the former, which had escaped from the latter's inclosure through a defect in that portion of the division fence which the former was bound to maintain. The gist of the action of trespass upon the freehold is the wrongful entry. What is done after such entry is but an aggravation of the wrong in making the entry. As the entry of the bull into the plaintiff's pasture was through his negligence in discharging a duty he owed the defendants, the defendants are not responsible for any injuries which he occasioned while there, although such injuries arose from a vicious act, unless the defendant knew of such vicious propensity. In the well-considered case of Decker v. Gammon, 44 Me. 322, cited by the plaintiff's counsel, the court say: "If domestic animals, such as oxen and horses, injure any one, in person or property, if they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury, unless he knew they were accustomed to do mischief; and in suits for such injuries, such knowledge must be alleged and proved." The court cite extracts from May v. Burdett, 58 E. C. L. 101; 1 Hale P. C. 430; Buxendin v. Sharp, 2 Salk. 662; Mason v. Keeling, 12 Mod. Rep. 332; Vrooman v. Lawyer, 13 Johns. 339, supporting the proposition. The court also say: "The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so before." We think these extracts are a correct statement of the law upon this subject. The other cases cited by the plaintiff's counsel, Dunckle v. Kocker, 11 Barb. 387, Chunot v. Larson, 43 Wis. 536; S. C. 28 Am. Rep. 567, note; Dolph v. Ferris, 7 Watts & Serg. 367; Ellis v. Iron Co., 11 Eng. Rep. 214, to show that the owner of a domestic animal is liable for injuries arising from its vicious act, although he did not know it had such vicious propensity, are cases in which it is shown, or found by the jury, that the animal was unlawfully and wrongfully in the place where the act was committed. Scott v. Grover. Opinion by Ross, J.

IOWA SUPREME COURT ABSTRACT.

DEED-WARRANTY-CORRECTING MISTAKE.-A warranty deed that omits to mention by name a certain incumbrance, although the amount appears in the aggregate of all the incumbrances, subject to which the grantee takes the land, and proof can be had of the grantee's knowledge of its existence before the conveyance, will not require the grantor to make the title good to that extent, but the deed may be corrected by leave of the court. Zack v. Krall. Opinion by Seevers, J.

[Decided June 9, 1884.]

DAMAGES-SLANDER-VINDICTIVE-PERSONAL REPRESENTATIVE.-Vindictive damages are awarded as a punishment against a wrong-doer, and not as compensation for the injured person. In an action against the personal representative of a decedent for damages on account of slanderous words spoken by the deceased, exemplary or punitory damages may not be awarded against the personal representative. Such damages are awarded as a punishment of the man who has wickedly or wantonly violated the rights of another, rather than for the compensation of the one who suffers from his wrongful act. It is true they are awarded to the one who has been made to suffer, but not as a matter of right; for while he is entitled under the law to such sum as will fully compensate him for the injury he has sustained, the question whether punitory damages shall be assessed and the amount of the assessment is left to the discretion of the jury. Plaintiff had a right of action, on account of the slan

derous words spoken by defendant, for such sum as would compensate her for the injury. This was her cause of action, and this is what was presented to her by the statute at his death. But she had no personal interest in the question of his punishment. So far as he was concerned, the punitory powers of the law ceased when he died. To allow exemplary damages now, would be to punish his legal and personal representatives for his wrongful act; but the civil law never inflicts vicarious punishment. Our holding as to the object of assessing exemplary damages in any case is abundantly sustained by the authorities, both in this State and elsewhere. We content ourselves however with citing the following cases in this State: Hendrickson v. Kingsbury, 21 Iowa, 379; Garland v. Wholeham, 26 id. 185; Ward v. Ward, 41 id. 686. Shirk v. Hobson. Opinion by Reed, J. [Decided June 11, 1884.]

