ant a general bad character with respect to the qualities involved in the alleged offense, nor give weight to assumed bad character in deternining the question whether the evidence establishes his guilt.

ESTATE OF SIGOURNEY. July 25, 1882. Estate Claims-Proportional Payment-Administrator-Action. The court has no power to order an administrator to pay a per centage of allowed claims against an estate, unless a like proportion of money remains in his hands to be paid into Court to await the final determination of actions commenced and pending against him upon claims disallowed.

FRIEDLANDER V. THE SUMNER GOLD AND SILVER

MINING COMPANY ET AL.

Cross-Complaint-Continuance-Trial-Mortgage Practice. The case was a mortgage foreclosure. Defendants answered and filed cross-complaints. Plaintiff had not answered nor demurred to the cross-complaints, nor had the time for answering or deinurring to the same expired when the cause was called for trial and a motion for continuance made; nor had such time expired when the cause was tried, or when the decree was entered from which the appeal was taken. Plaintiff made no motion to strike out the crosscomplaints. Held, a continuance should have been granted, as the case was not in a condition to be tried. The trial and judgment were pre

mature.

Plending. Whether the insufficiency of a pleading can in any case be considered upon a motion for a postponement of the trial,, not decided; but held, it is enough to say that this ought not to be done unless the pleading totally fails to set forth a cause of action or defense.

Disrespect of Court-Contempt Points and Authorities-Transcript. Where "points and authorities" filed in the appellate Court contain objectionable expressions, apparently disrespectful to the Court below, such points and authorities will be stricken from the files of the Court.

If counsel wilfully employs language manifestly disrespectful towards the Judge of the Superior Court, such conduct will be treated as a contempt of the appellate Court, and proceeded against accordingly.

Even in such case, however, the party represented by counsel committing the offense ought not ordinarily to be deprived of any of his legal rights, and the appellate Court would reserve the power to examine the transcript, to ascertain if errors had occurred in the Court below.

As to respondent's motion to strike the points and authorities from the file, the Court said: "It has been made to appear to our satisfaction that the 'points and authorities' in which are found certain objectionable expressions, apparently disrespectful to the Court below, were not prepared by counsel by whom they are signed; that when the proofs were submitted to counsel the

expressions referred to were marked for erasure, but the same were inadvertently printed, etc. Counsel, by written communication, having disavowed the objectionable language, and a copy of such communication having been transmitted to the learned Judge below, we accept the explanation as fully establishing the fact that the language complained of was not intended to be a part of the points filed, and acquit counsel of any fault except, perhaps, a degree of carelessness in not making a new examination of the points after they were printed."

"But, inasmuch as the language constitutes part of the points as actually filed, it is ordered that the points and authorities' of appellants be stricken from the files of this Court."

PEOPLE v. CENTER ET AL. July 28, 1882. New Trial-Decision-Notice of intention-Appeal -Practice-Order. Parties have no right, after an adverse decision by the Court of their motion for a new trial, to file another notice of intention to move for a new trial. If they are aggrieved by the order of the Court in denying their motion, their remedy is to appeal from the order, not to serve and file a new notice of intention. It is proper to strike such notice from the files as being improperly there.

Laches-Diligence. When a party gives notice of his intention to move for a new trial, and fails to prosecute his motion in the Court below, in consequence of which his motion is dismissed or denied, he cannot be heard to complain of the order on appeal.

On an appeal from such an order, in the absence from the record of an engrossed statement on motion for a new trial, signed and certified by the Judge of the Court, there are no ques

tions of fact to be reviewed.

Appeal-Undertaking-Notice of Appeal-Order after Judgment. An appeal cannot be taken from parts of two judgments and from a special order made after judgment, by one notice of appeal and in one undertaking on appeal.

Every judgment and order subsequent to judgment entered against a party is the subject of a distinct and separate appeal, and must be appealed from as an entirety. No separate appeal lies from parts of two judgments; each should be appealed from, by a notice and on an undertaking of its own; and while one notice is sufficient for taking an appeal from a judgment and an order subsequent to judgment, yet each should be reviewed on a complete record of its own, to be made up and filed according to Section 956, Code of Civil Procedure, if from an order subsequent to the judgment.

