Where a party has destroyed a paper material to his case, and the contents of the paper are disputed, the presumption arises that if it had been produced it would have been against his interest, or in some essential particular unfavorable to his representation of its contents.

"Now see how sensible that is. The law is very jealous about papers which have been destroyed. But the principle doesn't apply in this case. The paper was destroyed before any lawsuit was contemplated."

If the jury believe that the "True Story," as it is called, substantially as put in evidence, is the work of this plaintiff, they must find a verdict for the defendant.

"You must consider that yourself. It is not for me to instruct you."

The expressions of compunction and remorse in the defendant's writtings, and alleged conversations, belong to the class of merely moral evidence, and neither tend to support, nor are capable of supporting any legal certainty as to the fact, nature, or degree of imputed culpability.

"I accede to that. Moral evidence is of great value when you have to do with great intellectual questions. When persons are suddenly confronted with their guilt they are likely to be overpowered with emotion."

In contemplating the exigency that necessitated the developments in this melancholy drama, the tarnishment which the minds of the country-the world-has received, we recall the lines of a poet of the Elizabethan age, and say:

O, the dangerous siege

Sin lays about us! and the tyranny

He exercises when he hath expunged:
Like to the horror of a winter's thunder,
Mixed with a gushing storm, that suffer nothing
To stir abroad on earth but their own rages,

Is sin, when it hath gathered head above us.

Thus we bring to a close these bird's-eye views on this mysterious and wonderful cause of Theodore Tilton versus Henry Ward Beecher.

If these "views" have afforded any considerable interest to the profession, in way of illustrating some of the law points raised in the course of the trial, and in portraying-though all too incompletely and cursorily-the court and the several counsel engaged, we shall be satisfied. NEW YORK.

Book Notices.

BETA.

A PRACTICAL TREATISE ON THE LAW OF NUISANCES IN THEIR VARIOUS FORMS, INCLuding. RemedIES THEREFOR AT LAW AND IN EQUITY. By H. G. WOOD, Attorney and Counselor at Law. Albany: John D. Parsons, Jr.

When a publisher sends a book to the editor of a weekly journal, he no doubt expects, and justly, that it will be noticed within a reasonable time. Acting under this impression, we feel obliged to give at this time a partial estimate of this book, based on a reading of the first four chapters, and such hasty examinations of other portions of it, here and there, as our limited time has enabled us to make. We intend hereafter to read it through for our own

ery, or of sexual indelicacy, and is no proof of either.

If the jury find that the plaintiff's wife left him in December, 1870, on account of his treatment and conduct, and with a view of separating from him; and that the defendant in December, 1870, gave information of the facts to his wife, and to an officer of his church, and to the plaintiff's employer, and advised a separation of the wife from the husband, these facts must be considered by the jury as corroborating the defendant's testimony, and discrediting that of the plaintiff on that issue.

"Those facts must be interpreted by you."

For instance, it is difficult to determine upon what principle of arrangement the matter in the notes is separated from the text. Thus, on page 3, in the opening chapter, which defines and classifies nuisances, it is said: "A slaughter-house may be erected so far from a city or town, or from dwelling-houses, as to produce no offensive results, and the business of slaughtering cattle may be lawfully carried on there, even though by reason thereof the lands in the vicinity are rendered less saleable, and in that respect less valuable; in fact, even though the owner should be unable to sell them at all, by reason of the slaughter-house. But, when the city or town extends so far in that direction, or the lands in the vicinity are occupied for dwellings, so that the business becomes so offensive as to interfere with the reasonable enjoyment of the surrounding premises for the purposes of habitation or other purposes, the business becomes unlawful and a nuisance, and must yield to the superior rights of others, even though the loss thus entailed upon the owner is ruinous." To sustain this statement of doctrine, several cases are cited at the foot of the page. Then follows in the text the following paragraph: "In Brady v. Weeks, 3 Barb. (N. Y. S C.) 159, which was an action to restrain the continuance of a slaughter-house in a certain locality, Paige J., in delivering the

moded no one; but now it interferes with the enjoyment of life and property, and tends to deprive the plaintiffs of the use and benefit of their dwell

The unequivocal admissions of the plaintiff himself, and of Mr. Moulton, that they have deliberately and systematically repr sented the facts involved in this present charge, in a manner wholly inconsistent with the present charge, and in maintenance of the defendant's and Mrs. Tilton's innocence, discredits their testimony to the contrary now given, and requires its rejection by the jury as wholly untrustworthy.

