce the insolvent laws of another State by giving effect to a statutory assignment of the effects of a debtor residing in such other State, even as against an attaching creditor of the same State of the debtor. A question similar in principle arose at an early day in New York in Abraham v. Plestero, 3 Wend. 538, where a baukrupt had absconded from England, bringing certain property with him to New York, which was there attached by creditors resident of England, and the assignee, under a foreign commission of bankruptcy, sought the aid of our courts to enforce his claims to the property. The right of the assignee to hold the property was denied. In the decision of the case Senator Oliver said: "The question here is, whether the comity of nations, or in other words, the enlightened and liberal principles of jurisprudence, require that we shall enforce the bankrupt law of a foreign nation by giving effect to a statutory assignment. * * On the whole, I subscribe to the opinion of Marshall, C. J., in 5 Cranch, 289, that the bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States. * The obligation of a contract is universal, and may be enforced wherever the contracting party may be found. Not so a municipal law, which no country other than that which enacted it is bound to enforce." Senator Stebbins said: "It has been determined by the Supreme Court of the United States, and by the State courts of Connecticut, Massachusetts, Pennsylvania, Maryland, and both the Carolinas, that an assignment under the bankrupt law of England does not operate as a legal transfer of the personal property and choses in action of the bankrupt in this country." The doctrine of Abraham v. Plestero was affirmed in Johnson v. Hunt, 23 Wend. 87, in an elaborate opinion delivered by Justice Cowen. Referring to the Abraham case, it is said: "The current of the decision, as I understand it is, that an assignment in invitum, under the laws of one State or Nation, has no operation in another, even with respect to its own citizens." See also Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Paine v. Lester, 44 Conn. 196; Kidder v. Tufts, 48 N. H. 121; Greene v. Van Buskirk, 7 Wall. 139; Burlock v. Taylor, 16 Pick. 335; Willits v. Waite, 25 N. Y. 577. Rhawn v. Pearce. Opinion by Craig, J.

NEGLIGENCE-DIRECTING VERDICT FOR DEFENDANT SERVANT KNOWING OF DANGER.-There may be decisions to be found which hold that if there is any evidence--even a scintilla-tending to support the plaintiff's case, it must be submitted to the jury. But we think the more reasonable rule, which has now come to be established by the better authority is, that when the evidence given at the trial, with all inferences that

the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant. 22 Wall. 120; Randall v. Baltimore & Ohio R. Co., 109 U. S. 478; Metropolitan R. Co. v. Jackson. 3 App. Cas. 193; Reed v. Inhabitants of Deerfield, 8 Allen, 524; Skellenger v. Chicago & Northwestern R. Co., 61 Iowa, 714; Martin v. Chambers, 84 Ill. 579; Phillips v. Dickerson, 85 id. 11. In the recent case of Frazer v. Howe, 106 Ill. 573, this court recognized the rule to be: "If there is no evidence before the jury on a material issue in favor of a party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence, or direct the jury to find against the party so holding the affirmative." The evidence shows there was a more proper way of doing the work, and one which would have been safe. But the liability of the defendant does not thence result. In Penn. Co. v. Lynch, 90 Ill. 334, this court said, that while there is an implied contract between employer and employee that the former shall provide suitable means, appliances and instrumentalities with which to perform the labors required of the latter, and also that the latter shall be advised by the former of all the dangers incident to the service of which the latter is not cognizant, "yet the failure of the employer in this regard furnishes no excuse for the conduct of an employee who voluntarily incurs a known danger. He must himself use due care and caution to avoid injury. If he has full knowledge of all the perils of a particular service, he may decline to engage in it, or require that it shall first be made safe; but if he does thus enter it he assumes the risk, and must bear the consequences." And in St. Louis & Southeastern R. Co. v. Britz, 72 Ill. 261, there was approval of the rule laid down in Whart. on Neg., § 214, that "when an employee, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if he is subsequently injured by such exposure." To the same effect are Clark v. Chicago, Burlington & Quincy R. Co., 92 id. 43, and Camp Point Manf. Co. v. Ballou, 71 id. 418. Opinion by Sheldon, C. J.

FINANCIAL LAW.

