WISCONSIN SUPREME COURT ABSTRACT.

EXECUTION AGAINST SEVERAL DEFENDANTS MAY BE MADE OUT OF PROPERTY OF ANY.-It is a wellsettled rule that the judgment creditor, having a judgment against several defendauts, may direct the officer holding the execution to make the amount of the same out of the property of such of the defendants as he may see fit to proceed against. Smith v. Erwin, 77 N. Y. 466; Root v. Wagner, 30 id. 17; Walters v. Sykes, 22 Wend. 566; Gorham v. Gale, 7 Cow. 739; Corning v. Southland, 3 Hill. 552; Crocker, Sheriffs, § 407; Freem. Ex'ns, § 271. Of this rule the defendants, who, as between themselves, are equally bound to pay the debt, cannot complain. As between them and the judgment creditors each is bound to pay the whole debt, and it is no ground for complaint that the creditor may see fit to collect the debt out of the property of one and not out of the property of another. The mere seizure of the property of one of such defendants does pay or satisfy the judgment, and if the property seized is released and returned to the possessession of the owner at his request, it is clear that he cannot set up such seizure as a payment or satisfaction of the judgment. Freem. Judgm., § 475; Herm. Ex's, 253-257; Smith Sheriffs, 340-341, and notes; Crocker Sheriffs, § 432; People v. Hopson, 1 Denio, 574; Peck v. Tiffany, 2 N. Y. 451; United States v. Dashiel, 3 Wall. 688. An exception to this rule is made in favor of a defendant who stands as surety for the other defendants or some of them; and when such fact is known to the judgment creditor, and the property of the defendants, who, as principal debtors, ought to pay the debt, has been seized upon the execution, he cannot voluntarily release such levy and then resort to the property of the surety. In analogy to the rule which releases the surety by an extension of time of payment to the principal debtor, the release of such levy works as an extension of time of payment to such principal debtor, and the surety is thereby released; and the other rule which prohibits the creditor from releasing any security he may have in his hands received from the principal debtor without the consent of the surety. Farmers & Mech. Bank v. Kingsley, 2 Doug. (Mich.) 379; Mulford v. Estudillo, 23 Cal. 94; People v. Chisholm, 8 id. 30; Finley v. King, Head, 123; Herm. Ex'ns, § 176; Herm. Judgm.. § 475; Howerton v. Sprague, 64 N. C. 451; Bauk v. Edwards, 20 Ala. 512; Dixon v. Ewing's Adm'r, 3 Ohio, 280; Com. Bank v. Western Reserve Bank, 11 id. 444; Phares v. Barbour, 49 Ill. 370; Thomas' Ex'r v. Cleveland, 33 Mo. 126; Mayhew v. Crickett, 2 Swanst. Ch. 185. Hyde v. Rodgers. Opinion by Taylor, J. [Decided Oct. 23, 1883.]

PARTY WALL-TITFE TO RIGHTS AS TO USE. —

- It

seems to be the settled law that the owner of a party wall standing in part upon the lot of each are not tenants in common of the wall, but that each owns in severalty so much thereof as stands upon his lot, subject to the easement of the other owner for its support,

and the equal use thereof as an exterior wall of his building. Such being the tenure by which the wall is held and owned, it seems logically to follow that either owner may, at least upon his own land, do any thing with the wall, or make any use of it, which does not interfere with or impair the emjoyment of such easement by the other owner. In Eno v. Del Vecchio, 4 Duer, 53, it was held that the owner on one side of a party wall might, within the limits of his own lot, increase the thickness, length or height of the wall, if he could do so without injury to the building on the adjoining lot. Brooks v. Curtis, 50 N. Y. 639, goes even further. It is there held, subject to the same limitation, that no injury be done to the adjoining building, that one owner may build the whole wall to a greater height. Andrae v. Haseltine. Opinion by Lyon, J. [Decided Oct. 23, 1883.]

