We have received the argument of Mr. B. F. Sage, in the case of New Hampshire v. Louisiana, pending in the United States Supreme Court, and involving THE following decisions were handed down Friday, the question whether a State can judicially be forced to March 19, 1880: Judgment affirmed with costs- Welch v. Smith; Wing v. Smith; Brown v. Smith; Augustine v. Britt; Roll v. Northern Central Railway Co.; Harrison v. Ross. Judgment affirmed - Mayor v. The People. Judgment reversed, and new trial granted, costs to abide event - McCormick v. Pennsylvania Central Railway Co.; Bruce v. Platt; Drinkwater v. Dinsmore. Judgment reversed and new trial granted, costs to abide event, as to defendant Frisbie - Bacon v. Frisbie. Judgment reversed and judgment ordered for defendant, with costs-Coman v. Lakey. Order reversed as to appellant without costs-Sheridan v. Andrews. Appeal dismissed, with costs - Duckworth v. Roach. Order of General Term and Special Term modified so as to strike from the clause complained of, all, except that portion of it which sets aside the award, and adjudges it void and of no effect, and as thus modified, orders affirmed, without costs to either party in this court - Hiscock v. Harris. Order of General and Special Term reversed and motion granted, with costs of motion and costs of appeal to General Term and Court of Appeals - American Union Telegraph Co. v. Middleton. Orders of General Term and Special Term reversed, with costs of appeal to this court to appellant -In the matter of the application of Jacob H. Clute, Trustee, etc.; Edward Savage v. Hyla Smith and others. Motion denied, without costs and without prejudice-Sackett v. Waterman. Motion denied, without costs - Indig v. National City Bank of Brooklyn, The court took a recess until Monday, April 5, 1880. THE NOTES. IE Elizabeth City (N. C.) Economist informs us that the Greensboro' law school is under the charge of Judges Dick and Dillard, of the Supreme Court. It also says: "The 'Introductory Lecture' of Judge Dick at the first session of 1880 we have read with much pleasure. It is an interesting review of the origin and progress of law and the history of its chauges and gradual development among nations, until it reached its present proud position as 'the perfection of human reason." " 66 The Hon. John A. Cuthbert, of Mobile, Ala., is probably the oldest practicing lawyer in the world. The Mobile Register says he is 91 years old, and is still engaged in the active discharge of his professional duties. He is a native of Georgia, was a member of Congress from that State in 1813, and was an officer in the war of 1812. We know of but one case in legal biography that exceeds this in longevity, while engaged in active professional practice. Macaulay, in his History of England," relates, that when William III invaded England and re-established the laws which James II had subverted, he marched in triumph into London, and was met by the different classes of citizens with addresses of welcome. The members of the legal fraternity of London marched in procession to welcome the King, Sergeant Maynard at their head, then 93 years of age, and the acknowledged leader of the London bar. After he had presented the address of welcome in the name of his brethren, King William said pay its debts. Mr. Sage supports the negative. We have received a pamphlet re-print of an article published by M. Edourd Clumet in the Journal du Droit International Privé, on the actual state of international relations with the United States in regard to trade-marks, accompanied by opinions by Mr. Kelly, of New York, and Mons. Howard and Pouillet, advocates, and Prof. Ch. Lyon-Caen, of Paris, and the opinion of the United States Supreme Court in the trade-mark cases. The New York Daily Register says: "The conciseness and clearness of the short complaint of the Erie against McHenry is a model for prolix pleaders. In forty-five words, besides figures or numbers, plaintiff makes all the allegations necessary to recover nearly a million and a half of dollars; and though a bill of particulars might be asked, there is no indefiniteness or uncertainty in the short allegation." The concealment of treasure-trove, now punishable by fine and imprisonment, was formerly punishable by death. But in the good old times the insecurity of property was so great that a vast amount of valuable property was hidden away, while the insecurity of life was so great that the owners themselves were very commonly not to be found; and the consequence was that treasure-trove was rather more plentiful than at present a circumstance which encouraged the Dousterswivels of the day to pretend from their "skill or knowledge in any occult or crafty science" to discover goods lost, etc., the statute 9 Geo. 2, chap. 5, to the contrary notwithstanding. Finding that treasure-trove had become a rather important source of casual revenue, the Crown, of course, claimed to be entitled to those windfalls, for various excellent reasons, which may be read, with