ments of the condition of the treasury, and he kept books showing the balance in his hands belonging to the city treasury. At the close of his first term of office a specified amount appeared on the books to be in his hands. This amount was charged against him at the time he commenced his second term. Held, that neither he nor his sureties in an action upon his bond could show that this charge on his books was incorrect. To allow them in avoidance of the liability on their bond for these balances, to falsify them, and show that the balance so stated and reported as being in the treasury was not at the time actually in the treasury, would be utterly inadmissible upon every sound legal principle. They must be held to be concluded by them. Pinkstaff v. People, 59 Ill. 148; Morley v. Town of Metamora, 78 id. 394; Simpkins v. Cobb, 2 Bailey (S. C.), 60; Trimmair v. Trail, id. 480 (the above being more particularly upon the point of transfer of balance to the second term); Baker v. Preston, 1 Gilmer (Va.), 235; State v. Grammer, 29 Ind. 530; Commissioners v. Mayrant, 2 Bew. 228; Patterson v. Guardians of the Poor, etc., 38 Eng. L. & Eq. 440; Cave v. Mills, 7 H. & N. 913; Wylie v. Gallagher, 46 Penn. St. 205; Bochmer v. County of Schuylkill, id. 452; United States v. Girault, 11 How. 27. City of Chicago v. Gage. Opinion by Sheldon, J.

MARYLAND COURT OF APPEALS ABSTRACT.*

CONSTITUTIONAL LAW — STATE MAY AUTHORIZE BRIDGE OVER NAVIGABLE STREAM. In the absence of any restrictive legislation on the subject by Congress, the State may authorize bridges over navigable streams, by statutes so guarded as to protect the substantial rights of navigation. Wilson v. The Blackbird Creek Marsh Co., 2 Pet. 250; Gilman v. Philadelphia, 3 Wall. 713; Atlee v. Packet Co., 21 id. 389; Pound v. Turck, 95 U. S. 459. County Commissioners of Talbot v. County Commissioners of Queen Anne. Opinion by Alvey, J.

LIABILITY OF, FOR CON

MUNICIPAL CORPORATION SEQUENTIAL DAMAGES.-The authorities of the city of Cumberland, in the execution of the powers conferred on the corporation by act of Assembly, for the paving, grading, repairing, draining, sewering and extending of the streets of the city, but with no want of reasonable care and skill in making the improvements, changed or so directed the natural flow of surface water, which usually found its way into a mill-race in the city, that a larger flow of such water than formerly was emptied into the mill-race, along a given street, and in times of heavy rains, a larger quantity of mud, sand and debris, was thus carried into the race near the mill, than before such improvements were made. It is well settled that a municipal corporation is not liable to an action for consequential damages to private property or persons, where the act complained of was done by it or its officers under and pursuant to authority conferred by a valid act of the Legislature, and there has been no want of reasonable care or skill in the execution of the power, although the same act, if done without legislative sanction, would be actionable. 2 Dill. on Mun. Corp., § 781. Property thus injured is not in the constitutional sense taken for public

United States Supreme Court in the leading cases of Goszler v. Georgetown, 6 Wheat. 595, and Smith v. Washington, 20 How. 135. Mayor of Cumberland v. Willison. Opinion by Miller, J.; Alvey, J., dissented as to this point.

An

TAXATION OF EASEMENT IN PUBLIC STREET.-. easement enjoyed by a railroad company in the bed of a public street may be assessed and taxed as real estate. People v. Cassity, 46 N. Y. 49; Appeal of N. B. & M. R. Co', 32 Cal. 499; Providence Gas Co. v. Thurber, 2 R. I. 21. Appeal Tax Court of Baltimore v. Western Maryland Railroad Ca. Opinion by Alvey, J.

