ruling excluding evidence, unless the ruling is assigned as a ground for a new trial. Affirmed. Opinion by ELLIOTT, J.—Scobey v. Decatur Co.

on.

PROMISSORY NOTE-ULTRA VIRES AS A DEFENSE.-Appellee recovered judgment against the appellants, Johnson and Glick, and against Poock, who does not join in the appeal. Johnson and Glick were sureties of Poock in the note sued It is claimed that the note was given for money loaned by the appellee to Poock, who was not a member of said corporation, and that under the act of March 11, 1875, the company had no right to make loans to others than its own stockholders. Held, that if the appellee exceeded its powers in making the loan and taking the note it does not follow that it can not be enforced against the makers. The appellants and their principal were under no incapacity to borrow and to give their note, and their unwillingness to pay according to promise can not be justified under a plea that the lender had no right to give the credit. State Board of Agriculture v. Citizens' Street Railway Co., 47 Ind. 407; National Bank v. Matthews, 8 Otto, 621. Affirmed. Opinion by WOODS, J.-Poock v. Lafayette Building Association.

VENDOR'S LIEN HUSBAND AND WIFE PLEADING.-1. Where a husband negotiates the purchase of real estate and has the deed made to his wife, giving notes for the purchase money signed by himself and his wife, the taking of such notes should not be deemed a waiver of the vendor's lien. The wife's signature to the notes created no obligation, and the husband was the sole obligor. 2. Upon the complaint in this case, a personal judgment could not be rendered against the husband, because it averred that he signed the notes, not as surety for their payment, but to show his consent as husband to the execution of the same by his wife, and copies of the notes were not exhibited. But the court found that he signed the notes as maker. In this respect, the complaint was not supported by the finding. The complaint should have been so framed, that a personal judgment could have been taken and first enforced against the husband, before resorting to the land. The vendor's lien is not an original and absolute charge on the land, but only an equitable right to resort to it in case there be not sufficient personal estate. Bottorf v. Conner, 1 Blkf. 287; Conwell v. Claypool, 8 Blkf. 124; Scott v. Crawford, 12 Ind. 410; Bowen v. Fisher, 14 Ind. 104; Dibblee v. Mitchell, 15 Ind. 435. Having taken the personal obligation of the husband for the unpaid purchase money, plaintiff should exhaust his remedy thereon before proceeding to a sale of the land upon a foreclosure of his hien. Reversed. Opinion by WOODS, J. Martin v. Cauble.

NEW TRIAL-CUMULATIVE AND IMPEACHING EVIDENCE-PRACTICE.-This was a complaint for a new trial under sec. 356 of the Code, 2 Rev. Stat. 183, for newly discovered evidence. It is

well settled that a new trial will not be granted for newly discovered evidence which is merely cumulative to the evidence adduced on the original trial. Zouker v. Wiesh, 42 Ind. 169; Shigley v. Snyder, 45 Ind. 543; Winsett v. State, 57 Ind. 26; Dodds v. Vannoy, 61 Ind, 89. 2. The rule is also well established that a new trial will not be granted for the admission of newly discovered evidence to contradict or impeach the testimony of a witness on a previous trial, either showing that the reputation of such witness was bad for truth, or that his testimony on the former trial was false. Fleming v. State, 11 Ind. 234; Jackson v. Sharpe, 29 Ind. 167; Martin v. Garver, 40 Ind. 351. Affirmed. Opinion by HowK, J.Shivel v. Baxter.

NUISANCE PERMANENT OBSTRUCTION OF SIDEWALK BY FRUIT STANDS.-Appeal by the State from a judgment acquitting the appellee of the offense of maintaining a public nuisance. The State asked the court to charge that if the defendant permanently maintained a fruit stand on the sidewalk of a street, the jury should find him guilty, such an obstruction being a nuisance within itself. The court modified the instruction as follows: "And that the obstruction essentially interfered with the comfortable enjoyment of said sidewalk." Held, that the instruction asked should have been given. The common law doctrine was, that a public highway was a way common and free to all the king's subjects to pass and repass at liberty, and that an unauthorized obstruction was indictable and punishable as a nuisance. Nor was it necessary to show anything more than that there was a permanent obstruction of the public way. People v. Vanderbilt, 28 N. Y. 396. While we have no common-law offenses, it has been held that there is such an offense as a public nuisance. Burk v. State, 27 Ind. 430. Followed to its logical consequences, that case would require us to hold that what was at common law a public nuisance is such under our statute, and that permanently obstructing a highway is, per se, a public nuisance, because it was always such at common law. We are inclined to hold this to be the correct ruling. The question is not whether travel was interfered with, but whether there was an unlawful incroachment upon a public street by the erection of a permanent obstruction. Angell on Highways, sec. 226. There is a distinction between the temporary occupancy of public streets for commercial or building purposes, and their permanent obstruction. Wood v. Mears, 12 Ind. 515. But even such temporary use may go to the extent of becoming a public nuisance. Appeal sustained. Opinion by ELLIOTT, J.-State Burdetta.