ground beyond the immediate neighborhood of the residences of the citizens This, public policy, as well as the health and comfort of the population of the city, demands.' Now this last paragraph consists simply of a repetition of the doctrine of the preceding one; and, although couched in the language of a judge who delivered the opinion of the court in a particular case, can fulfil no other office than to fortify the text, and hence, would have been more appropriately dropped to the foot of the page as a note. Again, it is said in a note on page 5, that it was held in Casebeer v. Mowry, 55 Penn, St. 419, that a man may not with impunity invade another's premises with anything in shape of a nuisance, simply because damages are not appreciable; for the law will presume damages, if there is a clear violation of the plaintiff's rights, as evidence of the right." It is obvious at a glance that the principle thus stated, is a general one and one of great importance. If it is the law, or if it

has been "held " to be the law by any respectable court, or if it is indeed any more than the mere speculation of a single judge, thrown out arguendo, it should obviously have a place in the text, and not be buried with other matter in a note. Again, on page 45, we find in the text the following paragraph: "A house of assignation, where persons meet for the purpose of prostitution, is a disorderly house, although no prostitutes are kept there. It is as much a violation of the laws of decency and morality, and is as disastrous in its consequences to society as a bawdy house, and tends as essentially to the destruction of public morals and the promotion of dissolute habits. This was held in People v. Rowlands, 1 Wheeler's Crim. Cas. (N. Y.); and also see Regina v. Pierson, I Salk. 282." Here it is obvious that the text should end with the word "habits," and that the cases which support the statement of doctrine thus made, should have been dropped into the foot-notes.

Another fault of construction which we can not forbear to point out, and which we hope Mr. Wood may be induced to correct in his next edition, is the absence of catch words in bold letters at the head of the paragraphs, such as are used in the late editions of Mr. Bishop's works, and in Mr. Holmes' edition of Kent's Commentaries. We have derived so much benefit from this device in examining these and other works which make use of it, that we can not avoid thinking its absence a serious defect. In place of these, however, titles are thrown in here and there in small capitals, but without any apparent regularity or system. Thus, immediately preceding? 41, from which we last quoted, is the title "House of Assignation." This section is divided into two paragraphs, the former of which relates to houses of assignation, and the latter to the allegations of an indictment for keeping a disorderly house. It is obvious that these two subjects are so far disconnected as to be treated in separate sections, at least. Indeed, the subject of indictments for nuisances would seem to deserve treatment in a distinct chapter, under the head of Remedies and Procedure. It is proper to state, however, that in the chapter on "Remedies at Law," several sections are devoted to the requisites of indictments for public nuisances. Matter on the same subject would, therefore, seem to be out of place in other portions of the book.

A still greater fault occurs in the title to the fourth chapter. This chapter is entitled "Private Nuisances-Overhanging Another's Land." Now this chapter is not at all confined to nuisances which consists of erections overhanging another's land, but it embraces a great variety of other private nuisances, such as gutters, sewers, water in reservoirs, injuries to mines, spring guns in dwellings and stores, diseased animals, fires, etc. The title of the chapter is obviously misleading.

Mr. Wood writes, for the most part, in good and forcible English—a compliment which, we regret, can not be paid to the authors of all the law books which have lately been written. Occasionally, indeed, we find minor errors. Thus, on page 36, speaking of "a house of ill-fame, or bawdy house," he tells us that "it is mala in se," meaning, no doubt, the singular, malum in se. We notice also that this and other Latin expressions throughout the work are included between quotation marks-a peculiarity which may conform to the style of the printing office, but which, we believe, is unusual. We also find occasionally erroneous citations of reports. Thus, the celebrated case of Fletcher v. Rylands, is cited on page 34, as reported in " 1 Law R. 265," and on page 35, as in "1 Law R. 285;" and again, on page 28, Regina v. Barry is cited from "9 Law R. 122." The correct citation would be as to the two former, respectively, L. R. 1 Exch. 265, and L. R. 1 Exch, 285. Barry's case we have been unable to find at all, We also find on page 34, the following citation: "Smith v. Fletcher, Exch. June, 1872." This case is reported in L. R. 7 Exch. 305. We could point out a great many other irregularities in Mr. Wood's manner of citing cases. Thus, in some instances, he cites the name of the reporter, abbreviated, adding in parenthesis the abbreviated name of the state; and in other instances, he omits the latter altogether; while in one instance, p. 38, he cites the name of the state erroneously, crediting Yerger to North Carolina. The late Pennsylvania State Reports, he sometimes cites "P. F. Smith," and sometimes "Penn. St.," and sometimes both ways. They should always, in our judgment, be cited Penn. St.," although the Pennslyvania judges for some inscrutible reason cite them "P. F. Smith." On page 25. Hawkins' Pleas of the Crown is cited by volume and page. Hawkins should always be cited by chapter and section. It is also necessary to cite the edition; since in the two principal editions in use (Leach's and Curwood's), the collocation of the chapters in the first volume is different.