due appreciation, in the Law Dictionary of Sir Thomas Edlyne Tomlins, knight, founded upon that of "the industrious Giles Jacob;" but suffice it here to say that they were quite as sufficient as those in support of the law, "de sturgeone observetur, quod rex illium habebit integrum; de balana vero sufficit si rex habeat caput, et regina caudam," of which latter clause we have read the following metrical version: "In olden time, on Britain's coast, -[Irish Law Times. In the leading Presbyterian church in Troy, N. Y., they have a Bible class, superintended by a prominent lawyer, and attended by the lawyers, merchants, and other prominent members of the congregation, beside the pastor himself, one of the most learned divines of northern New York. Among the lawyers is the present United States district attorney for the northern district of New York. It is said that the proceedings are occasionally somewhat lively, but it is thought that the Bible is studied more thoroughly and better understood in that church than ever before. That is the natural result of putting the matter in charge of a lawyer. The Albany Law Journal. A ÁLBANY, APRIL 3, 1880. CURRENT TOPICS. BILL has been introduced in our Legislature, proposing to repeal the second paragraph of section 36 of the Code of Procedure, which requires the plaintiff to establish certain facts in order to entitle him to an attachment, thus entitling every plaintiff, in the cases mentioned in section 635, to an attachment as of course at the commencement of his suit. This bill grows out of a mistaken theory, is objectionable in theory and will prove inefficient in practice. It grows out of the theory that our collection laws are not effective. The New York Times says: "It is well known that in most, if not all of the New England States, the laws for the collection of claims are much more effective than in this State. In those States an attachment against the property of the debtor may in every instance be issued on the commencement of the action." The statement in the first sentence quoted is erroneous. Our collection laws are the most efficient in this is that the commencement of the action gives the debtor twenty days in which he can so arrange his affairs, if dishonest, that the creditor will get nothing by his judgment." This is true, but how will the matter be helped by the proposed bill? The dishonest arrangement will only be hastened. The dishonest debtor will not wait to be sued, but will arrange himself during the term of credit. There is absolutely no way of defeating the making of fraudulent transfers, except by abolishing the credit system. We think this bill if it should become a law would disappoint the expectations of merchants in regard to dishonest debtors, and would lead to much unjust and unnecessary embarrassment of honest defendants. Apropos of the bill now pending in our Legislature, prohibiting the granting of new trials except for errors which manifestly prejudiced the appellant, it seems that such a rule is now prevailing in England, and that it does not work altogether satisfactorily. We extract the following from the Lon don Law Times: "We are sorry, in the interests of legal science, that a rule was refused, on Monday, in Morrall v. Morrall, upon which a brief comment was made the week before last. The case involved some nice of parentage, upon which an authoritative decision would have been desirable. Probably the judges were right in the view which they seemed to hold, that no other verdict than that which established the illegitimacy of the plaintiff would have been tenable; but the new rule limiting new trials for the rejection of evidence to cases where there has been a miscarriage of justice may be so worked as to tempt judges not only to speculate on the effect of evidence on a jury, but even to speculate as to what evidence would have followed if a question rejected at the trial had been admitted. The old rule giving an absolute right to a new trial on the rejection of evidence, in some cases caused unnecessary trials, country. Unless we are misinformed the New Eng-questions of presumption in the law of repudiation land laws do not allow judgment until the next term of court, process being always then returnable, and as there are generally but two terms a year, the plaintiff has sometimes to wait six months before he can find out whether he is to be resisted. Then if a defense can be interposed, as is generally the case, another six months at least must elapse before he can get judgment. This is vastly less efficient than our practice of allowing judgment out of term at the end of twenty days in case of default. Then after judgment there is, we believe, nothing in those States to answer to our supplementary proceedings but a tedious and expensive bill of discovery. Again, the taxable costs in those States are so meager that the plaintiff always has to pay his own lawyers. It is a great mistake to revile our collection laws. Except for the privilege of making preferential