PLEADING-ANSWER OF PAYMENT.-In an action to recover for money paid as indorser on three promissory notes, an answer by one of the defendants that, prior to the commencement of the suit, he fully paid and satisfied "the note sued on," is bad, as being pleaded in bar of the whole action, while setting up matter which at most

could bar but a part of it. An answer alleging that the notes were executed for the sole benefit of A B, and that plaintiff had been fully paid by moneys he had received from the estate of said A B, is also bad, because it does not show that there was any agreement between the administrator of the estate and the plaintiff, that the money so received should operate as a payment of the claim sued for, and without such an agreement it could not so operate. Reversed. Opinion by WORDEN, J.-Johnson v. Breedlove.

JUSTICES COURTS appeal will not lie to this court from a final judgment in a civil action originating before a justice of the peace, where the amount in controversy, exclusive of interest and costs, does not exceed $50. Louisville, etc. R. Co. v. Jackson, 64 Ind. 398. Appeal dismissed. Opinion by HowK, J.— Wagner v. Kastner.

RIGHT OF APPEAL.-An

UNLAWFUL CONVERSION- DWELLING HOUSE SITUATE ON LAND OF ANOTHER. This was an action by Mary Ransdell against Griffin, charging unlawful conversion to his own use of a dwelling-house on Griffin's own land. A dwelling-house situated on the real estate of another may, under some circumstances, be treated as personal property. Foy v. Reddick, 31 Ind. 414: Ham v. Kendall, 111 Mass. 297. But in an action for the unlawful conversion of a dwelling-house by the owner of the land on which it is situated, the burden is on the plaintiff to affirmatively show some valid contract which will overcome the presumption that the dwelling-house is real property owned by the owner of the soil. The construction of a house by a tenant upon leased land gives the tenant only a restrictive right of removal; for if not removed before the expiration of the tenancy, the tenant's right to the house will be lost; after the expiration of the tenancy the house becomes a part of the freehold, and vests absolutely in the owner of the freehold estate. Cromie v. Hoover, 40 Ind. 49. On the trial appellee testified that she authorized her husband to trade or sell the house, and Griffin, the owner of the land, testified that he bought the house from the husband of appellee. A wife may constitute her husband her agent to sell personal property, and a sale made by him under such authority will pass title. Lichtenberger v. Graham, 50 Ind. 288. Appellee's claim, if it ever had any substantial existence, was therefore divested. Reversed. Opinion by ELLIOTT, J.Grifin v. Ransdell.

WAIVER.

DEED-CONDITION SUBSEQUENT Action to have a deed executed by the plaintiff to his son set aside. The deed set forth, as the consideration of it, natural love and affection and "the better maintenance and support" of the grantors. Held, that these words did not import a condition subsequent. The better maintenance and support of the grantors was a part of the consideration, but there is nothing to indicate that the grantee was to furnish, or that he had not already furnished, this better maintenance and sup

