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take the place of a suit by the United States to enforce a forfeiture, and a judgment therein establishing the right, it should be direct, positive, and free from all doubt or ambiguity."] St. Louis &c. R. Co. v. McGee, Sup. Ct. U. S., Nov. 23, 1885; 6 Sup. Ct. Repr. 123.

13. REPLEVIN. [Tenants in Common.]-One Tenant in Common can Maintain Replevin against his Co-Tenant.-A tenant in common cannot maintain replevin against a co-tenant, because they have each and equally a right of possession; and that rule is recognized in Pennsylvania. [In the opinion of the court by Blatchford, J., it is said: "It is a well-settled principle that, to maintain an action of replevin, a person must have, not only some right of property, but the right of possession. Hence, a tenant in common cannot maintain replevin against a co-tenant, because they have each and equally a right of possession. This rule is recognized in Pennsylvania. In Wilson v. Gray, 8 Watts, 25, 35, it is said: "The defendant may plead property in the plaintiff and himself, and, if true, it must not only defeat the plaintiff in his writ,but entitle the defendant to a return of the property: because the latter, having had the possession of it, coupled with an interest, which makes his case the stronger, until improperly deprived thereof by the sheriff, under the plaintiff's writ, which he had no right to use for such purpose, has a right to be placed in statu quo; that is, restored to the possession of the property as the joint owner thereof.'"] Bohlen v. Arthurs, Sup.Ct. U. S., Nov. 23, 1885; 6 Sup. Ct. Repr. 114.

CORRESPONDENCE.

THE BAR ASSOCIATIONS AND THEIR ORGAN. To the Editor of the Central Law Journal:

Referring to your issue of January 8th, p. 26, where you speak of being the "organ of all the Bar Associations," can you give me a list of all the State Bar Associations with the addresses of the secretaries respectively? FRANCIS RAWLE. (Member of Executive Committee of American Bar Association.) Philadelphia.

[We could comply with this request if the secretaries of the various State Bar Associations had made prompt reports to us of their last meetings, as in duty bound to do. Most of them held meetings either in December or January, and their reports have not yet arrived. We can, however, furnish the information required in a few cases. The Secretary of the Bar Association of Missouri, is John Montgomery, Jr., Sedalia; of Kansas, John W. Day, Topeka; of Illinois, F. H. Jones, Springfield. The secretaries of other bar associations are hereby notified to send in their reports to this office at once, so that Mr. Rawle can get the desired information through the proper channel.-ED. CENT. L. J.]

THOMAS A. HENDRICKS AS A LAWYER. To the Editor of the Central Law Journal:

I want to commend the recent article on Thos. A. Hendricks as a lawyer, in your issue of January 1st. It would suit me better to have more of such articles. I would suggest that you get some member of the Chicago bar to write a similar article on Emory Storrs. David City, Neb. J. W. MCLOUD.

[We should be glad to print a sketch of that unique

character, written by a competent hand-by James L. High, or Judge Elliott Anthony, for instance.-ED. CENT. L. J.]

THE DELUSION OF AN ARKANSAS JUSTICE. To the Editor of the Central Law Journal:

The delusion under which Chas. D. Smith labors in 22 Cent. L. J. 43, prevailed, many years ago, in a river town in Arkansas. A too conscientious justice of the peace held that he had no jurisdiction of a garnishment unless the constable returned the writ of attachment levied on visible property of the defendant. The constable, who did a general collecting business, was not beaten so easily. Some years before, an old steamboat had been wrecked at the wharf-the wreckers leaving the boiler as worthless. The constable, when he could find nothing else, returned the writ of attachment levied on one steamboat boiler as the property of the defendant. Thereupon the justice of the peace would give judgment against the defendant and condemn the debt garnished in satisfaction. The old boiler did duty in that line for many years, till an overflow left it covered with sand; when, being no longer visible, it could not support his jurisdiction. F. D. Newport, Ark.

QUERIES AND ANSWERS.*

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

Query No. 15.-LIEN OF MORTGAGE UPON PROCEEDS OF HOMESTEAD.-A. and B. are judgment creditors of C. C.'s entire property consists of a homestead set apart and recorded under the provisions of the Louisiana Constitution of 1879, and legislation thereunder. Upon an obligation, contracted by C, after recording his homestead, A. obtains his judgment and has it recorded in the mortgage office of the parish where C.'s homestead is situated. Subsequently, upon an obligation contracted by C. before recording his homestead, B. obtains his judgment and has it recorded in the same mortgage office. The recordation of C.'s homestead is a bar to the execution of A.'s judgment; but not to B.'s. Therefore B. seizes the homestead and has it sold. Can A. legally claim the proceeds by virtue of his prior judicial mortgage? W. U. R.

