DIGEST OF CASES.

Assumpsit-Mistake of Fact-Indorser-Return of Money Paid by Mistake to the Indorsee.-Money paid by the plaintiff under a bona fide forgetfulness of facts which disentitled the defendant to receive it may be recovered back; it is not sufficient to bar a recovery of money paid under a mistake of fact, that the plaintiff had the means of knowledge of the fact unless, he paid it intentionally, not choosing to investigate the facts. Where an indorsee of a note payable at a bank received from the bank payment thereof, the bank officers being under the impression that the maker had on deposit sufficient funds to meet the note, and on the same day the bank having discovered its mistake and demanded the money back repaid it. Held: that the indorser was not discharged from liability to the indorsee. Meredith v. Haines. Supreme Court Pa., March 3, 1884.

Contracts-Wagers-Mutuality-Differences as Breach of Contract.-A contract for future delivery of grain is not a gambling contract, unless one or both of the parties have no intention to deliver or receive the grain, but merely to speculate in the differences. Such an intention on the part of one of the parties not communicated to the other, will not invalidate the contract, nor will the fact that the contract contemplates a payment of differences as the measure of damages consequent upon a breach of the contract. Wall v. Schneider. Sup. Ct. Wis., Jan'y, 1884. 4 Col. Law Rep., 741.

Corporation-Stockhoider's Contribution.—One of several stockholders cannot back out of an agreement, which all have entered into, to contribute a number of shares each, to be sold for the benefit of the corporation, after the rest, in reliance upon the agreement, have contributed their proportion. And if his shares have been taken and used accordingly, he cannot bring trover for them. Conrad v. La Hue. Supreme Court of Michigan, December, 1883.

Infancy-Disaffirmance-Estoppel-That where a minor had given a deed reciting that she was of age, and after becoming of age she filed a disclaimer; held: that she was not estopped by the recitals in the deed from setting up the fact of her influence; that the doctrine of estoppel is inapplicable to infants. Weiland v. Kobick. Sup. Ct. Ill., 4. Col. L. Rep.

741.

Legal Advisers of. Receivers-Who are Incompetent-Receivers― When Appointed. Where, during the pendency of foreclosure proceedings against a railroad company, a receiver is appointed, the attorney of the plaintiff should not be authorized to act as the receiver's legal adviser. Nor will an attorney be appointed legal adviser of a receiver who is related to him, and has come from abroad and become a member of the bar of the circuit for the purpose of securing the appointment. In the absence of any special reason for so doing, the court will not go outside

of the bar of the circuit in selecting a legal adviser for a receiver. Semble, that where a railroad company has failed to pay interest on its bonds when due, and foreclosure proceedings are commenced against it, a receiver should not be appointed, in the absence of fraud, incompetency, etc., to do what the corporate authorities could do better. Blair v. R. R. U. S. C. C., E. D. Mo. 20 Fed. Rep. 348.

Officers of the U. 8.-Nomination by the President-Rejection by the Senate Conclusive-Rev. Stats, 1768-Power to Suspend Officers and to make Temporary Appointments—Effect of Refusal on Suspended Officer.— Where the senate of the United States rejects the nomination of a person for an office made by the president its action is conclusive. Rev. Stats. ? 1768, authorizes the president to suspend an officer, and to make a temporary appointment to fill the vacancy thus created until the end of the next session of the senate. A commission issued by the president of the United States to fill a vacancy in an office, during the recess of the senate, continues until the end of the next session of congress, unless sooner determined by the president, even though the person commissioned shall have been in the mean time nominated to the office, and his nomination rejected by the senate; and this rule applies where the vacancy occurs through the suspension of an officer. The temporary appointment of a person to an office by the president of the United States is not terminated by the refusal of the senate to confirm him for the permanent appointment, and the powers of a suspended officer whose position he occupies are not revived by such refusal. When the president of the United States suspends a person from office, his reasons will be presumed to be sufficient. In re Marshalship for Districts of Ala. 20 Fed. Rep. 379.

Recent Cases--Garnishee--Joint Liability-Answer-Two or more parties cannot be held as garnishee unless the liability to the principal debtor is joint, and this is so whether the proceedings relate to the possession of the property or the indebtedness. Where the garnishee admits no property in his possession, belonging to the debtor at the time of the service of summons, or any indebtedness to him, the proceedings as to the garnishee should end. Young V. Ball. Supreme Court of Michigan, January, 1884.

What is a Stock Dividend.-This question has frequently arisen in the courts and has led to much perplexity. It arises between the owner of life estate and the remainder man. It also arises between the corporation and the shareholders in respect of corporate taxation. The Court of Common Pleas of Dauphin County, Pennsylvania, in a learned opinion by SIMPSON, J., has lately laid down the rule that a distribution of stock, which severs earnings or profits from the mass of the property of the corporation and divides them among the stockholders, in proportion to their interest in the capital, is a stock dividend; while a mere arithmetical increase of the shares without a transfer to the shareholders of anything out of the treasury or property of the corporation, is not such a dividend. Appeal of the Western Union Tel. Co. 41 Leg. Int. 194. Am. Law Review.

An interesting case of constructive contempt came before the Court of Appeals of West Virginia, last week, and the decision of the court fining the guilty parties. The publisher and editor of the Daily Wheeling Intelligencer has caused no little excitement in that state. We publish the decision of the court, which was announced July 7, and which is certainly of general interest, in this number of the JOURNAL.