PLEADING WHETHER VERIFIED OR NOT, DETERMINED BY COPY SERVED. In order to compel the verification of the answer, the copy of the complaint served upon the defendant must include a copy of the verification thereof. The only evidence the plaintiff is required to give to the defendant of the fact of the verification of his complaint is by giving him a copy thereof. It is evident therefore f he wants a verified answer, that the copy of the complaint served must show on its face that the same is verified according to law; and if the copy served does not show that fact, the defendant may treat the same as unverified and answer accordingly. He is not bound to search the original complaint to find out that fact, even if he has the power to compel the plaintiff to exhibit it to him before he answers the same. He has the right to determine from the copy served on him whether it is so verified as to require him to verify his answer. This was the rule established by the decisions of the courts of New York before the adoption of the Code in this State, and is still the rule there. Trowbridge v. Didier, 4 Duer, 448; Williams v. Riel, 5 id. 601; Hughes v. Wood (in note to last case), 603; Quin v. Tilton, 2 id. 648; Graham v. McCoun, 5 How. Pr. 353; Barker v. Cook, 40 Barb. 254; Treadwell v. Fassett, 10 How. Pr. 184; Hubbard v. Ins. Co., 11 id. 149; Tibballs v. Selfridge, 12 id. 64; Wilkin v. Gilman, 13 id. 225; People ex rel v. Smith, 14 id. 334; Peyser v. McCormack, 7 Hun, 300. Knowles v. Fritz. Opinion by Taylor, J. [Decided Sept. 25, 1883.]

MAINE SUPREME JUDICIAL COURT

ABSTRACT.*

EMINENT DOMAIN-WHAT IS PUBLIC USE AUTHORIZING-TEMPORARY OCCUPATION OF PROPERTY WITHOUT PAYMENT-MODE OF COMPENSATION. -To constitute a public use authorizing the exercise of the right of eminent domain, it is not required that the entire community, or even a considerable portion of it, should directly participate in the benefits to be derived from the property taken. Talbot v. Hudson, 16 Gray, 417; Lumbard v. Stearns, 4 Cush. 60: Holt v. Somerville, 127 Mass. 408; Bancroft v. Cambridge, 126 id. 438. The clause in the Constitution prohibiting the taking of private property for public uses without compensation does not prohibit the Legislature from authorizing an exclusive occupation of private property, temporarily, as an incipient proceeding to the acquisition of a title to, or an easement in the land taken. Cushman v.

Smith, 34 Me. 247. The mode and manner in which the owner of land taken for public use is to be com pensated for the land so taken, are to be determined *To appear in 75 Maine Reports.

by the Lgislature. When it is not required that compensation be made before entering upon the land taken, and it is provided that the owner of the land may cause his damages to be ascertained in the same manner as land taken for highways, such owner cannot maintain trespass for such taking, within the time limited for an assessment of damages, and without any application for such assessment. Cushman v. 'Smith, 34 Me. 247; Nichols v. Som. & Ken. R. Co., 43 id. 356; Davis v. Russell, 47 id. 443; Cairo & Fulton R. Co. v. Turner, 25 Am. Rep. 564; 31 Ark. 494. Riche v. Bar Harbor Water Co. Opinion by Appleton, C. J. [Decided April 6, 1883.]