TAXATION OF SECURITIES OF OTHER STATES EXEMPT BY LAW OF STATE ISSUING. -- The power of taxation may be exercised by this State upon stocks, bonds or other certificates of public debt issued by other sovereign States, or by municipalities created by them, which are exempted by the States issuing them, and owned by citizens or residents of this State. The contract of exemption is limited to the State granting it, as its authority is only co-extensive with its territory, and cannot operate on the rights and powers of other States. The situs of the stock being that of the domicile of its holder, his property is subject to the sovereign powers of the State wherein he resides. Whether this power should be exercised or not, is a legislative, not a judicial question. The owner being under the constitutional obligation, bound to contribute to the support of the government, according to is actual worth in real or personal property, he cannot complain if he is fairly taxed by the Legislature of his domicile. Taxation and representation are correlative rights. Whenever a citizen or resident is represented actually or constructively, he is presumed to owe obedience to the laws of the State which protects him. They secure every right which he enjoys, and the State is entitled to all the means necessary to maintain them. Appeal Tax Court of Baltimore v. Patterson. Opinion by Bowie, J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

FEBRUARY, 1880.

Deed - TO INDIVIDUAL AND ESTATE JOINTLY CONSTRUCTION OF— AGREEMENT FOR SALE-TITLE.—

A power of sale mortgage recited that the consideration was paid by "D., and the estate of T.," and conveyed the land to “D. and T.'s estate," and contained a power of sale to "said grantees." D. was the administrator of the estate of T., and paid the consideration of the mortgage. Held, in an action upon a contract for the sale of the real estate by D. as a vendor, that the mortgage sufficiently designated as one of the grantees the administrator of the estate of T. and the whole legal title vested in D., one-half for his own use and the other half as administrator of T.'s estate in joint tenancy. Shaw v. Loud, 12 Mass. 447; Lawrence v. Fletcher, 8 Metc. 153; Pomeroy v. Latting, 2 Allen, 221; Gen. Sts., ch. 89, § 14. The whole legal estate and the power of sale being vested in D. only, an undertaking by him to convey the whole estate in execution of the power would not be complied with, though he omitted to describe himself in the deed as holding one-half as administrator. He would in such deed convey a clear title which would support the action. Cook v. Griffin, 1 Dane's Ab. 581; Cooper v. Robinson, 2 Cush. 184; Sheldon v. Smith, 97 Mass. 34; Hall v. Bliss, 118 id. 554. Look v. Kenney. Opinion by Gray, C. J.

MUNICIPAL CORPORATION-LIABILITY FOR INJURY FROM BLASTING.- In an action against a city for in

juries received by plaintiff from a blast made in building a city sewer, it appeared that the authorities of the city had a right by statute to make and maintain all such sewers as they should judge necessary for the public convenience or the public health. Held, that an authority conferred upon municipal corporations or officers to determine where drains shall be built is in the nature of a judicial power, involving the exercise of a large discretion and depending upon considerations affecting the public health and general convenience. Emery v. Lowell, 104 Mass. 13, and cases. The fact that the course or route selected may require the blasting of rocks, thereby subjecting the owners and occupants of adjoining houses to risk and inconvenience, though proper to be taken into consideration by the authorities, would not be sufficient to invalidate their decision. Held, also, that a charge that in order to entitle the plaintiff to a verdict she must show that she was in the exercise of due care; that not only must the actual construction of the sewer be performed with reasonable care and skill, but the amount of care must be commensurate with the dangerous nature of the work; that great care must be taken; that no precaution must be omitted which careful men acquainted with the business ought to exercise in relation to the same; that the burden of proof was on the defendant to show that it gave reasonable and proper notice that blasts were about to take place, and it was for the jury to say whether such notice was given was not error. Murphy v. City of Lowell. Opinion by Ames, J.

STATUTE OF FRAUDS -AGREEMENT FOR PURCHASE OF CORPORATE STOCK. - Defendant, who was forming a corporation, applied to plaintiff to take ten shares of stock. Plaintiff refused at first, whereupon the defendant said to him, "You run no risk in taking it; you take the stock, and any time you want your money, I will take your stock and pay you par for it, barring interest." The plaintiff replied, "That is all right, I will take the stock on that understanding." There was no written agreement. Subsequently plaintiff took ten shares of stock at $100 per share. Upon refusal of the defendant to take this stock from him at the price paid, this action was brought for a breach of the agreement. Held, that the agreement was void by the statute of frauds, and could not be enforced. The court remark that it has been decided that shares in a corporation are goods, wares and merchandise within the statute of frauds. Tisdale v. Harris, 20 Pick. 9; Baldwin v. Williams, 3 Metc. 365. There is some conflict in the decision of other courts upon this point. See Somerby v. Buntin, 118 Mass. 279. As the defendant's contract in this case was not in writing, there is no ground upon which any action can be maintained upon it. The fact that the plaintiff was induced to become one of the stockholders by the defendant's promise that he would at some future time buy the stock of the plaintiff at a specific price does not change the essential character of the transaction. Boardman v. Cutter. Opinion by Ames,

J.