EXECUTOR AND ADMINISTRATOR-SALE OF PERSONAL PROPERTY-DISTRIBUTION OF PROCEEDS LEASERENT.-Where executors sell the personal property of an estate to pay the debts, the proceeds become a fund to be distributed under the order of the court, and if it is insufficient to pay them all fully, it should be divided pro rata. (2) The purchase money from the sale of the personal property of an estate belongs to the executors, regardless of any claim which the purchaser may have against the estate; but if in an action by the purchaser against the estate to enforce his claim, the executors set up the purchase-money due as a counterclaim against the purchaser, a court is justified in treating the purchase-money claim precisely as the executors pleaded it. (3) Where a lease was made, rent fee, there being other consideration for giving it, and with the provision that it should not be assigned, an assignment of it did not work a forfeiture, in the absence of a declaration of forfeiture, and so long as the lease subsisted, the right to collect rent was gov. erned by it. Shattuck v. Lovejoy, 8 Gray, 204. Eldredge. Opinion by Adams, J.

[Decided June 10, 1884.]

he must be deemed to have had knowledge of the lien (Gilchrist v. Anderson, 59 Iowa, 276; S. C., 13 N. W. Rep. 290), and we cannot think that we should be justified in holding that he could properly pay before the end of the thirty days, even though his contract called for payment before that time, and made no reference to sub-contractors. Notice served after the thirty days, with statements filed, gives a lien upon the balance, if any, due the contractor. We cannot hold that notice served before that time has no greater effect. Though a mere stipulation on the part of a contractor not to claim a mechanic's lien would not preclude a sub-contractor from making such a claim, nevertheless such sub-contractor is precluded when the contractor, at the outset, stipulates for a mode of payment inconsistent with the mechanic's lien. Jones & Magee Lumber Co. v. Murphy. Opinion by Adams. J. [Decided June 12, 1884.]

AGENCY-CONTRACT-MEMBERS OF CLUB.-As to the contracts of an unincorporated organization, the in dividual members are liable either because they held themselves out as agents of a principal that had no existence, or because they are themselves principals, since there are none other in existence. It is insisted that there is no known legal principle or rule under which the defendants can be made liable. It is said they are not parties. This is true: that is to say, these defendants could not bind any other members of the organization as a partner in a joint enterprise on a contract as to which he had no knowledge and did not assent to. But we think "those who engaged in the enterprise (that is, became members of the organization) are liable for the debts they contracted, and all are included in such liability who assented to the undertaking, or subsequently ratified it." It was so held in Ash v. Guie, 97 Penn. St. 493; Fredendall v. Taylor, 26 Wis. 286; and is supported to some extent by what was said by this court in Keller v. Tracy, 11 Iowa, 530; and Drake v. Board of Trustees, id. 54. Lewis v. Tilton. Opinion by Seevers, J.

[Decided June 14, 1884.]

AGENCY-PURCHASE PRICE-IMPLIED AUTHORITYRATIFICATION-RECOURSE TO AGENT-DEMAND.— An authority to make a contract for the sale of lands will authorize the agent to receive so much of the purchase-money as is to be paid in hand on the sale as an incident to the power to sell. Story Ag., § 58; Johnson v. McGruder, 15 Mo. 365; Yerby v. Grigsby, 9 Leigh (Va.), 387; Higgins v. Moore, 6 Bosw. 344; Goodale v. Wheeler, 11 N. H. 424; Peck v. Harriot, 6 Serg. & R. 149; Hoskins v. Johnson, 5 Sneed, 469. A landowner having suffered others to hold, occupy, and cultivate land under deeds prima facie good, and for an adequate consideration actually paid by them, cannot after three years impeach the sale on the ground of his attorney's defrauding him in the transaction. Hayes v. Steele, 32 Iowa, 44; Cooper v. Schwartz, 40 Wis. 57; Hawkins v. Lange, 22 Minn. 557; Cairnes v. Bleecker, 12 Johns. 300; Benedict v. Smith, 10 Paige, 127. As against the attorney, plaintiff asks for no specific relief, and we are not certain that as against him he claims relief of any kind. We have seen that by ratification the payment to Palmer became a valid payment, and he received the money as the plaintiff's duly-authorized agent. The rule is that where money has been properly received by an agent for his principal he is not liable in an action until a demand has been made by his principal. Bedell v. Janney, 9 Ill. 193; Cockrill v. Kirkpatrick, 9 Mo. 697; Armstrong v. Smith, 3 Blackf. 251; Waring v. Richardson, 11 Ired. Law, 77. Alexander v. Jones. Opinion by Ad

