a party is, as to such party, the same as no decree, and will not support a plea of res adjudicata, and the same matters in issue in the original suit can be again heard and determined.-EPSTEIN V. FERST, Fla., 17 South. Rep. 414.

107. RES JUDICATA-Husband-Necessaries for Wife. -The fact that defendant's wife procured a divorce from him on the ground of extreme cruelty will not conclude him from denying that he was guilty of cruelty, on an issue as to her justification in leaving him, raised in an action against him by a third person for necessaries furnished the wife after she had left her husband, and before getting her divorce.-CORRY V. LACKEY, Mich., 63 N. W. Rep. 418.

108. SALE-Fraud-Recoupment.-Defendant executed his note to plaintiff as part of the price of a stallion represented by plaintiff to be valuable for breeding purposes. The horse proved to be impotent: Held, in an action on the note, that defendant may recoup damages to the amount of the difference between the actual value of the horse and the contract price, and any special damages sustained in caring for him contemplated at the time of the sale.-SUTTLE V. HUTCHINSON, Tex., 31 S. W. Rep. 211.

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109. SALE OF GOODS Title Rescission.-The mere fact that the buyer, on the day after the receipt of goods ordered on credit while he was solvent, made a special preferential assignment, from which the amount due the seller for such goods was omitted, through older debts due him were included, does not warrant a finding that the buyer, at the time of the assignment, did not recognize the goods as his property.-BROOKS V. GEO. H. FRIEND PAPER Co., Tenn., 31 S. W. Rep. 160.

119. WATERS - Riparian Rights Conveyance.-The land below high-water mark does not necessarily pass to a grantee of the upland as an incident and appur. tenance of the latter, but the submerged land or any part thereof may be reserved upon a sale of the upland, or be made the subject of a separate sale, or be sold with the upland; the question of the intent of the grantor that the submerged land or any part thereof shall or shall not pass with the upland being one the solution of which is to be found in the terms of the deed of conveyance.-AXLINE V. SHAW, Fla., 17 South. Rep. 411.

120. WILL

Residuary Clause.-A testator who had no children, after providing in his will for his wife, relatives, and divers charities, and declaring what should form the residue of his estate, and how it should be increased in a certain contingency, added: "All the rest and residue of my estate both real and per sonal not heretofore disposed of I give, bequeath and devise as follows: All of my household goods, furniture and effects after the decease of myself and wife to" persons named "to be equally divided between them." There was no other disposition made of his residuary estate. The persons mentioned in the residuary clause had lived with the testator, and were reared by him, from their infancy, and between them and testator affectionate relations existed: Held, that testator's intentions was to make said persons legatees of his entire residuary estate.-IN RE MINER'S WILL, N. Y., 40 N. E. Rep. 788.

121. WILL - Separate Use Trust.-Testator provided for the management of his undivided estate by his executors during his widow's life,-the widow to have one-third of the net income, and the balance to go to the children,-and directed that if, after the widow's death, the children should divide the estate, the por. tions of the daughters should be separately secured to their use, beyond the dictation of their respective husbands: Held, that the interest of a daughter dying during her mother's life-time was a present interest in net revenue only, and a remainder in fee, subject to a separate use trust.-IN RE STEINMETZ'S ESTATE, Penn., 31 Atl. Rep. 1092.

122. WITNESS-Refreshing Memory.-The clerk of the court, who wrote the testimony of the complaining witness on a preliminary examination for assault, may refresh his memory therefrom.-PEOPLE V. KENNEDY, Mich., 63 N. W. Rep. 405.

Central Law Journal.

ST. LOUIS, MO., AUGUST 2, 1895.

Some time ago we called attention to the opinion of Judge Grosscup, of the United States District Court at Chicago, in the case of Swift v. Philadelphia, 64 Fed. Rep. 59, relative to the question whether or not there is a federal common law governing interstate shipments. In that case action had been brought to recover back freight exacted in excess of a reasonable rate, prior to the operation of schedules provided by the interstate commerce act, and the conclusions reached by the court are summarized as follows: The right to recover from common carriers for unreasonable exactions must be found in some positive law of the land applicable to the case in hand. Such a prohibition is in fact found in the common law; but it is not applicable to the case in hand unless there be a common law of the United States

as a distinct sovereignty, because the regulation of the rates upon which the suit is dependent is within the scope of interstate commerce and an exclusively national affair.