GIFT-OF SAVINGS BANK DEPOSIT-DEPOSIT IN NAME OF BENEFICIARY-AUTHORIZING ANOTHER TO DRAW DEPOSIT.-F. informed the treasurer of a savings bank that she desired to make a deposit for each of four grandchildren, naming B. as one, to which she proposed to make additions from time to time and expressed the hope that with the accumulated interest, the deposits might amount to enough to be of advantage to them when they should reach a suitable age to take charge of the money. She wanted "to do something for the children." The treasurer gave her passbooks in the names of each of the grandchildren, and entered in each and in the bank books "subject to the order of F. during her life-time." Subsequently she informed B. of what she had done and that the money was intended for him and the other children, and she made other deposits and withdrew one dividend. Afterward F. took the several books to the bank and informed the treasurer" that the time had come when she desired to make such a change in the terms of the deposits made for her grandchildren, as would give them full control over them, and the amounts on each book become the absolute property of the parties named therein, and her right to control them should cease. Her expressed wish was that her claim over the amount of the deposits should be withdrawn as to each case, and the books so changed that they would stand in the names of the grandchildren without any restriction whatever," and the treasurer then and there, at her request, erased from the passbooks and bank books the original entry "subject to the order of F." She notified B. by letter of this change and that the pass books would be delivered the first time they met. B. replied with the request that the books might be sent to him. A short time before F.'s death, she delivered the pass books to W. A. F., with a written order to enable him to draw the amount of each deposit. Held, that the deposit in the first instance created a valid trust and that F. controlled the same in trust for B.; that the acts and declarations of F. at the time of the change in the entry upon the books show a complete and executed gift and divested F. of any interest in the deposit as trustee or otherwise, and that she thereafter held the pass book in trust for B., and that as W. A. F. subsequently took the book without consideration and with full knowledge of the plaintiff's prior title, he took it subject to that trust, and that it is necessary to B., for the more beneficial enjoyment of his gift. See Northrup v. Hale, 72 Me. 275, and 73 id. 66; Gerrish v. Institute for Savings, 128 Mass. 159; Blaisdell v. Locke, 52 N. H. 238; Stover v. Poole, 67 Me. 217; Hill v. Stevenson, 63 id. 564; Dole v. Lincoln, 31 id. 422; Urann v. Coates, 109 Mass. 581; Pierce v. Savings Bank, 129 id. 425; Grangiac v. Arden, 10 Johns. 293; Wing v. Merchant, 57 Me. 383; Trowbridge v. Holden, 58 id. 117; Stone v. Bishop, 4 Cliff. 593. Barker v. Frye. Opiuion by Danforth, J.

OND SOLEMNIZED.-Proof of the due solemnization of a marriage ceremony between two persons will not suffice in a civil action to exclude the ordinary circumstantial evidence of the existence of a previous marriage of one of those persons to a third person who is still living. The general rule has long been understood to be as laid down in Leader v. Barry, 1 Esp. 353; that in every civil case except an action for crim. con. general reputation, the acknowledgment of the parties and reception by their friends, etc., as man and wife. was sufficient proof of the marriage, although in an action for criminal conversation, for reasons well assigned in Birt v. Barlow, 1 Doug. 170 (referring to Morris v. Miller, 4 Burr. 3057), there must be proof of an actual marriage, and the same strictness is required in an indictment for bigamy. See also Read v. Passer, 1 Esp. 213, 214; Hervey v. Hervey, 2 W. Bl. 877; Miller v. White, 80 Ill. 580; and numerous other cases, where it said that no other exceptions should be allowed. That proof by circumstances, reputation, conduct of the parties and the like has long been held competent in settlement cases, see St. Devereux v. Much Dew Church, Burr. Set. Cas. 508; 1 W. Black, 367 Newburyport v. Boothbay, 9 Mass. 414. The court in this State have explicitly recognized the general rule in Pratt v. Pierce, 36 Me. 454, and Taylor v. Robinson, 29 id. 328, where the court adds: "we find no authority for a distinction in cases where the party to the marriage is a party to the suit, and wishes to prove the marriage, and where the attempt to establish the marriage is by one who is a stranger thereto," citing Fenton v. Reed, 4 Johns. 52. In a settlement case where the validity of a second marriage was in issue, the presumption of innocence was not held to outweigh the presumption of continuance of life in the absence of evidence. Rex v. Harborne, 2 Ad. & E. 540. And see remark of Kent, J., in Harrison v. Lincoln, 48 Me. 209. See also Poultney v. Fairhaven, Brayton, 185; Jones v. Jones, 45 Md. 144, and 48 id. 391: Archer v. Hitchcock, 6 Jones (Law), 421. Inhabitants of Camden v. Inhabitants of Belgrade. Opinion by Barrows, J.

[Decided May 3, 1883.]