As

BANKS STOPPING PAYMENT OF CHECK. between the holder of a check for value and the drawer thereof, the bank upon which the check is drawn standing indifferent, and the drawer having an account to his credit in the bank sufficient to pay the sum, the check-holder is entitled in equity to have the money paid to him to the amount of his check, and the drawer cannot arbitrarily stop its payment and compel the bank to pay the money to him. The bank not objecting, we think it is the plain duty of a court of equity to direct the payment of the check out of the funds in the bank to the credit of the drawer. Upon this question courts have differed in opinion, but we think both reason and authority are in favor of the rule above stated. Risley v. Bank, 83 N. Y. 318-328; Coates v. Bank, 91 id. 20, 29; Walker v. Seigel, 2 Cent. Law J. 508; German Savings Inst. v. Adae, 8 Fed. Rep. 106: Wheatley v. Strobe, 12 Cal. 9297; Harker v. Anderson, 21 Wend. 372-381; Exchange Bank v. McLoon, 73 Me. 498; Bell v. Alexander, 21 Grat. 1-6; In re Brown, 2 Story, C. C. 502-519; Yeates v. Groves, 1 Ves. Jr. 281; Lett v. Morris, 4 Sim. 607; Pope v. Huth, 14 Cal. 407; 2 Daniel Neg. Inst., § 1638; 1 id. 23; Morse Bank. 459, 474; Byles Bills (7th ed.), 14, and note; 1 Story Eq. Jur. 1049; Story Prom. N., § 498,

note 3. These authorities we think fully establish the rule, that as between the drawer of a check and the holder thereof for value, the drawing and delivery of the check operates as an equitable assignment of the account or fund upon which it is drawn to the amount of the check, and as a consequence such equitable assignment is binding upon the drawer, and he cannot avoid it except for some good cause. All the learned authors and judges speaking upon the subject say that it is a fraud on the part of the drawer of the check to make the same, when he knows he has no credit or fund to draw upon, and that it is equally a fraud, as between him and the person to whom he gives the check for value, to withdraw the fund or credit before the check is presented for payment. Daniel in his work on Negotiable Instruments, says: "As between drawer and payee on the one side, and the drawee on the other, it creates no obligation on the latter to pay it, as he has a right to insist on an integral discharge of his debt; and if the creditor give a subsequent order for the whole amount, he may pay it with impunity, as he thus discharges his whole debt in its entirety at once. But if the payee goes into equity, or if the parties are brought therein by any proceeding, so that all of them are before the court, the holder of the order may enforce it as an equitable assignment as against all subsequent claimants, whether by assignment of the drawer or by legal process served upon the drawee." Section 23, p. 20; Yeates v. Groves, 1 Ves. Jr. 280; Lett v. Morris, 4 Sim. 607; Bradley v. Root, 5 Paige, 632; Marine Bank v. Jauncey, 1 Barb. 486; Harris v. Clark, 3 N. Y. 93-120; Cutts v. Perkins, 12 Mass. 209. See 3 Lead. Cas. Eq. (3d Am. ed.) 356. The reason of this rule is that while the debtor cannot be subjected to several actions by several parties to recover one debt due to an assignor who has assigned the debt to several in distinct parts, without his assent, in equity all the parties entitled to the whole debt due from the debtor are before the court, and he is subjected to but one action for the whole debt, and the rights of all the parties are settled in one action. The objection therefore to splitting up the claim is obviated, and there is no reason why the several assignees of the debt should not have their rights settled in such equitable action. All parties entitled to any part of the debt due from the bank to the firm, or the receiver of the firm, being before the court, and the bank standing indifferent, and willing to pay to such party or parties as the court shall direct, it seems to us that it would be contrary to a fundamental rule of equity to permit the drawer of the check to prevent the appropriation of the fund in the bank for that purpose, when such act on his part would be a fraud upon the holder of the check. Sup. Ct. Wis., March, 1885. Pease v. Landerner. Opinion by Taylor, J. (22 N. W. R. 847.)

NEW BOOKS AND NEW EDITIONS.

The Game Laws of the State of New York, carefully revised to July, 1885. By Hon. Franklin M. Danaher, counsel of the Anglers' Association of St. Lawrence river. Published by the American Angler, 252 Broadway, New York. Pp. 55.

This little pamphlet makes its appearance "in season," and as the compiler's work is well done and thoroughly indexed, those who have occasion to consult it will not be compelled to ". go fishing" for the law.

NOTES.

UITE a number of distinguished lawyers of the

Richfield Springs. Among others we found Judge Green; Col. F. A. Conkling, who presents the prizes at the tournaments and horse-races, with eloquent allusions to Ivanhoe and such; and Mr. Burchard, who on graduating at Columbia Law School several years ago, achieved fame by reason of his alphabetical position, his case being made by Professor Dwight the test one as to admission, to determine who was the "biger man," he (the Professor) or Judge Noah Davis, with discomfiture to the Judge. Mr. Burchard is one of the most discriminating and assiduous of the young men practicing at the American bar. Surrogate Calvin was also there,

The Albany Law Journal.