FINANCIAL LAW.

USURIOUS NOTE

NATIONAL BANK-INTEREST ON AFTER MATURITY FORFEITED.-Under the provisions of the National Banking Act (U. S. R. S., § 5198) that the taking of usury shall be held and adjudged to be a forfeiture of the entire interest which the note, bill or other evidence of debt, carries with it, or which has been agreed to be paid thereon. Where usury is taken, interest which accrues after maturity of a note and a default in payment is forfeited. The "entire" interest which the note "carries with it" is forfeited, and if this means all the interest which accrues upon it, as it clearly does, it is difficult to understand how any

66

part of it is recoverable. By the operation of the act, a usurious contract is inherently vicious, so that it cannot carry any interest "with it;" hence it would inadequately effectuate the intent of the act to hold that such a contract is purged of its taint, and is invested with a capacity denied to it before, by the failure of the debtor to pay the debt evidenced by it at maturity. This view of the effect of the act of Congress is not inconsistent with the opinion of the court in Barnet v. The National Bank, 8 Otto, 555. U. S. Circ. Ct., W. D. Pennsylvania, Feb. 18, 1880. First National Bank of Uniontown v. Stauffer. Opinion by McKennan, C. J.

TRANSFER OF STOCK IN, WHEN GOVERNED BY STATE LAWS — EXECUTOR.-Stock in a National bank, being declared by act of Congress to be the personal property of the shareholder, has all the necessary incidents of such, liable to transfer by sale, and all other means ordinarily applicable to such property. On the owner's death it passes to his legal representatives and is disposed of under the laws of the State in the usual course of administration as any other personalty of which he may die possessed. Accordingly, where a National bank had not (as it might have under U. S. R. S., § 5139), prescribed a mode of transfer of its stock, held, that a transfer of stock by a foreign executor in accordance with the statute law of the State in which it was located in regard to the transfer of corporate stock was valid, and that a suit would lie to compel the officers of the bank to recognize such transfer and issue a certificate to the transferee. U. S. Circ. Ct., E. D. Pennsylvania, Feb. 10, 1880. Hobbs v. Western National Bank. Opinion by Butler, J.

NEGOTIABLE INSTRUMENT-NOTE INDORSED “SUBJECT TO CONTRACT" NOT ALTERATION. —(1) A promissory note payable to order contained this: "This note is subject to a contract made Nov. 13, 1874," indorsed across it. Hetd, that the note was not negotiable, and an assignee thereof took it subject to the equities. In Jones v. Fales, 4 Mass. 245, a note was given in the usual form on which, at the bottom, was written "foreign bills," and these words were held to destroy its negotiability. In Amer. Ex. Bank v. Blanchard, 7 Allen, 333, the words "subject to the policy" were held to incorporate the policy into the contract for the payment of money and to make the latter dependent on the contingency that no claim would arise on the policy against the company before the expiration of the time when the promise would mature. As the promise was conditional and not absolute, the note was held not to be negotiable. In Benedict v. Cowden, 49 N. Y. 396, the facts were somewhat similar to those of the case at bar. The defendant gave his note at the bottom of which were these words: "The above note to be paid from the profits of machines when sold." This memorandum was held to be a substantive part of the note and that it qualified it the same as if it had been inserted in the body of the instrument, and consequently that the note was not negotiable. The assignee takes it subject to all the equities between the original parties. (2) It was claimed the word "to," in the indorsement was, after the execution of the note, altered to "of." Held, an immaterial alteration, not affecting the rights or liabilities of the parties. In Aldous v. Cornwell, L. R., 3 Q. B. 573, it was held that the second resolution in Pigot's case (11 Rep. at fol. 27a), that "if the obligee himself alters the deed * * although it is in words not material, yet the deed is void," was not to be regarded as law. "No authority was cited," remarks Lush, J., "nor are we able to find any, in which the doctrine has been acted upon, and an instrument held to be avoided by an immaterial alteration." In Langdon v. Paul, 20 Vt. 217, where the plaintiff

