count of the danger of improper influence, but if they appear to have been fairly made, and to be free from coercion and undue influence, they ought to be sustained. Bradish v. Gibbs, 3 Johns. Ch. 523. The reason of the rule is manifest. The coufidence of the marriage relation is so complete, and the trust of the wife in the honor, good faith and love of her husband is generally so perfect, that in all business affairs she depends upon him, and suffers herself to be controlled by his judgment. Unless therefore the court, in the language of Lord Eldon, watches transactions between parties thus situated, where fraud may be committed with such facility and its discovery may be so easily baffled, with a jealousy almost invincible, it will oftener lend its assistance to fraud than punish the fraud-doer. Hatch v. Hatch, 9 Ves. 292. But the testator stood in another relation of confidence to his wife. He was her agent, having general and complete control of all her business affairs. As her agent, he was bound, in all his dealings with her, to practice toward her the utmost good faith. A contract made by an agent with his principal, in relation to the subject-matter of the agency, will not be allowed to stand, unless it appears that it is entirely free from undue influence, advantage and imposition. transaction must be characterized by the utmost good faith. There must be no misrepresentation, and an entire absence of concealment or suppression of any fact within the knowledge of the agent which might influence the principal; and the burden of establishing the perfect fairness of the contract is upon the agent. Condit v. Blackwell, 7 C. E. Gr. 481; Porter v. Woodruff, 9 Stew. Eq. 174. The same principle has been declared in many other cases. Tate v. Williamson, L. R., 1 Eq. 528; S. C. on Appeal, L. R., 2 Ch. App. 55; Rhodes v. Bate, L. R., 1 Ch. App. 252; Billage v. Southee, 9 Hare, 534. Where a contract is made by parties holding confidential relations, so that it is probable that they did not deal on terms of equality, but that unfair advantage might have been taken by the stronger party of the weaker, there the burden, if the contract is assailed, rests on the stronger party to show that no advantage was taken, otherwise fraud will be presumed. Cowes v. Cornell, 75 N. Y. 91. Farmer's Executor v. Farmer. Opinion by Van Fleet, V. C. The SCOPE OF AUTHORITY RATIFICATION. In 1872 complainant gave to an agent written authority “to assign, satisfy or discharge all mortgages made to him." The agent thereunder assigned to the defendant a mortgage of $10,000, declaring that the assignment was for the benefit of complainant. The agent applied the $10,000 to his own use. Held, that complainant was bound by the assignment and the agent's concomitant declarations; the defendant testifying that he had no knowledge of the agent's fraud. When a principal confers power by terms so uncertain as to be susceptible of two different constructions, and the agent in good faith adopts the one least favorable to his principal, the principal cannot repudiate the acts of his agent as unauthorized because he meant the terms to be read in the other sense. Ireland v. Livingston, L. R., 5 Eng. & Irish App. (H. of L.) 395, 416. A power "to sell and assign" will not authorize an agent to pledge the property of his principal, for in such case the terms themselves exclude the idea of any other disposition than a sale out and out. It has long been the law of that State that whenever the act of an agent is authorized by the terms of the power constituting him an agent, that is, whenever by comparing the act done by the agent with the words of the power, the act is in itself warranted by the terms used, the act is, as to all persons dealing with the agent in good faith, the act of the principal. Such persons are not bound to inquire into facts aliunde. The apparent authority is as to them the real authority. This rule was first declared in North River Bank v. Aymar, Hill, 262. That case, it is said, was afterward reversed by the Court of Errors, and that the reversal proceeded on the ground that the legal rule above stated was erroneous. The opinion however of the Court of Errors has never been reported, and the history of the case here given will be found in the dissenting opinion of Judge Comstock, in Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 154. But the doctrine declared in North River Bank v. Aymar has since been repeatedly affirmed by the Court of Appeals of New York, and is now the established law of that State. Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 125; Griswold v. Haven, 25 N. Y. 595; Exchange Bank v. Monteath, 26 id. 505; Bank of New York v. Bank of Ohio, 29 id. 619; Westfield Bank v. Cornen, 37 id. 320. In two of the cases above cited, it is said that where the party dealing with an agent has ascertained that the act of the agent corresponds in every particular, in regard to which such party has or is presumed to have any knowledge, with the terms of the power, he may take the representation of the agent as to any extrinsic fact which rests peculiarly within the knowledge of the agent, and which caunot be ascertained by a comparison of the power with the act done under it. The assignment was made in December, 1879. The mortgage was afterward foreclosed, the premises bought by the agent, and conveyed to the defendant in July, 1881. The complainant, who was then in Paris, was notified thereof in October, 1881, and returned to this State in April, 1882. He lived continuously thereafter, until April, 1883, with his agent, who informed him fully as to this transaction. He filed his bill in June, 1883. Held, that his delay constituted a ratification and an estoppel as against defendant. The rule is settled that where the silence of a principal may cause loss to a third person, or give him an advantage, he must, without unreasonable delay after the fact comes to his knowledge that his agent has exceeded his authority, disown his agent's act and afford the other party an opportunity to protect himself, or he will make his agent's act his own. 1 Chit. on Cont. (11th Am. ed.) 291; Benedict v. Smith, 10 Paige. 126; Vianna v. Barclay, 3 Cow. 281. Chetwood v. Berrian. Opinion by Van Fleet, V. C. NUISANCE-ACT PERMITTED BY ORDINANCE -PIPE DISCHARGING FILTH BOARD OF HEALTH INJUNCTION.-The former owner of a hotel in Trenton applied to the commou council of the city, and obtained, by ordinance, permission to lay a drain and sewer pipe from the hotel through a street to a small natural stream of water. The ordinance contained a provision, that if such pipe should become a nuisance (upon which the opinion of the common council should be final and conclusive), the owner, his heirs, or assigns, should remove it. The hotel is now owned by one of the defendants, the other being his lessee. The board of health of the city of Trenton filed a bill, in the name of the State, to enjoin the use of the pipe for discharg ing the filth of the hotel into the stream, as a nuisance detrimental to public health; and the evidence shows that its use is a public nuisance. Held, that the injunction should be allowed, although other persons also discharged their filth into the stream; and although the statutory requisites as to the organization of boards of health had not been strictly com plied with by complainants; and although the ordinance had never been repealed, and the defendants insist that the license thereby granted is in the nature THE TITHING MAN, 12 C. E. Gr. 557, 560; Amboy v. Smith, 4 Harr. 52, THIS great functionary was still chosen in the old 56, 57; Hoagland v. Culvert, Spen. 387; State v. Per- CRIMINAT, LAW. EVIDENCE JUROR PRINCIPAL AND ACCESSORY CHALLENGE-CROSS-EXAMINATION.-Since the Crimes Act of 1860, one indicted as an accessory jointly with the principal may be tried before the conviction of the principal, but it is requisite, on the trial of the acces sory, for the Commonwealth to prove the guilt of the principal. Upon such trial of the accessory, any evidence competent to show the guilt of the principal is admissible for that purpose, not for the purpose of showing the connection of the accessory with the offense. It is not proper practice to ask a witness upon cross-examination whether he had been indicted and convicted of an offense, even for the purpose of affecting his credibility. The record is the only proper evidence, and even that is only prima facie; as to the accessory it is res inter alios acta. Foster, 365; Smith's case, 1 Leach, 288; Prosser's case, mentioned in note to Smith's case, 1 id. 290; Rex v. Blick, 4 C. & P. 377; Rex v. McDaniel, 19 State Trials, 806; Arch Crim. Plead. and Prac. In Cook v. Field, 3 Esp. R. 134, it was said by Bearcroft, J., and assented to by Lord Kenyon, that where the principal has been convicted, it is nevertheless on the trial of the accessory competent to the defendant to prove the principal innocent. And where two persons had been indicted together, one for stealing and the other for receiving, and the principal pleaded guilty, Wood, B., refused to allow the plea of guilty to establish the facts of the stealing by the principal against the receiver. 