ratus was purchased of another, if the defect is one which might have been discovered by any known means. (4) After a hearing and taking of testimony the District Court awarded complainant $5,000 damages. Both parties appealed to the Territorial Supreme Court, where the case was again fully heard and testimony given by both parties. A decree for complainant for $15,000 was there given. This decree is affirmed, the court remarking that damages in such a case must depend very much upon the facts and circumstances proved at the trial. When the suit is brought by the party for personal injuries there cannot be any fixed measure of compensation for the pain and anguish of body and mind, nor for the permanent injury to health and constitution, but the result must be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted. Railroad v. Baron, 5 Wall. 90, 105; Curtis v. Railroad, 18 N. Y. 534, 543. Decree of Supreme Court of Washington Territory affirmed. Steamship City of Panama et al., appellants, v. Phelps. Opinion by Clifford, J.

CORPORATION -CONTRACT BY OFFICERS OF, BEFORE INCORPORATED -- ESTOPPEL- AGENCY. Plaintiff, a manufacturer of machinery, was applied to by defendants, who claimed to be the prudential committee of a corporation organized under the laws of Michigan, to manufacture for and ship to the corporation certain machinery. The plaintiff accepted the order by a letter addressed to the corporation under its corporate name. A corporation had been formed, but at the time the order was given the certificate of incorporation had not been filed with the county clerk. Such filing is required by law before a corporation is authorized to commence business. The certificate was afterward filed. The defendants, at the time of giving the order, had been appointed prudential committee by the shareholders of the corporation and had been authorized by such shareholders to order this machinery. Held, that the corporation was liable for the machinery, and the defendants individually were not, and this notwithstanding that the machinery was charged by plaintiff to defendants individually, and was so shipped to them. The agreement was originally made with the corporation, and it could not be afterward changed by either of the parties without the consent of the other. Utley v. Donaldson, 94 U. S. 29. The fact that the corporation at the date of the order was forbidden to do business, would not affect the result, as it subsequently ratified the contract by recognizing and treating it as valid. This made it in all respects what it would have been if the requisite corporate power had existed when it was entered into. Ang. & Ames on Corp., § 804 and note. The corporation having assumed by entering into the contract with the plaintiff to have the requisite power, both parties are estopped to deny it. Id., § 635 and note. striction imposed by the statute is a simple inhibition. It did not declare that what was done should be void, nor was any penalty prescribed. No one but the State could object. The contract is valid as to the plaintiff and he has no right to raise the question of its invalidity. National Bank v. Mathews, 98 U. S. 621. Judgment of United States Circuit Court, W. D. Michigan, affirmed. Whitney, plaintiff in error, v. Wyman. Opinion by Swayne, J.

The re

TRUST WHEN OBJECT OF, COMPLETED, POWER OF TRUSTEE DIVESTED-UNAUTHORIZED CONVEYANCE BY

TRUSTEE.-A. devised and bequeathed his estate to trustees A. and W. and to their survivor and his heirs, in trust to divide, subject to a life estate in one-third to his widow, into four parts, one of which to be given to W. at once, one to the children of W., one to L. and one to E. The shares of L. and E. to be held in trust during their lives, for their use, and upon their death