QUERIES ANSWERED.

Query No. 3. [22 Cent. L. J.]-IS A COUNTY POORHOUSE SUBJECT TO EXECUTION?-A. sues the county of B. in the common pleas court, obtains judgment by default, issues execution, and the sheriff levies on and sells the farm owned and held by the county for the purpose of maintaining the poor. Is such property (which is held in trust for the public) leviable in a judgment against the county? Isn't such sale void?

Answer.-Unless the Constitution or statute of the State makes the property subject to execution, the levy and sale were void. It is doubtful whether an act of the legislature could subject such property to seizure. It is not a matter of exemption but of the inviolability of a trust. In State v. Tiedman, 69 Mo. 306, it was held that a public school house could not be sold under an execution; and in Ransom v. Boal, 29 Iowa 68, the same doctrine was applied to the land

of a municipal corporation, the court saying that "property held in trust for the public cannot be sold on execution any more than other property held in trust can be sold for the debts of the trustee." etc. See also City of Alton v. Illinois Trust Co., 12 Ill. 38. In Warren v. Mayor of Lyons, 23 Iowa 351, it was declared that the legislature cannot authorize the appropriation of property held in trust for the public to any other purposes. The general doctrine is stated in Dillon on Municipal Corporation, 3rd edition, § 577, and a large number of cases are cited in a note. The doctrine is well established and the courts would give it its broadest application in the case of a poor house. Chattanooga, Tenn. H. M. WILTSE.

Query No 43.-[21 Cent. L. J., 539.] A purposely and maliciously attempts to kill B. by shooting him with a pistol but misses his mark and kills C., an innocent party against whom A. has no malice. Are there any modern decisions that would reduce this case from murder to manslaughter? Or is it not a case of murder?

Answer.-There are no modern decisions in which it has been held that the offense would be manslaughter. Rutherfords Institutes (Book 1, Chap. 18 § 11.) states the old common law principle, and modern writers have accepted this as settled. 1 Leach Crim. L., 4th Ed. 148: 1 Bish. Crim. Law, 5th Ed., § 412; 2 Bish. Crim. Law, 741; 1 Bish. Crim. Law, § 255-257. This doctrine is cited with approval by the Supreme Court of California in People v. Foren, 25 Cal. 365; People v. Doyell, 48 Cal. 94, and People v. Keifer, 65 Cal. 233. Croville, California.

J. W. T.

Query No. 11.-[22 Cent. L. J., 54.] IS A PLATFORM SCALE A FIXTURE?-A. is the owner of forty acres of land used for farming and such stock raising as is generally incident to such a farm in Missouri. On said farm he places a platform scale, attached to the soil by making an excavation and setting posts in the ground, and thus setting the scales-not on a brick or stone foundation. A. then sells the farm to B. by warranty deed. A. afterwards removes the scales, claiming them as personal property. Did the scales constitute a part of the realty and pass to B., the grantee, or were they personal property? Cite authorities. CONSULTUS.

Answer.-Platform scales,"attached to the ground by making an excavation and setting posts in the ground, and thus setting the scales," are to be regarded as fixtures. Being set in this manner they are intended for permanent use, and as between vendor and vendee will go with the realty. Arnold v. Crowder, 81 Ill. 56. Chicago, Ill. A. L. F.

JETSAM AND FLOTSAM.

HAD HIMSELF FOR HIS ATTORNEY.-[Editor Jetsam and Flotsam:]-This specimen, don't you think, verifies the legal maxim that "the man who acts as his own attorney is quite sure to find that he has a fool for a client?" If not too much against the peace and dignity of your jetsam and flotsam column, it may be worthy a corner there. E. B. BAUDER.

Cleveland, O.

