the accused had a quarrel ought not to have any weight with a jury as to the malice or intention to kill another person with whom, at the time, he had no quarrel, and whom afterward, in a scuffle, he killed. State v. Smalley, 50 Derm. 736; Ogeltree v. State, 25 Ala. 693. (3) Evidence that deceased was a man of quarrelsome disposition, held admissible in this case. As a general rule, undoubtedly such evidence is inadmissible. But where it appears that the defendant and the deceased were on terms of intimacy, and the killing took place in a sudden scuffle, in which there was evidence that the deceased made an assault on the defendant, if he did not actually strike him, it is admissible as evidence that the dofendant may have considered himself as in some danger, and had resort to the weapon, not to kill, but disable his assailant. Rippy v. State, 2 Head, 217; Franklin v. State, 29 Ala. 14; People v. Lamb, 54 Barb. 342; S. C., 2 Keyes, 369; Raynolds v. People, 17 Abb. 413. Pennsylvania Supreme Court, November 20, 1882. Abernethy v. Commonwealth of Pennsylvania. Opinion by Sharswood, C. J.

MURDER-JUSTIFIABLE HOMICIDE-SELF DEFENSE. -A charge upon a trial of murder as follows: "If you believe beyond a reasonable doubt, from the evidence, that the defendant killed the deceased, then to render said killing justifiable it must appear that the defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given," held correct. See People v. Lamb, 17 Cal. 323; People v. Travis, 56 id. 254. The apprehension of danger to life or limb which justifies a man for taking the life of another must be an honest one-one that is well grounded, and must arise out of a reasonable cause; but a cause which originates in the fault of the person himself-in a quarrel which he has provoked, or in a danger which he has voluntarily brought upon himself, by his own misconduct, cannot be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger to his person. Error of apprehension the law overlooks when a man is called upon to act on appearances; but it does not overlook dishonesty of apprehension. Hence a real or apparent necessity brought about by the design, contrivance, or fault of the defendant, cannot be availed of as a defense for the commission of a crime. Stewart v. State, 1 Ohio St.66; State v. Neeley,20 Iowa, 109; Roach v. State, 34 Ga. 78; Eiland v. State, 52 Ala. 322; Evans v. State, 44 Miss. 762; Gainey v. People, 97 Ill. 271. Supreme Court of California, December 12, 1882. People of California v. Westlake. Opinion by McKee, J.

RECENT ENGLISH DECISIONS.

CONFLICT OF LAW-IN RESPECT TO CONVEYANCES — AS TO LAND LEX LOCI GOVERNS--RIGHT OF SHOOTING. -The defendant became tenant to the plaintiff of a lodge, and of the exclusive right of shooting over 10,500 acres of moorland in Scotland under a lease for three years, containing a stipulation to leave a good breeding stock of grouse upon the ground at the termination thereof. In an action for damages for breach of this stipulation the defendant pleaded (inter alia) that he became tenant under an instrument in writing, but not under seal, and that by such instrument the right of shooting was not granted as appurtenant to the lodge. The plaintiff replied that the right of shooting was over land situate in Scotland, and that the law of Scotland, and not the law of England, governed the nature of the right and the

mode of conveying it, that by the law of Scotland an instrument under seal is not necessary for the conveyance of such a right, and that the instrument having been followed by possession thereunder, was in all respects binding and effectual. The defendant rejoined that the instrument was made and signed in England, and within the jurisdiction of the court, and by and between Englishmen then domiciled in England, and within the jurisdiction of the court, and that therefore the law of Scotland did not govern the nature of the right or the mode of conveying it. On demurrer thereto, held, that the provision of the law of England, that a right of shooting can only be conveyed by an instrument under seal, is part of the lex loci and not of the lex fori, that by the lex fori of England the law of Scotland governed the case, and that the demurrer must be allowed. Q. B. D., Feb. 20, 1883. Adams v. Clutterbuck. Opinion by Cave, J. 48 L. T. Rep. (N. S.) 614.

WATER-INJUNCTION TO RESTRAIN POLLUTION BY SEWAGE.-An injunction will lie against a sanitary authority to restrain them from permitting a natural watercourse to be polluted by sewage, discharged at a point within their district, when the sanitary authority has power either at common law or by statute to secure the cessation of the nuisance without constructing a new system of drainage, and without resorting to any legal proceedings to obtain an injunction on their own part. Ch. Div., May 8, 1883. Charles v. Finchley Local Board. 48 L. T. Rep. (N. S.) 569.