10 S. & M. 192; see also State v. Duncan, 6 Ired. 98; State v. Newport, 4 Har. 567. That a confession by the principal is not admissible upon the trial of the accessory to prove the guilt of the principal is settled law. What more is the plea of nolo contendere than a confession? Had judgment been entered upon the plea the record would have been competent evidence of the conviction. But there was no judgment, only a plea, which was at best but a qualified admission of guilt, and which might have been withdrawn the next day. We are of opinion that the plea was improperly received. The court on the trial of a criminal case may, in its discretion, control the cross-examination of witnesses by requiring the proposed questions to be reduced to writing and submitted to the court, before being propounded to the witness. The fact that a juror, impanelled on the trial of an accessory, had served as a juror on the trial of a previous indictment against the same defendants who were indicted jointly with him as principals, but involving a different state of facts, is not a ground for challenge for cause. Sup. Ct. Penn. Buck v. Com. Opinion by Paxson, J. (15 W. Notes, 521.) way and still attempted to carry out the duties ordered by law. Once each year the free men of the township met and elected persons of good substance and of sober life to be tithing men. To them the community looked for a strict enforcement of the Sunday laws. They were to see to it that the taverns were shut, that the village was quiet, that none behaved with levity, that no artificer nor laborer did a stroke of work, and were to ask of all who travelled whither they were bound. on the Sabbath, their names, their purpose, and But the day when men would answer such questions was gone. The tithing man who, in 1800, rushed from the meeting house to stop the driver of a coach or four wheeled carriage or sleigh, and bid him give his name, was likely to get a surly answer, and be left standing in the road while the transgressor drove rapidly away. Pious men complained that the war had been a great demoralizer. Instead of awakening the community to a lively sense of the goodness of God, the license of war made men weary of religious restraint. The treaty of peace had not been signed, the enemy was still in the land, when delegates to the General Court of Massachusetts boldly said the Sabbath was too long; country members demanded a Sabbath of thirty-six hours; town members would give but eighteen, and had their way. The effect was soon apparent. Levity, profaneness, idle amusements and Sabbath breaking increased in the towns with fearful rapidity. What, the sober-minded cried out, is to become of this Nation? Before the war nobody swore, uobody used cards. Now every lad is proficient in swearing, and knows much of cards. Then apprentices and young folks kept the Sabbath, and till after sundown, never left their houses but to go to meeting. Now they go out more on the Sabbath than on any other day in the week. Now the barber shops are open, and men of fashion must needs be shaved on the Lord's day. They ride on horse-back, they take their pleasure in chaises and hacks. How much better, they say, is this than sitting for two hours in a church hearing about hell! Who would not rather ride with a fine young woman in a hack than hear about the devil from Adam's fall? Against this impiety, the impiety of the nineteenth century, the tithing man continued fighting to the last. He was the rear guard of New England Puritauism, covering it as it slowly retreated into the past. -McMaster's History of the People of the United States. THE CIRCUITEERS. AN ECLOGUE. These lines were written by John Leycester Adolphus, whose name is so well known as a reporter in conjunction first with Barnowall, and afterward, for a much longer period, with Ellis. He was appointed judge of the Marylebone County Court in 1852. He was, beyond his law, a man of the finest literary accomplishment and taste, and wrote the "Letters to Richard Heber, Esq., containing critical remarks on the series of novels beginning with Waverley, and an attempt to ascertain their author." This charming and ingenious little work was published in 1821, reached a second edition in 1822, and procured for its writer the friendship of Sir Walter Scott. This eclogue formed part of the amusement provided after dinner in the festive Grand Court holden while the Northern Circuit was at Liverpool for the Summer Assizes in 1839. The lines have already been printed, but many years ago, in Notes and Queries, 3d series, vol. 5, p. 6 (2d January, 1864). No apology can be needed for reproducing in those pages so choice a specimen of legal humor, parts of which may now almost serve as a sort of valedictory address to the defunct science of special pleading. SCENE. The Banks of Windermere. Sunset. ADDISON(1). SIR GREGORY LEWIN(2). A. How sweet, fair Windermere, thy waveless coast! 'Tis like a goodly issue well engrossed. L. How sweet this harmony of earth and sky! 'Tis like a well-concerted alibi. A. Pleas of the Crown are coarse, and spoil one's tact, Barren of fees and savoring of fact. L. Your pleas are cobwebs, narrower or wider, That sometimes catch the fly, sometimes the spider. 