be sustained under the facts stated; but that it makes a case of embezzlement of the contents of a letter placed in the post-office, under the statute cited, I do not believe. The very strongest view I could take of this case in behalf of the government would leave doubt very grave doubt on my mind as to the correctness of a conviction, should the jury believe the prisoner to have acted with guilty intent, and even in this view, it would be improper for me to permit a conviction. Believing as I do, I am constrained to direct the jury to return a verdict of not guilty. U. S. Cir. Ct. N. D. Georgia, March, 1887. United States v. Rapp. Opinion by Neuman, J. ACTION AGAINST SHERIFF JUSTIFICATION.- An officer who takes property by virtue of a writ of replevin cannot justify under the process, unless he return it to the court to which it is made returnable. In Bac. Abr. tit. "Trespass," 450, it is said: "If a sheriff have not returned a writ which ought to have been returned, he becomes, although this be only a non-feasauce, a trespasser ab initio as to everything which has been done under the writ." In Buller, N. P. 23, it is said that, "whenever an officer justifies an imprisonment under a writ, he must show that the writ was returned." To the same effect are the following: Rowland v. Veale, Cowp. 18; Freeman v. Blewett, 1 Ld. Raym. 632; McPherson v. Pemberton, 1 Jones, (N. C.) 378; Girling's case, Cro. Car. 446; 2 Rolle, Abr. 563, pl. 18; Middleton v. Price, 2 Strange, 1184. In Ellis v. Cleveland, 54 Vt. 437, on demurrer to a plea justifying an arrest upon returnable process, which omitted to set up a return of process, Rowell, J., said: "If an officer to whom returnable process is directed would justify under it, he must show its return, else he is a trespasser ab initio; for he is commanded to return the writ, and he shall not be protected by it unless he shows that he has paid due and full obedience to its command." The same doctrine is recognized in Briggs v. Mason, 31 Vt. 433. Chief Justice Shaw, in Munroe v. Merrill, 6 Gray, 238, says that, if an officer would justify under legal process, "it is essential to his justification that he has returned his execution, with his doings, by which they are made matter of record for the information and security of all parties interested." And in Williams v. Babbitt, 14 Gray, 141, the Massachusetts court says: "The officer by failing to return his writ deprives himself of a defense which he might otherwise have made available." In Russ v. Butterfield, 3 Cush. 242, the same doctrine is reiterated. It may be that courts have made an unfortunate use of language in saying that the neglect to return the process makes the officer a trespasser ab initio. The Massachusetts cases seem to proceed upon the ground that the justification fails for want of the return; not that the want of it by relation makes the preceding steps trespasses. In Shorland v. Govett, 5 Barn. & C. 485, the king's bench questioned the oorrectness of the reason given in many of the English authorities, supra, for the failure of the justification under returnable process. Bayley, J., said: "When it is said that a sheriff is made a trespasser ab initio by the neglect to return a writ, the expression is inaccurate. There, for want of the return, no complete justification was ever shown. The distinction is this: Where there are facts alleged on the record making out a good defense, but something added in the replication destroys that defense, the party is made a trespasser ab initio. But if the sheriff seizes goods under a writ, when it is his duty to make a return, he never has a justification unless he discharges that duty." And Holroyd, J., said: "Instead of saying that the want of the return made the sheriff a trespasser ab initio, it would be more correct to say that the presence of the return was necessary in order to make his act lawful ab initio." But whatever be the correct mode of reasoning, all the authorities agree that the failure to return the process is fatal to the justification, and in such case it is the same thing as if the officer had no process at all. If he had no process, he is plainly a trespasser. Vt. Sup. Ct., June 6, 1887. Wright v. Marvin. Opinion by Powers, J. TAXATION-AN AUTHORIZED SALE OF LAND-TRANSFER OF LIEN.- No sale of lands for taxes due, which transfers to and vests the lien of the State in the purchaser, can properly be treated as or adjudged to be a void sale, and to that conclusion we still adhere. Our cases have quite uniformly recognized the doctrine that if the tax-payer has sufficient personal property to pay his taxes at the time his lands are sold to pay them, the sale is ineffectual to convey title, but the rule of decision that the sale of lands for taxes under such circumstances transfers to the purchaser the lien of the State is quite if not equally well recognized. Ward v. Montgomery, 57 Inn. 276; Flinn v. Parsons, 60 id. 573; Hosbrook v. Schooley, 74 id. 51; Bender v. Stewart, 75 id. 88; Lawson v. Hilgenberg, 77 id. 221; Sloan v. Sewell, 81 id. 180; Parker v. Goddard, id. 295; Crecelius v. Mann, 84 id. 147; Jenkins v. Rice, id. 342; Schrodt v. Deputy, 88 id. 90; Locke v. Catlett, 96 id. 291; Hilgenberg v. Board Com'rs, 107 id. 494; 8 N. E. Rep. 294; Ludlow v. Ludlow, 109 Ind. 199; 9 N. E. Rep. 769; State v. Casteel, above referred to. This doctrine, and