assignments, we regard them as unexcelled in efficiency. The proposed bill is wrong in theory. The theory is that a plaintiff is to be regarded as successful the moment he sues, and a defendant is to be regarded as defeated the moment he is sued. The defendant's property is to be incumbered or tied up, or he is to be compelled to give security, at the cry of every man who says he has a claim against him. It would be more reasonable to require every plaintiff to give security for costs than to require every defendant to give security for damages and costs, but we do not approve of either course. Let them both grow together until the harvest, when it shall appear who is right and who is wrong. So much for theory. Now what is the practical aspect? The Times says: "The defendant always has twenty days after service of summons in which to answer. Until this period expires judgment cannot be obtained. The result Vor.. 21.- No. 14. but it tended to the certainty of the law of evidence. The judicial discretion which has now been introduced has the advantage of elasticity, but it has also the danger of looseness." We regard this as a very just criticism. There can be little doubt that such a rule tends to defeat justice, however it may diminish litigation. It seems that here is a case of attempted reform in which the English have outstripped us, with a very barren if not a positively prejudicial result. The result of the trial of Hughes for the murder of William J. Hadley gives assurance of several things to our profession. First. It is not absolutely lawful to kill a man because he does not pay his debt, although that man may be a lawyer; and the rule is not varied by the fact that he may have acquired great distinction as a criminal lawyer. Second. That the question of insanity depends greatly upon circumstances; for example, if a man, like Cole, arms himself with a pistol, and goes about the State in a great rage in search of the alleged seducer of his wife, and when he finds him in a public place, kills him at sight, he is insane; but when a man buys a butcher knife, and goes to dun his debtor, who has before refused payment, and when his debtor will not pay him, kills him in great rage, he is not insane. Third. That although he is not insane, yet his sudden rage at such an unexpected result modifies the inference of deliberation otherwise inevitable from the previous purchase of the knife, and renders the offense less than murder in the first degree. Fourth. That the amount of rage which the creditor of a lawyer, thus indebted and declining to pay, may lawfully or does usually entertain, is not quite sufficient to mitigate the offense to manslaughter, but just enough to render it murder in the second degree. Fifth. That a man who is depraved enough thus to kill his debtor, although a lawyer, and who has had his neck saved by the ingenuity as aforesaid of other lawyers, who get no pay for their services, is usually depraved enough to think that half the lawyers ought to go where he is going, as was bitterly observed by Mr. Hughes in his closing remarks. Sixth. That while it seems no evidence of insanity, yet it is not altogether safe always to "move the previous question" in a legislative hall, as Mr. Hughes sportively did. And yet it is a pity to let such legislative talents rust. Is there not a legislative department in prison to which Mr. Hughes may be devoted, where he may practice these motions, and where he may be shown to legislators, visiting the institution, as at once an example and a warning? In the Assembly, Mr. Case proposes to amend section 5, chapter 448 of Laws of 1876, as amended by chapter 210 of Laws of 1879, giving power to courts to exclude spectators in certain cases, by adding the cases of keeping bawdy houses and houses of ill-fame.- Mr. Congdon proposes to compensate attorneys assigned to defend poor prisoners, upon the certificate of the presiding judge, and to permit the boards of supervisors to collect by tax and pay the amount so certified, which must then be paid in full; but in murder cases it is imperatively directed that not less than one-half the amount so certified shall be so collected and paid. Mr. Terry proposes that persons jointly indicted shall be competent witnesses for one another upon the trial of either; also that in criminal trials a husband or wife may be examined either in behalf of or against the other, but shall not be compellable to testify one against the other.- Mr. McCarthy proposes to give to defendants in pending actions on contract the right to interpose, by supplemental answer, the defense of discharge in bankruptcy. In the Senate, Mr. Fowler proposes to amend the law of evidence, by dispensing with the necessity of calling a subscribing witness to prove any instrument not required by law to be witnessed. A very sensible idea. The judiciary committee report a bill prohibiting preferences in assignments for the benefit of creditors. Another sensible idea. A concurrent resolution, introduced by Mr. Forster, proposes to amend article 8 of the Constitu tion by adding provisions vesting the government of every city in a mayor and common council, and setting forth their powers; prohibiting the incurring of any municipal indebtedness to exceed ten per cent of the assessed valuation of taxable property; directing that taxes shall be levied sufficient to pay the interest and discharge the principal of such debt in twenty years; and directing that all existing charters shall be subject to these provisions in one year.