port of the grantors. The case was tried on the theory that the deed was executed upon a condition subsequent; but even on this theory the court might well have found that the appellant had waived the condition and his right to insist upon a forfeiture for breach of the condition, because it appears in evidence that the appellant delivered the deed to the grantee long after he had removed from appellant's house and the land described in the deed. The evidence also shows that no demand was ever made by the appellant for performance of the supposed condition subsequent. The court did not err in its finding. 2 Wash., Real Prop., 3d ed., 13-16; Rush v. Rush, 40 Ind. Affirmed. 83; Petro v. Cassiday, 13 Ind. 289. Opinion by HowK, J.-Risley v. McNiece. FRAUDULENT CONVEYANCE-MORAL OBLIGATION-HUSBAND AND WIFE.-Complaint by the appellant, as assignee of Rogers for the benefit of creditors, to recover real estate alleged to have been conveyed by Rogers, by way of mortgage, to his children, in fraud of his creditors. The answer alleged that the purchase money of the land conveyed was furnished by the wife of Rogers, that it was then agreed that the sum so furnished should be paid by said Rogers to the mortgagees, and that the mortgage was executed in accordance with said agreement. Held, that the answer was good. The contract was not that the wife should have an interest in land, but that money which she advanced to purchase land should be paid to her children. Such a contract need not be in writing. A mortgage will not be conclusively presumed to be fraudulent, because it purports to secure a sum in excess of the debt really due. It is the exclusive province of the jury to determine whether an act is fraudulent or not. Leasure v. Coburn, 57 Ind. 274. When there is a moral obligation which can not be enforced on account of the provisions of the statute, the party may waive the provisions of the statute, and the transfer will be valid as against creditors. Bump on Fraud. Con. 221. This case calls strongly for the application of this rule; for here the creditors seek not only to subject the real estate to sale, but to free it from the lien for the money with which it was purchased. If it be conceded that the mortgagor intended to defraud his creditors, this would not affect the mortgagees, unless it affirmatively appeared that they had knowledge of such fraudulent intent. Parton v. Yates, 41 Ind. 456. Affirmed. Opinion by ELLIOTT, J.--Gaff v. Rogers.

QUERIES AND ANSWERS.

{*** The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

7. Is a person appointed by a justice under § 2862, Rev. Stats. Mo., 1879, authorized to serve a writ of attachment? If not, ean the proper constable validate such service by adopting it as his own act, before any other writ has been levied on the property so seized by such appointed person? A. H. J.

Mound City, Mo,, Jan. 21, 1881.

8. Can the indorser of a negotiable note before due, impeach the validity of the note he has indorsed, in an action between his indorsee and the maker, in Missouri? Please give authority. SUBSCRIBER. Columbia Law School, Jan. 21, 1881.

9. A owns a piece of land and conveys by deed to B. The next day A gives C a mortgage deed, with power of sale. Both deed and mortgage were sent in same envelope to recorder, and both filed at same time. Neither B nor C had any knowledge of the transfer to the other until after A's death. The land has been sold under mortgage to E. Who owns the land? Please cite any authorities. S.

Stockton, Mo.

10. If A donate by deed to the County of B, certain lands to be forever used as an open public square, which donation is accepted by B, and said land is platted, laid off and used by B as an open public square for a time, but afterwards used by B for a different purpose, which caused the land to revert back to A, had A, before condition broken by B and demand of possession by A, any interest in said lands. either legal or equitable, that he could convey to C? Would a demand for possession by A upon B, before bringing action, be necessary, if he could show that such demand would have been wholly unavailing? If a demand by A for possession, after condition broken by B, is absolutely necessary to give him a right of action to recover said lands, would the fact that A (during the time that B, in violation of said deed, was inclosing said lands, or doing any other thing in violation of the same) forbid him so doing, be a sufficient demand or act of ownership or control of said lands, to give him a right of action against B for possession of the same? C. N. MORTON.

A MANUAL OF MEDICAL JURISPRUDENCE. By ALFRED SWAINE TAYLOR, M.D., F.R.S., Fellow of the Royal College of Physicians; Honorary Member of the Medico-Legal Society, of New York; of the Societe de Medecine Legale of Paris; and of the Medical Society of Sweden; late Lecturer on Medical Jurisprudence and Chemistry in Guy's Hospital. Eighth American Edition, from the tenth London Edition, containing the author's latest notes, made expressly for this edition. Edited, with additional notes and references, by JOHN J. REESE, M.D., Professor of Medical Jurisprudence and Toxicology in the University of Pennsylvania, Fellow of the College of Physicians of Philadelphia, Physician to St. Joseph's Hospital, and to the Girard College for Orphans, Honorary Member of the New York Medico-Legal Society. With illustrations on wood. Philadelphia: Henry C. Lea's Son & Co. 1880.

