Y. to B. over the P., W., & B. R. R., and on that day took the through train. The conductor of the train took up the ticket and gave M. a "conductor's check," with the words "good for this day and train only," and with the numerals 5 and 1, showing the month and day, punched out of the "check." M., desiring to leave the train, at a way station, inquired of some one at the window of the company's ticket office at the station, if the "check" would take him to B. on another train and day, and was told that it "was good till taken up." On the 6th of May, M. entered another train going to B., and, being called upon for his ticket, offered the "check." The conductor refused to receive the "check," and M. having refused to pay fare, the train was stopped at a point intermediate between two stations, and by direction of the conductor, M. left the train. Held: 1st. That M. had no right to leave the train at the way station, and afterwards to enter another train and proceed to his original point of destination without procuring another ticket, or paying his fare. 2d. That on the refusal of M. to pay his fare, the conductor had the right to put him off the train, using no more force than was necessary to effect his removal, and was under no obligation to put him off at a station. 3d. That even if the person, by whom M. was told that the "check" was good until taken up, was an agent of the company, the presumption is, that a ticket agent at a way-station has no authority to change or modify contracts between the company and through passengers, and the onus of rebutting this presumption rested on M. McClure v. P. W. and B. R. Co., 34 Md.

RECORD. See Equity.

SALE. See Mortgage.

SHERIFF'S RETURN.

Evidence to contradict.-The general rule is, that as between parties to an action the return of the sheriff is conclusive, but this rule is not to be carried so far in cases of original process as to preclude an inquiry into the facts on which jurisdiction depends; and when the return of the sheriff is that a copy of the summons was left at the residence of the defendant, the court may hear and determine whether the place where the copy was left was at the time the residence of the defendant: Bond v. Wilson, 7 Kans.

TENDER. See Accord.

TRESPASS.

By adjoining Owner to make Partition Fence.-Although it is a general rule that where a party is the owner of personal property which is upon the land of another, the former cannot commit a trespass by entering and taking it away, yet the rule does not apply to that entry of a party which is necessary to enable him to make a partition fence between him and an adjoining owner: Carpenter v. Halsey, 60 Barb.

The law compels each owner to make his portion; and this carries with it the right to such necessary occupation for the time being, as is required to comply with such legal duty: Id.

TRUSTS AND TRUSTEES.

Power of Court to appoint a new Trustee.-Where a cestui que trust resided in New York, and the original trustee, although he died in Connecticut, resided in this state when he was appointed, and had the trust fund here at the time, and partly executed the trust here; and the cestui qui trust was an infant, and needed the fund for his support; it was held that under these circumstances, the power of the court to appoint a new trustee, within its own territorial jurisdiction, could not be doubted: Curtis v. Smith, 60 Barb.

Held, also, that the Supreme Court was not divested of jurisdiction by the removal of the former trustee from the state, although he took the fund with him: the cestui que trust continuing to reside here: Id.

VOLUNTARY PAYMENT.

No action will lie to recover back money voluntarily paid with a full knowledge of the facts and circumstances under which it was demanded, though the payment may have been made under a protest: Awalt v. Eutaw Building Association, 34 Md.

WATERS AND WATERCOURSES

Diversion-Freshet.-The owner of land which is being inundated by a stream breaking away from its channel, may legally turn it back to its old channel. But he would have no right, in preventing the inundation of his own land, to cause it to flow on to the land of another except into its old channel: Tuthill v. Scott, 43 Vt.

The stream in question flowed in a well-defined channel in the land of the defendant until the freshet of 1869, when it broke away, flowed down the highway a short distance and turned on to the plaintiff's land. The plaintiff turned it back to its old channel. The highway surveyor, without right, then filled up the old channel by making a road-bed therein, thereby causing the water to flow elsewhere on the defendant's land. The defendant then took measures to stop it from flowing on to his land, and thereby caused it to flow on to the plaintiff's land again. Held, that this was against the plaintiff's right, and he could maintain an action therefor without waiting until he had suffered actual damages from the effects of the water: Id.

NOTICE OF NEW BOOKS.

CASES IN THE UNITED STATES CIRCUIT COURT FOR THE EIGHTH CIRCUIT. By JOHN F. DILLON, Circuit Judge. Vol. 1. Davenport, Iowa: Griggs, Watson & Day.

We take pleasure in calling attention to this volume. It is the first fruit of the new system of Circuit Courts organized under the Act of Congress of April 10th 1869, and we think few readers will examine it even cursorily without being greatly impressed with the extent and importance of the jurisdiction of these courts. The Eighth Circuit comprising the states of Minnesota, Iowa, Missouri, Arkansas, Kansas and Nebraska, covers a wide field in territory, and, as this volume shows, in the variety of novel and interesting questions presented for adjudication. Among these we noted the status of

Indians, and the jurisdiction in cases of crimes committed by them off their proper "reservation" territory (United States v. Yellow Sun, p. 271): the right of an Indian to sue as a "foreign citizen" in the courts of the United States (Karrahoo v. Adams, p. 344), and the taxation by the states of land included in Indian reservations, &c., all belonging to the class of difficult questions, growing out of the peculiar situation of the Indian tribes as subordinate and "protected," yet quasi independent nations.

In addition to these, however, the volume contains a large number of important cases on questions growing out of the war, the rights and liabilities of military commanders, the removal of causes from state to Federal courts, bankruptcy, internal revenue, and admiralty.