Judgment Roll. The judgment roll on an appeal from an order subsequent to judgment is entirely different from the roll of an appeal from the judgment.

Transcript. If the.undertaking and transcript belonging to each are not filed in due time the respondent is entitled to a dismissal of the appeal.

PEOPLE v. CENTER ET AL.

Practice Appeal-Notice-Entry of Judgment -Waiver New Trial-Decision. When the notice of appeal is given before entry of judgment the appeal is premature and will be dismissed. Taking an appeal from the judgment in a case in which a finding and decision are on file is a distinct act of waiver of notice of the decision. and a notice of intention to move for a new trial filed and served more than ten days after such waiver is too late.

In such case the motion for new trial is properly denied.

Final Judgment. The judgment revoking the patent which had been issued to defendants finally settled and determined the merits of the controversy between defendants and plaintiff, and was therefore final.

THE PEOPLE V. DE LOS ANGELES. July 28, 1882. Criminal Law-Instructions. A judgment will not always be reversed because of an instruction which is meaningless.

Rape-Deadly

Weapon-Self-Defense--Apparanres. The court charged the jury: "The defendant would be justified in using a deadly weapon if the prosecuting witness was attempting to commit any rape, or to have intercourse with the defendant except by consent. Whether that was the fact or not you must determine from the evidence in the case. A mere slap by the prosecuting witness, or attempted familiarity, without there was danger of its going any further, is not sufficient for her to use a deadly weapon or to make attack of this kind; the mere fact that the prosecuting witness may have slapped her in the face, without doing any great bodily harm, or attempted familiarities which she did not like, would not be sufficient unless there was danger of the attempt going further, or an attempt at intercourse without her consent. It is for you to say whether there was any probability of that from the evidence in the case." Held, the statement of the Court that the jury "must determine" the fact whether a rape was actually intended, is to be taken in connection with what had been said as to that fact constituting a defense, and did not exclude the idea of a duty on the part of the jury to find defendant justified, if, as a reasonable person, she believed from the circumstances appearing that the prosecuting witness would commit a rape on her, unless she prevented it by the use of a deadly weapon. The doctrine that appearances may justify a reasonable person in resisting by all necessary force what such person believes to be an attempted felony, is superadded by the law to the right so to resist a felony, actually attempted.

It is not error for the trial Court to tell the jury that one may so resist a felony attempted

in fact.

Omission to Charge-Error-Reversal-Request. The mere omission to charge the jury, no request

being made, is not error such as demands a reversal of the judgment.

MINNESOTA.

(Supreme Court.)

BERGMAN V. ST. PAUL MUT. BUILDING. Ass'N JULY 11, 1882.

Corporation-By-laws-Cancellation

of StockThe articles of incorporation of an association formed under the general laws of the state are · its charter, and subject to the constitution and general laws of the state, its fundamental and organic law. They fix the rights of the stockholders, and are in the nature of a fundamental contract in, form between the corporators, and in practical effect between the association and its stockholders, which neither party is at liberty to violate. This can no more be done by bylaws and resolutions adopted by the stockholders than in any other way, the authority to pass by-laws being an authority to pass such only as are consistent with the articles of incorporation, rules and regulations as to the manner in which the corporate powers shall be exercised.

Plaintiff is a stockholder in the defendant association. Defendant's eighth article of incorporation provides that "upon the termination. of the corporation the funds and assets of the same, after paying all debts and expenses, shall be divided among the stockholders in such proportion as each may be justly entitled to, in accordance with the number of shares held by each, after deducting all assessments, fines, dues, and other charges then due by such stockholders."