- Mr. Williams proposes to have convicts, who shall fully have earned the commutation for good behavior now provided by law, restored to citizenship as of course upon their discharge, except in the cases of conviction of perjury, and a second or other subsequent conviction of any other offense.- Mr. Pitts proposes to give to courts of Special Sessions, except in Albany or New York, exclusive original jurisdiction to hear charges of cruelty to children, not amounting to felony. Now that the public authorities have got the man who annoyed the Rev. Dr. Dix by sending hundreds of people to his house on all sorts of fools' errands, they have suddenly become very much mystified as to the man's motives. To be sure, the man wrote the reverend doctor that he would discontinue proceedings on receipt of $1,000 or $1,500, and to be sure, he had been in prison in London for a similar attempt to extort money; but as the man now says he cannot conceive why he did so, and thinks he must have been out of his head, and was not particularly in need of money, the sagacious detective force are also wondering why he did so. If there is one thing for which detectives are more celebrated than another, it is for their inevitable habit of inventing motives where none are possible, and ignoring them where they are perfectly apparent.- The curious offense in question is not within the law, it seems, although some one proposes to our Legislature to make it criminal in future; and the offender would have gone unwhipped for his very ingenious "racket," if he had not written one letter too many, in which he threatened to expose some offense of which he alleged the reverend doctor had been guilty, unless he "came down;" thus cleverly bringing himself within the statute of black-mail. Nation, advances the idea that "the laws of the Mr. A. V. Dicey, in an interesting letter to the States which make up the Union betray at every turn the conservatism of the American people," and that "America, not England, is at present the home of legal conservatism." As a proof, he cites the statute of frauds, in which, by adhering to the phraseology of the English statute, the spirit of the enactment has been lost, as for example, fifty dollars, "representing the sum of £10, of course does not really represent any thing equal to the value of that sum in 1677." "As late at least as 1870," he continues, "a stranger might find in use in Chicago niceties of pleading which had for twenty, or it might be forty, years been out of use in England.” This is really amusing, when it is considered that nearly all the legal reform of England is copied from the institutions of this State, and that the same reforms have been adopted in a great number of our own States and other countries. The three great legal reforms of the age are due to America; namely, the abolition of forms of pleading and the distinction between courts of law and of equity; the admission of parties and husband and wife as witnesses in both civil and criminal proceedings; and the married women's enabling acts. It is due, however, to England to confess that she recognizes and accepts reform rather more gracefully than America. Nothing is more surprising than the quietness with which she yielded up her old distinctive court of chancery. From the present prospect too it would not be very rash to prophesy that she may outstrip us in the necessary work of general codification. Mr. Dicey praises some of our law books, such as Story's Conflict of Laws, Holmes' edition of Kent's Commentaries, Langdell's Cases on the Law of Contract, and Throop on the Statute of Frauds. While he was about it he might have remarked that the following American law books are the best of their kind: Wheaton on International Law; Greenleaf on Evidence; Parsons on Contracts; Schouler on Domestic Relations; Wharton's and Bishop's Criminal Law; Cooley on Torts; Dillon on Municipal Corporations. The shifts resorted to in England to enable a prisoner to tell his story to the jury are quite ludicrous. The Law Times says: "At the Leeds Assizes, last week, two men were on their trial for robbery accompanied by violence. The defense was that no robbery had been committed, and counsel for the defense, in addressing the jury, made the usual complaint that the mouths of his clients were closed, and that they were not able to give their version of what occurred. Mr. Justice Hawkins thereupon interposed with the remark that the prisoners could make any statement they