4. Come let us rest beside this prattling burn, And sing of our respective trades in turn. L. Agreed! our song shall pierce the azure vault: L. That precious right, my friend, The classical indorsement -"Please draw pleas." L. Dear are the words-I ne'er can read them frigidly "We have no case, but cross-examine rigidly." A. Blackhurst (4) is coy, but sometimes has been won L. Me Jackson(6) oft deludes; on me he rolls Fiendlike his eye, then chucks his brief to Knowles(7). A. What fears, what hopes through all my frame did shoot When Frodsham's breeches, Gilbert, felt thy boot(8)! L. O! all ye jail-birds, 'twas a day of sulks When Roger Whitehead flitted to the hulks. A. Thoughts much too deep for tears subdue the court L. When witnesses, like swarms of summer flies, Dark Attride(9) gives a grunt, the gentle bailiff sighs. L. I love to put a farmer in a funk, Then make the galleries believe he's drunk. A. Answer, and you my oracle shall be, How a sham differs from a real plea? L. Tell me the difference first, 'tis thought immense, Is often found no despicable thrift. 4. Take these, well worthy of the Roxburghe Club, L. Let this within thy pigeon-holes be packed. It holds ten knives,ten hafts, ten blades, ten other knives. (1) A special pleader. (2) A criminal lawyer and reporter of "Lewin's Crown Cases." (3) Meade and Belt's case, 1 Lewin C. C. 184, per Holroyd, J.: "No words or singing are equivalent to an assault." (4) An attorney of Preston. (5) Hoggins, a barrister in the Northern Circuit; afterward a queen's counsel. (6) An attorney. (7) C. J. Knowles, on the Northern Circuit; afterward a queen's counsel. (8) Frodsham, an attorney, was summarily ejected by Gilbert Henderson, recorder of Liverpool, from his chambers for some offensive words nsed by him during an arbitration. Afterward Frodsham sued Henderson for damages for the assault. His counsel was Serjeant Cross. John Williams, afterward a judge of the Court of Queen's Bench, led for the defense, and concluded his speech to the jury by saying: "I vow to God, gentlemen, I should have done the same thing myself an insult a kick and a farthing - -all the world over!" The jury accordingly found for the plaintiff with one farthing damages. Cross tied up his papers, and remarked: "My client has got more kicks than halfpence." But it was always a matter of doubt whether he knew that he was saying a good thing or not. He had never before said any thing to provoke such a suspicion. (9) Sir Gregory Lewin's clerk. (10) 2 Geo. III, ch. 28. "An act to prevent the committing of thefts and frauds by persons navigating bum-boats and other boats upon the River Thames, Rep. 2 & 3 Vict., ch. 47, § 24. L. Take this bank-note (the gift won't be my ruin), 'Twas forged by Dade and Kirkwood; see first Lewin(11). A Change we the venue, Knight; your tones bewitch, But too much pudding chokes, however rich, Enough's enough, and surplusage the rest. The sun no more gives color to the west, And one by one the pleasure boats forsake Yon land with water covered, called a lake. 'Tis supper-time; the sun is somewhat far, Dense are the dews, though bright the evening star; And Wightman(12) might drop in and eat our char. Law Quarterly Review. CORRESPONDENCE. DE MINIMIS. Editor of the Albany Law Journal: As an old subscriber to the JOURNAL, I take the liberty of asking you to decide who is right in the following controversy: In closing a title for my client at two o'clock on the afternoon of July 7, I deducted, under the terms of the contract, the accrued interest on a mortgage which is a lien on the property. The vendor had paid the interest on this mortgage up to July 1. I claimed the right to deduct seven days' interest on said mortgage, arguing that my client would be liable to pay seven days' interest, and that he had no use or benefit of the premises for a period of seven days, the law not regarding fractions of a day. Counsel for the vendor insisted that I had only the right to deduct six days' interest. Will you kindly decide who was right, and oblige NEW YORK, July 8, 1885. LEGIS. NEW BOOKS AND NEW EDITIONS. XV. UNITED STATES DIGEST, N. S. This annual for 1884 appears promptly, and we need only say of it, as we have said of its immediate predecessors, and as we can truthfully say, that it seems to us as well devised and executed as such a work can be, and that it is entirely indispensable. Published by Little, Brown & Co., of Boston. We should like now to see a consolidation of the fifteen annuals, and a table of the cases contained in them. Such a work ought to have a large market. HE NOTES. are ERE is another Bonapartist coup. Mr. Bonaparte, a member of the Baltimore bar, became excited because another lawyer, as the result of some chaffing, called Mr. B. a liar, and struck him on the nose. The struck retorted with a blow on the eye. It is doubtful, we believe, whether apologies or a duel will be the result. Mr. B. is too vivacious.