Held, that under this article the plaintiff, so long as he performs his duty as a stockholder, is entitled to retain his stock and his place as a stockholder until the termination of the corpora tion, and to a right to a share of net funds and assets, as in such articles provided. So long as he performs his duty as a stock holder he cannot, save by his own consent, be forced out of the association, as respects the whole or any part of his stock, by any action of the association through its board of directors, or by the combined action of the other stockholders. Hence the association has no authority to retire or cancel any part of his stock against his will and without any default on his part, any such retiring or cancelling being ultra vires. The facts of this case considered, and held not to estop the plaintiff from objecting to the cancellation of his stock by the as

sociation.

crops of a riparian owner are, without his consent, damaged by an overflow of water occasioned by a river boom, there is a taking of the lands which cannot be justified by the owner of the boom without compensation paid or secured. GILMAN ET AL. v. VAN BRUNT. JULY 11, 1882. Cloud on Title-To maintain an action to remove a cloud from title real estate the alleged cloud must be prima facie substantial. If the facts which are relied on to constitute the cloud are not such as per se to confer some apparent right, title, or interest in the property, but required to give them this apparent effect the support of extrinsic facts which have no real or apparent existence, there is no cloud.

to

Assignments by a county auditor in the forms prescribed by section 129, c. 1, Laws 1874, and by section 19, c. 2, Laws 1874, do not per se create in favor of the assignee any cloud upon the title to one claiming to be the owner of the land to which such assignments relate.

Nor where no certificate of sale has been issued to the state, as provided in section 124, c. 1, Laws 1879, as aniended by section 29, c. 5, Laws 1875, and in section 14, c. 2, Laws 1874, do such assignments raise any such cloud, when upon looking at the proceedings antecedent to the tax sale, it appears that the court by which the tax judgments under which the tax sales were had were rendered, had no jurisdiction to render the same.

YOUNG, ADM'R. ETC., v. PERKINS, ADM'R. ETC.

JUNE, 1882.

Promissory Note-Statute of Limitations-A promissory note bore the following indorsement: "Received January 5, 1875, $100 on the within note." Held, that from the indorsement alone, without any extrinsic fact, it cannot properly be inferred that such a payment was made upon the note as preserved the right of action thereon for six years from Jany. 5, 1875.

BLUMENTHAL ET AL. v. JASSOY. JUNE, 1882. Promissorý note secured by Mortgage-Before maturity of a negotiable promissory note the payee transferred the same, by indorsment, to parties having actual knowledge that it was secured by a duly recorded mortgage upon real estate. Prior to the maturity of the note the maker, in good faith, and believing the payee thereof to be the holder of the note and mortgage, paid the same to him and received from him a satisfaction of the mortgage which was duly recorded before the maturity of the note. Held, that this did not defeat the rignt of recovery of the bona fide indorser against the maker.

PENNSYLVANIA.

(Supreme Court.)

FRANKENFIELD'S APPEAL.

Where a person makes a deposit in a savings fund, receiving a certificate in return, by the terms of which he is to be entitled to draw the money with interest at three months from date, on giving thirty day's notice of his intention so to do, this is to be regarded properly as an investment and not as a deposit.

Where the committee of a lunatic invests money belonging to the lunatic's estate in the above manner, and afterwards the savings bank becomes insolvent and fails to refund the whole sum so invested, the committee will be held responsible for the loss.

Where the committee of a lunatic files a final account, after the lunatic's death, the Court of Common Pleas has no jurisdiction to distribute the estate among the deceased lunatic's next of kin, but must award the same to his personal representative, to make distribution according to law.

PORTER V. ZEITINGER & ZOPPI.

Factor-Instructions from Principal-Where a factor is instructed to sell goods upon credit, and in his letter of instruction is informed that his principal will dispose of the note of the purchaser, the factor will be liable to his principal for the amount of the note, if, instead of transmitting it to his principal, he takes it in his own name and has it discounted himself.

RICE V. THE COMMONWEALTH.