with litigation that they found it impossible to yield their time to the settling of trifling disputes. Mr. Wood also tells us on page 21, that "the maxim ubi jus, ibi remedium, is as old as sic utere, etc." This also seems to us like loose writing. We doubt whether any one can affirm, with any degree of certainty, the comparative ages of these two maxims.

Again, in criticising positions taken by eminent writers and by eminent judges, his direct and honest habit of mind at times betrays him into utterances too intense, which leave the impression that his mind is not yet toned down to a judicial cast of thought. Thus, in criticising, on page 14, Blackstone's definition of a nuisance-" anything that worketh hurt, inconvenience or damage," he declares" that it is not only erroneous, but that it is absolutely absurd, and is not supported by a single authority, either in Blackstone's time or since." In support of this declaration Mr. Wood shows by the citation of cases that there were a great many things in Blackstone's time which worked "hurt, inconvenience or damage," which were not actionable, because they were not done in violation of the plaintiff's right. This does not at all show that Blackstone's definition was "erroneous or "absurd," but at most that it was incomplete. Blackstone probably did not deem it necessary to state that there can be no nuisance which the law will recognize, except such as works an injury to a right. To have done so would have been to state an axiomatic truth which every person is supposed to understand. That part of a definition which is universally understood, it is not necessary to express. The great commentator, no doubt, thought with Polonius, that to expostulate * what duty is,

"

Why day is day, night night, and time is time,

Were nothing but to waste night, day and time."

He did not think it necessary to devote the greater part of a chapter, as Mr. Wood has done, to an argument designed to prove that the law will not give damages for a particular injury, unless the person complaining had a right to immunity from the injury, and unless the person committing the injury violated a duty which he owed the former, in committing it. If Blackstone has thought it necessary to state this principle at all, as he probably has, he has no doubt stated it as a general principle, and has not thought it necessary to repeat it, when discussing each particular class of wrongs. The principle is so general that it may be said that no cause of action, of whatever nature, civil or criminal, exists, unless the violation of a right is threatened or has been consummated. And every action known to courts of justice has for its object, either the prevention of a threatened injury to a right, or the redress or punishment of such an injury after it has been committed. When Blackstone penned this definition, he never intended a thing so absurd, as that the necessary amputation of a fractured limb by a surgeon, or the leveling of houses to prevent the spread of fires, or the killing of diseased animals to prevent the spread of an infection, or the exercise of a lawful occupation in an appropriate place and in an appropriate manner, is a nuisance, although it may, in a certain sense, work "hurt, inconvenience or damage." His definition at most lacks fullness of expression; or, as a common law pleader might say, while it is "certain to a common intent," it is not "certain to a certain intent."

He

Another instance of too forcible criticism will, we think, be found on page 46 and those following, wherein Mr. Wood sets out at length and combats the views of Cowen, J., in Tanner v. Trustees, 5 Hill, 121, who declares that a bowling alley is a nuisance per se. These pages furnish an interesting instance of two vigorous writers counter-battering each other. Judge Cowen was a very learned man, deeply grounded in the principles of the common law; but, like Mr. Wood, he was evidently a rapid, intense and self-reliant thinker. was a strong-headed man, and such men are very apt to be wrong-headed, and when wrong they are very wrong. His judgment in Hartfield v. Roper, 21 Wend. 615, that in McLeod v. People, 1 Hill, 377, and the one under consideration, are, we think, evidences of this. In this case he declares that, so far as he has been able to ascertain, " erections of every kind adapted to sports and amusements having no useful end, and notoriously fitted up and continued with a view to make a profit for the owner, are regarded in the books as nuisances." And again he tells us that the matter in judgment "was a simple case of one man squandering his time for money, in order to induce others to waste both their time and money." "No one," says he, "is so blind as not to see that such places, on their becoming known, bring together the most profligate mixtures: brawlers, drunkards, gamblers, blacklegs, pickpockets, petty thieves." And further on he tells us that "a useless establishment, wasting the time of the owner, tending to fasten his own idle habits upon his