the rule of decision stated, rest upon the established theory, that where a tax-payer owns both real and personal property, the latter is primarily liable for all the taxes assessed against him, but that a lien nevertheless attaches to the real estate for accruing taxes by which it becomes secondarily, and if need be, ultimately liable for the payment of such taxes; and upon the further theory that the lien which so attaches is not divested by the failure of the proper officer to seize and sell personal property, but is transferred to and vested in the purchaser when the real estate is sold for the non-payment of the taxes. It follows that the complaint did not state a sufficient cause either for setting aside the sale to St. Clair, or for an injunction against the auditor, and in consequence, both demurrers to it ought to have been sustained. Ind. Sup. Ct. St. Clair v. M' Clure. Opinion by Niblack, J. NOTES. The following was a clause of a will in Robinson v. Randolph, 21 Fla. 629: Sixth. All the residue of my property, real, personal and mixed, movable and immovable, I give to my beloved wife Mary Ellen Randolph. I advise her to build her a good house on Gatlin, surround herself with comforts, plant trees, establish on the southern slope of the McRobert tract pits for pineapples, and to amuse herself with poultry. I know that she will build a church. 1 advise her to gather up all the money she can by the sale of the hotel property, the saw-mill, the insurance money, and invest the same by loan on first mortgage in Jacksonville, always taking the advice of a good and honest lawyer on the title and the security, and having his opinion in writing. Of course she will have to take from the sum sufficient means to effect the improvements of which I speak. I have one piece of advice, never go in debt, and never go security for any one, no matter whom. I advise her to make a will, and give her property as it will do most good." place not to go to and to get away from. We ex The Albany Law Journal. pect next winter to hear Mr. Moak and Mr. J. ALBANY, AUGUST 13, 1887. CURRENT TOPICS. Bleecker Miller citing the Argonaut's charges, and attributing the evils to codification. In the current number of the American Law Review is an article by Mr. James T. Ringgold, of Baltimore, entitled "Sunday Idleness," in which he THAT is a very serious arraignment of our pro- advances the rather novel theory that society has THAT on Which we copy in another column from the San Francisco Argmaut, and to which we have prefixed a heading of our own invention. We generally do not pay much attention to the utterances of newspapers about lawyers, for generally they are intemperate and ignorant, the outpourings of malice, envy, or an unhappy attempt at smartness. Show us a newspaper habitually and violently hostile to lawyers and judges, and we will show an unsuccessful, disappointed, broken-down attorney for the writer. But the Argonaut is an unusually fair and able newspaper, and such an editorial as that which we copy leads us to believe that there must be solid foundation for its charges. The picture there drawn would not pass for a likeness in our State, although undoubtedly among our eleven thousand lawyers there are many unworthy men. They cannot as a body be so pure as the eleven thousand virgins of Cologne. Good moral character and good education are essential to admission to our bar. But we are confident that there is as much fidelity, honor and ability among them as among an equal number in any other profession and occupation. They are intrusted with enormous interests, and very seldom betray them. Of the sixty thousand lawyers in other States the same may rea-sonably be said. California is a new country; it is not much more than a generation ago that there was no law there except lynch law. It has a mixed population, made up of all races and colors - we hardly think it deserves the terrific picture drawn of it by Mr. Moak in his anti-codification moments -but it is possible that there is not always that strictness and purity of professional dealing that is the general characteristic of the older communities. One thing in the Argonaut's arraignment we are sure is grossly exaggerated—the charge that lawyers are participes criminis, or are in the habit of defending criminals whom they know to be guilty. The unselfish devotion of lawyers to those accused of crime is one of the noblest characteristics of the bar. The poorest and most abject criminal is certain of a fair and intelligent trial, and frequently his counsel not only toils without reward or hope of reward, but in his zeal and love of fair play is at large cost out of his own pocket. There is not one of these barking newspaper slanderers, who if indicted, would not be sure to be well defended by one of the very class which he had maligned. We cannot but believe that the Argonaut exaggerates the disorder in the diagnosis. It should remember that if its picture is a fair one, it argues badly for the moral tone of the community. If these things were literally true, California would be a good VOL. 36-No. 7. no right to prohibit labor and business on Sunday. Mr. Ringgold will have to work a good many Sundays before he can convince a christian community of the soundness of his views. We always expect to find much entertainment in the Review's "Notes," and are rarely