THE

ALBANY, AUGUST 15, 1885.

CURRENT TOPICS.

HE Lauderdale peerage case has been at last decided in favor of Major Maitland of the British army in India. The case has much local interest for us in New York, as it really involved the questions whether the Dukes' Laws of 1665 were repealed by the laws of 1683-4, and the effect of a resolution of the Assembly of New York in 1691 declaring all prior acts void. Senator Edmunds, Mr. Fowler and Mr. Seward of New York testified that the laws of 1665 and 1684, requiring banns or a license for a valid marriage, were in force until the year 1775 in New York. Mr. Phelps, the American minister in London, Mr. Nash and Mr. Clarence Cary of New York were of the opinion that the laws of 1665 and 1684 were not in force after the year 1691. The House of Lords seems to treat the law of 1684 as in force, and to assume that it required either banns or license as a prerequisite to a valid marriage in the province of New York, but as there was no proof that the New York marriage was not consummated after a publication of banns, the lord chancellor presumed that banns had been published, and applied the maxim "omnia praesumantur esse rite acta." We shall look forward with some interest to the full report of this case in the regular English law reports.

By the recent death of Judge Dickey of Illinois and Judge Okey of Ohio the bench has sustained a serious loss. These judges have long been familiar to the profession throughout the country, and have been recognized as men of ability and learning. From the bars of their respective States their great services have met with due appreciation, and we would pay them a stranger's tribute. We also note

the death of Justice Austin of the Hawaiian Supreme Court, who was born at Saratoga Springs, in this State, and lived until '1876 in Buffalo. He is spoken of by his associates in the highest terms.

If the decision reported in our Notes of Cases this week, from 36th Hun, in the elevated railroad case is law, it is high time that the Legislature should come to the rescue. Such a structure may not interfere with air, light and access, and yet may completely destroy the market value of a dwelling by reason of noise, vibration, dust and unsightliness. By reason of such a nuisance its occupants may not be able to sleep at night, and yet according to this decision they are without remedy. If this sort of thing goes on the people will be obliged to put the railroads where they have put the telegraph wires - underground. VOL. 32-No. 7.

by

The American Bar Association will meet at Saratoga Springs on the 19th, 20th and 21st inst. The programme is as follows: President's Address, by John W. Stevenson, of Kentucky; a paper on "The Distinction between Legislative and Judicial Functions," by Reuben C. Benton, of Minnesota; a paper on "The Partition of Powers between the Federal and State Governments, Richard M. Venable, of Maryland; a paper on "Care of Trust Securities," by Francis Rawle, of Pennsylvania; the report of the Special Committee on "Delays in Judicial Administration," of which David Dudley Field is chairman, and a discussion of this report, and also of the papers. Mr. Field's report, with the discussion which it will elicit, promises to be the most interesting of the exercises.

In this hot weather we are refreshed by a breeze from the south by the medium of 36 Louisiana Annual Reports. Our old acquaintance, Manning, J., continues his fine writing. Thus, in Gordon v. Stubbs, p. 636, he observes: "The business had reached a crisis. The prolonged negotiations had resulted in no definite arrangement, but an arrangement must be made, or all was lost. Time pressed. Further delay was ruin. Plan after plan had been devised, matured, and when on the eve of adoption and execution had been shivered into atoms by hindrances which were not foreseen, or if foreseen, could not be avoided or removed. The situation changed every day as rapidly as the shifting views of a kaleidoscope. Stubbs was in the thick of the fight, managing, arranging, negotiating, marshalling all his resources, and directing them. The struggle had been going on several weeks. The tension of mind consequent upon it was extreme. Anxiety devoured him. Apprehension of failure weighed upon him. Every thought, faculty, was absorbed by the impending danger, and was employed in finding means of escape. He was in a maelstrom which threatened to ingulf large interests. Then came the decree from Wash

*

*

*

ington like an avalanche from the mountain top, like a clap of thunder from out a clear sky. Alarm and dismay succeeded the sense of security. There was a complete revulsion of feeling." This is certainly very fine. Nothing could be more annoying than the situation of a man in a maelstrom, simultaneously threatened by an avalanche and a clap of thunder. We don't see how he could get out of it. And then in Corporation of Meriden v. Silverstein, P. 917, the same eloquent judge, speaking of a recent dictum of the lord chief justice of England, that christianity is not a part of the common law, says: "This overrules with one fell swoop the English decisions of a century," etc. This comparison of Lord Coleridge to an overruling hawk is certainly strikingly original.

