but if the fraud or undue influence affects the whole will, though exercised by only one legatee, the whole will is void. lb.

17. An insane delusion, existing in the testator's mind at the time of the execution of his will, as to the principal legatee being his son, renders the will void, if it is the offspring of that insane delusion. Ib.

18. Where the principal legatee, who was born in lawful wedlock two or three years after his mother's marriage with the testator, bears the peculiar, distinctive marks of the negro, while his mother and the testator were white persons of fair complexion, the testor's belief that the legatee was his son, is admissible evidence, in a contest touching the validity of the will, for the purpose of showing mental delusion on this particular -subject. Ib.

19. A transcript from the records of a foreign court, whether of general or special and limited jurisdiction, is admissible evidence in the courts of this State, if properly authenticated; and our courts are bound to presume that the foreign court had jurisdiction of the subject-matter upon which it professes to adjudicate, until the contrary appears. Slaughter vs. Cunningham.

20. The husband is liable, in assumpsit, for necessaries furnished to his wife (she being separated from him without fault on her part) while confined in a lunatic asylum, although the credit was given to the person who, as agent for plaintiff, made the contract and paid the expenses, which were afterwards repaid to him by his principal; but if the person who made the contract was acting for himself individually, and not as agent of the plaintiff, the latter cannot, by voluntarily paying the debt, make the husband his debtor. Wray vs. Cox.

21. The husband is liable, in assumpsit, for necessary medical attendance on his wife, although the physician was called in against his objection, by his grown son, who lived with him, and who promised him to assume the payment; it being shown that the husband was present while the physician was rendering his services, and that the latter had no notice whatever that he was not to look to the husband for payment. Cothran vs. Lee.

22. An incorporated town retains its corporate capacity until its charter is declared forfeited in a direct judicial proceeding; it cannot be held, in any collateral proceeding, to have forfeited its charter by non-user. Harris vs. Nesbit.

23. A bond for title, given by an infant, is not absolutely void, but voidable only; and if the infant after attaining his majority, disaffirm the

contract and sue his vendee for use and occupation, the latter may recoup for valuable improvements erected on the land. Weaver vs. Jones.

24. A written order addressed to a mercantile firm in these words: "Please let the bearer, Mr. O., have any little things he may stand in need of, and I shall be good for the same:" held to be a direct original undertaking which would continue until revoked, or until the account was closed, and would embrace any articles of no great value, which would come under the denomination of necessaries for a person in O.'s condition. Scott vs. Myatt & Moore.

25. The owner of certain slaves being about to remove with them to Illinois for the purpose of emancipating them, conveyed them by absolute bill of sale to another, and took from him at the same time a bond conditioned that he should emancipate them when reasonable compensation had been made to him for his trouble and expenses with them: held, that inasmuch as there was nothing on the face of the bond requiring the obligor to emancipate the slaves in this State, his undertaking was not void, but formed a sufficient consideration for the bill of sale. Prater's Administrator vs. Darby.

26. The constitutional delegation of authority to the legislature "to pass laws to permit the owners of slaves to emancipate them," is not an inhibition of the owner's right to emancipate them except only under such regulations as the legislature may prescribe. Ib.

27. Certain boundaries are of more importance than quantity, in designating lands. Therefore, where a patent calls for a subdivision of a fractional quarter section, described as lying north of a certain creek, and containing a specified number of acres, it embraces all the land in the subdivision north of the creek, although the actual number of acres exceeds the number specified in the patent. Stein vs. Ashby.

Points decided by the Supreme Court of Massachusetts, for the County of Suffolk, at the March Term, 1854.

[From 1 Gray's Reports, now in press.]1

1. Can a Sheriff, in a criminal proceeding against him, be committed to his own Jail? This general question is discussed by the Court; and it is decided that a warrant to a Coroner to commit the Sheriff to the county jail of which, and of all the prisoners therein, he has by statute the cus

We are under obligations to Mr. Gray for the loan of the sheets in advance, from which we have digested these points. We understand that the first part of this volume will shortly be published.

tody, rule, and charge, is void; and the court will, on habeas corpus, discharge the sherrff held by the coroner on such a warrant. Adams vs. Vose, page 51.

2. Burden of proof in Criminal Cases.-A party indicted for assault and battery, contended at the trial that the battery was justifiable in self defence; and the court held, that the burden of proof was not on him to establish the justification, but on the government throughout. The ground of the decision was, that the government sets up an unjustifiable beating; which is the issue the defendant has to meet. The order of proof, and the side by which the witnesses are called, are immaterial; and the defendant may all along require that the case be fully established against him. "There may be cases," said Bigelow, J., in delivering the opinion, "where a defendant relies on some distinct, substantive ground of defence to a criminal charge, not necessarily connected with the transaction on which the indictment is founded, (such as insanity, for instance,) in which the burden of proof is shifted upon the defendant. But in cases like the present, (and we do not intend to express an opinion beyond the precise case before us), where the defendant sets up no separate, independent fact, in answer to a criminal charge, but confines his defence to the original transaction charged as criminal, with its accompanying circumstances, the burden of proof does not change, but remains upon the government to satisfy the jury that the act was unjustifiable and unlawful." Commonwealth vs. McKie, page 61.