The number of editions through which this work has passed, both in this country and in England, is the best evidence of the exceptionally high rank it has so long maintained as a manual of medical jurisprudence; it is, therefore, too late to enter upon a detailed examination of its contents with a view to criticism, and the profession is too familiar with the work to render any extended notice of it necessary. We are, therefore, necessarily confined to the improvements to be found in this new edition. But we cannot refrain from expressing the opinion that the high esteem in which it is generally held, at least by the members of the legal profession, is owing largely to its conservative treatment of medicolegal questions. If medical witnesses would more generally follow the author's advice, by declining to express an opinion or state a fact not founded upon, or growing out of their own personal observation or experience, they would many times save themselves from humiliating exhibitions of gross ignorance where they assume superior knowledge. It is undoubtedly true that a man may be an excellent physician, and still a most lamentable failure as a medical expert; but we have seen physicians who either did not realize, or were not willing to admit this fact, and hence permitted themselves to be led on to slaughter by acute lawyers, who had crammed for the occa

sion. The disrepute into which the testimony of so-called medical experts has fallen of late years, is owing, we think, largely to a neglect of this advice. There seems to be manifested, on the part of many of them, a disposition to go outside of their actual experience, and give juries theories for facts; and as the theories of even the most learned do not invariably lead to the same conclusion, a conflict of evidence frequently arises, and the jury have no alternative but to give the defendant the benefit of the doubt.

It is fortunate that so recently before his death the author revised this work, adding to it the latest results of his long and varied experience and research. The additions by the American editor are valuable, and his high standing as a medical writer is a sufficient guaranty that he has supplied the latest and best information of special interest on this side of the Atlantic. The publishers are entitled to much credit for the handsome style in which they have presented the work to the public. There are 933 broad pages, printed in clear, yet compact type, containing matter enough for two good-sized volumes as law books are frequently printed. The binding is half Russia, and is neat and substantial. It is a good solid book, both as regards its matter and its mechanical execution.

NOTES.

-The jury impanneled to try Buford for the murder of Judge Elliott, of Kentucky, has brought in a verdict of acquittal on the ground of insanity. The instructions of the court seem to have presented the case to the jury very fairly; and, while the result is to be regretted, the responsibility must rest upon the jury rather than the court.

-The Galveston lawyers have got a good laugh on a brother attorney who was defending a colored kleptomaniac on the plea of insanity, The attorney for the defendant made an eloquent speech, on the irresponsible condition of his client's mind, to the jury, and took his seat. His idiot client reached over, touched his advocate's arm, and said emphatically, "You is de biggest fool on Governor's Island." The opposing attorney remarked, "There, I told you he had lucid intervals."

-Judge A. M. Aiken, of the corporation court of Danville, Va., created quite a sensation a few days ago in sentencing a prisoner who had been tried for the murder of a man named Hankins, and whose punishment was fixed by the jury at eighteen years in the penitentiary, He said: "Scott Thompson, your present situation, whether you be guilty or innocent of the murder of Hankins, is due to the moral cowardice of twelve Either you are altogether innocent of the

men.

accusation made against you by the Commonwealth, or you perpetrated a murder of the first degree in law, and of the foulest in cold-blood and unfeeling atrocity. If you were believed innocent, a monstrous crime rests upon those who declare you guilty. If you are guilty, your wicked life has been saved by the criminal weakness of a jury who had not the moral courage to act fearlessly and to the full extent of the law upon evidence the truth of which they endorsed by the verdict they rendered." His honor then reviewed the evidence, and concluded as follows: "Upon this testimony it was not even insisted by your advocates that Hankins was dead when he was thrown into the canal, and the verdict of the jury in ignoring the evidence and finding you guilty of voluntary manslaughter, was a despicable evasion of their disagreeable duty to vindicate the outraged law of the Commonwealth, by inflicting on you its awful but well-merited penalty. The court has no power to set aside the verdict If you against you. are innocent, curses and contempt must be mingled with your feelings of grief at the injustice that has been done you. If you are guilty, you should rejoice and praise God that you fell into the hands of, and was tried by, a jury of your own peers. The judgment of the court is that you be imprisoned in the penitentiary for the period found by the jury."

-From the Telephone v. Telegraph trial. Learned and solemn judge-"Would you mind. Mr. Buzfuz, showing us the practical working of this marvellous instrument?" "Certainly, your ludship. Would your ludship speak into this telephone-which is, I believe, connected with the office of the company?" His ludship, rather hard up for something to say, amid a breathless silence "Hullo! who are you?" Pause of two seconds; intense excitement. Innocent but facetious clerk at the other end-"If it comes to that, who the deuce are you?" Tableau.