ams, J.

Decided June 13, 1884.]

RECENT ENGLISH DECISIONS.

WILL-EXECUTION ACKNOWLEDGMENT OF SIGNATURE-FORGETFULNESS OF WITNESS.-When a will is ex facie duly executed, and there is no suggestion of fraud, probate ought not to be refused merely because the persons whose names appear as attesting witnesses cannot, when examined, recollect either having seen the testator sign the document, or that his signature was there before they signed, and did not know the nature of the document which they were signing. Ct. of App., Feb. 27, 1884. Wright v. Sanderson. Opin ions by Selbourn, L. C., Colton and Fry, L. JJ. [See 95 N. Y. 329; 83 id. 582; 52 id. 517.-ED.] (50 L. T. Rep. [N. S.] 769.)

INJUNCTION-RAILROAD-VIOLATION OF STATUTEREMOVAL OF BUILDING.-In an action brought to obtain a mandatory injunction to compel the defendants to pull down a goods station and cattle sheds which they had erected 140 yards from Bala station, in the face of sub-section 6 of section 6 of an act which provided, "that at that station there should be no goods or cattle station, etc.," the plaintiff had not objected to the buildings till they were nearly completed, owing to his being abroad at the time, and ignorant of their erection until his return. The defendants contended that the buildings in question had not been erected "at" the station, as they were 140 yards off; that if they had been, it was for the public convenience they should be there, and that the plaintiff was precluded by his acquiescence from now obtaining a mandatory injunction to remove. Held, that by sub-section 6 the defendants had made a statutory contract not to do what the court was of opinion they had done, so that the question of public convenience did not apply, and that the acquiescence of the plaintiff was not such as would preclude him from obtaining the injunction, but that the court would grant one, compelling the defendant to remove the buildings as prayed. High Ct. of Justice, Ch. Div., May 6, 1884. Price v. Bala, etc., R. Co. Opinion by Chitty, J. [See 5 Allen, 221; 1 Gray, 340, 367.-ED.] (50 L. T. Rep. [N. S.] 787.

WILL-EXECUTION-ALIEN.-A will made according to the forms of English law by an alien, who though her domicile of origin was English was domiciled abroad at the time of making her will and of her death, is not entitled to probate in this country. 8 P. Div. 101, affirmed. Ct. of App., Feb. 13, 1884. Bloxam v. Favre. Opinions by Lord Selborne, L. C, Lord Coleridge, C. J., and Cotton, L. J. (50 L. T..Rep. [N. S.] 766.

WILL

ANNUITY

DIRECTION TO APPROPRIATE FUND-DEFICIENCY IN INCOME-RESORT TO CAPITAL OF ESTATE. —A testator after giving various pecuniary legacies, bequeathed to various persons annuities of 11. a week, and he directed sufficient funds to be appropriated in the name of his trustee out of his personal estate to answer by means of the income the payment of the annuities, and he directed that on the dropping of the annuities the appropriated funds should follow the distribution of his residuary personal estate. The income of the personal estate, after payment of the pecuniary legacies, was insufficient to pay the annuities. Held, that the annuities were payable, so far as necessary, out of the capital of the estate. Ch. Div., May 8, 1884. Matter of Taylor. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 717.)