3. Void and voidable executions.-This distinction was discussed, and the court held that an execution, issued while the judgment debtor is imprisoned under a commitment on a prior execution, upon the same judgment, is void; and a sale of property under it, though made after the debtor's discharge from imprisonment, and to a purchaser without notice, passes no title. Kennedy vs. Duncklee, page 65.

4. Civil suit against a felon.-It was held, that the English rule that no civil suit lies against a felon for goods feloniously taken, until after a criminal prosecution has been instituted, is not in force in Massachusetts. This is an exceedingly well reasoned case upon a point on which there is great diversity in the American authorities. Boston and Worcester Railroad Corporation vs. Dana, page 83.

5. Age of consent to matrimony-Construction of Statute. The court recognized the common law rule, that the age of consent is twelve in females, and fourteen in males. Also held, that the statute, which renders it penal for magistrates and ministers to solemnize marriages between minors, with

out the consent of their parents, does not render void marriages solemnized contrary to its directions. These, it may be observed, are questions upon which there is no diversity in the authorities. Patton vs. Hervey, p. 119.

6. Title by estoppel-Covenants of warranty.-Where one, who has made a deed with full covenants of warranty, purchases, after eviction of his grantee, the paramount title, such title will not, without the grantee's consent, so enure to the latter by way of estoppel, as to defeat his right of action on the covenant against incumbrances, or reduce the amount of damages, which will be the consideration money paid, with interest. Blanchard vs. Ellis, page 195.

7. Railroads as common carriers.-Proprietors of a railroad who transport goods over their road for hire, and without additional charge deposit them in their warehouse until the owner or consignee has a reasonable time to take them away, are not, without negligence or default, liable as common carriers for the loss of the goods by fire, after they are unladen from the cars and placed in the warehouse; but are liable as warehousemen only for want of ordinary care; although the owner or consignee has no opportunity to take the goods away before the fire. Norway Plains Company vs. Boston aud Maine Railroad, page 263.

8. Estates tail.-A devise to one, and the heirs of his body, "and to their heirs and assigns forever," creates an estate tail, which, in Massachusetts, as at common law, descends to the oldest son, and to the oldest son of the oldest son. Wight vs. Thayer, page 284.

9. Promise to one to pay a third person.—On a promise made by the purchaser to the vendor of an equity of redemption, and recited in the deed of the equity, to assume and cancel the mortgage on the premises, with the note it was given to secure, no action lies by the mortgagee. A suit can only be maintained by the vendor, to whom the promise was made. Mellen vs. Whipple, page 317.

10. Lessee and his assignee.—The assignee of all a lessee's interest in and to the lease may recover rent subsequently accruing, of one to whom such lessee has previously hired a portion of the demised premises for the whole term, and who occupies it accordingly, in (under the new Practice act of Massachusetts) an action of contract, without setting forth in his declaration the assignment from the original lessee to the defendant. And the defendant in such action is estopped to deny the estate of the original lessor in the premises. Patton vs. Deshon, page 325.

J. P. B.

LEGAL MISCELLANY.

LAW IN THE UNITED STATES.

The difference in both the study and the practice of the law, between the United States and England, is very considerable, and it is becoming greater every day. In England, the lawyer goes to his books for authority, but in this country we have comparatively little that is, in the strict sense, authority. Nothing, in fact, is such, but the decisions of the highest tribunal of one's own state, and of the United States. For, in regard to the adjudications of the English Courts, before the settlement of this country, there is always room, theoretically at least, for the doubt, whether our forefathers brought with them a particular doctrine, as adapted to their altered relations and circumstances, while the mass of the law now administered in the Courts at Westminster, was settled at a later period; and it is not, therefore, strictly conclusive upon us. we have already reported in this country, more cases than are found in the English books; we have thirty-one states, and no tribunal is obliged to follow the decisions in a sister state. Yet all these cases that are not absolutely binding, have a weight as quasi authority. And no practitioner can properly or safely appear before a Court on any question of difficulty in the law, without referring to all the English and American decisions that bear upon the point.

Then

When we consider the accumulation of reports, that the next fifty, not to say five hundred, years will produce, it is not difficult to see that to keep track of all the reported cases, will be a severe tax upon the exertions of those gentlemen in the profession, who spend their choicest hours in smoking cigars, or lounging at the country inn. And not only to those gentlemen, but to many youths of pretty sober habits, the prospect must look somewhat appalling.

Now, what is to be done about it? In the first place, those to whom the Lord has never given brains, will do best to leave the law, and seek some other calling. The profession thus cut down to the paying point, let each remaining man strip the ruffle from his shirt-bosom, and go to work. Let him feel below the rubbish of