EASMENT AS TO SEWAGE AND DRAINAGE NOT IMPLIED.-S., whilst owner of certain adjoining premises, A. and B., laid down a four-inch pipe to carry surface water from A. to a main sewer running along a highway. This pipe ran into another pipe, which passed under B., and thence into the sewer. A socket joint was placed midway in the four-inch pipe, but this was not at the time connected with any other drain. In 1877 S. sold B. to the respondent, and some days afterward the appellant purchased A. The conditions of sale in each case provided that the sale was subject to all existing easements. There was no express reservation of a right of drainage in the conveyance to the respondent. The appellant subsequently connected the soil pipe of a water closet on A. with the socket joint in the four-inch pipe, and at the same time laid down a larger pipe in place of the latter. The respondent thereupon stopped the flow of all drainage from appellant's pipe into his own. In an action by the appellant for damages and an injunction. Held, by the Court of Appeal (affirming the decision of Lopes, J.), that the appellant was not entitled to send sewage through the pipe on respondent's premises, inasmuch as no easement of that nature existed at the time of the severance of the properties and there was then no junction by means of which sewage could pass into the pipe, although S. might have contemplated using the socket joint to make a connection for this purpose. Compton v. Richards, 1 Price, 27, distinguished. Ct. of App., Dec. 1, 1882. Watson v. Froughton. Opinions by Baggallay and Brett, and Lindley, L.JJ. 48 L. T. Rep. (N. S.) 508.

PRIVILEGE TRUSTEE AND CESTUI QUE TRUST.-No privilege can be claimed by a trustee, as against his cestui que trust, for letters passing between the trustee and his solicitor relating to the trust, before action brought. Ch. Div., Jan. 27, 1883. Matter of Mason. Opinion by Fry, J. 48 L. T. Rep. (N. S.) 631.

ATTORNEY-LIEN ON PAPERS-PROBATE LAW.- - A solicitor who has formerly acted for all parties in an administration action, but has been discharged, cannot use his lien so as to embarrass the proceedings by keeping papers belonging to the estate under administration, in order to obtain payment of his bill of costs. Belaney v. French, 29 L. T. Rep. (N. S.) 706; L. Rep. 8 Ch. 918, followed. Ch. Div., March 17, 1883. Matter of Boughton. Opinion by Fry, J. (48 L. T. Rep. (N. S.) 413.

EVIDENCE-PRESUMPTION OF LEGITIMATE BIRTHPROOF OF ILLEGITIMACY.-Although the illegitimacy of a child which must have been begotten after a separation between husband and wife is not sufficiently proved by the mere fact that the wife has been living in adulterous intercourse with another man; when this fact is supplemented by corroborative evidence of family reputation that the child was the offspring of the adulterous union, and the social position of the parties is such as to render access on the part of the husband extremely improbable, although there is no precise evidence that the husband lived at a distance, the presumption of legitimacy is sufficiently rebutted. A husband and wife had separated in consequence of having been turned out of their home under an execution for rent, and the wife went to live with another man. She was entitled to property of some amount, her husband was a druggist, and the man with whom she went to reside a yeoman of the guard. A child was born during the life time of the husband, and the only evidence as to his place of residence at the time was that he died a year or two later at an address near Regent's Park, the wife's residence being at Brompton. The child was baptized as the child of the wife and the man with whom she was then living, and there was strong evidence of reputation in the family that the child was the child of the adulterous connection. Held, that this evidence was sufficient to rebut the presumption of legitimacy, and the child must be excluded from participation in a fund divisible amongst the lawful children of the wife. Reg. v. Mansfield, 1 Q. B. 444, distinguished. In Banbury Peerage case, 1 Sim. & St. 153, in the House of Lords, the law, as subsequently recognized by the House of Lords in Morris v. Davies, 5 Cl. & Fin. 251, is thus stated: That when husband and wife have opportunities of access the presumption of legitimacy may be rebutted by circumstances inducing a contrary presumption, and that non-access or non-generating access may be proved by means of such legal evidence as is admissible in every other case in which a physical fact has to be proved. The question to be decided in this case is whether the evidence is sufficient to rebut that presumption. In Reg. v. The Inhabitants of Mansfield, 1Q. B. 444, the facts were that a woman was deserted by her husband, who then lived with another woman. Some years afterward she went through the ceremony of marriage with another man, and subsequently had two children, and some years after that she again cohabited with her husband for a short time, who again deserted her. The Court of Queen's Bench determined that the non-access of the husband might be proved by circumstances, "one of which," it was said, "certainly is adulterous intercourse between the husband or wife and another party; but here the whole proof consists of that single fact. We are not told what the husband was doing or where residing at the time when the children in question were begotten." And another of the learned judges said that during any part of the time he might have been living next door to his wife. In that case the woman was a pauper, and the parties were apparently in a low class of life, circumstances which must be taken into consideration in determining whether the presumption was