Following its former opinion in 58 Fed. Rep. 858, the court held that the United States has no common law of its own, and pointed out the anomalies that must follow such an assumption, for it would at once result in two "separate systems of law over the same subject-matter and the same territory," one the law of the State, the other the "common law" of the nation. Inasmuch as the latter would necessarily cover almost the entire field of State legislation, the doctrines of dual sovereignty and concurrent jurisdiction become as impossible as they are illogical. Article 6 of the Constitution was also cited

as defining the supreme law of the land to consist "in the constitution and such laws and treaties" as should be made in pursuance thereof, without any reference to the common law of England.

The court was undoubtedly correct in asserting that "congress has not adopted the common law of England as a national municipal law." In other words, the several States adopted the common law bodily in order that they might have a comprehensive jurispruVol. 41-No. 5.

dence, under which all matters of property and personal rights, not expressly provided for by constitutions or statutes, might be guarded and regulated. The federal government possesses only the powers, functions and responsibilities expressly or by fair implication delegated to it, and, as the residuum of governmental authority and duty remained with the several States, they required a system of law applicable to every legal exigency that might arise.

A dissent on the part of one member of the court and some outside criticism of Judge Grosscup's argument, was founded upon the insistance that the United States Supreme Court has always recognized the existence of "general" or "common" law, and the case of Railroad Co. v. Baugh, 149 U. S. 368, is cited by way of illustration. In deciding that case Justice Brewer said that it de

pended upon no statute nor local usage or custom, but "upon those considerations of right and justice which have been gathered into the great body of the rules and principles known as the common law." In referring to this decision Judge Grosscup very clearly demonstrated that the Supreme Court was there defining State common law; in other words, that when the decision of the highest tribunal of a State is overturned, we are not to suppose an introduction of new law, but a better interpretation of existing law, which, in the Ohio case cited, was the common law of that State.

The conclusion of Judge Grosscup has recently been indorsed by the Supreme Court of Iowa, in the case of Gatton v. Chicago, R. I. & P. Ry. Co., wherein, in an able and exhaustive opinion by Kinne, J., they lay down the following propositions:

1. Const. U. S. art. 3, § 2, providing that "Judicial power shall extend to all cases in law and equity arising under the constitution, laws and treaties of the United States," does not make the common law a part of the national jurisprudence.

2. The common law, as such, is not a part of the national jurisprudence.

3. Const. U. S. art. 1, § 8, providing that congress shall have power to regulate interstate commerce, vests such power exclusively in congress; and therefore a State cannot authorize a recovery for overcharges for freight on an interstate shipment, involving an unjust discrimination.

4. Since the common law, as such, is no part of the national jurisprudence, and since the exclusive right to regulate commerce is vested in congress, overcharges for freight on an interstate shipment, involving unjust discrimination, made prior to the in terstate commerce act, cannot be recovered.

5. The interstate commerce act (section 22), providing that the act shall not abridge the remedies "now existing" at common law or by statute, does not confer on the shipper the right to recover overcharges on shipments made prior to the passage of the act, on the ground that it recognizes a commonlaw or statutory liability on the part of the carrier therefor.

6. Const. U. S. Amend. 7, providing that in suits at common law "the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined by any court of the United States than according to the rules of the common law," merely establishes the right so far as the trial is concerned, and does not make the common law a part of the national jurisprudence.

NOTES OF RECENT DECISIONS.

CRIMINAL LAW-RIGHTS OF BAIL PENDING APPEAL.-The Supreme Court of Wyoming, in In re Boulter, 39 Pac. Rep. 875, has recently decided that a provision in the Revised Statutes of that State, providing that a person convicted of a felony, sentence being suspended pending appeal, shall be imprisoned until the appeal is determined, does not conflict with the Wyoming Constitution, Article 1, § 14, providing that "all persons shall be bailable by sufficient sureties except for capital offenses when proof is evident, or the presumption great." The court in this case go into the question of bail very fully. Under the common law, bailing in felony cases was not granted as a matter of right, but the power to admit to bail was lodged in the court of King's bench and the judges thereof, and was a matter of discretion, and not de jure. In most of the United States bail is granted after conviction when a sound and cautious discretion prompts, though not so freely as before verdict. Citing Bishop's Procedure (new), § 253. Some of the constitutions of the States, relating to bail, contain an express provision that the right to bail terminates upon conviction. There are but few cases directly in point, and it would seem that the power to admit to bail after conviction, where there is no statutory or constitutional provision granting such a right, has been rarely invoked. The earliest case in this country is that of State v. Ward, 2 Hawks. 443, where the right to bail after conviction was denied. To the same effect as this decision in North Carolina is the decision of the Supreme Court of California in the case of Ex parte Voll, 41 Cal. 29. This