"I Thomas Bailey sould Joseph Tailor house and lot at the 24 may and the said Joseph Tailor cannot pay the noat at the 24 of november and the said Joseph Tailor want to compromise about the said premises and I Thomas Bailey do not want to file a bill of fore

closure against the said Joseph Tailor I the said Thomas Bailey agreed to pay the said Joseph Tailor the sum of 25 dollars down and 50 dollars whithin 12 monts time from november the 24 and I the said Thomas Bailey ave possession of the said house and lot until it is sould and i said Thomas Bailey live in it rent free and the said Thomas Bailey have to act as agent for the said Joseph Tailor and sell the house and lot and to sell the house and lot whithin 12 monts and when I Thomas Bailey sell the house and lot I Thomas Bailey give Joseph Tailor the sum of 50 dollars and I Thomas Bailey tak the rest of the money and it is at an end we ave both doon whith it."

COUNSEL APPRECIATED.-After the termination of a somewhat noted case in South Carolina, known as the McKeegan Will Case, each of the four leading counsel received, at the hands of the cathedral parish and the executors under the will, a handsome sterling silver etruscan vase in recognition of his services. The gentlemen thus honored were Gen. W. G. DeSaussure, Col. Jno. F. Ficker, Ex-Gov. A. G. Magrath, and Gen. B. H. Rutledge. The following is the inscription on one of the vases:

The Vestry

of the

Cathedral Parish,

Charleston, S. C.,

to

Gen. W. G. DeSaussure,

April 21, 1885.

THE SAD FATE OF A POLICEMAN.
An officer stood at the crossing one day,
Who with answering questions was tired,
When a beautiful maiden passing that way
The road to the "depo" inquired.

The weary policeman directed her straight
To the street through which she should go,
When an elderly lady, who seemed to be late

For the train, wished to find the "depoe."
Then the man with his arms full of crockery ware-
Cups, saucers, pitcher, and teapot-

Came up and inquired, with an anxious air,
The most direct route to the "depot."
The officer gave the directions to these,
Though he was annoyed, it was clear:

Then a rustic approached him and said: "If you please,

Is it far to the 'daypo' from here?"

A man in pursuit of a runaway pair
Came up with the speed of a hippo-
Griff winging its flight through the ambient air,
Inquiring the way to the "dippo."

The officer silently pointed the way;
His mind was in sad tribulation,
For then came an Englishman, asking: "I say,
Can you tell me the way to the station?"

The officer's seen at the crossing no more,

For something's gone wrong in his brain, And his family has placed him, his mind to restore, In a home for the harmless insane. To visit him often his old comrades go, And he seems to find some consolation In asking them: "Say, is it depo, depoe, Dippo, daypo, depot, or station?"

-New York Tribune.

The Central Law Journai.

ST. LOUIS, FEBRUARY 5, 1886.

CURRENT EVENTS.

THE LAW OF SINKING FUNDS.-We are not given to noticing lawyers' briefs; but we have received a brief in one case called the New York Sinking Fund Case, which perhaps justifies an exception. It was prepared by Simon Sterne, Esq., a gentleman who, even in the making of a brief, is obliged, by the very constitution of his mind, to be scholarly and philosophical. We once heard a gentleman, who took opposite sides from that taken by Mr. Sterne on a hotly contested question, speak of him privately as a doctrinaire, and we thought that, under the circumstances, it was paying him a very high compliment. A man who in a state of ill humor calls another a doctrinaire, will, when in good humor, call him a philosopher. There is here a good deal of learning, both legal and economical, on the subject of sinking funds, and any one who has occasion to investigate such a matter would not waste his time by reading this brief.

THE SOUTH Carolina Bar ASSOCIATION met at Columbia on the 7th and 8th of December. The President, Hon. A. G. Magrath, delivered the usual address. Essays were read as follows: "Life Tenure of Judges," by Joseph Daniel Pope of Columbia; "Separate Criminal Courts," by Gen. W. W. Harllee of Marion; "Common Law," by W. A. Lee, of Abbeville; "Equity, and What is Not," by J. F. J. Caldwell, of Newberry. On Wednesday evening the annual address was delivered in the hall of the House of Representatives by the Hon. Jno. F. Dillon, of New York. This address was a rare treat to all who heard it, and we understand that the substance of it will be republished in the American Law Review in a "symposium" on the subject of codification. The whole ended with the usual dinner, without which a bar meeting would be a very unsatisfactory affair. Altogether, the bar of South Carolina are to be congratulated upon so successful an inauguration of their bar association.

Vol. 22.-No. 6.