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rebutted. Ch. Div., March 17, 1883. Hawes v. Draiger. Opinion by Kay, J. (48 L. T. Rep. [N. S.] 218.)

PROBATE LAW-RESIDUE-LAPSED BEQUESTS-REAL ESTATE. The law as to personal property is substantially the same, so far as regards gifts of residue, as the law relating to real estate, and therefore not only lapsed bequests, but bequests which have failed by reason of their invalidity, will fall into the residue. A testatrix gave to B. all her personal property except a certain wharf which she had bequeathed to A., charged with annuities and mortgage debts. The gift of the wharf having failed through the invalidity of the limitations thereof. Held (affirming the decision of Fry, J., 45 L. T. Rep. [N. S.] 524), that the wharf became part of the residue. Wainman v. Field, Kay, 507, distinguished. Ct. of App., Feb. 13, 1883. Matter of Blight. Opinion by Jessel, M. R., and Lindley, L. J. (48 L. T. Rep. [N. S.] 543.)

SALE OF REAL ESTATE-GOOD TITLE MAY BE INSISTED UPON.-Where a contract for sale is silent as to the title which is to be shown, the right which by implication of law the purchaser has to a good title may be rebutted by evidence that the purchaser had notice before the contract that the vendor could not give a good title. If however the contract expressly provides that a good title shall be shown, then any notice by the vendor which is inconsistent with such a contract is unavailing to deprive the purchaser of his right to insist upon a good title. In applying the doctrine of waiver as between vendor and purchaser, a distinction is to be observed between the case of a contract providing that a good title shall be shown, and that possession may be taken before completion, and the case of a purchaser taking possession without any express stipulation in that behalf. There is also a broad distinction to be observed between cases where there are objections to the title which to the knowledge of the purchaser are capable of being removed, and cases where the objections are incurable. Ch. Div., April 7, 1883. Matter of Gloag. Opinion by Fry, (48 L. T. Rep. [N. S.] 629.

J.

INSURANCE LAW.

FIRE POLICY-DEFENSE TO PREMIUM NOTE-MISREPRESENTATION.-Where a party was induced to insure property by the misrepresentations of an agent as to the responsibility of the company, he is not liable upon a premium note given for the insurance although the agent was honest in his statements having been deceived by the company. The company having accepted the policy is affected with any fraud on the part of the person in obtaining it. In other words, it cannot repudiate the fraud and yet retain the benefit of the contract. It takes it cum onere. This is familiar law. See Jones v. National Build. Asso., 13 Norris, 215. Pennsylvania Supreme Court, October 2, 1882. Sunbury Insurance Co. v. Humble. Opinion by Paxson, J.

LIFE POLICY-TITLE TO.-Where a father procured a policy of insurance upon his own life for the benefit of his infant daughter, which was, in express terms, made payable, upon his decease, to her, her executors, etc., and paid all the premiums thereon out of his own funds, making no charge of the same against her, and retaining the custody of the policy. Held, that the contract of the insurance company was with the daughter, and upon her death the legal title in the contract vested in her legal representative, and that he was legally entitled to the possession of the policy, and that the administrator of the deceased daughter was entitled to an order for its surrender to him. Eudie

v. Slemmons, 26 N. Y. 9; Knickerbocker Ins. Co. v. Weitz, 99 Mass. 157; Swan v. Snow, 11 Allen, 224; North American Ins. Co. v. Wilson, 111 Mass. 542; Continental Ins. Co. v. Palmer, 42 Conn. 60; Hutson v. Merrifield, 51 Ind. 24. Illinois Supreme Court, Nov. 20, 1882. Glanz v. Gloeckler. Opinion by Mulkey, J. (104 Ill).

