be his (or her) voluntary act and deed before a judge, clerk of a court, justice of the peace or notary public, only within their respective territorial jurisdictions. Stat., chap. 73, §§ 2, 3. The acknowledgment required is the appearance of the grantor before the officer, in the presence of the witness, his there siguing the instrument, and declaring it to be his (or her) voluntary act and deed. The statute thus requires the husband and wife who convey or incumber their homestead to execute and acknowledge the deed or mortgage, and this requirement is essential to the validity of the instrument. Aultman & Taylor Co. v. Jenkins, 19 Neb. 211. Applying the law to the facts in evidence, we think that the District Court was fully justified in its conclusions that the wife did not acknowledge the execution of the mortgage; that she signed it without consideration; and that it is without legal effect as to the homestead described. Neb. Sup. Ct., May 6, 1891. Phillips v. Bishop. Opinion by Cobb, C, J.

*

MUNICIPAL CORPORATION LEASE IMPLIED RENEWAL.-Where a city rents a room for one year, with the right of renewal, at a rental payable quarterly, and the officers of the city occupy the room and the rent is paid by the city for several years, no agreement for the creation of a tenancy from year to year will be implied, and the city will be bound only for the time the room is occupied. We understand the doctrine in the courts of this country to be, that if the tenant hold over after the termination of his lease, the landlord has his election to dispossess him, or to treat him as a tenant for the next succeeding year, under the provision of the expressed lease, so far as they are compatible with a yearly holding. The English doctrine is stated as follows by an eminent text-writer: "But though at the end of the lease, if the tenant holds over, he holds as a tenant at sufferance, still if, when the period for the payment of rent becomes due, he pay the landlord the rent reserved by the expired lease, he becomes a tenant from year to year, the payment of such rent by him, and the receipt of it by his landlord, being considered indicative of their mutual intention to create a yearly tenancy. * * And it is very remarkable that the yearly tenancy thus raised is governed, not by the simple rules which govern yearly tenancies in the absence of express stipulation, but by the provisions of the expired lease, so far as they are consistent and compatible with a yearly holding." Smith Landl. & Teu., p. 219. Chancellor Kent lays down the doctrine as follows: "If the tenant holds over by consent given, either expressly or coustructively, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period, and is construed to be a tenancy from year to year." 4 Kent Com. (13th ed.) *112. In Dorrill v. Stephens, 4 McCord, 59, the Supreme Court of South Carolina say: "When a tenant holds over after the expiration of the lease with the express or tacit consent of the landlord, the law implies an agreement on part of the landlord that he will let, and on that of the tenant that he will hold, on the terms of the expired lease; thus substituting the contract with respect to the term which is past for that which is to come, not merely in form, but in its effect and substance." In Diller v. Roberts, 13 Serg. & R. 63, Chief Justice Tilghman says: "The general rule undoubtedly is that the law implied an agreement that he [the former lessee] should pay the same rent at the same time which he agreed to pay the first year." In Ellis v. Paige, 1 Pick. 43, the Supreme Court of Massachusetts say: "If there be a lease for a year, and the tenant continues in possession afterward, the law implies a tacit renovation of the contract." In Schuyler v. Smith, 51 N. Y. 309, it is said: "The law is too well settled to be disputed, that when a tenant holds over after the expiration of his term, the law will imply an