disappointed. The present batch is very interesting. The Review recommends the adoption of the Pennsylvania practice of having the trial judges write careful opinions, which are frequently adopted by the appellate court. This would not answer in our State, where the trial judges are already overworked. The readers of the Review need not surmise that Lord Coleridge made a slip of the tongue in praising Judge Duer, of the New York city Superior Court, nor need the Review quote from the 32d Vermont Reports to confirm Lord Coleridge's views. Judge Duer was one of the ablest magistrates who have ever lived in this State, and few of the judges have had so wide-spread and excellent a reputation among our people. The Review "goes for" the Texas Court of Appeals mercilessly. It says that court" seems to have been organized to overrule and reverse," and that in twelve years "it has affirmed eight hun-, dred and eighty-two criminal cases, and reversed one thousand six hundred and four." The motto 66 vaca The Virginia Law Journal, whose editorials are always interesting, says of the overruling of the United States Supreme Court by the Texas Court of Appeals: "We are thankful for a little diversion this hot weather, and we get it in perusing the opinion of White, P. J., of the Texas Court of Appeals, in Ex parte Asher, in which the Texas court accomplishes the feat of overruling the United States Supreme Court in Robbins v. Taxing District. We do not know to whom we are indebted for a pamphlet copy of the opinion; maybe to the presiding judge himself, and if so, he will probably expect us to notice it, at least, and we will. It is a * very noticeable performance. But if this presentation copy is intended as an invitation to join in a crusade against the Federal authority, we must respectfully decline. We have successfully resisted the blandishments of an authority nearer home; we have even refused to cry 'tyrant,'' despot,' 'usurper,' at Circuit Judge Bond for certain judicial actions of his in the matter of the State debt; and we shall still persistently refuse to uncover our rear and invite an attack from the toe of the Federal authority, which is quite the fashion hereabouts just now -at least we shall until the weather gets cooler and the jails become more habitable. * * Now perhaps the Federal court will take the hint and suppress all its decisions which are not unanimous, if it wishes to be respected and obeyed in Texas; and those profound and eminent jurists' who dissented in the Robbins case will doubtless appreciate the complimentary reference, and feel duly sorry for having concurred in the Corson case, decided on the same day with the Robbins case, and immediately after it, and involving the same principle. | The ground of dissent in the Robbins case was that as the Tennessee law was applicable to only one taxing district of the State, it applied as well to drummers coming into that district from other parts of the State as to those from other States. In the Corson case, on the other hand, the Maryland law applied to all drummers alike; so did the Texas law. But how absurd the whole thing is. The Texas court has gone to much trouble to make itself ridiculous. The Constitution makes the Federal Supreme Court the final arbiter in these mat'ters, and gives it ample authority, we suppose, to enforce its decisions. Such a childish display of petulance is certainly not becoming to the highest court of a State, to say nothing of the crime of setting the example of defiance and disobedience to the law of the land." The Argonaut says: "Mr. Justice Field, of the Supreme Court of the United States, has administered a very proper and very merited rebuke to the court, its clerk, and the attorney that aided Mrs. Langtry in obtaining preliminary naturalization papers without presenting herself in open court and seeking them in a proper manner. It was a piece of shameful obsequiousness on the part of the clerk of a Federal court to take its register to the residence of this English adventuress in order that she might be spared the humiliation of presenting her person in the presence of the court. We sincerely hope that what has been done is void in law, and that she has secured no legal rights from the tribunal whose officers are so unmindful of its dignity." This is quite just. Some one has wittily remarked of this woman that she seems determined to avail herself at once of the benefit of our peculiar institutions naturalization and divorce. Some friend has sent us a batch of Memphis newspapers some of them bearing threatening names the " Scimitar," the "Avalanche "- all red-hot with reports of an unpleasantness in court, before Judge DuBose. One Hadden, president of a taxing district, having been indicted for malfeasance in office, his counsel filed a plea in abatement, charging misconduct of the grand jury, and hostility and partiality of the judge. The reports are sensational. The defendant came into court clothed in a blue seersucker coat, dark brown "pants," dark vest, no necktie, a straw hat, a faded umbrella, and a good humored smile. The newspapers of Memphis do not regard the lawyers with hatred and contempt, like the Argonaut, but rather as demi-gods. They furnish them with a remarkable armament. One "riddled the defense with Parthian arrows," although it does not appear that the orator was running away. Another