to be vested in the children of W. The will also contained this: "I give and bestow upon my said trustees and the survivor of them the largest powers and discretion in taking charge of and managing my estate, and authorize them and the survivor to have, hold, direct and control the aforesaid trust property, according to their or the survivor's best judgment, and to sell and dispose of the same, or any parts thereof, from time to time, subject only to the aforesaid trusts, and as freely as I myself could do if living; and also in all things to have the same powers, rights, privileges, benefits, advantages as I myself have, or might have, if living, in all and any contracts, bargains, agreements, companies, or other compacts to which I am now or may become a party." No division or distribution of the estate was ever made. After testator's death, L. and E. and the widow and W. successively died. Held, that thereafter A. had no power to convey any of the trust estate. The doctrine is well settled that whatever the language by which the trust estate is vested in the trustee, its nature and duration are governed by the requirement of the trust. If that requires a fee-simple estate in the trustee, it will be created, though the language be not apt for that purpose. If the language conveys to the trustee and his heirs forever, while the trust requires a more limited estate either in quantity or duration, only the latter will vest. These two propositions are recognized: 1. "Whenever a trust is created, a legal estate sufficient for the purposes of the trust shall, if possible, be implied in the trustee, whatever may be the limitations in the instrument, whether to him and his heirs or not." 2. "Although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried further than the complete execution of the trust necessarily requires." Perry on Trusts, § 312. "In the United States, the distinction between deeds and wills in respect to the trustee's estate has not been kept up; and the general rule is, that whether words of inheritance in the trustee are or are not in the deed, the trustee will take an estate adequate to the execution of the trust, and no more nor less." Id., § 320. The case of Noble v. Andrews, 37 Conn. 346, bears a strong analogy to the one before us in principle, where it was held that a gift to a person in trust for a wife during her life, and to her heirs forever, subject to her husband's curtesy, conveyed to the trustee only an estate for the life of the wife, and at her death the trust ceased. This subject is considered and the authorities fully reviewed in the opinion of this court, by Mr. Justice Swayne, in Poor v. Consedine, 6 Wall. 458. "It is well settled," says the court, "that where no intention to the contrary appears, the language creating the estate will be limited and restricted to the purposes of its creation. And when they are satisfied, the estate of the trustee ceases to exist and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation." Decree of Supreme Court, District of Columbia, affirmed. Young, appellant, v. Bradley et al. Opinion by Miller, J.

NEW JERSEY SUPREME COURT ABSTRACT. FEBRUARY TERM, 1880

CERTIFICATE OF ACKNOWLEDGMENT OF MARRIED WOMAN'S CONVEYANCE CONCLUSIVE IN ABSENCE OF FRAUD. — A mortgage was given by a married woman and her husband, on her lands, to raise money to discharge mortgages and municipal assessments which were valid incumbrances thereon, and the money was so applied. The mortgage was duly signed, and a certificate of acknowledgment before a duly authorized officer was indorsed by the officer thereon. At the same time, and before the same officer, the wife made

an affidavit that she was the owner of the premises; that they were free from incumbrances other than those specified, and that she was of full age, etc. Five years afterward she and her husband testified in this suit for the foreclosure of their mortgage, that although they executed the mortgage, and she swore to the affidavit, yet it was in entire ignorance of their contents, and at the request of her father, who negotiated the loan, and in whom they had implicit confidence. Held, that an officer, in taking the acknowledgment of a married woman to a deed or mortgage, acts judicially. That in the absence of fraud or duress, the evidence of the parties to the instrument is not admissible to contradict his official certificate and destroy the title of a bona fide grantee or mortgagee. Shep. Touchstone, 9 Doct. & Stud. 264. The act of the officer by whom the acknowledgment of a married woman, under our law, is taken and certified, is judicial, and for the security of titles, must, in cases where the wife has signed the deed and appeared before the officers, be held to be conclusive against her in favor of a perfectly bona fide grantee, for a valuable consideration. 1 Bishop's Mar. Wom., § 591; Hartley v. Frosh, 6 Tex. 208; Baldwin v. Snowden, 11 Ohio St. 203; Bissett v. Bissett, 1 Harr. & McH. 211; Ridgely v. Howard, 3 id. 321; Jamison v. Jamison, 3 Whart. 457; Schrader v. Decker, 9 Penn. St. 15; Michener v. Cavender, 2 Wright, 336; McCandless v. Engle, 1 P. F. Smith, 200; Wells' Mar. Wom., § 875; Heeter v. Glasgow, 79 Penn. St. 79; Johnston v. Wallace, 53 Miss. 335; Landers v. Bolton, 26 Cal. 406; McNeely v. Rucker, 6 Blackf. 391. Homeopathic Mut. Life Ins. Co. v. Marshall. Opinion by Runyon, Chancellor.