agreement to hold for a year upon terms of the prior lease.' With a view to the determination of the main question in the case, we have deemed it important to ascertain the underlying principle upon which the doctrine we have had under discussion is based. For this purpose we have quoted freely from the authorities, and we think these quotations sufficient to show that the tenant who holds over with the consent of his landlord is deemed to be in possession, upon the terms of his prior lease, upon the ground that the parties are presumed to have tacitly renewed the former agreement. This brings us to the question, will the law imply a contract as against a municipal incorporation? Let us state the question in a different form: Will a contract be implied on part of a city by reason of the acts of its officers, there being no formal agreement by the city council, or by its authority, upon which body alone the power of contracting is conferred by the charter? We think the question must be answered in the negative. There are important reasons why the powers granted to a municipal corporation should be exercised only by the agencies designated by the Legislature for that purpose. The officers upon whom the authority to make contracts for the city are conferred, should be presumed to be chosen with reference to the duties to be performed, and to act in conformity to the law which confers the power. When the authority is conferred upon a body of officers such as a city council, they must act together in formal meeting, so as to secure proper discussion and deliberation upon the measures which are brought before them. To imply a contract from the informal action of individual members of the body or other officers of the corporation would be not only to recognize an authority not conferred by law, and to thwart the will of the Legislature, but also to break down a safeguard erected for the protection of the city and its inhabitants against the inconsiderate action of its officers. It may be that when a municipal corporation has received the benefit of a contract, which it had the power to make, but which was not legally entered into, it may be compelled to do justice, and to pay the consid eration, or at least to pay for what it has received. In such cases it is said that the law will imply a contract. But we think it contrary to sound principles to imply a contract in any other case. As said by Mr. Justice Field in the case of Gas Co. v. San Francisco, 9 Cal. 453: "When the contract is executory, the corporation cannot be held bound unless the contract is made in pursuance of the provisions of its charter; but where the contract is executed, and the corporation has enjoyed the benefit of the consideration, an implied assumpsit arises against it." In City of Bryan v. Page, 51 Tex. 534, this court decided that a contract could not be implied as against the city to pay counsel for a legal opinion contracted for by the mayor, although the council had availed themselves of the services rendered by the plaintiff under the agreement with the mayor. In the opinion the court announce broadly the doctrine that a contract will not be implied on part of a municipal corporation. The case is a very strong one, and it is certainly authority for holding that the contract cannot be implied for a renewal of the lease in this case merely by reason of the officers having held possession after the termination of the lease. We think however the city is bound to pay for the rooms for the time its officers occupied them. Tex. Sup. Ct., April 24, 1891. City of Antonio v. French. Opinion by Gaines, J.

SEDUCTION-EVIDENCE-CORROBORATION.-Revised Statutes of Missouri of 1879, section 1912, provides that in trials for seduction under promise of marriage, the evidence of the woman as to such promise must be corroborated. Held, that though evidence of circumstances which usually accompany the engagement are

of

marriage. In this case there is an attempt to evade this plain statutory provision by the principal witness testifying, first, to the promise of marriage, and then to "the circumstances that corroborate her. This is clearly not the law. She must be corroborated by some witness other than herself. State v. Hill, supra; Rosc. Crim. Ev. (6th Am. ed.) 765; State v. Reeves, 97 Mo. 668; State v. Primm, 98 id. 368. 2. There was no evidence whatever offered to show that the prosecutrix was a woman of good repute, and in such case there can be no conviction for the offense charged against the defendant in this case. The indictment must allege, and we think the better doctrine is the State must prove, in the first instance, that the woman alleged to have been seduced is of "good repute." 1 Bish. Crim. Proc., §§ 1103-1105; Bish. Stat. Crimes (2d ed.), § 648; State v. Hill, supra. It is true the law presumes that every woman is chaste and of good repute till the contrary appears, but so also does the law presume every one to be innocent of crime till he be proven guilty. Hence we have one presumption nullifying the other, and in criminal trials the presumption of the innocence of the accused must prevail till it be overcome by evidence beyond a reasonable doubt. Indeed it seems no great hardship on the State to require it, when an attempt is made to send a man to the penitentiary for seducing a woman under promise of marriage, to allege and prove, in the first instance, that the woman alleged to have been seduced is of "good repute." This conclusion seems better to accord with the legal analogies and reason than the contrary doctrine. Evidence of the previous chastity of the seduced woman, which is required in some States, must, in the nature of things, be only slight; but there can be no difficulty in proving good repute," as required by our statute, if the woman be of "good repute." Mo. Sup. Ct., Second Division, Juue 2, 1891. State v. McCaskey. Opinion by Thomas, J. TAXATION-CORPORATIONS--JOINT-STOCK COMPANY. -A company which is a copartnership, constituted by written articles of association, having its capital divided into shares which are transferable, which is not dissolved by the death of a shareholder, the business of which is conducted by a board of managers, and which has all its property vested in the exclusive custody of three trustees, and conducts all legal proceedings in the name of the president or of the three trus tees, though a quasi corporation, as between the members, by their voluntary contract, but not incorporated or created by franchise, is not within the meaning of