atmosphere, a place which, in despite of every care, will be attended by profligates with evil communication, and at best with a waste of time and money, followed by a multiplication of paupers and rogues, has always been considWe doubt if enunciations more severely puriered an obvious nuisance." tanical could be found in Cotton Mather's sermons. No one, we presume,

would for a moment suppose that, when applied to bowling alleys, they embody the law at the present day in the United States. But Judge Cowen was not without an authority which he deemed to support his views, in the case of Jacob Hall (1 Modern, 76; 2 Keble, 846; Ventris, 169), where the erection of a rope-dancer was ordered to be torn down by Chief Justice Hale. It would seem that a reference to the two or three cases which declare a different rule (People v. Sargeant, 8 Cowen, 169; State v. Hall, 32 N. J. 162; State v. Haines, 30 Me. 65), would have been a sufficient answer to the extraordinary position Judge Cowen assumed. But instead of doing this, Mr. Wood attacks vigorously the authority of the report of Hall's case in Modern and Keble, and declares the language attributed to Lord Hale to be "a senseless statement, put into the mouth of the court by these two worthless reports,'' and also that " it must require a high degree of credulity on the part of a court to predicate an important principle upon the mass of senseless trash in Modern and Keble," etc. He concludes by saying: Nor can I, without doing violence to the plain and palpable rules that have been established by the courts in all periods of the world's history, agree that the facts in the case justified the court in declaring the bowling-alley in question a nuisance." From these quotations, it is obvious that if Judge Cowen was too stiff in his views, Mr. Wood is also " a stiff necked people." His tone is scarcely judicial. It reads more like the argument of an advocate who has a heavy fee at stake. He spreads his wings too widely, and his war-whoop is too loud. We doubt very much whether he can, unless he is as old Solon would have been, could he have lived to read this Treatise on Nuisances, say with truth that he understands the plain and palpable rules that have been established by the courts in all periods of the world's history." "All periods of the world's history" is a good while, and the rules which the numerous which have been in session during that time, have succeeded in formulating, would make quite a library, and a person would have to understand several languages in order to read them, and even then it would take considerable time to go over the whole mass, and still more time to digest and stow it all away in a single cranium.

courts

We have thus dwelt at considerable length-perhaps at too great length-on

several minor peculiarities and defects. It is now time to speak of the merits of the work; and we are fully convinced that it has great and decided merits. Within its 877 pages of text, some 1700 cases are discussed. Mr. Wood was not so overwhelmed with the multitude of his authorities, but that he found it possible to present fully the outlines of the more important ones. His book, instead of being a mere index to the adjudications, giving us their force and effect in general language, sets out quite fully the adjudications themselves. In this particular he has followed the style of the English law writers, as contradistinguished from that of the Americans. We regard this as decidedly

the more satisfactory style of writing, where the authorities to be collated are not so numerous as imperatively to require the other course. Books written in this way are especially satisfactory to practitioners who are deprived of access to large libraries; and they are the only text-books which can be quoted from with any degree of confidence. These very full presentations of the de cided cases are greatly enhanced by the author's own commentaries, criticisms and comparisons; and whatever may be his other defects of style, his language is so clear that we are never at a loss to distinguish his own views from those of the courts from which he quotes. The same thing can not be said of some authors of greater eminence, But while Mr. Wood evidently has a clear understanding of his subject, and presents it in a very acceptable manner, yet his book lacks method, classification and a mastery of details, which might have made it still more acceptable. We are inclined to suspect that these may have been the results of haste, produced by an eagerness on the part of the profession to get his book after it had been announced. We are convinced, both from observation and experience, that it is unwise in an author to suffer a book to be announced until it is in the hands of the printer. It he does so, he soon finds himself working under a pressure that is incompatible with the highest character of work. It is impossible for an author to do work as it should be done, while his publisher is chiding delay, or his printer is shouting for "copy."

On the whole we cordially congratulate Mr. Wood on the result of his labors, and also his publisher on the creditable manner in which he has brought this book out. But we can not forbear to suggest that if Mr. Wood is wise, he will, instead of beginning another book, devote his leisure to the revision of this, studying the best methods, and mastering the details of text-writing. By doing so, he will, by the time a second edition is demanded, be able to present a book such as, to use an expression of Mr. Bishop's, will

live."