-Prior to the war, two lottery dealers, who hailed from Atlanta, Ga., were trie! for a violation of the penal code, and acquitted. The prosecuting attorney, who was sufficiently intoxicated to be indifferent to consequences, asked the court to bind over the prisoners for keeping a gamingtable. This motion was denied. The prosecuting attorney then asked that they be committed as vagrants. This was also refused. This motion was followed by one asking that the accused be held to answer to the charge of being a nuisance. which shared the fate of its predecessors. The fun-loving judge, who was a Georgian, perceiving the condition of the State's attorney, asked if he did not wish the defendants to be sent to jail for being Georgians. As quick as lightning the attorney was on his feet, and remarked: "That is altogether unnecessary, may it please the court, for they are included in the motion I last made." The court-room was convulsed with laughter, but Judge D., although he loved a joke at another's expense, failed to see the point.

The Central Law Journal.

ST. LOUIS, FEBRUARY 18, 1881.

CURRENT TOPICS.

The duty of a finder with reference to the identification of lost articles by their owner, received a very clear and pointed exposition recently in the case of Wood v. Pierson, decided by the Michigan Supreme Court. The action was replevin, by the owner of a lost diamond pin against the finder, with whom was joined a jeweler to whom it had been entrusted by the finder, during his temporary absence from the city, for safe-keeping, pending identification by the owner. The owner had offered a reward of $25 through the pub. lic prints, to be paid upon the leaving of the pin at the office of the newspaper. This requirement as to the place of payment was dispensed with by the parties, as appears from their acts in the premises, and cuts no figure in the case. The owner upon learning that the pin was at the jeweler's, called there for the purpose of identifying it, and asked to see it. This, Wood, the jeweler, declined, and required him to describe it first. The Owner attempted to do this, but he failed to satisfy Wood and also another jeweler, to whom both referred, and who had the advantage of inspecting the pin, of the righteousness of his claim. He then requested that another jeweler who he said had formerly repaired the pin, and had a plaster cast of the stone, and could identify it, might be permitted to see it. This gentleman came, but had no cast, and was unable to give a particular description, and Wood declined to show him the pin. Pierson, the owner, proposed that the pin should be sent, at his expense, for the purpose of identification, to Mr. Smith, of Detroit, who, he said, had mounted it. Wood declined to do this, but made the suggestion that Pierson should write to Smith for a description, as being attended with less risk. This was unacceptable to Pierson, who sued out a writ of replevin, but the officer failed to find the pin. In the mean while, Chapman, the finder, who had returned to the city, had taken the pin to Detroit, seen Mr. Smith and satisfied himself that it was Pierson's property. Upon his return, he handVol. 12-No. 7.

ed it to the officer, with the request to get the reward. Pierson refused to pay, and on giving the usual replevin bond, received the pin from the officer. The court (GRAVES, J.,) reversed a judgment for Pierson, and remanded the cause for a new trial, on the ground that Chapman had a lien for the reward, citing Prescott v. Neale, 12 Gray, 222; Wentworth v. Day, 3 Met. 352; Cummings v. Gann, 52 Pa. St. 484; Story on Bailments, §§ 121a, 621a; 3 Parsons on Contracts, 329 (6th ed.); Edwards on Bailments, §§ 20, 68 (2d ed.) Whether Chapman's conduct with reference to the identification was fair and reasonable under all the circumstances of the case was held to be a question for the jury. As to the finder's duty with reference to the care and identification of lost articles, the court quotes the quaint language of Lord Coke in Isaac v. Clark, 2 Bulstrode, 306: "When a man doth find goods, it hath been said and so commonly held, that if he do dispossess himself of them, by this he shall be discharged; but this is not so, as appears by 12 Edw. IV. 13, for he which finds goods is bound to answer him for them who hath the property; and if he deliver them over to any one, unless it be unto the right owner, he shall be charged for them; for at the first it is in his election whether he will take them or not into his custody; but when he hath them, one only hath then right unto them, and therefore he ought to keep them safely. A man therefore, which finds goods, if he be wise, will then search out the right owner of them, and so deliver them unto him. If the owner comes unto him and demands them, and he answers that it is not known unto him whether he be the true owner of the goods or not, and for this cause he refuseth to deliver them, this refusal is no conversion if he do keep them for him."

An interesting decision has recently been rendered by the New York Common Pleas Court, on the subject of the effect to be given to the regulations of a savings bank relative to the payment of money to depositors. The plaintiff sued to recover money paid to an unauthorized person. Among the rules printed in his bank-book, was the following: "Drafts may be made personally, or by the