was an inducing cause to the contract; that is to say, that it was material, and that it produced in his mind an erroneous belief influencing his conduct. The plaintiff brought an action to recover the damages which he had sustained in consequence of an alleged misrepresentation in the prospectus of a company. It was admitted that the statement was material, and that it was not true in one sense; but the words were ambiguous, and were capable of being understood in a sense in which they were true. The plaintiff's evidence was that he understood the words "in their natural sense." Held (affirming the judgment of the court below), that the plaintiff had not discharged the burden of proof which lay upon him, and that the action could not be maintained. Per Lord Blackburn: The motive of a person who makes a statement which he knows to be false, with the intention of inducing another person to act upon it, is immaterial. H. L., Feb, 18, 1884. Smith v. Chadwick. Opinions by Sel. borne, Chanc., Blackburn, Watson and Bramwell, JJ. (50 L. T. Rep. [N. S.] 997.)

nant northern States. A formula to which it is to be presumed States will sooner or later conform, is one contained in the revised Code of Italy on this subject. “The child of a citizen is a citizen; the child of an alien is an alien.'

It must be conceded that the language of the fourteenth amendment, which was under construction in the case of Look Tin Sing, is very broad. And the decision of the court was in favor of the liberty of the individual; and was no doubt influenced by considera. tions involved in the case which can be readily understood.

Citizenship, or national character, is nowadays dependent upon choice rather that upon status; and the claim of the individual in cases of conflict is generally controlling. But this right to elect (droit d'option) in the cases of children of aliens is universally admitted only when the individual attains majority, or is otherwise emancipated. Yours very truly,

ALEX. PORTER MORSE WASHINGTON, November 15, 1884.

CORRESPONDENCE.

CITIZENSHIP OF CHILDREN OF ALIENS BORN IN THE UNITED STATES.

Editor of the Albany Law Journal:

Attentive readers of the opinion of Mr. Justice Field (U. S. Cir. Ct., Ninth Circuit) in the matter of Look Tin Sing, reported in the last number of the JOURNAL, will not fail to remember that his honor limits the words "subject to the jurisdiction' in the first section of the fourteenth amendment, to except from citizenship only children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassa dors, whose residence, by a fiction of public law, is regarded as part of their own country." But in the Slaughter House case, 16 Wall. 36, Mr. Justice Miller delivering the opinion, the court say: "The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States born within the United States." (The italics are mine.)

If the first section of the fourteenth amendment is to receive the construction placed upon it by the United States Circuit Court, in apparent contravention of an express exception of the Supreme Court, it must result that this section of the fourteenth amendment carries us back to the principle of the English common law, that all persons born within the dominions of the crown, with hardly an exception, are to all intents and purposes British subjects.

As has been pointed out elsewhere (5 Am. Law Rev. 369), the fourteenth amendment is less carefully worded than the Civil Rights Bill (April 9, 1866). The latter only declared those persons to be citizens who were born within the United States, "and not subject to any foreign power."

It is to be further observed that there is an inconsistency and irregularity in the Constitution and laws of the United States in respect to citizenship, as is manifest by comparing the first section of the fourteenth amendment with provisions of the act of Feb. ruary 10, 1855. The former makes citizenship (or national character) of children of aliens dependent upon place of birth; the latter derives it, in case of children of citizens, from parentage. The former would perpetuate the doctrine of feudalism under which jus soli prevailed. The latter recognizes the principle of jus sanguinis, now almost universally accepted by domi

"The action (at least) will not lie,

(For he owed his old client a grudge), And the only thing he will try Is the patience of jury and judge."

The plaintiff opened his case: "Here is a French adage," he said, "I cannot refer to the place, But the same I am sure you have read, Which holds out a man who appears

For himself on his own brains reliant, Regardless of jibes and of jeers,

Has always a fool for a client."

He said that he did not agree

With this sentiment, plainly untrue, And thought himself perfectly "free To assert that neither do you."

The Albany Law Journal.