-THE Washington Chronicle says that Baltimore lawyers are amazed at the vigorous memory and lucid logic of Reverdy Johnson, now in his 81st year His physical strength, too, seems to puzzle them. He stood and argued a case in court for a whole day last week without appearing fatigued in the least."

Briefs.

Railway Taxation-Legislative Exemption.-Caldwell County v. Hannibal & St. Jo. R. R. Co., Supreme Court of Missouri. Brief for the railroad company, by James Carr, Esq. We have read this brief with unusual satisfaction. The positions taken and the reasons advanced in sup

port of them are clearly stated and are supported by numerous citations of authorities. It would be impossible for us to notice these in detail in the space at our disposal. They are condensed in the brief itself as much as the subject will bear; and we refer law students, who are beginning the business of brief-making, to this, as an excellent specimen of condensed legal argument in an appellate court. The original charter of the Hannibal & St. Joseph R. R. Co. exempts "the stock of said company" from "all state and county taxes." A subsequent act of the Missouri Legislature donated to the company certain lands which it had received in trust from the United States, for the purpose of aiding in the construction of railroads. To the acceptance of these donations by railroad companies, the act of Congress had affixed several onerous conditions, having reference to the transportation of troops and mails. As a condition upon which the donation was made, the legislature in December of each year, after said road is completed, opened and in operaof the state further exacted that "the said company shall, on the first Monday tion, and declares a dividend, pay into the Treasury of the state a sum of money equal to the amount of the state tax on other real and personal property of like value, for that year, upon the actual value of the road bed, buildings, machinery, engines, cars, and other property of said company." This last condition was accepted by the company by its deed of acceptance filed with the Secretary of State. In 1871 the legislature of Missouri passed an act to provide for a uniform system of assessing and collecting taxes on railroads." Under this act and an apportionment made in pursuance thereof by the State Board of Equalization in 1872, the county of Caldwell assessed the

Hannibal & St. Joseph R. R. Co. for taxes for the years from 1861 to 1872, inclusive; and also assessed a special tax for the years 1869 to 1872, inclusive;

and also a road tax for the years 1861 to 1872, inclusive; and also a school

tax for the years 1867 to 1872, inclusive; and brought the present suit for the recovery of these taxes. The principle grounds of defence were, briefly stated, that the act of 1871, so far as it authorized the levying of these taxes, impaired the obligation of the company's contract with the state in its charter and in the act of 1852 making the donation of lands, and was hence void; that so far as it authorized the levying of back taxes, it was a retrospective law, and hence void; that the proceedings of the Board of Equalization were void, because the act of 1852 prescribed another mode in which the valuation

should be ascertained; that that portion of the act of 1871 which provided that the average rate of taxation levied for school purposes by the several townships or local school boards, etc., should constitute the basis of taxation of railroad property in each county, is void, as conflicting with that provision of the constitution of Missouri which provides that "all property subject to taxation ought to be taxed in proportion to its value; " that since the company's road runs through but four of the twelve Congressional townships of Caldwell County, the rate of taxation for the eight townships through which it does not run can not be averaged with that of these four, in making up the estimate; and finally, that the petition did not allege that the state Auditor had notified the secretary of the company of the proceedings of the Special Board of Equalization, as required by the act of 1871. We learn that this case has lately been decided by the Supreme Court at St. Joseph, and we hope to give a report of it soon. [For a copy of this brief, address James Carr, Esq, Hannibal, Mo.]

Constitutionality of Minnesota Railroad Law.-The Winona and St. Paul R. R. Co. v. Blake, Supreme Court of the United States, Writ of Error to the Supreme Court of Minnesota. Our readers may perhaps gain a sufficient idea of this elaborate argument, which consists of 111 printed pages, if we say that the question involved is the constitutionality of the Minnesota Railway Regulation Act, entitled "An Act to regulate the carrying of Freight and Passengers on all Railroads in this State." (Special Laws of Minnesota, 1871, p. 61; 1 Edgerton's Railway Laws of Minnesota, p. 67). [For a copy of this argument, address Hon. W. P. Clough, St. Paul, Minn.]