COLORED LAWYERS IN CHICAGO.-A curious movement took place not long since among a portion of the Chicago bar, the object of which was to expose two colored pretenders named Jimmey Jones and Henry P. Symmes, alias Paine Symmes, who were holding themselves out as members of the legal profession without being duly licensed or enrolled. The movement took place among the colored members of the bar, who regarded the conduct of these pretenders as derogatory to the good name of the colored lawyers of Chicago who were regularly enrolled. The meeting developed the fact that Chicago has twelve colored lawyers, regularly enrolled as practitioners in its courts, whose names are as follows: "Edward H. Morris, John G. Jones, Lewis Washington, George W. W. Lytle, F. L. Barnett, G. W. E. Thomas, Alexander Clark, Maurice Bauman, Loyd G. Wheeler, Joseph R Wyle, S. L. Williams, F. L. McGhee."

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THE KANSAS BAR ASSOCIATION.-This body met and carried out the programme nounced by us in a former number, except that one of the readers, Mr. Sloss, of Wichita, was prevented by the blizzard from returning home in time to get his manuscript; so that his paper was not read, but will appear in the transactions. The association paid a handsome compliment to Ex-Chief Justice Kingman, by electing him a life member unanimously, without payment of the initiation fee or future dues. The following officers for the ensuing year were unanimously elected:

President-A. H. Horton, Atchison.

Vice President-E. S. Torrance, Winfield.
Secretary-John W. Day, Topeka.
Treasurer-D. M. Valentine, Topeka.

Executive Council-W. A. Johnston, Minneapolis; John Guthrie, Topeka; A. W. Benson, Ottawa; M. B. Nicholson, Council Grove; John H. Mahan, Abilene.

Delegates to attend the American Bar Association at Saratoga-D. J. Brewer, Leavenworth; W. H. Rossington, Topeka; T. D. Miles, Atchison.

SOMETHING TOO MUCH OF THIS.-We have received from Henry E. Heighton, Esq., one of the counsel for the defendants in the case of Huse v. Den, pending in the Superior

Court of Santa Clara County, Cal., his brief and argument. It is 303 pages in length. The case must be either an exceedingly difficult one upon its facts, or the questions of law arising must be exceedingly numerous and complicated to require such labored treatment. Before presenting to a court of justice a printed argument of this length, counsel ought to stop and inquire whether, considering the duty which he owes to other suitors, the judge will ever find time to read it. Our opinion is that long briefs and long printed arguments should receive the same condemnation as long judicial opinions. Long arguments are an attack upon the lives of the judges; long opinions are an attack upon the lives of the profession. The very length of this argument precludes any attempt upon our part to read it; and therefore it would be unjust to the learned author of it, and perhaps also to the interests which he represents, to venture an opinion of its merits.

AN ARSON ASSOCIATION.-A press dispatch from Charleston, W. Va., claims that there has been discovered among the most prominent citizens of that town an organized conspiracy that has existed for several years, the object of which is the destruction of property by fire for the purpose of defrauding insurance companies. The charge is made that the insurance companies in Wheeling, ten in all, have lost through this conspiracy, the total amount of about $12,000. Two arrests have been made of persons alleged to have been hired by members of this conspiracy to set fire to property. In one case the proof is said to be conclusive, and in the other the person arrested has confessed, implicating the person who hired him to commit the crime.

GIVING THE BALLOT TO CORPORATIONS. The city council of Montreal have decided to apply to the legislature for an amendment to the charter of that city, conferring the elective franchise upon spinsters and widows who possess the elective property qualifications. The Ontario legislature has already passed a bill which gives such rights to women. The

Montreal Gazette, commenting on these advances in political right, suggests that, as they proceed upon the idea of the right of property to vote, the ballot should be given to corporations. The Albany Times does not take to this proposition kindly, since corporations have no souls, aud it would be leaving the humanizing element out of the question. It will be a long time in this country before corporations in their aggregate character possess the elective franchise. The average American citizen has settled down to the opinion that they possess franchises enough already.

THE PROPOSED CONSTITUTIONAL AMENDMENT TOUCHING THE SUPREME COURT OF KANSAS.-There is a proposition in fieri for a constitutional amendment in Kansas looking to re-organizing and increasing the membership of its Supreme Court. In an able address advocating the passage of this amendment, before the Kansas Bar Association at its recent meeting, Chief Justice Horton, of Kansas, described the proposition as follows: "The proposition submitted is to strike out $ 2, article 3, of the State Constitution, referring to the judicial department, and amend $ 13 of the article, by inserting in lieu of § 2, and as amendatory to § 13, provisions that the Supreme Court shall consist of five justices, giving the legislature the power to increase the number to seven whenever twothirds of the members of each house shall concur. When the court shall consist of five justices, three will constitute a quorum, and a concurrence of three will be necessary to every decision. If, in the future, the court should be increased to seven, four will constitute a quorum. The justice holding the oldest commission is to be the chief justice; the term of office of each justice to be ten years; one to be elected at the general eleotion every two years, whose term of office will commence on the second Monday of January next after his election. The two additional justices provided for by the amendment are to be appointed by the governor, and are to hold their offices until the general election in 1887, when their successors are to be elected-one to serve until the second Monday of January, 1895, and the other to