There is also an amusing line of slander and libel cases in the same volume. The head-note to Bigney v. Van Benthuysen, p. 38, is a curiosity of re

porting. It is as follows: "One who habitually libels others complains with bad grace of being himself libelled, and therefore when two parties engage in a newspaper controversy, and hurl abusive epithets at each other, they are both in the wrong, and neither can recover damages from the other. Editors of newspapers, and writers for them, have no peculiar rights or privileges in this respect, and have no more claims to indulgence than others. They are held to the same responsibility with any other person, and malice on their part is conclusively inferred if the publication is false. The law gives no countenance to the proposition that immunity can be claimed by an editor or publisher of a newspaper if he shall pamper a depraved public appetite by the publication of falsehoods and calumnies upon private character, nor does it give encouragement to the circulation of defamatory publications by protecting the retailers of them. It protects the character of a man as studiously as it protects his property. One who is himself in fault cannot recover damages from another who has retaliated in kind, although the latter was not justifiable in law, and this holds good in spite of the truism that one wrong does not justify another." This is good law, and we hope the graceless editors will read it and tremble. In Johnston v. Barrett, p. 320, the parties seem to have been inspired by mules, for one was sitting on a mule and the other behind a mule, when the following occurred: "Words passed between plaintiff and defendant touching their respective title to the cotton, during which both used language highly offensive. Defendant, who was armed with a cocked gun and with a pistol, assaulted plaintiff, a man over seventy years old, punching or pushing him with the gun, getting into the wagon, taking cotton from it, finally pulling plaintiff by his pants and striking him in the face, defying and damning the law, to which plaintiff had said he would appeal for redress. It appears, on the one hand, that during the course of the difficulty the plaintiff called the defendant various hard names, such as would naturally wound his feelings and mortify him; while on the other hand it is shown that defendant lacked

no liberality in applying to plaintiff unkind epithets. The parties finally separated on terms any thing but friendly." As they have a code in Louisiana, we suppose this person who "defied and damned the law" was a disciple of Messrs. Carter, Dwight and J. Bleecker Miller. Then in State v. Bienvenue, p. 378, the defendant was convicted of libelling the Rev. Cyprien Vénissat, a Catholic priest, by charging him with unchastely embracing and kissing sundry scholars and religious persons of the feminine sex in a certain convent; in short, charging the Rev. Cyprien with being a Cyprian. The publication was held not to be privileged.

The same volume assures us that wearing a sunbonnet in the street is not necessarily negligent. Shea v. Reems, p. 969. The plaintiff was run over in

the street, and it was proved that her sun-bonnet obstructed her view; but it was also shown that the driver saw it, and recklessly drove over her. The case states that "there was ample room for him to have passed on either side of her"- which we should be inclined ordinarily to doubt.

IN

NOTES OF CASES.

'N State v. Chevallier, 36 La. Ann. 81, it was held that negative evidence may be superior to positive. The court said: "Evidence of a negative nature may, under particular circumstances, not only be equal but superior to positive evidence. This must always depend upon the question whether the negative testimony can be attributed to inattention, error or defect of memory, and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify, and exercised the same. Suppose six persons, whose sense of hearing is excellent, and who are otherwise equally competent, were placed in a room and told to watch whether the clock found in it strikes, or not, the hour; that faithful to their instructions they had so watched when the large hand passed over twelve, and had so continued watching for five minutes or more, and that when interrogated two were to swear that the clock had struck and four that it had not, it is manifest that it could not be claimed that the preponderance should be in favor of the testimony of the affirming witnesses. The principle is further inapplicable where a negative depends on the establishment of an opposite fact, such as an alibi, for instance. 1 Stark. Ev., § 82, p. 516. It has been often held that it is not true, as a matter of law, that negative evidence may not be sufficient to overbalance positive testi

mony.

308.

98 Mass. 381; 18 Ill. 266; 8 Jones (N. C.), In such cases the jury or judge have to weigh, consider and decide for themselves, somewhat regardless of general rules." Underhill Torts, 319-324; 707, 708.

See Moak's

In Schroder v. Wanzer, 36 Hun, 423, a lot in Greenwood cemetery was purchased by the plaintiff's husband for a place for the burial of the plaintiff and her husband and their family, and had been thereafter greatly improved at her, as well as at his expense, and the plaintiff's parents and one of her sons and a brother of the husband had been buried therein. Thereafter the husband, for a valuable consideration, sold and conveyed the lot to a stranger. Held, that the wife could maintain an action to restrain the husband from so conveying the lot, and was entitled to have a judgment entered therein specifically devoting the lot to the objects for which it had been purchased and improved. The court said: "In this respect the case was brought within the principle of Lobdell v. Lobdell, 36 N. Y. 327, where a father had verbally agreed to convey a piece of land to his son in case