Rehearing-Ignorance of Counsel.-Smith v. Kirby, United States Circuit Court, Southern District of Ohio. Complainant's Second Brief on Respondent's Second Petition for Rehearing, by Hatch & Parkinson. The question discussed in the brief is. How far will ignorance or mistake of counsel prejudice the rights of the client? What mistake of counsel will entitle the client to a rehearing in equity? It is discussed in 24 pages, and many authorities are collected. [For a copy of this brief, address, Hatch & Parkinson, Cincinnati, or St. Louis.]

Power of one Horse Railroad Company to condemn Track of Another.-Central City Horse Railway Company of Peoria v. The Fort

Clark Horse Railway Company. Brief and argument for appellee, by D. McCulloch and H. W. Wells. This is a bill for injunction, brought by the appellant to restrain the appellee from proceeding to condemn the right to use a portion of the track of the appellant. The appellant owns and operates a horse-railway running from one extreme of the city of Peoria to the other, through the business centre. The appellee owns and operates a horserailway through the city, but which does not approach nearer than three blocks to the business centre. Reference to the maps attached to the record will convey a clearer idea of the situation than can be given here. Appellee believing that the public residing on and near their line, constituting a majority of the citizens, would be best accommodated by a change of their line so as to run through the business part of the city, applied to the city council for permission and authority to change their line so that their cars might convey passengers to and from the centre of the city; and thereupon the city council, on the 13th of August, 1874, passed an ordinance granting the appellee the right to change its line, as therein provided. The question involved in this case seems to be Can the track of the appellant be condemned for the length of three blocks by the appellee, or, rather; Can the appellant company be compelled to permit the appellee company to run its cars over this portion of its line, in order to get to the business center? [For a copy of this brief, address H. W. Wells, Esq., Peoria, Ills.]

Naturalization of Aliens by Courts of Limited Jurisdiction. The People ex rel., etc., v. Daniel McGowan. Supreme Court of Illinois. Brief for appellee (McGowan), by G. and G. A. Koerner. The appellee in this case is Judge of the City Court of East St. Louis, Illinois. This appears to be a proceeding against him in the nature of a quo warranto, charging him with usurping the functions of an office for which he is disqualified by reason of alienage. The plea confessed the original alienage, but avoided it by alleging that the defendant had been naturalized by the Criminal Court of St. Louis county, Missouri. The main question which arises on the record, is whether this court was authorized within the act of Congress to naturalize aliens. This brief embraces, in 21 pages, an exhaustive discussion of the power of courts of limited jurisdiction to naturalize aliens, in which numerous authorities are collected. [For a copy of this brief, address G. & G. A. Koerner, Belleville, Ill.]

Notes and Queries.

MIXED RELATIONSHIP.

MARLIN, TEXAS, July 6, 1875. EDITORS CENTRAL LAW JOURNAL:-Some time since the following transaction came under my observation, which I submit to the JOURNAL: A. married a widow who had a grown daughter by a former marriage. B., A.'s father, married the daughter of A.'s wife. A. and B. both had children by these marriages. What relation did these children bear to each other? Among your many learned readers I hope to find some one who can and will solve this matter. H. P.

Summary of Our Legal Exchanges. NASHVILLE COMMERCIAL AND LEGAL REPORTER, July 7.* Estate by Curtesy.-Upchurch v. Anderson, Supreme Court of Tenn. Opinion by Sneed, J.-Where the wife of the claimant of the estate by the curtesy survived her father, but died before her mother, and after the assignment of dower, leaving children of the marriage, held, that the wife's seizin of the inheritance was not such as to entitle the husband to an estate by the curtesy in those lands whereof the mother was endowed, because the indispensable element of the seizin of the wife during coverture was defeated by the endowment of the mother.

THE LEGAL Gazette, for JULY 2.† Estate by Curtesy-When a Child is "born alive."-Doe d. Cannon v. Killen, Supreme Court of Delaware. 1. To entitle a husband to the real estate of his wife for the term of his life after her death, as tenant by the curtesy of England, it is incumbent upon him to prove that the child, by the birth of which, as heir to the mother, he so claims to hold it, was wholly brought forth from the body of the mother, and that it was born alive, having an independent circulation and existence of its own, in itself and of itself, not dependent upon the mother, but entirely independent of her-a life and circulation existing in the child apart from the mother, by force of its own proper and inherent vitality. 2. Respiration is certainly evidence of life; but it is not necessary to prove the fact of respiration from actual observation. Respiration is only one of the manifestations of life in a new born Nashville, Tenn.: James Brown, Publisher. Philadelphia: King & Baird,

child. There are other indications of life, among which the beating of the heart and pulsation of the arteries after the separation of the child from the mother and the severance of the umbilical cord, may be considered satisfactory evidence of such life, because they show the fact that circulation of the blood has been established in the body of the child, and is carried on inde. pendently of the mother.