CORPORATION-DE FACTO OFFICERS MAY MAINTAIN ACTION ON BEHALF OF. — - An objection will not lie on the part of an adverse party to a pleading in behalf of a corporation that the persons making the pleading as officers of the corporation are not legally such. The managers or directors of a corporation are usually selected by its proprietors or stockholders; whether they select eligible persons or not, or the persons selected are appointed in a legal way or not, is a matter of no concern to third persons. If the officers selected are ineligible, or are elected irregularly or illegally, but are allowed by the proprietors of the corporation to take control of its property, and to exercise its functions and powers, they become officers de facto, and as such may act for and bind the corporation. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. King v. Bedford Level, 6 East, 369. From a very early time it has been held that the acts of de facto officers are binding upon the corporation, until they are lawfully ousted, especially so far as their acts create rights in favor of third persons. Angell & Ames on Corp., § 287; Doremus v. Dutch Reformed Church, 2 Gr. Ch. 349. A suit brought by the de facto officers of a corporation cannot be defeated by showing that such officers were not legally elected. That fact constitutes no defense whatever to the action, especially in a case where there are no other officers claiming to represent the corporation. Charitable Association v. Baldwin, 1 Metc. (Mass.) 359; Green v. Cady, 9 Wend. 414. Mechanics' National Bank of Newark v. Burnet Manufacturing Co. Opinion by Van Fleet, Vice-Chancellor.

DURESS WHAT DOES NOT CONSTITUTE-REPAYMENT OF AVAILS OF CRIME WHILE UNDER ARREST. — - A gold-refiner, on being accused, confessed that he had taken gold intrusted to him by his employers to refine. While under arrest at the police station, he agreed to make restitution by giving a mortgage on his lands for the amount which he admitted he had taken, and accordingly gave such mortgage, which was drawn by a lawyer and duly acknowledged by him and his wife.

He was afterward indicted for the offense, pleaded guilty and was sentenced. On foreclosure, held, that the mortgage was not void on the ground of duress. Smillie v. Titus. Opinion by Runyon, Chancellor.

MISTAKE MUST BE MUTUAL TO AUTHORIZE RELIEF. -To reform a deed on the ground of mistake, it must be shown conclusively that such mistake was mutual. Where the bill does not allege, nor the accompanying affidavits state, that the mistake was mutual, and the answer denies it, the deed cannot be rectified. It is not enough to show that the alleged omission was contrary to the intention of the complainants; it must also be shown incontrovertibly that it was contrary to the intention of both parties. Thompsonville Scale Manufacturing Co. v. Osgood, 26 Conn. 16; Nevins v. Dunlap, 33 N. Y. 676; Kerr on F. & M. (Am. ed.) 409. Ramsey v. Smith. Opinion by Runyon, Chancellor.

NEBRASKA SUPREME COURT ABSTRACT.

MARCH, 1880.

ASSIGNMENT FOR CREDITORS UNDER LAWS OF ONE STATE DOES NOT BAR ACTION BY CREDITOR IN ANOTHER STATE.- Defendant made an assignment for the benefit of creditors under the laws of Illinois, and plaintiff, a creditor, presented and proved his claim in those proceedings. Held, not a bar to a suit in Nebraska against defendant on the claim, there being nothing in the statutes of Illinois or in the deed of assignment that barred any other remedies open to the creditors. In Haskins v. Alcott, 13 Ohio St. 210, the court says that the general principle is that a debtor cannot change his relations to his creditors by a voluntary assignment. It is very questionable whether the mere receipt of partial payment from the assignee, out of the trust fund, where the terms of the assignment, or of the statute, do not expressly bind the creditor to delay suit, will bar the creditor from suing until the trust is terminated. The bar, if any, must arise out of a contract or statutory inhibition, express or implied. In Bank of Bellows Falls v. Deming, 17 Vt. 366, where the creditor received a payment from the assignee on his indebtedness, there being nothing in the assignment which bound the creditors to delay commencing suits, it was held that there was no such agreement implied from receiving the payment. In Hogg v. Charton, 25 Penn. St. 200, where plaintiff had commenced equitable proceedings in New York, to have funds in the hands of a receiver applied in payment of his debt, it was said that plaintiff had a right to seek satisfaction out of funds in the hands of the receiver in New York, and to pursue his remedy against the defendant in Pennsylvania at the same time. He might pursue both remedies until he obtained satisfaction from one of them. Gross v. Bunn. Opinion by Cobb, J.