The clause in question never became a part of the Constitution. Very truly yours,

LOUISVILLE, KY., August 14, 1883.

WM. REINECKE.

The following is submitted, in answer to the inquiry of Mr. J. Kopelke, in your issue of August 11th, 1883: The United States Constitution of the year 1787, provides as follows, in art. 1, § 9, sub-sec. 8:

"No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them shall without the consent of the Congress accept of any present, emolument, office, or title, of any kind whatever, from any king, prince or foreign State."

As Mr. Justice Story says in his Commentaries on the Constitution of the United States, (vol. 3, p. 216), which were published in the year 1833:

"It is singular that there should not have been, for the same object, a general prohibition against any citizen whatever, whether in private or public life, accepting any foreign title of nobility. An amendment for this purpose has been recommended by Congress; but as yet, it has not received the ratification of the Constitutional number of States to make it obligatory, probably from a growing sense that it is wholly unuecessary."

The proposed amendment had then been pending for twenty-three years, aud it is the same which is mentioned by Mr. Kopelke. It is contained in the following resolution, adopted in the year 1810, 2 U. S. Statutes at Large, 613:

"Resolved: By the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both houses concurring, that the following section be submitted to the Legislatures of the several States, which when ratified by the Legislatures of three-fourths of the States, shall be valid and binding, as a part of the Constitution of the United States:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."

CRIMINAL CODE, § 843.

Editor of the Albany Law Journal:

In a recent case the construction of section eight hundred and forty-three of the Code of Criminal Procedure came in question.

That section reads as follows:

"Warrant, when to be served in another county. If the defendant reside in another county than that in which the warrant issued, the magistrate must, by an indorsement thereon, direct the sum in which the defendant shall give security, and the officer must deliver the warrant to a justice of the peace or police justice in the city or town in which the defendant resides or is found. The magistrate to whom it is presented, on proof, under oath, of the signature of the magistrate who issued the warrant, must then indorse a direction thereon, that it be served in the county in which he resides, and the defendant may be arrested in that county accordingly. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued."

The defendant, a resident of another county than that in which the warrant issued, was arrested in the county where the warrant was issued, and the warrant was not indorsed by a magistrate of the county of the defendant's residence. Defendant moved to quash the warrant on the ground that by the language of the section, if the defendant resides in another county, though he may not be found there, a magistrate of the County where he resides must indorse the warrant before the arrest can be made any where.

Several lawyers to whom the point has since been submitted think that by a strict reading of the section, the motion was well founded, but that the generally understood meaning of that section is different. It seems to be difficult to frame laws beyond the cavil of legal ingenuity.

PRATTSVILLE, N. Y., Aug. 16, 1883.

THE

NOTES.

J. B. DALEY.

HE American Law Review for July-August contains the following leading articles: Titles of Statutes, by U. M. Rose; American law governing the payment of debts of deceased persons, by J. G. Woerner: Functions of a prosecuting officer, by Addison G. McKean; Abandonment of ship-owner's right to freight, by James M. Oxley: Married women's property act (England), 1882, by T. W. Tempany; Judicial discretion, by Henry P. Kaufman. In an excellent review of Mr. Bishop's "Statutory Crimes," the writer cleverly remarks that "Mr. Bishop has an odd way sometimes of putting his preface in the middle of his book." and he also comments on the extraordinary fact that this great author has never been made LL.D. The Review, in a generous notice of the Index-Reporter, credits the editor, Mr. Robley D. Cook, with being the editor of the AMERICAN REPORTS. The Review is a little astray there. Why is the liver such a favorite organ among testators? So many benefits for A. and B., and the longest liver of them."

could ask for any thing better for the unesthetic uses of office and court-room, and the prices put these valuable series within reach of many young practitioners who could not afford to pay the old prices.