-The Nation very wisely condemns the recent scandalous exposure by the Pall Mall Gazette, and says men and women made pure by hearing about purity, and not by hearing about filth."- -In Sellers v. Matlock, Bath Local Board, 14 Q. B. Div. 928, an urban authority under a statute empowering them, if they should think fit, to provide and maintain, in proper and convenient situations, urinals, water-closets, etc., and other similar conveniences for public accommodation, had erected on the plaintiff's land a public urinal, which was proved to be a nuisance, and injurious to the business carried on on the plaintiff's premises, on which was situated a petrifying well, where "barristers' wigs and other interesting objects" were turned into stone. The court held that being a nuisance, its erection was not justified, and it was ordered to be removed. We regret to see any thing put in the way of petrifying barristers' wigs.In State v. Foster, a recent Louisiana case, the verdict was "guilty of capital punishment, " which was set aside. The jury probably meant "guilty, with capital punishment." (11) 1 Lewin C. C. 145. (12) Afterward a judge of the Court of Queen's Bench, oleomargarine case, ante, 6, saying: "No one can read the statement of the case without being convinced that the opinion was rendered on a statement of charges in which the real question was adroitly avoided. A similar law has been held constitutional by the Federal courts, and there can be no question that the Court of Appeals of New York will concur whenever a proper case is before them. The manufacture and sale of oleomargarine and similar compounds are, as present conducted, a fraud of the worst character, and should be severely punished. There can be no objection to the manufacture of oleomargarine alone, but it should be sold as that, and not as butter. The great profit is in selling it as genuine butter. If it is what is claimed for it let it be placed on the market with a different color. Let the manufacturers be required to color it pink in place of yellow as they do now, and by this means the fraud now so successfully carried on could be prevented." This is a misunderstanding of the decision. After citing the statutes of our State for the protection of dairymen and to prevent deception in sales of butter and cheese, and ample for those purposes, the court continue: "It appears to us quite clear that the object and effect of the enactment under consideration was not to supplement the existing provision against fraud and deception by means of imitation of dairy butter, but to take a further and bolder step, by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market, and protect those engaged in the manufacture of dairy products against the competition of cheaper substances, capable of being applied to the same uses as articles of food. The learned counsel for the respondent frankly meets this view, and claims in his points, as he did orally upon the argument, that even were it certain that the sole object of the enactment was to protect the dairy industry in this State against the substitution of a cheaper article, made from cheaper materials, this would not be beyond the power of the Legislature. This, we think, is the real question presented in the case." The decision is certainly right in this view. To hold otherwise would be in effect to adjudge that a butcher should not sell horse steaks, or that a grocer should not sell lard or train-oil, recommending them as a substitute for butter. Our court very wisely observe in conclusion: "Measures of this kind are dangerous, even to their promoters. If VOL. 32-No. 4. The principle is the same in both cases. The numbers engaged upon each side of the controversy cannot influence the question here. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power, and impartial tribunals to enforce them.” Our omission to comment upon the case to which Mr. Hirschl alludes in another column, was not because the decision did not strike us as singular and technical, but because we knew that some of our readers possessed of "acumen," like our correspondent, would save us the trouble. (It is a great art to know how to induce other people to do your work in warm weather.) We are not yet prepared to say that the decision is not right on the technical common-law ground of repugnancy. Certainly we should not make a lease for years run to the lessee's heirs," and if the forms are printed in that way we should (if we were as careful as we ought to be) strike out the word. Under the statute of our State (1 R. S., m. p. 748, § 1), the term "heirs" is not essential to create a fee, and every grant passes all the grantor's estate "unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the grant." Probably the decision in question would not be law in this State. And by referring to the abstract in another column, of Waterman v. Andrews, Supreme Court of Rhode Island, it will be seen that it is doubtful whether the doctrine of the principal case would be followed anywhere else. On the other hand, consult Edwards v. McClurg, 39 Ohio St. 41; Green Bay and Miss. Canal Co. v. Hewett, 55 Wis. 96; S. C., 42 Am. Rep. 701. This is the proper season to comment on dogs. The American Law Record, speaking of the case of Trojan Mining Co. v. Fireman Insurance Co., California Supreme Court, May, 1885, holding that keeping a watch-dog in an insured building is not a compliance with a requirement in an insurance policy to keep a watchman on the premises, although the dog had the whole range of the building, and was accustomed to bark loudly on the approach of strangers, observes: "It shows what a narrow escape it had from losing the case from the 'bark of a dog.' We fear our contemporary, the ALBANY LAW JOURNAL, notwithstanding the decision of so respectable a tribunal as that of the Supreme Court of California, will think that the dog should have won the case for the assured, for we have a faint impression that the JOURNAL believes there is a The it is regarded as a rather fine thing for a man to take the law into his own hands, and to regard murderous family feuds and vendettas as venial offenses. This is very disheartening to good citizens who love order and justice. It is worse than Texas, where crime is industriously pursued and inexorably punished. It seems that Mr. Justice Bradley was seventy years old on the 4th of March last; Mr. Justice Miller will be seventy on the 5th of April next; Mr. Justice Field on the 4th, and Chief Justice Waite on the 29th, of November next. These gentlemen can then retire on their pensions. A Washington newspaper says President Cleveland will undoubtedly" have four vacancies to fill. Will And still the honors come! This time the Lon-he, indeed? We doubt it. Why should these gendon Times certifies that the chief justice of the tlemen retire? All except the chief justice are in United States name apparently unknown. excellent health, we believe, and probably have no intention of shelving themselves. But perhaps "gentleman." Well, that is some comfort. Times says: "On Saturday last Lord Coleridge they will. It would be a public misfortune if they and Mr. Justice Mathew came upon the bench accompanied by a gentleman, whom Lord Coleridge introduced to the bar - all standing up — as the chief justice of the United States, who was assigned a seat by the side of the lord chief justice, and was treated throughout with the highest marks of respect, their lordships handing to him the ancient documents which were cited in the interesting case appointed to be heard, and explaining to him the proceedings. The chief justice appeared to be very much amused and interested in the quaint ceremony which took place, of the introduction and reception of the new queen's counsel." In the midst of the prevalent lawlessness at the west - at least in Kentucky —it is refreshing to hear of the discomfiture of one body of law-breakAt Marion, Indiana, on the 15th inst., a mob of one hundred men came to the jail and demanded a negro held for an outrage on a woman. ers. The sheriff- name of Holman - answered that he was prepared to defend the premises, and that they had better "get." They They "got" accordingly. That was the last of it. "It appeared to take the spirit out of the leaders." All honor to Sheriff Holman, and long may he be sheriff! Here is a man who knows his duty and does it, having prudence enough to take precautions to enable him to do it. But what is to become of society in Kentucky, where savagery seems to reign triumphant? Things must be very bad when the leading newspaper in the State, the Louisville Courier-Journal, takes such a bold stand against the crime and lawlessness rampant all over that region. We do not mean to say that there is not as much crime in other parts of this country, but generally there is the public opinion to back the courts in punishing it. In Kentucky, we fear, there is not a similar public opinion, or if there is, it is too timid to be influential. We suspect that very generally in Kentucky all should retire. THE HAND-ORGAN MAN. A bushy-bearded, stooping man, A sad-faced monkey on that box While as he turns there skip within A woman thumbs a tambourine; That instrument is always flat, To rid me of that noxious sound That grinning fiend is there! Will nothing stay thy senseless round- "Then thou'lt remember me "- oh, yes! "Still gently o'er me stealing"- - oh! "Back to our mountains "-yes, go back! "Wait till the clouds roll by," and then, |