WHEN

GROUND

CONTRACT-PART PERFORMANCE FOR ACTION ON-MEASURE OF DAMAGES.-Plaintiff agreed to thresh the grain raised by defendant during 1878, at a specified price per acre. After threshing about one-third plaintiff refused to thresh the balance. In an action to recover for threshing the third, held, that plaintiff was entitled to recover for the amount threshed at the stipulated price less the damages sustained by defendant for the failure to complete the contract. When the contract is susceptible of division, and its entirety has been destroyed by part performance, from which the other party has derived a benefit, the law raises an implied promise to pay to the extent of the benefit received, and an action may be maintained thereon after the time has expired for the completion of the contract. In the leading case of Oxendale v. Wetherall, 17 E. C. L. 386, an action was

brought to recover the price of 130 bushels of wheat sold and delivered by the plaintiff to the defendant at eight cents per bushel. The defendant proved that he made an absolute contract for 250 bushels, and contended that as the plaintiff had not fully performed, he could not recover. It was held that the plaintiff, having retained the 130 bushels after the time for completing the contract had expired, was bound to pay for the same. See, also, Boerker v. Hoyt, 18 Pick. 555; Britton v. Turner, 6 N. H. 481. The same rule applies to contracts for labor. Byerlee v. Mendel, 39 Iowa, 382; Pixler v. Nichols, 8 id. 106. There is no difference in principle between the case of a vendee receiving and retaining a quantity of goods sold under an entire contract, after the vendor has refused to deliver the residue, and that of a party who has employed another to perform certain labor, but who, after performing a portion of the labor under the contract rejects or refuses to perform the remainder. In neither case can an action be maintained on the original contract, but in both cases the party has received and appropriated what is done, and to the extent that he is benefitted over and above the damage which has resulted from breach of the contract by the other party the law implies a promise to pay for such excess. Any other rule is fraught with gross injustice, and assumes that the party failing to perform is in all cases at fault, and offers an inducement to the opposing party, indirectly, to prevent a performance. But when a contract is shown to have existed, the measure of recovery for the services rendered is the price fixed in the contract, less the damages sustained by the employer by reason of the non-performance. Doolittle v. McCullough, 12 Ohio St. 360; Corwin v. Wallace, 17 Iowa, 374. McMillan v. Malloy. Opinion by Maxwell, C. J.

RHODE ISLAND SUPREME COURT ABSTRACT.

FEBRUARY TERM, 1880.

CONSTITUTIONAL LAW CHANGE IN LAW OF EVIDENCE-ADVERSE POSSESSION. A statute of Rhode Island, providing that "in all suits hereafter brought in which the title to any easement in real estate shall be claimed by virtue of adverse possession of the same for the period of twenty years, or by prescription, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be proved by evidence distinct from and independent of the use; and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims," is, so far as it applies to easements acquired by adverse user or prescription before its enactment, unconstitutional and void, being in violation of the fourteenth amendment of the Constitution of the United States, and of article 1, section 10, of the Constitution of Rhode Island. McCready v. Sexton, 29 Iowa, 356; Abbott v. Lindenbower, 42 Mo. 162; Cooley's Const. Lim. 369. This statute does more than merely change a rule of evidence. It prescribes a new thing to be proved as well as a new way to prove it. It virtually extinguishes every easement acquired by adverse user or prescription, unless, by some fortunate occurrence, the owner of the servient estate had express notice, during all the twenty years' or longer use, that the use was under a claim of right. It takes away the right by refusing the remedy, except under an impossible condition, and it is just as unconstitutional to take away a vested right in that way as to do it in express terms. Conway v. Cable, 37 Ill. 82, 89; Davies v. McKeely, 5 Nev. 369; Hunt v. Hunt, 37 Me. 333; McLeod v. Burroughs, 9 Ga. 213; Proprietors of Kennebec v. Laboree, 2 Me. 275. See, also, Ervine's

Appeal, 16 Penn. St. 256; Greene v. Briggs, 1 Curt. 311; Murray's Lessee v. Hoboken Land Co., 18 How. (U. S.) 272, 276. Reynolds v. Randall. Opinion by Durfee, C. J. Potter, J., dissented.