poured "hot shot" into the judge, but he sat "as if carved of stone," and amid the crash of this artillery "a pin could have been heard to fall." Arrows and hot shot must be more dangerous than Revised Statutes, Bibles, ink and mucilage. Our advices stop at a very exciting scene, where the judge has threatened to put counsel in irous and send him to the work-house for contempt. We hope he will not do that. It is too bad to make a lawyer work in this hot weather, and the judge ought to keep, or rather regain, his temper, and not imitate Noah Davis. We are glad he is going to sleep on it. It is almost unnecessary to add that Judge Scroggs was mentioned, and the ALBANY LAW JOURNAL was quoted. We await the result with impatience. Later advices show that the "difficulty has been composed." The Memphis Bar Association had a meeting and brought about an "arrangement." The judge and counsel mutually withdrew their offensive imputations and remarks, and the judge rescinded his order of commitment. From the unanimous tone of the press and the bar we infer that the judge was hasty, and that the counsel was not to blame. The judge's conduct in rescinding his order was brave and manly, and will raise him in the estimation of his fellow-citizens. He has done the hardest thing for a proud man to do. A man who loses his temper and apologizes is a braver, perhaps a better man than one who never loses his temper. A NOTES OF CASES. VERY novel case is Bacon v. United States Mutual Accident Ass'n, 44 Hun, 599. The policy insured against injury by "external, violent and accidental means," and excepted disability or death "by taking poison." The insured died of a malignant pustule, contracted while working in a meat market and freight office where hides and cattle were received, and the uncontradicted evidence showed that the cause of death was a putrid animal substance upon the exterior of the body, working inwardly, and usually communicated from the put in this word 'violent' by the defendants, if we examine some of the exceptions made by them. The certificate says that no claim can be made when death has been caused by lifting, over-exertion, sunstroke or freezing. Now, as these are made exceptions, it is reasonable to understand that without special exception, they would have been within the language 'violent' means. Yet sunstroke and freezing do not import physical violence any more than does drowning. Trew v. Ins. Co., 6 H. & N. 845. We say a man dies a violent death, without necessarily implying any thing more than that he dies, not in the ordinary course of nature and disease. If by violent is meant physically violent or forcible, then how great must be the force? Is it not enough, however small it be, if it produces death or bodily injury? A poisoned arrow may make a small wound, but if it produces death, is not that a death by violent means? A rattlesnake bite may be hardly perceptible. It is * * bodies or skins of animals suffering from diseases in the hair. Held, that the plaintiff was entitled to recover. Learned, P. J., said: "The application refers to the certificate. The certificate to the application. The two explain each other, and show that the word 'poison' therein is used in its ordinary meaning, of a substance taken internally, seriously injurious to health and often fatal co life. The word 'taking' is omitted in the certificate, but not for any change of meaning. 'Death by poison' is well understood in ordinary language. It is a phrase which would never be applied to death from a rattlesnake's bite, although that injects into the circulation what may be called a poison. In certain cases death comes from what is called 'blood poisoning.' One who dies from a bullet wound may die of 'blood poisoning;' but he does not die by poison in the ordinary sense of the word. The insured died from what is known as malignant pustule. This is produced invariably, according to the testimony, 'by the infliction of animal sub-hardly possible that this certificate is to be considstance upon the body;' by the accidental deposit of this putrid and poisonous animal substance. This is usually communicated from the bodies, or skins, or hides, of animals which are suffering with this peculiar kind of disease. The substance may be carried by flies that have been feeding upon it. The disease may come by the application of the person himself of his hand, which has been in contact with this substance to some abraded surface of his body. And the substance may be absorbed by the thin portions of the lips though they are not abraded. Thus it appears that the cause of death in this case was a disease produced by the touching of an abraded part of the thin part of the lips with a putrid animal substance. The means through which deceased came to his death were external. The positive testimony of the physician shows this. The putrid animal substance reached the body, not through the stomach or the lungs, but through the skin, the external covering. The cause was external as much as the crushing under a car or the bite of a rattlesnake would have been. Hill v. Hartford Acc. Ins. Co., 22 Hun, 187. Next, were the means accidental? They cannot be thought otherwise. It is too improbable to suppose that the deceased intentionally put his hand, infected with putrid meat, upon his lip in order to produce death. If he had intended to commit