liked, though not upon oath; but, after some argument, he consulted with Mr. Justice Lush, and in the end he decided, though the prisoners were defended by counsel, to allow them to make any statement they chose. In the course of his remarks the learned judge said: 'I think that, though there are dicta of individual judges to be found in the books, that a prisoner when defended by counsel is not at liberty to make a statement to the jury, I ought not to be bound by such dicta, because there is no decision of any court of criminal appeal on the point. As a general principle, a prisoner may make his statement, and give his version of the transaction in respect of which he stands charged.' His lordship then went on to say that the statement might be made by the counsel appearing for the prisoners, but he thought it might also be made by the prisoners themselves, and in the case in question, after counsel for the defense had concluded his address to the jury, the prisoners made their statements as to the facts." It thus seems that the object of the law is not to enable the prisoner to assume the footing of a witness, but to enable the law to evade the charge that his mouth is closed. The law says in effect, "you may make your statement, but it does not amount THE case of Manufacturers' Bank v. Dickerson, 41 TN. J. L. 449, decides a point of suretyship. A bond was given for the faithful performance of duty by an "assistant clerk" in a bank. He was emAfterward he was proployed as a messenger. moted to the next higher clerkship, and still later to the position of book-keeper. In the latter position he was near the money drawer, and from time to time abstracted money from it, and made false entries to conceal the crime. The last promotion was That the defendants are not liable for any want of without the knowledge of his sureties. Held, 1. faithfulness on the part of D. after his second promotion. 2. That when he was promoted to the position of book-keeper he ceased to be an assistant clerk within the meaning of the bond. 3. That upon a fair construction of the contract, the sureties could not have contemplated a liability after such a promotion. 4. That the promotion involved a material alteration of the principal's duties, increased the perils of the sureties, and released them from the bond. The court said: "The rule of construction to be applied to contracts of suretyship, as stated in Miller v. Stewart, 9 Wheat. 680, is to the effect that the liability of a surety is not to be extended, by implication, beyond the terms of his contract; that he is bound only to the extent, and in the manner and under the circumstances pointed out in his obligation, and no further; that it is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit; that he has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it, and a variation is made, it is fatal." "Resulting from the principles just stated is the familiar rule that the surety is discharged if, without his consent, the principal parties make a new agreement inconsistent with the terms of the original agreement, or in the mode of performing them.” "From the same principles results also another rule, still more closely applicable to the case before us, namely, that when there is a bond of suretyship given for an officer, and by the act of the obligee the office is materially changed, so as to affect the risk of the surety, the bond, as to him, is avoided." This doctrine and its application are well supported by the following authorities: Ludlow v. Simond, 2 Cai. Cas. 1; S. C., 2 Am. Dec. 291; McMicken v. Webb et al., 6 How. 292; Bowmaker v. Moore, 7 Price, 223; Smith v. United States, 2 Wall. 219; McCluskey v. Cromwell, 11 N. Y. 593; Whitcher v. Hall, 5 B. & ContemC. 269; Pybus v. Gibb, 6 Ell. & Bl. 902. poraneously, the case of North-western Nat. Bk. of Minneapolis v. Keen, Philadelphia Common Pleas, March 13, 1880, 37 Leg. Int. 124, involves the same question and decides it in the same way. There the bond was for the discharge of the duties of bookkeeper of the bank, from which position the principal was promoted successively to the positions of teller and assistant cashier. The surety was informed of none of these changes. It was held that the surety was not liable for his embezzlement in the last position. The court cite Miller v. Stewart, supra. They hold that the liability was not extended by the words, "and in every way faithfully and honestly administer his duties while in the employ of the aforesaid bank." They remark: "A person may well be willing to give security that a good accountant will make a good book-keeper, while he would hesitate very long before he would guarantee that a book-keeper could be intrusted to fill a position in which he could embezzle one hundred and twenty-eight thousand dollars before being detected. Human integrity depends very often upon the amount of temptation to which it is to be exposed. And it is as essential to a bondsman to know the stress to which his principal is to be