A majority of the opinions were written by the reporter, and they exhibit the learning, accuracy, and vigor which have always characterized the productions of Judge DILLON. Perhaps the most desirable quality in a judge, at the present day, from a professional point of view, is directness; the faculty which sees quickly the point of the case, grapples it at once, resolutely, and then knows that the work is done. In this respect the opinions in the present volume will bear a favorable comparison with any recently delivered in any reported tribunal.

J. T. M.

LIST OF NEW LAW BOOKS.

AMERICAN LEADING CASES.-Select Decisions of American Courts in Several Departments of Law. By Hon. J. I. C. HARE and JOHN WM. WALLACE, Esq. 5th ed. enlarged and improved. 2 vols., 8vo. Philadelphia: T. & J. W. Johnson & Co. Shp. $15.

By GEORGE BLISS, Jr. 8vo., pp.
Shp. $7.50.

BLISS.-The Law of Life Insurance. 771. New York: Baker, Voorhis & Co. CLARK.-Pennsylvania Law Journal Reports, containing the cases origi nally reported in the Pennsylvania Law Journal and the American Law Journal, from 1842 to 1852 inclusive. Arranged and collated with reference to cases in subsequent reports. By JOHN A. CLARK. Vol. 1. Philadelphia: John Campbell & Son.

CURTIS.-American Conveyancer, containing legal forms and instruments in use throughout the United States. By GEORGE T. CURTIS. 2d ed. Revised by M. H. DURGIN. 12mo. Boston: Little, Brown & Co. Shp. $2.25. ILLINOIS.-Reports of Cases in the Supreme Court. Vol. 52. FREEMAN. Springfield: The Reporter. Shp. $6.

By N. L.

LANGDELL.-A Selection of Cases on the Law of Contracts, with references and citations. By C. C. LANGDELL. Boston: Little, Brown & Co. Shp. $7.50.

LAWRENCE.-Disabilities of American Women Married Abroad. Foreign Treaties of the United States in conflict with State Laws, relative to the Transmission of Real Estate to Aliens. By WM. BEACH LAWRENCE, LL.D. New York: Baker, Voorhis & Co. C1 $1.50.

MISSOURI.-Reports of Cases in the Supreme Court. Vol. 47. By T. A. POST. St. Louis: McKee, Fishback & Co. Shp. $5.

PENNSYLVANIA. Reports of Cases in the Supreme Court. Vol. 66. By P. F. SMITH. Philadelphia: Kay & Bro. Shp. $4.50.

WALLACE.-Reports of Cases in the Circuit Courts of the United States, for the Third Circuit, during the time of Justice Grier. By JOHN W. WALLACE. Vol. 3. Philadelphia: T. & J. W. Johnson & Co. Shp. $7.50

THE

AMERICAN LAW REGISTER.

FEBRUARY, 1872.

ACTIONS FOR BREACH OF PROMISE OF MARRIAGE.

FEW questions have been presented to our courts of judicature that have elicited more social discussion, or attracted more general attention of the outside world, than the one we propose briefly to consider.

"Marriage," observes Lord ROBERTSON, the distinguished Scotch judge, "is a contract sui generis, and differing, in some respects, from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties; but it differs from other contracts in this, that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but are to a certain extent matters of municipal regulation, over which the parties have no control by any declaration of their will; it confers the status of legitimacy on children born in wedlock with all the consequential rights, duties, and privileges thence arising; it gives rise to the relations of consanguinity and affinity; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot, in general, amongst civilized nations, be dissolved by mutual consent; and it subsists in full force, even although one of the parties should be for ever rendered incapa

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ble, as in the case of incurable insanity, or the like, from per forming his part of the mutual contract. No wonder that the rights, duties, and obligations arising from so important a contract, should not be left to the discretion or caprice of the contracting parties, but should be regulated, in many important particulars, by the laws of every civilized country:" Duntze v. Levett, Ferg. 385, 397.

The distinction between marriage and ordinary contracts thus forcibly pointed out, is approvingly quoted by Judge STORY, in his Confl. Laws, §§ 109-111, and has often been considered an eloquent exposition of the subject discussed.

Another Scotch judge, of no little renown, has observed, "Though the origin of marriage is contract, it is in a different situation from all others:" 3 Eng. Ec. 505; Duntze v. Levett, Ferg. 401; Gordon v. Pye, Ferg. 276, 339.

In the case of Maguire v. Maguire, 7 Dana 181, Robertson, C. J., of Kentucky, observes: "Marriage, though in one sense a contract-because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds-is, nevertheless, sui generis, and unlike ordinary or commercial contracts, is publici juris, because it establishes fundamental and most important domestic relations."

And in Rogers's Ec. Law, 2d ed., 595, it is said, "Marriage is a contract; having its origin in the law of nature antecedent to all civil institutions, but adopted by political society, and charged thereby with various civil obligations. It is founded on mutual consent, which is the essence of all contracts; and is entered into by two persons of different sexes, with a view to their mutual comfort and support, and for the procreation of children." We have thus given the status and the responsibilities arising from the marriage contract to aid us in discussing the peculiar circumstances growing out of alliances of friendship and of affection. The written law of almost every state and nation has provided, in some mode or other, the means of granting redress and compensation, in way of damages, for a breach of the marriage contract as well as the breach of promise to marry.

We shall endeavor, in the space allotted to us, to consider the rules of law governing such contracts, and to notice some pecu