Criminal Law-Witness-Evidence.-The fact that by the act of April 3, 1872, § 1, Purd., 625, a defendant charged with the commission of a crime or offense, not above the grade of misdemeanor, is a competent witness, and may testify in his own behalf, does not repeal the Act of March 31, 1860, § 41, Purd., 326, which provides that in prosecutions for seduction, the promise of marriage "shall not be deemed established unless the testimony of the female seduced is corroborated by other evidence, either circumstantial or positive."

What is sufficient circumstantial evidence from which a jury may infer a promise of marriage, discussed and passed upon.

MAINE.

(Supreme Court.)

a

Surety-Creditor must bring Suit.-In Iowa a surety may, by the service of written notice on the creditor, require him to bring suit, or permit the surety to do so, in the creditor's name. If the creditor refuses or neglects to do so the surety is discharged.

It is not sufficient for the creditor to direct the institution of a suit, but he must see that it is actually commenced.

CRAIG . FOWLER. JULY 13, 1882. Writ-Officer-Fraud.-A writ in the hands. writ in the hands of an officer does not authorize him to seize property belonging to another than the defendant named in the writ. In such case he is a trespasser, and such owner has a valid claim against him and a right of action for the value of the goods seized.

The burden of proof of fraud is on the party alleging it, and fraud, or knowledge or participation in fraudulent designs or practices, is usually proved by facts and circumstances, and the exclusion of such evidence, when it tends to establish fraud, is erroneous.

An instruction to the effect that if a wife held an honest claim against her husband she could not use it for the purpose of hindering and delaying other creditors, implies that though she holds an honest claim, she could not, under pretence thereof, cover her husband's property so as to defeat or delay his creditors, and is substantially correct.

Any fraud of the husband in encumbering or disposing of his property cannot affect the wife's rights, unless she knew of and assented to the fraud and aided in the particular fraudulent transaction.

ISHAM v. MCCLURE. JUNE 8, 1882. Indorser-Verbal promise to pay.-The verbal promise of an indorser to pay a note at maturity does not of itself constitute a waiver of demand and notice.

Before maturity of the note the indorser induced the holder to commence an action to recover instalments of interest due, and to foreclose a mortgage securing the same. At the foreclosure sale the mortgaged property was sold to the holder of the note and certificate of purchase was assigned to the indorser, he paying the amount of the bid. Held, that demand of payment of the maker and notice of non-payment to the indorser, was nevertheless necessary to fix the indorser's liability.

NUTTING v. BURKED. APRIL, 1882. Draft-Failure of Maker-Deposit.-A draft was made by bankers in Michigan upon a bank in New York on April 9, and given to a railroad agent for excursion tickets which were to be delivered to the payee of the draft on April 14th, or the money returned, should he so elect. On the 14th, the tickets were taken, and on the 15th the draft was forwarded to the treasurer of the road, and by him forwarded for collection. The makers of the draft failed on April 16, and their paper was on that day dishonored in New York. In an action against the payce and indorser of the draft; and indorser of the draft; Held, that the agent held the draft on deposit until the tickets were taken on the 14th, and that he was not bound to forward it before.

HUMPHREY V. BECKWITH. APRIL, 1882. Note-Non-Negotiable when conditional.-A note coupled with conditions, and based upon

a transaction out of which it was understood the maker was to gain the money for payment, is not negotiable; and, where the transactions fails through no fault or neglect of the maker, will not be enforced against him.

SUPREME COURT OF THE UNITED STATES.

AUDLEY C. BRITTON, v. ROBERT NICCOLLS. MARCH, 1882.

Note-Demand, Domicile of Maker.-A note being dated at Natchez, Mississippi, the maker residing, as appeared upon the trial, upon a plantation twelve or fifteen miles distant, the presumption of law, in the absence of other evidence on the subject, is that Natchez was the place of residence of the maker and that he contemplated making payment there. The duty of bankers, as collecting agents, was, therefore, to make inquiry for his place of business or residence in that city, and if he had either, to make there the presentment of the note, but if he had neither, to use reasonable diligence to find him for that purpose; or, instead of making the presentment and demand themselves, they could have placed the note in the hands of a notary public for the performance of that duty.

charge the indorsers,

THE TRUE LAWYER.