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-OVER-DUE DRAFT-DEFENSE OF EQUITIES.-A draft was without any explanation of the reason outstanding nearly five months after its date. Held, that it was overdue and dishonored so as to charge any one taking it with any defense or set-off which the drawer held against it in the hands of the holder. The cases are almost innumerable in which it has been held that paper payable on demand had been outstanding so long, when transferred, as to be deemed overdue and dishonored, so as to subject it, in the hands of the purchaser, to any defenses which the maker or drawer had against it in the hands of the payee; and in none of these cases is the question whether or not the paper had been, before the transfer, presented for payment to the maker or drawee, referred to as at all material. Down v. Halling, 4 Barn. C. 330; First Nat. Bank of Newton v. Needham, 29 Iowa, 249; Cowing v. Altman, 71 N. Y. 435; Sylvester v. Crapo, 15 Pick. 92; Ranger v. Carey, 1 Metc. 369; Herrick v. Woolverton, 41 N. Y. 581; Story, Prom. Notes, § 207 and note; Thompson v. Hale, 6 Pick. 258; American Bank v. Jenness, 2 Metc. 288; Carlton v. Bailey, 27 N. H. 230; Parker v. Tuttle, 44 Me. 459; Nevins v Townsend, 6 Conn. 5; Camp v. Scott, 14 Vt. 387; Morey v. Wakefield, 41 id. 24. MinLe Due v. First Nanesota Sup. Ct., July 12, 1883. tional Bank of Karson. Opinion by Mitchell, J.

NEW YORK STATE BAR ASSOCIATION.

The eighth regular meeting of the New York State Bar Association will be held at the Capitol in the city of Albany, on Tuesday, January 8, 1884, at 11 o'clock

A. M.

CORRESPONDENCE.

EXCEPTIO PROBAT REGULAM.

Editor of the Albany Law Journal:

The verb probare, like its English derivative, has more meanings that one. "I have bought five yoke of oxen, and I go to prove them." Prove (not demonstrate, but test) all things; and having done so, "hold fast [only] that which is good." "The proof (or test) of the pudding is in the eating."And so the exception tries, tests, or limits and defines the general rule. Exceptio probat regulam, et sic de similibus." (11 Rep. 41 a). T. B.

66

ROCHESTER, Dec. 15, 1883.

Editor of the Albany Law Journal:

I notice in your issue of the 15th, a communication on the subject of the maxim exceptio probat regulam, which seems to prove Pope's wisdom when he said:

"A little learning is a dangerous thing,

Drink deep, or taste not the Pierian spring." The word probat in the Latin, like the word proves in the usual English version, is used in a sense unusual but not incorrect, of tests. It will be found that by giving this meaning the maxim becomes good law and good

A Treatise on the Law of Dower. By Charles H. Scribner. With additional notes and references by Alfred I. Phillips. In two volumes. Second addition. Philadelphia: T. & J. W. Johnson & Co., 1883. Pp. xliv, 696, xlvi, 860. This is an excellent and standard work. We wish that the Legislature would abolish the right of dower, inconvenient, inadequate, and intricate as it is, but as there is no prospect of that, this work is indispensable, as being altogether the best, and so far as we know, the only complete work on the subject. The volumes are well printed.

WARVELLE ON ABSTRACTS.

A Practical Treatise on Abstracts and Examinations of Title to Real Property. By George W Warvelle, Chicago: Callaghan and Co., 1883. Pp. liii, 632.

This is a comparatively new and a very important topic. The author's arrangement and treatment are generally commendable. A cursory examination leads us to think that he is generally accurate, although we casually detect occasional mistakes, as for example, his citation of Meeker v. Wright, 76 N. Y. 262, to the doctrine that the modern married women's statutes have abolished tenancy by entirety. That case was expressly decided upon other grounds, and the opposite doctrine is declared in the recent case of Bertles v. Nunan, 92 N. Y. 152; S. C., 44 Am. Rep. 361. The author also omits to refer to the long and predominant line of cases to the latter doctrine. The subject is one of considerable difficulty, and such oversights are easily

TIEDEMAN ON REAL PROPERTY.

An Elementary Treatise on the American Law of Real Property. By Christopher G. Tiedeman. St Louis, Mo., F. H. Thomas & Co., 1884. Pp. cvii, 785.