Some recent paragraphs in our current London exchanges furnish food for instructions if not amusement to judges and reporters. The Solicitor's Journal says: "A good deal of interest has been excited by the development of a new feature in the August number of the Law Reports (Chancery Division). There appears, at p. 427, the following remarkable passage: [Counsel], in reply. — I regret the absence of Mr. Davey in this important case. 'Baggallay, L. J.-I do not think that your clients have suffered by its being left in your hands.' We have not the slightest desire to say any thing calculated to give pain to the counsel who was distinguished in this manner. Nor do we mean to call in question the wisdom displayed by the learned judge in making such a remark, which he probably never expected to see reproduced in such a fashion. But we ask ourselves with surprise, what view the editor and the reporter can take of the respective functions. Reports are, as we understand the matter, published solely for the information of the profession as to the state of the law; and everything which does not conduce to that end ought to be rigidly suppressed. Remarks made by the judges casually during the arguments, even though they strictly refer to the matter in issue, so seldom require reproduction, that no safer working rule could be devised than one which should irrevocably decree their total exclusion. The Law Reports have long been unpleasantly distinguished among their fellows by their superior zeal in reproducing judicial babble uttered obiter ; and this fault has been so often pointed out, that they are probably hardened in it beyond hope of improvement. But a new departure will have been taken if their pages are in future to be made the vehicle of such announcement as that conveyed by the noteworthy extract above cited." And the Law Times says: "In an interesting article on law reporting, which appeared in the American Law Review a little more than a year ago, and on which we commented at the time, it was made a principal ground of complaint against contemporary English reporters that they inserted in their reports too much of the dialogue which took place in the course of the cases reported. It is at least open to doubt whether this method of reporting may not be preferable to that commonly pursued in America of stating that the facts and arguments sufficiently appear from the judgment; the following cases were cited.' But there is, or ought to be, a limit to all things, and the observations of the American reviewer can hardly be said to be undeserved when read by the light of such a case as Re Scottish Petroleum Company, reported in this month's Law Reports, Chancery Division, in which no less than fifteen interruptions of the argument by the judges of the Court of Appeal are set out, and the reporter

solemnly records the regrets of a junior counsel that his leader is absent, and the assurance of a judge that the junior's clients have not suffered by their case being left in his hands. The statement was no doubt gratifying, but it is one which has not unfrequently been forthcoming on similar occasions, although the pages of the reports do not generally bear witness to the fact." When we were at the bar we grew to be as afraid of this sort of praise by the judges as Laocoon was of the Greek present. We regarded them as ribbons tied about the neck of the lamb (or perhaps calf) about to be immolated. We observed that the judges never praised our arguments except when they were about to beat us. Really, such expressions mean as little as the formal tenderness which the judges exhibit toward other judges when they are about to overrule them. Of course they have no proper place in the reports. While we are about it, we may as well say, however, that we do not admire the English fashion of making a statement of facts in a case where the opinion does it sufficiently, and we much prefer the American method of being satisfied with once telling a thing. On this side of the ocean our heads are not so thick that they require to have things beaten into them by reiteration.

Lord Chief Justice Coleridge, with his son and secretary, Mr. Gilbert Coleridge, and Sir James Hannen, President of the Probate and Divorce Court, and his son, Mr. James Chitty Hannen, arrived at New York on the 24th ult. It was very naturally the privilege of Mr. Elliott F. Shepard, as chairman of the committee of arrangements of the New York State Bar Association, at whose invitation the Lord Chief Justice has come hither, to offer him the first hospitality of our shores, and to make him his private guest for a few days, not only on account of his official position, but by reason of a former acquaintance, and in reciprocation of courtesies extended to him in London by his lordship several years ago, and Mr. Shepard has very gracefully accepted the privilege and executed its demands. On the evening of the 24th ult. the distinguished party were entertained by Mr. and Mrs. Shepard, at dinner, at their house, at the corner of Fifth avenue and Fifty-second street, in the city of New York, the following guests being also present: Charles Russell, Esq., M. P.; P. Martin, Esq., M. P., Q. C.; Chief Justice Waite; Chief Judge Ruger; Attorney-General Brewster; ex-Justice Swayne; Judge Van Vorst; Judge Noah Davis; Rev. Alex. Mackay Smith; and Messrs. Whitelaw Reid, S. Hastings Grant, Augustus D. Shepard, William D. Sloane, H. O. Armour, Algernon S. Sullivan, Thomas C. Acton, and Delano C. Calvin. On Saturday evening the visitors were again at dinner at Mr. Shepard's, and the following gentlemen were present with them: Mayor Edson, William M. Evarts, Judge Rapallo, ex-Governor Cornell, Rev. Dr. Schaff, Judge Brady, Gen. F. C. Barlow, Corporation Counsel Andrews, and Messrs. David Dudley Field, Theodore W. Dwight, Chaun