ALBANY, NOVEMBER 29, 1884.

CURRENT TOPICS.

THE presidential election may fairly said to be finished, now that the official count in this State is known, and the lawyers can go back to business. A lawyer has been elected president, which is an indication that the profession have not quite lost their hold upon political honors. The year of the presidential election is always one of uncertainty and depression in business, and the next succeeding year is frequently not much better, and our profession feel this quite as sensibly as the business world. There is comparatively little law business in the year of the presidential election, and the lawyers are running after office for themselves, or others, or both.

These elections come too frequently for the good of the country. Either in county, State or Federal politics there is some political turmoil nearly all the time. It would be much better, it seems to us, if the presidential term were six years instead of four, and if the gubernatorial term were twice as long, or half as long again as it is. Our canvasses are constantly becoming more corrupt, more virulent, more tainted by betting, more unscrupulous in every way. As the legal profession are notoriously addicted to politics it must follow that they are peculiarly subject to all these unhappy influences, and prone to all these undesirable practices. It is perhaps fitting that the lawyer should be frequently represented in politics, although we feel bound to say that he is not always well represented, but there is a craze among lawyers for political campaigning that unfits them for their business, and takes their business away from them. It is to be feared that much of the vituperation and slander of the campaigns is attributable to the license of the bar, which is regarded by those who are guilty of it in a merely Pickwickian sense, but which degrades them more than it hurts its object. For ourselves we are sincerely glad that the election is over, and on Thursday last, Thanksgiving day, we gave especial thanks for the fact that it is over, and that there will not be another for four years.

tion of the Republican candidate by a few hundreds, and propose to have them indicted under the Penal Code for disseminating false and forged news. This is one of the best jokes of the season, and is enough to make any lawyer's sides sore with laughter. It would indeed be hard on the newspapers if they were liable to indictment for mistaken opinions on estimates, or for errors in footing up columns of figures, especially on so narrow a margin as one thousand in twelve hundred thousand. As the public have now lost all interest in the personal abuse of the rival candidates they can hardly be expected to care much for this newspaper abuse of rival journals. We suspect that it would be time and labor wasted to try to get a newspaper man indicted for disseminating false or forged election returns under any circumstances. If any of the stock gamblers have been bitten by depending upon such estimates it has served them right. We would rejoice to see them all cleaned out.

A spasm of morality has passed over the city of New York. The authorities, after winking for years at brutal prize-fights under the guise of boxing-matches, have made a determined effort to "knock them out." In the case of the cultured Bostonian, Mr. Sullivan, the issue has been raised, and the authorities seem disposed to handle these gentry without gloves. This latter-day repentance is refreshing. We hope it will bring forth meet works. It is a humiliating fact that this ruffian, drunkard and bully, Sullivan, has repeatedly made more money in ten or fifteen minutes by the practice of his brutal "profession," than many a sober, industrious and honest lawyer of the best talents can make in a year. For ourselves, we speak in all soberness when we say that we regard the excited curiosity and interest with which many respectable people flock to these contests as indicative of the same tiger spirit, hardly quelled by civilization, which instigates lynchings, and as resembling the cruel delight of the ancient Romans in the bloody sports of the amphitheatre. We propose this test to determine whether boxing-matches are proper scientific exhibitions. Let Captain Williams carry a club stuffed like the gloves, and when the fight gets too hot let him club both combatants, and knock them both out, if possible. If Captain Williams could also take his club to some of the party editors who have been making the press reek with irrelevant scandal and filth for the last six months, we would stand by him.

VOL. 30 No. 22.