The author, who is professor of the law of real prop erty in the law school of the Missouri University, has succeeded in two endeavors which he states in his preface, namely, in "stripping this branch of the law of its harsh and uninviting dress," and in enunciating "all those principles which are necessary to a broad and comprehensive knowledge of the subject." For the student this seems to us an admirable stepping. stone to the exhaustive works of Williams and Washburn; and it will be a convenient book of ready refer ence for the practitioner. Singularly enough, Mr. Tiedeman makes the same mistake in citing Meeker v. Wright, that Mr. Warvelle does. The reporter's headnote is perhaps chargeable with the error in both cases. But Mr. Tiedeman cites the cases pro and con on the point. The book is capitally printed.

Appeal dismissed with costs-Mary Raynor, appellant, v. Lucy Maria Raynor, et al., respondent; Jacob Odell, survivor, respondent, v. James Murray, impleaded, etc., appellant; Mary L. McKenna, adminis tratrix, etc., respondent, v. Thomas Bolger, appellant.

-Judgment reversed, new trial granted, costs to abide the event, and the order appealed from reversed, with costs of appeal in General Term and in this court, and $10 costs of opposing motion-John Honegger and another, appellants, v. H. Wettstein, and others, respondents. Judgment affirmed, with costs- People ex rel. Edward McKenzie, appellant, v. Board of Supervisors of Ulster county, respondent. - Judgment modified by striking therefrom the sum of $130.58 for excess of interest allowed, and as so modified affirmed, without costs to either party in this court-Francis H. Stoddard, respondent, v. Lake Shore and Michigan Southern Railroad, appellant. Judgment modified by striking therefrom the sum of $24.90 for excess of interest allowed, and as so modified, affirmed without costs to either party in this court-Everett B. Sanders, respondent, v. Lake Shore and Michigan Southern Railroad Company, appellant.-Order of General Term affirmed and judgment absolute ordered for plaintiff on the stipulation, with costs-Charles L. Guilleaume, respondent, v. Edward Rowe and another, appellants.

-Judgment of General Term reversed and judgment ordered for plaintiffs, with costs of both courts-Jacob Bookman and another, v. Ferdinand Kurzman. Judgment of General Term and board of audit reversed, and judgment rendered in favor of appellant for the amount of his claim, without costsMichael E. Riley, appellant, V. People of the State of New York, respondents; Henry B. Kretzler appellant, v. People of the State of New York, respondents; Thomas O'Connor, appellant, v. People of the State of New York, respondents.

Proclamation made and the court adjourned for the

term.

Ordered, that a calendar be made for a term of this court to be held at the capital, in the city of Albany, Monday, January 14, 1884, at ten o'clock A. M., on which the clerk shall place only those cases in which the returns and notices of argument shall be filed in his office on or before the 29th day of December, 1883.

The Albany Law Journal.

IT

ALBANY, DECEMBER 29, 1883.

CURRENT TOPICS.

is reported that another attempt will be made in the House of Commons in the coming session to abolish the action of breach of promise of marriage. The measure was defeated there in 1879. Our lively contemporary, Pump Court, remarks that "the whole difficulty arises from the illogical attempt to reduce sentiment to a money or marketable value," and imagines the following charge to a jury: "The learned counsel says you ought to find for the defendant. Well, you may if you like, but don't you go and do it because he asks you. He asked me not to leave the case to you at all; but I mean to. Very well; now, what are the facts? The defendant admits that he promised to marry the girl; of course, if he is a man at all, he can't deny that; and his counsel says he is a fool very likely, but what then? Lots of people are fools, but they marry. Then that's no excuse for him. Next the defendant says that the plaintiff would not have him; she says she would; which of them do you believe? He has three hundred a year — and — and -well, she's a woman; there! She don't dislike money, you know. This is an action to get what? Why, money to be sure; and defendant's money too, mark that. She can't bring an action for the man, and I can't order specific performance of the contract to marry, because the law says damages that's money are as good as a husband. First then, there's the loss of the husband's income. Then the loss of the man; and when you've settled the damages on these, there's compensation for the injury to the plaintiff's heart-her feelings, you know. Now here the learned counsel says there are no particulars. He must say something, of course; that's what he's for. I don't know what he expects. He can hardly want a list of regrets at so much a dozen; misery at five shillings an hour, let's say; or an account of the number of tears, or pints of 'em, that the plaintiff has shed over this business, the whole to be paid for at so much for the lot, with a reduction, perhaps, on account of the defendant's taking a larger quantity. I wonder he does not say there are no bought and sold notes to prove the contract. I should know how to deal with that. Well you and I may not like this sort of action. Very likely we should prefer to horsewhip a man of that sort down there. But we must be forensic, and so you are to find your verdict for the plaintiff Now then what damages? Don't give too much, for if you do the court will set your finding aside, or the defendant may be broken up and the plaintiff get nothing after all. What do you say?"