EXECUTOR-NOT LIABLE FOR LOSS OF TRUST PROPERTY BY ROBBERY, WHERE DUE CARE EXERCISEDCONSTRUCTION OF WILL.- A testator directed his executors within two years after his death to invest the sum of $5,000 "in such stocks or other productive property as they may deem advisable, in their names as executors," for the benefit of his grandson, the trust fund to be paid over to the grandson when twenty-five years of age. The executors, within the time limited, opened an account in their books in which they charged themselves as trustees, and credited the grandson with $5,000. They invested this sum in three United States 7-30 coupon bonds, and two coupon bonds of the State of Rhode Island. These bonds they put into an envelope, labelled "investment of five thousand dollars for" the grandson, with the date of the purchase, put this envelope into a tin box, and put the tin box into the vault of a bank in Providence. Held, that by these acts of the executors the trust for the grandson was properly and legally constituted. The bank vault was robbed and the bonds lost. Subsequently the executors, by giving indemnity, obtained, through an agent, whom they had reason to believe honest, the issue of new United States bonds in place of those stolen. The agent appropriated the bonds, and but a portion of their value could be recovered. Held, that

the executors or trustees were not liable for the loss

caused, either by the robbery of the vault or by the theft of the agent. In managing trust property, a trustee must use as much care as prudent men ordinarily adopt in their own business- - more cannot be required of him. The trustees deposited in a savings bank the money recovered from the agent. Held, that this investment complied with the directions of the will. * * The rule in all cases of this sort is, that when a trustee acts by other hands, either from necessity or conformably to the common usage of mankind, he is not to be made answerable for losses. 2 Story's Eq. Juris., § 1269; Perry on Trusts, §§ 404, 441; Lewin on Trusts, 224, 260 (6th ed.); Litchfield v. White, 7 N. Y. 438. Carpenter v. Carpenter. Opinion by Durfee, C. J.

RECENT ENGLISH DECISIONS.

ACTION -FOR SPECIAL DAMAGE FROM PUBLIC NUISANCE. Where an indictment can be maintained against a corporation for something done to the general damage of the public, an action can be maintained for special damage thereby done to an individual. There is no distinction in this respect between nonfeasance and misfeasance. The appellants, under their act of incorporation, had "the care, construction, and management" of the roads and streets within their municipality. The brickwork of a drain constructed by the appellants under one of their streets having broken away, and not having been repaired, the rain washed away the soil, and caused a hole which was left unfenced. The respondent's horse fell into this hole as he was riding along the street at night, and caused an injury to the respondent. Held, (affirming the judgment of the court below), that it was the duty of the appellants to keep the work constructed by them in such repair as to prevent its causing a danger to passengers on the highway, and that an action would lie against them at the suit of the respondent. Hartnall v. Ryde Commissioners, 5 B. & S. 361, followed. Cases cited: Whitehouse v. Fellows, 10 C. B. (N. S.) 731; White v. Hindley Local Board, L. R., 10 Q. B. 219; Henley v. Mayor of Lyme Regis, 5 Bing. 101; S. C., 3 B. & A. 77; Atkinson v. New Castle Water

Works Co., L. R., 2 Ex. Div. 441; McKennon v. Penson, L. R., 8 Ex. 327. Priv. Coun., March 11, 1879. Borough of Bathurst v. MacPherson. Opinion by Sir Barnes Peacock, 11 L. T. Rep. (N. S.) 778.

LIBEL REPORT OF PROCEEDINGS IN COURT OF JUSTICE PRIVILEGE-CORRECT REPORT SENT WITH

MALICE. -The privilege attaching to a correct report of proceedings in a court of justice, and the consequent protection afforded to untrue and defamatory statements appearing therein, can only be claimed by persons who publish such report bona fide and without malice, or in the ordinary course of their duty. Lord Coleridge remarks, in the case of Seaman v. Netherclift, 35 L. T. Rep. (N. S.) 784; L. Rep., 2 C. P. Div. 53, all the authorities were gone into. There are certain cases in which the privilege is absolute. The privilege attaching to the speeches of counsel is absolute; the privilege of a witness giving evidence is absolute; the privilege of statements in pleadings is absolute; the privilege of persons making statements on affidavit is absolute. It is now sought to extend this absolute privilege to the reports of proceedings in courts of justice. No case has been cited in which that has yet been done, and I am unaware of any. Ct. App., Nov. 15, 1879. Stevens v. Stevens. Opinions by Lord Coleridge, C. J., and Bramwell and Brett, LL.J., 41 L. T. Rep. (N. S.) 782.