suicide, this would not have been the mode selected. By whatever direct means the putrid substance was brought into contact with his face, the contact must have been accidental. Mallory v. Trav. Ins. Co., 47 N. Y. 53; Insurance Co. v. Burroughs, 69 Penn. St. 43. The most difficult and perplexing point remains; were the means violent? Suppose the fact to have been that an insect which had been feeding on the putrid meat afterward alighted on the deceased's face, and even pierced the skin, was this violent? Or suppose the fact to have been that the deceased himself placed his own hand, infected with this putridity, on his face, was this violent? It may help us to understand the meaning * * * ered as insuring against death from great violence, and not against death from a slight blow. There is an exception in this certificate of self-inflicted' injuries, but that must mean intentionally selfinflicted. It cannot be a self-inflicted injury when one accidentally stumbles and falls down stairs, breaking his leg. So that even if this pustule came by the contact of the deceased's own hand, yet it could not justly be called a self-inflicted injury. * And in deciding this, we think that the defendants, in their correspondence, showed a correct view of the general principles when they said that the death was not by accident but by disease. That must generally be the distinction. This is an accident policy. If the deceased died from disease, as distinguished from accident, plaintiff cannot recover. If deceased died from accident, as distinguished from disease, he can. Now, undoubtedly, accidents and external injuries often produce death through the disorganization of internal organs, still, the accident is the cause. On the other hand, it is said that impure water taken into the stomach, or impure air into the lungs, causes fever. But these fevers are diseases, having their origin internally. They are not the results of accidents. But in this case there is just what the defendants evidently believed there was not, an external and accidental cause, and not an internal disease manifesting itself externally. Guided by this general view of the deaths and injuries against which the certificate was intended to insure, we think that this plaintiff should not have been nonsuited." Landon and Mayham, JJ., concurred. Mayham, J., said: "From this evidence the jury would have been authorized to have found that this injury which resulted in the death of the assured was produced by external and accidental means. Could they also have found under this evidence that these means were violent within the fair meaning of the certificate? Violent, in its ordinary acceptation of the term, means not natural or spontaneous, not intentional, voluntary, expected or usual. The degree of force is not always mate- the woods, is that a case of violence? And yet that is an exact parallel to the case in hand. We do not suppose the insurers used these phrases in the sense put on them, and we think it is a strained and unnatural construction. It seems to us the case of a death from disease is no more violent than would be a death from small-pox, to which the victim had been exposed by wearing infected clothing. In Pearsall v. West Un. Tel. Co., 44 Hun, 532, the plaintiff delivered to the defendant, at a station on Long Island, a message written on ordinary note paper, addressed to his firm, "T. W. Pearsall & Co.," of New York, directing the purchase of stocks. It was delivered by the defendant in an envelope addressed "T. W. Pearsall," in his absence, and as there was no one authorized to open it thus addressed, it remained unopened until his return next day, when he bought the stock at a higher price than that ruling on the day before. He was a stockholder of the defendant, had packages of its blanks in his office, and had been in the habit of using them, but his uncontradicted testimony showed that he was ignorant of the limitations contained in them. Held, that the defendant was estopped to show that by a condition on the blanks the company was not liable for mistakes in unrepeated messages. The court said: "These facts however do not estop him from denying any knowledge of the notice or its contents. In Breese v. U. S. Tel. Co., 48 N. Y. 432; S. C., 8 Am. Rep. 526, the principle of estoppel was applied because the sender of the message, after abundant time and opportunity to read the printed matter on the company's blanks in his possession, wrote the telegram on one of those blanks. Hence, says Earl, J., in that case, when the message was thus written and brought to the office of the company its agent had the right to assume and believe that the sender accepted the terms, and assented to and underderstood the agreement limiting liability for unrepeated messages. But nothing of the sort occurred in the present case. The message was written on a sheet of common white paper, and thus accepted for transmission. If the plaintiff is to be held bound by the regulations of the defendant company just as much as though he had written this message on one of its blanks, it can only be upon proof that he knew what those regulations were. This is the extent to which the opinion goes in the case of the West. Un. Tel. Co. v. Buchanan, 35 Ind. * * 33 ALB. LAW JOUR. 429; S. C., 9 Am. Rep. 744. It is insisted however that the plaintiff must be deemed to have |