Ex

case was affirmed by a later decision. parte Smallman, 49 Cal. 35. The Case of Longworth, 7 La. Ann. 247, holds the contrary view though it was one of peculiar hardship. This decision was reached with extreme reluctance, one of the judges dissenting, and adhering to the doctrine of the North Carolina case (State v. Ward), supra. In Ex parte Ezell, 40 Tex. 451, the doctrine of the Louisiana court was repudiated, that of the North Carolina case in State v. Ward adopted.

WITNESS-IMPEACHMENT-STENOGRAPHER'S MINUTES.-One point in the case of People v. Considine, 63 N. W. Rep. 195, decided by the Supreme Court of Michigan, gave the court considerable trouble, the conclusion of the court being antagonized by two dissenting judges. In that case, after having called the attention of a witness for the people to his evidence on a former trial, and having asked him if he made certain statements, the defense sought to impeach him by having read the stenographer's minutes of the former trial, but the stenographer was not asked the same question as the witness sought to be impeached. It was held that the evidence was properly excluded. Long and Hooker, JJ., who dissented, held that the cause should not be reversed for the refusal of the court to permit the reading of the stenographer's minutes taken upon the former trial. Under repeated decisions, they say, such minutes were not a part of the record. Edwards v. Heuber, 46 Mich, 95, 8 N. W. Rep. 717; People v. Sligh, 48 Mich. 54, 11 N. W. Rep. 782. Neither were they depositions or private writings of the witness sought to be impeached, nor writings signed by him, which may be read without the usual foundation being laid. See Lightfoot v. People, 16 Mich. 507. They stand, then, on no better footing than any other writing made by the impeaching witness. Such writings may always be used by the witness to refresh his recollection, but for no other purpose. The court has so far enlarged this rule (if it be an enlargement) as to permit a lawyer who took minutes at the trial, which he testifies to be accurate, to read the same by way of impeachment, instead of restricting the testimony to oral statements from recollection, after reading the minutes. See Fisher v. Kyle, 27 Mich. 454; Spalding v. Lowe, 56

BANKS AND BANKING-DEPOSIT OF CHECK -LIABILITY FOR FAILURE TO COLLECT.-In Bailie v. Augusta Savings Bank, the Supreme Court of Georgia decides some interesting questions in the law of banking. It appeared in that case that a check upon a bank in North Carolina, payable to the order of a named person, was, by his indorsement, made payable to the order of another person, described as "trustee," who resided in Georgia, and the latter, after indorsing the check in blank, delivered it to his cestui que trust, who deposited it in a bank in the city of her residence, of which she was a regular customer, and with which she kept an account, and her account was thereupon credited with the check as such, and not as cash, and it was not the intention of the parties that the title to the check should pass to the bank as absolute owner, but that the latter should undertake its collection for the benefit of the depositor. It was held that the bank was not liable for the value of the check as a purchaser of the same and that where under the circumstances above indicated, a bank received for collection from a customer a check which, by the exercise of proper diligence, might have been collected, it became, in the absence of any express or implied contract to the contrary, liable for any neglect of duty whereby the collection of the check was defeated, whether such neglect arose from the default of its own officers, or from that of its correspondent or agent, to whom it may have sent the check for collection; and in such case it would be immaterial whether such correspondent or agent was the bank upon which the check was drawn or another. On the main point involved, Simmons, C. J., says:

The court instructed the jury that, "if the Augusta Savings Bank, in the ordinary course of business, selected the First National Bank of Wilmington to collect the check, and the bank of Wilmington negli gently failed to collect the same, or if it collected the money and failed to remit, the savings bank is not liable to the plaintiff for such negligence or failure." Error was assigned upon this instruction and others to the same effect, and it was contended that, in the ab sence of any agreement to the contrary, a bank which receives a check from a customer for collection is liable to the customer for any negligence whereby the collection of the check is defeated, whether such negligence is that of its own officers or that of an agent or correspondent to whom it sends the check for collection. In support of the holding of the court below, various decisions are relied on, which hold that, if the check is not payable in the place where the bank which receives it for collection is situated, but has to