serve until the second Monday of January, 1897. All qualified electors of the State, thirty-five years of age and upward, who have been admitted as attorneys of the Supreme Court, will be eligible to election or appointment to the office of justice of the court. The salary of each justice is not to be less than $5,000 a year. The justices now in office are to continue during the term for which they were elected. You will therefore

see that the important changes by the proposed amendment are: An increase of the working force of the court from three to five members; the lengthening of the term of office of the justices hereafter elected from six to ten years; the raising of the annual salaries of the justices from $3,000 to $5,000; and the removal of the disability resting upon district judges of the State during the term of office for which they are elected, by making them eligible to election or appointment to the Supreme Bench."

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SALARIES OF APPELLATE JUDGES.- In the address already alluded to, Chief Justice Horton states the salaries of the judges of the highest courts in several of the States to be as follows: California, seven judges, $6,000 each; Connecticut, five judges, $4,000 each; Illinois, seven judges, $5,000 each; Kentucky, four judges, $5,000 each; Louisiana, five judges, $5,000 each; Massachusetts, seven judges, $6,000 each, chief justice, $6,500; Missouri, five judges, $4,500 each; Nevada, three judges, $6,000 each; New York, seven judges, $7,000 each, chief justice, $7,500, and $2,000 to each judge for expenses; Pennsylvania, seven judges, $8,000 each, chief justice, $8,500; Rhode Island, 5 judges, $4,000 each, chief justice, $4,500; Wisconsin, five judges, $5,000 each. The United States circuit judges, nine in number, receive each a salary of $6,000 a year. The justices of the United States Supreme Court, nine in number, receive each a salary of $10,000 a year-the chief justice receiving $10,500. He adds to it the gratifying statement that a bill is now pending in Congress to increase the salaries of the United States district judges, fifty-six in number, to $5,000 a year, and there is every assurance that this measure will be successful. It has already passed the senate.

NOTES OF RECENT DECISIONS.

meter.

LARCENY. [ILLUMINATING GAS]. LARCENY OF ILLUMINATING GAS.-In State v. Wellman1 in the Supreme Court of Minnesota, the complainant had been indicted for the larceny of illuminating gas. The evidence was that he was a boarder in a house which was supplied with illuminating gas by the company; that he secretly made such a connection of the pipes as to allow the gas to pass around the The question was whether he could be convicted notwithstanding that his purpose was not to convert the gas to his own use but to convert to the use of another, namely the The court hold that it is enough landlady. to constitute larceny if the property is taken with the felonious intent of converting it to the use of a person other than the owner. They also hold that, even if it were necessary that it should be taken with the intent to convert it to the use of the taker, evidence of such intent was sufficiently shown by the fact that he was an inmate of the house and would share the use of it with the other inmates.

2

ASSAULT. [DEFINITION]. POINTING AN UNLOADED GUN IN MENACING MANNER DOES NOT CONSTITU CE-In Chapman v. State, it was held by the Supreme Court of Alabama, Somerville, J., delivering the opinion of court, that it was not an assault for the defendant to present or aim an unloaded gun at the person charged to be assaulted in such a menacing manner as to terrify him, and within such distance as to have been dangerous had the weapon been loaded and discharged. The court said: "We are of the opinion that the better view is, that presenting an unloaded gun at one who supposes it to be loaded, although within the distance the gun would carry if loaded, is not, without more, such an assault as can be punished criminally, although it may sustain a civil suit for damages." The approved definition of an assault involves the idea of an inchoate violence to the person of another, with the present means of carrying the intent into effect. Most of our decisions recog

1 25 N. W. Rep. 395.

2 Chapman v. State, Ala., Dec. Term, 1885, in MS. 32 Greenl. Ev. § 32; Roscoe's Cr. Ev., (7th Ed.) 296; People v. Lilley, 43 Mich. 521.

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