a statute subjecting to taxation all moneyed or stock corporations deriving an income or profit from their capital stock or otherwise. The real question however is as to the sense in which the term "corporation" is used in the State statute, and whether it can be interpreted to embrace partnerships which masquerade as corporations, or which are permitted by State laws to enjoy some of the privileges which are usually conferred upon incorporated companies. Upon such a question the interpretation of a State statute-the Federal courts yield their own opinions to the judgment of the highest court of the State. It is understood that a case now pending, which has been decided by the lower courts, is soon to be reviewed by the Court of Appeals, in which the precise question now involved must be determined, and that any decision of this court will be taken for review to the Supreme Court of the United States; and it is supposed that before this cause can be reached in the Supreme Court the Court of Appeals will have decided the question. Under these circumstances it would serve no useful purpose to attempt any extended statement of the reasons which lead me to conclude that the statute does not authorize the present tax. The conclusions reached by the Supreme Court of this State in Bell v. Streeter, IN. Y. Trans. (N. S.) 6, by Strong, J., and in People v. Coleman, 5 N. Y. Supp. 394, by Barrett, J., affirmed at General Term (13 N. Y. Supp. 833) coincide with my own, and are adopted for present purposes. The reasoning of the opinion in People v. Wemple, 117 N. Y. 136, Danforth, J., delivering the opinion of the Court of Appeals, undoubtedly tends to an opposite result. In that case it was decided than an association organized by contract substantially like that of the Adams Express Company was properly taxed under a statute subjecting to a franchise tax "every corporation, joint-stock company or association whatever, now or hereafter incorporated or organized by or under the laws of any other State or country, and doing business in this State." The opinion adopts the view that the word "incorporated" is not to be taken in that statute in a technical or restricted sense, but embraces any combination of individuals so organized for conducting business as to enjoy the privileges of bodies corporate by providing for a permanent investment of capital, the right of succession, the transfer of interests by assignment of certificates, the prosecution of debts in the name of an agent, and having capacity to avail themselves of enabling statutes, which confer such privileges upon aggregate bodies. Manifestly the object of that statute is to tax the privilege of doing business in aggregate bodies, and its language denotes persuasively an intention to tax all corporations and all associations of an analogous type doing business within the State. The literal interpretation which was contended for would exclude associations within the spirit although not within the strict anguage of the act. But when a statute imposes a tax upon the capital of moneyed or stock corporations," without more, there is little room for interpretation. U. S. Circ. Ct., S. D. N. Y., May 14, 1891. Hoeu v. Coleman. Opinion by Wallace, J. 46 Fed. Rep. 221.

TELEGRAPH COMPANIES-NEGLIGENCE-DAMAGES. — (1) The statement printed on a telegraph blank, that the sender agrees that he will not claim damages for errors or delays or for non-delivery of the message, does not exonerate the company from liability for failing to send the message. (2) Nor will such statement affect the company's liability for non-delivery, where it is clearly proved that the message was not delivered, and there is nothing to show any effort to deliver it. (3) A dealer in cattle living in Iowa wired his Chicago correspondent, "Send me market, Kausas City, to-morrow and next day." He had previously sent and received a great many messages from that of

A

The Albany Law Journal.

ALBANY, AUGUST 8, 1891.

CURRENT TOPICS.