A recent case in England strongly reminds us of the famous case of Lange v. Benedict, 73 N. Y. 12; VOL. 28-No. 26.

S. C., 29 Am. Rep. 80. The London Law Times gives the following account of it: "The unfortunate and rather painful case' of Clew and another v. Hale, in which, by a mistake of magistrates, a respectable woman was sentenced illegally to hard labor, and the magistrates were consequently sued for damages, has now, we suppose, been terminated by the decision of the Queen's Bench Dvision (Lord Coleridge, C. J., and Mathew, J.), that the damages awarded by the jury (£150) ought not to be reduced. Both the facts and the law of the case are not a little curious. The plaintiffs were a laborer and his wife, and the wife had been convicted (upon evidence which we will assume to have been sufficient) of selling beer without a license, contrary to section 3 of the Licensing Act, 1872, (by which a person convicted of that offense is liable for a first offense to a penalty not exceeding £50, or to imprisonment with or without hard labor for a term not exceeding one month), and sentenced to pay a fine, or in default to be imprisoned with hard labor. It was held however (see In re Clew, 8 Q. B. D. 511), by the Queen's Bench Division, that the Act, though it authorized either fine or imprisonment, did not authorize imprisonment in default of payment of a fine. The conviction being quashed upon this difficult point of law, both husband and wife sued the convicting justices. The common-law right of action in such a case is much cut down by one of Jervis's Acts, 11 & 12 Vict., c. 44. By section 1 of this act, in any action against a justice for an act done within his jurisdiction, it is necessary for the plaintiff to succeed, to prove that the act complained of was done maliciously, and without reasonable and probable cause.' By section 2, 'for any act done by a justice of the peace in a matter of which, by law, he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction made by such justice in any such matter, may maintain an action, without having to prove malice or the absence of reasonable and probable cause, against such justice after the conviction shall have been quashed.' However hard it may seem upon the convicting justice, it seems impossible to argue that the mistake committed in Mrs. Clew's case came within section 1, and not within section 2, of Jervis's Act, notwithstanding the liberal construction of that section suggested by Chief Justice Jervis himself, three years after the passing of the act, in Rate v. Parkinson, 30 L. J. M. C. 208, in which he said that the words 'exceeding his jurisdiction' in the section 'mean doing something which the justice could, by no possibility, have a legal right to do.'" It seems to us that this construction of jurisdiction is decidedly opposed to that of the Lange case.

We regret that the publication of Pacific Coast Law Journal is about to be discontinued. As our columns will bear witness, we have often found this periodical of interest. But we are glad to learn that