ADDRESS OF HON. BENJAMIN F. BUCKNER, OF LEX-
INGTON, AS PRESIDENT OF THE FIRST ANNUAL
MEETING OF THE KENTUCKY ASSO-
CIATION AT LOUISVILLE,
JUNE 22, 1882.

GENTLEMEN OF THE BAR ASSOCIATION OF KENTUCKY: In pursuance of a call signed by a number of prominent lawyers in different sections of the state, a meeting was held in this city on the 5th of April last, for the purpose of organizing an association of the Bar of Kentucky.

The gentlemen present on that occasion did me the great and wholly undeserved honor to select nie as their President. For that distinction, much the more highly appreciated because it was both unsolicited and unexpected, permit me to return to the Association my grateful acknowledgments. To preside over a body like this, composed of so many talented and distinguished members of a learned profession, is indeed an honor of which any one might well be proud. For myself, I shall always remember this act of kind partiality as the most pleasing testimonial of esteem and regard which my brethren of the Bar could have possibly conferred.

With the avowed purposes of this organization I am in hearty sympathy. They were succinctly stated in the call to be the cultivation of the science of jurisprudence, the promotion of reforms in the law, the facilitation of the administration of justice; the elevation of the standard of integrity, honor and courtesy in the profession, and, through the medium of annual reunions, the cultivation and development of that fine social spirit which has at all times been so peculiarly characteristic of the legal profession. To these ends I am, and since my carly manhood have been, earnestly, warmly devoted. Though but an humble and obscure member of the great profession, I can boast that there are none here to-day inspired by a more earnest, steadfast and abiding love for this most jealous mistress, the law, than that by which I have ever been actuated.

I, therefore, pledge you at the commencement my most hearty co-operation in your every effort to elevate the standard of excellence which prevails both at the Bar and upon the bench; in the carrying of such well considered and prudent amendments of the law as will render it more useful to society and more efficient for the prevention and punishment of crime; in all well ordered changes in

our modes of judicial procedure intended to effectuate the intent and true spirit of the law and render the entire system more harmonious in all its parts and more beneficient in its operation upon the people; to correct any abuses which may have crept into the administration of justice in the state; to so modity and alter our system of Courts of Justice that it may be rendered more suitable to the wants and necessities of our rapidly growing population, than that devised by our ancestors in 1802-to the effectuation of all these purposes I promise you that no effort of mine shall be spared.

"THE TRUE LAWYER."

The share borne by lawyers in the trials, dangers and responsibilities incident to civil convulsions, as well as the important part which they habitually assume in the transaction of affairs in times of peace, clearly point to them as a marked class, bearing most important relations to society and government. It is, therefore, in the highest degree essential that the body of men to whom such important public and private interests are confided should constitute a corps of intelligent, patriotic, well-educated and well-trained men. They are, in fact, a corps of experts intrusted with the performance of duties requiring a considerable amount of scientific and technical

knowledge. Their duties to the public are so important that a general failure or deterioration in the character or skill of the body would be calamitous. It is, therefore, I repeat, absolutely essential to the good order of society and the maintenance of government that the lawyers of the state should be generally intelligent, patriotic, and well-educated men, and be well trained in their specialty

A most striking fact, illustrative of the immense capability for good or for evil of this important class, is recorded in a recent book by the French author who has signalized the thoroughness of his knowledge and the variety of his accomplishments by writing the best history of English literature ever published. IIe informs us that the Legislative Assembly elected in 1791 was composed of 745 members, and that more than four hundred of them were lawyers of the lowest class, of whom nineteen-twentieths had no other equipage than an umbrella and a pair of wooden shoes. How many horrors of the French Revolution are justly atributable to the worthlessness of this body of briefless lawyers, selected by the Jacobin clubs throughout the kingdom as facile instruments for the execution of their programme of disorder and destruction may now only be imagined. The important