MARINE INSURANCE CONSTRUCTIVE TOTAL LOSS ABSOLUTE DAMAGE CAUSED BY PERILS INSURED AGAINST.- A shipowner claimed against the insurance company, of which he was a member, upon a policy of insurance incorporating the by-laws of the company. A constructive total loss of the ship was admitted, but the defendants disputed the claim on the strength of a by-law which provided that in the event of any ship being stranded or damaged and not taken into a place of safety, it should be lawful for the directors of the company to use every possible means in their power to procure the safety of the said ship, the owner bearing his proportion of the expense incurred; and that no acts of the company or its agents, under or in pursuance of the power thereby reserved to the company, shall be deemed or taken to be an acceptance or recognition of any abandonment of which the assured may have given notice to such company; and that the company, under any circumstances, should only pay for the absolute damage caused by the perils insured against, which in no case was to exceed the sum insured. Held, by Lush, J., on further consideration, that this by-law was no answer to the action. Q. B. Div., Dec. 20, 1879. Forwood v. North Wales Mutual Marine Ins. Co., 41 L. T. Rep. (N. S.) 802.

fession, and that its merits have been properly estimated is shown by the number of editions through which it has passed. In Dr. Wharton and Mr. Bishop our country possesses two writers on criminal law who are unrivalled in England. It is not our purpose to make any comparison of their merits. Each has his distinctive abilities. The present work is the freshest, and brings us abreast of the latest decisions. In the present edition the original arrangement is considerably modified. This is explained by the author as follows: "In the first place, the enormous accumulation of cases renders it impossible, without undue expansion, to recapitulate, in connection with each crime, the adjudications which bear on it in common with other crimes and makes it desirable, therefore, to discuss these rulings in a preliminary exposition, considering subsequently each crime only in respect to its distinctive characteristics. In the second place, a due regard both to symmetry and to convenience requires that the generic principles belonging to all crimes should be considered at large before the differentia of each crime is detailed. I have therefore rearranged the work on the following basis: two volumes are given, first, to the statement of the principles or philosophy of Criminal Law, as bearing on crimes in general; and secondly, to the examination of specific crimes referring in each case for general principles to the general exposition. A third volume is given to Criminal Pleading and Practice, and a fourth to Criminal Evidence. The latter volume may be also regarded as supplementary to any treatise on Evidence in Civil Cases. This re-arrangement of the plan of the work has necessitated a re-writing of its contents." The work is published in luxurious style.

GOIRAUD'S FRENCH CODE OF COMMERCE.

The French Code of Commerce and most usual Commercial Laws, with a Theoretical and Practical Commentary, and a Compendium of the Judicial Organization and of the course of Procedure before the Tribunals of Commerce, together with the Text of the Law; the most recent Decisions of the Courts; and a Glossary of French Judicial Terms. By Leopold Goiraud, Licencié en Droit, Avoué au Tribunal Civil du Departement de la Seine. London: Stevens & Sons; New York: Baker, Voorhis & Company; Paris: Marchal, Billard et Cie., 1880. Pp. vi, 842.

This work presents a very elaborate account of the French commercial law, which will be useful to those in our country who have professional or business relations with that country, or are desirous of understanding that law as matter of scholarship. The work

seems methodical and exhaustive. The author makes an unnecessary apology for his English, and acknowledges his obligations to M. Clunet, of the Journal du Droit International Privé, whom he styles "one of the weightiest authorities upon this subject at the French bar." The French Code of Commerce may be studied with profit by our jurists. The author remarks in his preface: England and America now occupy whole quarters in our large towns; they have their own banks, their own press, and side by side with our factories have of late been reared British rivals, in earnest and friendly competition."

CORRESPONDENCE.

A CORRECTION.

To the Editor of the Albany Law Journal:

In your number of May 15th (No. 21, p. 382), you have fallen into a very natural error in regard to the case of South Carolina v. Gaillard. There are two cases under that name, but they involve altogether different questions and were argued by different coun

sel. One is the case of The State of South Carolina ex rel. Trenholm v. Gaillard, collector. This is the case, an abstract of which is given in 21 Alb. L. J., p. 314. The other is the case of State of South Carolina ex rel. Douglass & Jackson v. Gaillard, collector. This is the case discussed in the May number of the American Law Review. The former case was affirmed unanimously by the court, Chief Justice Waite writing the opinion; the latter was affirmed by an equally divided court, no opinion being written.