this excellent periodical is to be succeeded by one on a larger scale, promising to give the decisions of the Federal courts of California, Colorado, Nevada and Oregon, and the Supreme Courts of the same States and of Idaho, Montana, New Mexico, Utah, Washington and Wyoming, with general editorial matter. The new periodical is to be called the "West Coast Reporter." The Journal says: "The scope of this enterprise far exceeds that of any yet attempted on this coast, and will entail great labor and expense. The publishers have secured for their editorial department the services of the well-known law writer, John Norton Pomeroy, LL. D. This is indisputable evidence of the well meant purpose to fix a high standard for their magazine. The opinions which will be embraced by the publication will exceed 5,000 pages per annum - the decisions of sixteen courts a library in itself. This work cannot be continued without the aid of every lawyer on the coast. It is an enterprise worthy the support of them all. The publication of a law journal on this coast will admit of no rivalry. Our arrangements with the proprietors of the new journal are entirely satisfactory, and with a view of giving no embarrasment to an undertaking which offers so much to the bench and bar, we have determined to cease the publication of our Pacific Coast Law Journal during the last week in December, and wish the 'West Coast Reporter' a long and successful career." We heartily unite in this wish, and have no doubt that Mr. Pomeroy's eminent talents will command for the new journal the success which they will deserve.

"Shakespeare as a Lawyer," is the title of a beautiful little book, by Franklin Fiske Heard, and published by Little, Brown and Company, of Boston. The scope of the book is like that of Lord Campbell's "Legal Acquirements of Shakespeare," and as

we recollect the latter, is very similar in treatment,

and especially in the conclusion, which is: "If the verdict is in the affirmative," i. e., that Shakespeare was a lawyer, "it may safely be concluded that neither a motion in arrest of judgment nor a writ of error will lie." Mr. Heard certainly presents a great quantity of evidence, from Shakespeare's works, indicating an extensive and accurate acquaintance with legal principles. But it is quite as easy to show his familiarity with medicine, seamanship, etc. Mr. Heard has made a very amusing and interesting collection.

In regard to the relief of our Court of Appeals, Mr. Howard Ellis, the editor of The Reporter, writes us: "The failure of the Court of Appeals to clear their calendar this year is, as you say, 'a very serious event,' and it is clear, as you also say, 'that it will never again be able to clear its calendar,' for the cases must necessarily increase, not diminish in number. The cause of the failure is plain, and suggests the remedy: the increase of judges to hear and determine the cases, and the division of the court into two sections.

To this there is the striking objection, that the sections may differ on the same question of law; but this objection, it would seem, could be avoided by a re-argument before a bench to be composed of all the judges." It has been suggested that instead of having two sections sitting independently, there should be judges enough to keep one practically continuous session, the chief presiding and writing no opinions unless he chooses. This would apparentiy obviate the objection of which Mr. Ellis speaks. See Mr. Matthew Hale's communication, post.

Judge Barrett has apparently solved the problem of the divorce business. He has written a play designed to have such an effect on the consciences of the hearers that none of them will ever again be guilty of getting any irregular or improper divorce. At least, such is the idea that we get from the newspaper accounts of "The American Wife," which is now having almost as good a "run" as its author made when he landed on the bench. We do not know whether the judge's associates "concurred." We remember however that the play of "Divorce" did not seem to reduce the number of divorces. But Judge Barrett's play is said to have the superior moral attraction of being destitute of love-making. Perhaps we do not get an adequate idea of the judge's play. We could tell better about it if he would send us a copy or a pass to see it.

We would suggest to Judge Davis that he write a play on the temperance question, as he is known to be intensely interested in that matter. Any thing - even dramas by lawyers to suppress divorces and intemperance.

IN

NOTES OF CASES.

'N State v. Middleham, Iowa Supreme Court, December 5, 1883, 17 N. W. Rep. 446, it was held that the exclamations of a wife upon the killing of her son by her husband are not incompetent, on his trial for the killing, as communications by the wife to the husband. The court said: "The evidence shows that the defendant killed his step-son,

William David, with a knife, in the Central House, a hotel kept by the defendant. One Penlan was inJohn Carr arrested defendant that day in the troduced as a witness, and testified as follows: Central House, in what was called the bar-room. I went in right after him.' He was then asked the following question: State what, if any thing, was said to Mrs. Middleham, there in the presence and hearing of the defendant, concerning the manner in which the homicide was committed, and the connection of the defendant with the homicide?' This question was objected to as incompetent, immaterial, and hearsay, and calling for the declarations of a party not a competent witness against defendant. The objection was overruled, and the witness answered: 'Soon after I went into the house, Mrs. Middleham threw up her hands and says, 'My God!