THE CINCINNATI BAR ASSOCIATION.

President.-Rufus King.

Vice Presidents.-J. B. Foraker, Thos. B. Paxton, C. B. Matthews, Drausin Wulsin, E. A. Ferguson.

Corresponding Secret ury.-W. T. Porter.
Recording Secretary.-W. C. Cochran.
Treasurer.-John M. Foster.

Executive Committee.-Benjamin F. Ehrman, T. M. Hinkle, J. R. Murdoch, Louis Kramer, Wm. H. Taft.

Committee on Membership.-Samuel F. Hunt, C. B. Matthews, H. P. Lloyd, D. Wulsin, J. R. Sayler.

Committee on Investigation.-John W. Herron, J. D. Brannan, Thomas McDougall, A. A. Ferris, C. M. Lotze.

Committee on Grievances.-T. D. Lincoln, Edward Colston, S. J. Broadwell, G. H. Wald, W. H. Mackoy.

Committee on Judiciary and Legal Reform.-A. F. Perry, E. W. Kittredge, Wm. M. Ramsey, John W. Warrington, L. Maxwell, Jr.

ARTICLES ORIGINAL AND SELECTED.

CONSTRUCTIVE CONTEMPTS.

An interesting case upon this subject is that decided recently by the Supreme Court of Appeals of West Virginia. The facts were that a publication had been made in a newspaper with reference to a pending case, charging three of the four judges of that court with attending a political caucus more than a year before, advising the action out of which the case arose, and promising the caucus to hold its action legal and proper, and charging the court with agreeing to decide the case before an approaching political convention for political purposes. The publication was held a contempt of court, which it might summarily punish.

It was contended in argument that the court had no power to punish summarily constructive contempts, the common law power having been limited in that respect by legislation. The court disposed of this point by stating that it had no machinery for impaneling a jury, and the act of the legislature did not apply to it. The learning of the subject of contempts generally is set forth in a series of articles in 20 Am. Law Reg. 81, 145, 217, 289, 361, 425 and of criminal contempts in 5 Crim. Law Mag. 151, 483.

It appears that at common law courts had power to punish contempts summarily; that this power was incident to the Federal courts, U. S. v. Hudson, 7 Cr. 32; Hollingsworth v. Duane, Wall. 77, but was limited by the act of March 2, 1831 (R. S. U. S. sec. 795), and that it was also limited by legislation in some of the states. Pa. Act, April 3, 1809; Ky. Stat., 1881; Va. Code, 1873; W. Va. Act. 1831, ch. 147. It is well settled that the constitutional provision guaranteeing the right of jury trial does not apply to proceedings for contempt: 32 N. J. L. 403; 37 N. H. 450; 12 Ia. 208; 23 Minn. 411; Wall Sr. 102. That a publication during the pending of a case reflecting upon the court, witnesses, parties, juries, or counsel, is a contempt punishable summarily, see in matter of Bronson v. Mitchell, 12 John. 460; People v. Wilson, 64 Ill. 195; 3 Scam (Ill.) 405; People v. Freer, 1 Cai. (N. Y.) 518; Tenny's case, 3 Foster (N. H.) 162; State v. Matthews, 37

N. H. 450. In the matter of Sturoc, 48 N. H. 428; Gandy v. State, 13 Neb. 445; Hughes v. People, 5 Col. 436; State, ex rel., De Buys, etc., 32 La. Ann. R. 1256; Hollingsworth v. Duane, Wall Sr. 77, 102; U. S. v. Duane, Id; Republica v. Oswald, 1 Dal. 319; Republica v. Passmore, 3 Yeates 438; 1 P. Wms. 675; 2. Atk. 469; 2 Ves. 520. Contra, Storey v. People, 79 Ill. 45.

While the propriety of the proceeding in the principal case may be questioned, there seems to be no valid reason why it should not be upheld both on authority and principle.

The case of Storey v. People, 79 Ill., is perhaps the only one which may be cited as in conflict with this ruling, and there the publication did not have reference to a pending case.

As to the applicability of the act in question the court say: "That statute that has been handed down and is now in our code under the changed condition of the state government, might be constitutional now as to the circuit courts, as under the principle before announced it might be deemed a regulation of the power of courts in their punishment for contempts, as it leaves power to the circuit courts by indictments under their own supervision to punish constructive contempts of the character we are considering. Whether such power, under the code, is sufficient for the protection of said courts we will not now determine, leaving that question to be decided when we are required to do so. Neither is it necessary to decide whether the legislature could limit the power of this court to punish for constructive contempt, as to us it is evident it has not intended to do so. We would not upon settled principles decide an act of the legislature to be unconstitutional 'unless it were necessary. The whole scope of the statute shows that it was intended to apply to inferior courts, and not to the supreme court of appeals. The twenty-eighth section provides for the punishment of direct contempts without a jury, so that the fine shall not exceed $50 and the imprisonment more than ten days; but,' it further provides, the court may in any such a case impanel a jury (without an indictment or any formal pleadings) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict.' This court cannot impanel a jury. It has no machinery to carry out the requirements of the statute, and therefore it is clear to us that the legislature did not intend it