subjected, as it is to a mechanic to know the weight his contrivance is expected to support." The case of In re Rudolph, United States Circuit Court, district of Nevada, March, 1880, 10 Cent. L. J. 224, involves the constitutionality of a State license tax on "drummers." The Nevada statute provides that "every travelling merchant, agent, drummer, or other person selling, or offering to sell, any goods, wares or merchandise of any kind, to be delivered at some future time, or carrying samples and selling, or offering to sell goods, wares, or merchandise of any kind similar to such samples, to be delivered at some future time," shall obtain a license, and pay for such license $25 per month. It further provides that any person without a license, "so offering any goods, wares, or merchandise for sale shall be guilty of a misdemeanor, and on conviction shall be fined in any sum not less than $50 nor more than $500." The court hold this constitutional, on the authority of Woodruff v. Parham, 8 Wall. 123, and Hinson v. Lott, id. 148, which hold that such enactments are valid in the absence of any discrimination in favor of the products of the enacting State against those of other States. The court conclude: "In all the cases cited on behalf of the petitioner from Brown v. Maryland, 12 Wheat. 419, down, there was discrimination, and the discrimination was referred to as the obnoxious feature of the statute in question in the various cases. This is the distinction taken between that class of cases and those cited in this opinion, expressly taken in Welton v. Missouri, 1 Otto, 282; 3 Cent. L. J. 116, and again recognized in Cook v. Pennsylvania, 7 Otto, 573, as well as in other cases. The statute of Nevada makes no reference whatever to foreign goods from or the products of other States. It simply imposes a license tax upon the occupation of all travelling merchants, agents, drummers, or other persons, selling or offering to sell goods of any description without reference to when or where they were made. The act we think valid, and that the petitioner is not restrained in violation of the Constitution or laws of the United States." The same statute received the same construction by the Supreme Court of Nevada, in Ex parte Robinson, 12 Nev. 263; S. C., 28 Am. Rep. 794. In Ex parte Frank, 52 Cal. 606; S. C., 28 Am. Rep. 642, the San Francisco "sample-seller's ordinance " was pronounced unconstitutional, because it fixed one rate of license for selling goods which were within or in transit to the city, and another rate for other goods. The case of Leopold v. Salkey, 89 Ill. 412, is a novel one in this country, we believe. The plaintiff had agreed in writing to serve the defendant as manager and superintendent of his clothing manufactory, and to devote his whole time, attention, and skill thereto, for three years, for $3,000, payable monthly. After entering on the service, without fault on his part, the plaintiff was arrested, and confined in jail about a fortnight during the busiest season, and the defendant hired another person in his place. On the plaintiff's release he tendered his services, which the defendant refused. He had been paid in full for the time he had actually worked. Held, that he could not maintain an action of damages for breach of agreement by defendant. It is well settled that where an employee is prevented, by inevitable accident without his fault, from full performance of his agreement, he may recover quantum meruit for his actual service. Fenton v. Clark, 11 Vt. 557; Hubbard v. Belden, 27 id. 645; McClure v. Pyatt, 4 McCord, 26; Bacot v. Parnell, 2 Bail. 424; George v. Elliot, 2 Hen. & Munf. 5; Dickey v. Linscott, 20 Me. 453; Ryan v. Dayton, 25 Conn. 188; Wolfe v. Howes, 20 N. Y. 197; Spalding v. Rosa, 71 id. 40; S. C., 27 Am. Rep. 7. This is a departure from the old rule established in Cutter v. Powell, 6 T. R. 320, and followed in Appleby v. Dods, 8 East, 300; and it seems to be an exception to the general rule, that inevitable accident does not excuse the performance of a contract which a party takes upon himself, growing out of the idea of personal service which cannot be rendered by any one else. Harmony v. Bingham, 12 N. Y. 99; Spalding v. Rosa, supra. In such case the employee is not liable in damages to the employer. Dickey v. Linscott, supra; Spalding v. Rosa, supra. The rule has also been extended to cases of contract to deliver specific chattels, which are subsequently destroyed by accident. Dexter v. Norton, 47 N. Y. 62; S. C., 7 Am. Rep. 415. But so far as we can ascertain the principal case is the first of the kind ever brought in this country. The doctrine there decided is laid down obiter in the two Vermont cases cited above. It has also been exactly decided in Poussard v. Spiers, L. R., 1 Q. B. Div. 410; S. C., 17 Eng. Rep. (Moak) 93, an action by a husband to recover damages for a wrongful discharge of his wife, engaged as an opera singer, and disabled by illness from attending the rehearsals and first performances. |