*

tency of the oath from decay of religious belief. On these points Mr. Young speaks concisely but with great cogency. Mr. Young is a railroad lawyer, but we feel bound to say that no one would discover it from the tone of his paper, and we heartily concur with his opinions. On the point of public and political apathy he observes: "If the immediate cause of the decay of the jury is the neglect of duty by public officials, it is with ill grace that they are censured by a community guilty of the same act. If good men won't serve, it is next to impossible, under our principles and administrative system, to compel them to do so; and, although this is all the more reason why public officials should exert themselves to enforce the duty, so far as they are able, still, we can hope for but little permanent relief, until the spirit of the community is moved to a spontaneous acquiescence. We have come to regard our private business interests as paramount to all other considerations; to look upon the State as for no other purpose than to subserve such private interests, and to regard the saving of time, by the escape of performance of public duties, as so much clear gain, to personal interests, in the competition of life. It is this fatal error. which destroyed Rome, and which is the most dangerous enemy to a Democratic republic. * * The real value and efficiency of such institutions, depend upon the manner in which they are administered. The character of such administration depends upon the character, not of the whole people of the community, nor of the whole of the ruling majority, but of that particular portion of them who participate in the exercise of their political rights. And the character of this political body will directly depend upon whether the best citizens of the community will or will not so participate. We cannot hope for reform, therefore, until we realize that admitting that the chief object of the State is the protection of personal interests, such personal interests are not best subserved by exclusive devotion to one's own business; but that on the contrary, such personal interests are daily suffering, in a thousand ways, from the abuse of power of public officials, deranging the business interests of the community, and feasting upon the profits of individual industry." On the point of the impotency of the oath, he says: "This is largely due to the decay of religious belief, with which the importance of an oath is directly associated, among the lower classes. The mystery of a myth is of great value in staying the passions of the multitude, even in this enlightened age. Queen Victoria rules the masses of England with quite as firm a hand as that with which the House of Commons rules the queen. To a man of intelligence and culture, the significance and value of an oath is based upon far higher principles than belief in the dogmas of religion, but to a man of the class to which our juries have been reduced, there is no significance but the hope of reward and fear of punishment, as inculcated by his religion. The effect of the exposition of the fallacies of religious dogmas,

by the learned, is to weaken the faith of the unlearned, and with it the conscience and value of the oath." We seriously wish that our legislature this winter would do away with most of the present excuses from jury duty.

IN

NOTES OF CASES.

N Moore v. Monroe, Iowa Supreme Court, Sept. 18, 1884, it was held that an injunction will not issue to restrain the reading of the Bible or the singing of religious songs in the public schools, unless attendance on such exercises is compulsory. The court said: "The record shows that the teachers of the school are accustomed to occupy a few minutes each morning in reading selections from the Bible, in repeating the Lord's prayer, and singing religious songs; that the plaintiff has two children in the school, but that they are not required to be present during the time thus occupied. The record shows, further, that the plaintiff objected to these exercises and requested that they be discontinued; but that the teachers refused to discontinue them, and that the directors refused to take any action in the matter. The plaintiff concedes that under a statute, section 1764 of the Code, if constitutional, neither the school directors nor the courts have power to exclude the Bible from the public schools. The provision of the statute is in these words: The Bible shall not be excluded from any school or institution in this State, nor shall any pupil be required to read it contrary to the wishes of his parent or guardian.' Under this section it is a matter of individual option with school teachers as to whether they will use the Bible in school or not, such option being restricted only by the provision that no pupil shall be required to read it contrary to the wishes of his parent or guardian. It was doubtless thought by the legislature that an attempt on the part of school boards to exclude, by official action, the Bible from schools would result in unseemly controversies, to be decided ultimately at the polls, and that such controversies would naturally disturb the harmony of school districts, and impair the efficiency of schools. Whether the provision is a wise one, it is unnecessary for us to express any opinion. It is the law of the State, unless unconstitutional. The plaintiff insists however that it is unconstitutional. The provision of the Constitution which it is said to conflict with is article 1, section 3, Bill of Rights. The provision is in these words: 'The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry.' The plaintiff's position is, that by the use of the school-house as a place for reading the Bible, repeating the Lord's and singing religious songs, it is made a place of wor

prayer,