Husband and Wife - Reduction to Possession of Wife's Choses in Action-Conversion.-Meyer's Appeal, Supreme Court of Pennsylvania, opinion by Mercur, J. [7 Legal Gazette, 212.] 1. Conversion by the husband of the wife's choses in action, was by the common law, only evidence of a reduction to his own possession, which might be explained or rebutted by other evidence, negativing the intention of its having been reduced to possession in such a manner as to transfer title to the husband. A husband, prior to the married woman's act, received money belonging to the wife, under a clear and distinct promise to give her his note for it, which, however, he did not do, until many years after. Held, that this was sufficient to negative the presumption that he received it as his own property, and that he thereby became clothed with a trust for the amount in favor of the wife.

THE LEGAL INTELLIGENCER, JULY 2.*

2.

Nuisance Business of a Gold and Silver Beater.-Wallace, Trustee, v. Auer, Phila. Com. Pleas, opinion by Allison, P. J. [32 Leg. Int. 238.] The business of a gold or silver beater, set up in a quiet dwelling neighborhood, and by its noise and concussion unreasonably interfering with the quiet enjoyment, and perhaps safety, of neighboring property, is a nuisance which equity will restrain.

IRISH LAW TIMES REPORTS, JUNE 19, 1875.†

Carriers Act (11 Geo. IV., and 1 Wm. IV., c. 68)-Loss of Passenger's Luggage-Jewelery over £10 in value-Non-declaration of value-Felony by Carriers' servants-Evidence.-Gogarty v. Great Southern and Western Railway Company. Irish Court of Exchequer Chamber. Before Whiteside, C. J., Palles, C. B., O'Brien and Barry, JJ., Fitzgerald, Deasy, and Dowse, BB. [9 Ir. L. T. Rep. 99.] In an action by a passenger against a railway company for loss of luggage, it appeared that the plaintiff, who was being carried by the defendants from Cork to Tullamore, had (amongst other luggage) a box containing jewelery, of over £10 value (which was not declared), directed Miss Gogarty, Mullingar, via Tullamore," which was placed in the luggage van at Cork. Mullingar was a station on a different line. On arriving at Portarlington, where passengers for Tullamore change trains, one of the company's porters (of whom there were eight employed at the station) was seen carrying the box across the line from the Cork train towards the Tullamore train, into which the plaintiff had got. The box in question was not delivered at Tullamore; nor for many months before action were any tidings of it discovered. The guard of the train proved that he had delivered at Tullamore all the luggage which he had, in fact, received at Portarlington for Tullamore. Only two of the Portarlington porters were produced as witnesses, one of whom had been directed by the station master there to see that the luggage was taken across the line, and stated that he and the other porters had done so; but neither of whom could particularise anything as to the box in question, save that it was not abstracted by them. Upon an issue under section 8 of the Carriers Act (1 Wm. IV., c. 68), whether the loss had arisen from the felonious acts of the defendants' servants: Held (reversing the decision of the Court of Common Pleas, 8 Ir. L. T. R. 161), that the facts did not justify a finding of the jury, that the loss had arisen from a felony having been committed, and that such felony had been committed by the defendants' servants (Palles, C. B., O'Brien, J., and Fitzgerald, B., diss.) Vaughton v. The L. & N. W. Railway Company (L. R. 9 Ex. 93) distinguished.

ADVANCE SHEETS OF ILLINOIS REPORTS. Contract for Work and Labor-Acceptance-Recoupment.Estep v. Fenton. Opinion by Walker, J. [66 Ill. 467.] 1. In a suit to recover for work, labor, etc.. in building a church, where the evidence was conflicting as to whether the house was completed, or the work performed in a good and workmanlike manner, or the materials used were of the character contracted for, the court instructed the jury, that if the contract for the building was completed substantially according to its terms, and nothing remained further to be done by the defendants but to pay, and the balance due was fixed by the contract, they could allow interest: Held, that the portion of the instruction which required only a substantial compliance with the contract

*Philadelphia: J. M. Power Wallace.

†Dublin: John Falconer, 53 Upper Sackville street. Courtesy of Hon, Norman L, Freeman, Reporter,