The Douglass & Jackson case-which is the case discussed in the American Law Review - raised the question whether an act was constitutional which was passed in 1878, expressly and in so many words taking away the remedy by mandamus against tax collectors, to compel them to receive such bills in payment of taxes, which remedy, as we claimed, was in force at the time the bank bills were issued and formed part of the original contract obligation of the State.

Both of these cases involved questions as to bills of the Bank of the State of South Carolina, which were by the charter made receivable in payment of taxes. In no other respect were the two cases alike.

Allow me to add that the article in the Law Review does not undertake, as you express it, to "criticise" the opinion of the U. S. Supreme Court. The counsel who, at the request of the editor of the Law Review, prepared the statement of the case, intentionally and carefully refrained from any criticism of the adverse decision of the court. He endeavored simply to state fairly and candidly the questions involved and the arguments on behalf of the relators.

Any criticism on his part would have been in very bad taste, and might have reminded the readers of the method said by the late Judge Grover to have been sometimes resorted to by defeated Allegany county suitors to get rid of a judgment when they couldn't "appeal it up," namely, "going round to the tavern and swearing at the court."

Yours very respectfully,

NEW YORK, May 18, 1880.

W. B. HORNBLOWER.

EXECUTION SALES.

To the Editor of the Albany Law Journal:

In the JOURNAL of May 15, W. J. G. asks whether a purchaser of a chattel at an execution sale has any remedy if he gets no title, and undertakes to show that he has a remedy against the execution plaintiff for the amount of the bid, relying upon the case of Sanders v. Hamilton, 3 Dana (Ky.), 550. That case depends upon the proposition, there announced, that such execution plaintiff is a warrantor of the title to the property which he procures to be sold on his execution a proposition alike repugnant to reason and opposed to authority.

It is well settled that such an action cannot be sustained by the purchaser, either against the execution Dunn v. Frazier, 8 plaintiff or against the officer. Blackf. 432; Neal v. Gillaspy, 56 Ind. 451; State ex rel. Sage v. Prime, 54 id. 450; Brunner v. Brennan, 49 id. 98; although the officer declares that the property offered for sale is the property of the execution defendant. Morgan v. Fencher, 1 Blackf. 10.

DR. KENEALY.

To the Editor of the Albany Law Journal:

Your comment on the treatment of Dr. Kenealy tempts me to say that I listened for a time to the Tichborne trial, while Dr. K. was speaking, and I am sure no American lawyer would have continued in the case an hour after the contemptuous interruptions, contradictions and hostile comments he endured, mainly from the chief justice himself. The bias of the court was as plain and partisan as that of the prosecution. The manner was much more offensive than the matter. Conviction was inevitable unless the jury resisted the evident desires and doubted the conclusions of the bench.

Of course I am giving the impressions of some hours only spent in the court. These impressions, however, were colored by no sympathy with the claimant, for I have ever believed him an impostor. Certainly the departure from the province of the court, as recognized on this side of the water, was startling to an American. The mode by which I gained access to the court-room was certainly unusual. I went early one day to Westminster Hall, an utter stranger to place and persons, but with a vague hope of somehow getting in. Finding the entrance strictly guarded and admission apparently impracticable, I approached a knot of gentlemen in the vicinity, and said to one of them I was an American lawyer, desirous to look in on the trial. Certainly," said he, "wait a moment and I will take you in." A few moments later he bade me follow him, which I did past officers and spectators, far up in front, where he bowed me to a seat with members of the bar, and then himself clambered up into the lofty jury-box! I owed my admission to the courtesy of one of the famous jury. Yours respectfully,

ST. LOUIS, May 17, 1880.

NOTES.

LUCIEN EATON.

THE Criminal Law Magazine for May contains a very

entertaining article by Dr. Doremus, on "Duties of Experts in Poison Cases." Also the following cases in full: Small v. Commonwealth, on dying declarations, with a note; Halsted v. State, on criminal intent in statutory offenses, with a note; Hill v. State, on past