GOOD deal of criticism has recently been directed at the custom which obtains in the courts of England of interrupting counsel in the course of their argument with questions, objections and the citation of opposing cases. This practice, in which English judges have indulged with great freedom from time immemorial, is said to be growing in favor with them, insomuch that an argument in the appellate courts of that country is now described as "a running conversation between the judges and lawyers," and criticised as being "sometimes amusing, but not usually helpful in arriving at an understanding of the case at issue." As high an authority as the attorney-general of England, Sir Richard Webster, has lately indulged in some pretty severe strictures on the custom, referring with plainlyexpressed regret to the practice of an earlier day, when the arguments of counsel were to a great extent permitted to proceed without interruption, and quoting the words of "a distinguished member of the present bench," who had recently said to him "that the best advocate was no longer the man who prepared the best oration, but he who could best meet the cross-examination of the bench." And the Law Times, commenting on these words of the attorney-general, asks the question, "Does this sort of thing promote the interests of justice?" and answers its own question very gravely in the words, "We doubt it very much indeed." The American critics of this mode of conducting an argument are quite right in contrasting with the general practice of the English courts that of our American courts in this respect, it being true, as the Tribune says, that "An appellate court in this country usually listens in dignified silence while the lawyers present their cases." But these critics seem not to be aware of the significant fact that our highest tribunal, the Supreme Court of the United States, has to a very large extent adopted the practice of the English courts. Speaking from some little experience, and a very considerable observation, of that august body, we should say that the Supreme Court seldom, if ever, allows a case to be argued before it without interruption, and that in the more important cases these interruptions are so frequent as often to convert the argument into a rigid examination by the court of the counsel's reasons for the faith that is in

him. Indeed we have in mind a case recently argued before the Federal Supreme Court, in which the points at issue were so fully brought out and discussed in the questioning process to which appellant's counsei was subjected by the court that counsel for the respondent had nothing left to say. His argument had been made for him by the court, and he won his case "hands down." This was not because apVOL. 44 No. 6.

pellant's case was without merit, nor yet because he was the victim of a prejudgment by the court, but simply because the judges, by the directness and cogency of the questions with which they sifted his argument as it proceeded, got at the gist of the case, and were ready for consultation upon it before his opponent rose to reply.

The fact that the Federal Supreme Court - a tribunal noted for its heroic, albeit futile, devotion to its Augean calendar habitually uses the method of procedure above described, should lead us to reexamine the grounds of these criticisms. Is it true that this practice of questioning counsel operates to delay instead of facilitating the object for which the court is sitting, namely, to get at the facts of the case at issue, and to learn from opposing counsel on what propositions of law and what supporting authorities they rely to enforce their conflicting views of the case? The method is doubtless a dan gerous one, and liable to grave abuse. In the mouth of My Lord Coke it might become a means of brow. beating and intimidating au obnoxious member of the bar; in the hand of a Justice Stephen it would make the rod of justice as heavy as the loin of the common law, and in the case of Lord Chancellor Halsbury, the Master of the Rolls and Lord Justice Fry, it was but yesterday (in the Jackson Case, of blessed memory), made the occasion for some very undignified "el affing" of Mr. Jackson's counsel by those ordinarily solemn dignitaries. But, in the hands of safe and capable judges, is not this, after all, the shortest, because the directest, and therefore the best road to the goal in view? Does this method sacrifice any thing except the natural ambition of the eloquent advocate to "fire off" his carefullyprepared oration for the astonishment and admiration of the court and audience, and does it not, when judiciously and persistently employed, save an incalculable amount of time? As far as our observation has gone, certainly as far as our Supreme Court is concerned, the judicial interruptions of which complaint is made are not intended to display the learning of the judges, or to discompose counsel, or to tickle the ears of the groundlings, but to save those priceless moments of which the fleeting hours of the judicial day are composed, to get at the speaker's mind, to grasp his theory of the case, to occupy his point of view, with as little loss of time and energy as possible. These hard-worked judges, who do not know what it is to be even with their work, are naturally impatient of oratory; they will not listen to set speeches, they will have none of your eloquent periods--except that which marks the end of your effort. Here, if you utter your nunc plaudite, you may be sure at least of an approving nod from the bench.

Few people, we imagine, are aware how much of the time of our judges is frittered away in listening to the statement and reiteration, by inexperienced counsel, of old and familar propositions of law, to the discussion of principles which