too many and rival codes if text writers are to be our supreme law. But we have strayed from our subject. Of the great merits of this treatise there can be no question. We hope that the accomplished author may be spared to produce other works, and that the foreboding in his closing words may not be realized when he says: "To me the sunset already begins to appear. Should the orb of earthly days not for a while drop into western seas, or should his beams linger on the clouds, still the darkness is not far away."

XVI AMERICAN DECISIONS.

This volume contains selections from 6 Connecticut; 3, 4, T. B. Monroe: 4, 5, Martin N. S.; 4 Greenleaf; 7 Harris & Johnson; 4, 5, Pickering; 6 Cowen; 14, 15, 16, Sergeant & Rawle; 1, 2, McCord's Chancery; 2 Aiken; 5 Randolph; and important notes on delivery of deed; intervention; power to adjudge a nuisance; undue influence as to testators; impeachment of indictment; misdescription of insured property; license as to lands; when parent may support child out of its estate; privilege of legislators from arrest.

HOLLAND'S ELEMENTS OF JURISPRUDENCE.

The Elements of Jurisprudence, by Thomas Erskine Holland, D. C. L., of Lincoln's Inn, Barrister-at-Law, Chichele Professor of International Law and Diplomacy, and Fellow of All Souls College, Oxford. London: Macmillan & Co., 1880, Sold in Albany by E. Ellis & Co. Pp. xi, 312.

This work states in a large and simple way the fundamental principles of law. That so complete and intelligible a statement can be made in 300 pages says much for the intrinsic simplicity of justice and the thought and labor of this commentator. The division is as follows: First, Law and Rights: Jurisprudence; law; laws as rules of human action; positive law; sources of law; object of law; rights; analysis of a right; leading classifications of rights; rights at rest and in motion. Second, Private Law: Antecedent rights in rem; antecedent rights in personam; remedial rights; abnormal rights; adjective law. Third, Public Law: Nature of the topic; constitutional law; administrative law; criminal law; law of the State as a person. Fourth, International Law: Nature of the

topic; international persons; substantive law; adjective law - belligerency, neutrality. Fifth, Application of Law: Nature of the topic; application of private law; of public law; of international law. As may be inferred from the scheme and the compass of the work, it is addressed to teachers, scholars, and general readers, rather than to legal practitioners, but even to them it may serve to enlarge and clarify many confused views.

LIEBER'S HERMENEUTICS.

Legal and Political Hermeneutics, or Principles of Interpre

tation and Construction in Law and Politics, with Rearks on Precedents and Authorities. By Francis Lieber, LL. D., author of "Manual of Political Ethics," "Civil Liberty and Self-Government," etc. Third edition, with the author's last corrections and additions, and note by William G. Hammond, Professor of Law in the Iowa State University. St. Louis: F. H. Thomas & Co., 1880. Pp. xiv, 352.

Dr. Lieber was one of the most beneficial scholars that our country has ever known. The present work is of especial interest to our profession. Although it treats of a weighty subject, yet so felicitous is the treatment and so practical are the illustrations, that there is not a dull page in it. The notes are extensive and learned, and really serve to illustrate the author's work. It deserves a more elaborate review than our present space permits, and we shall content ourselves

with the following extract, as a fair example of the author's sagacity and acuteness:

'Suppose a housekeeper says to a domestic: 'fetch some soup meat,' accompanying the act with giving some money to the latter; he will be unable to execute the order without interpretation, however easy, and consequently rapid, the performance of the process may be. Common sense and good faith tell the domestic that the housekeeper's meaning was this: 1. He should go immediately, or as soon as his other occupations are finished; or if he should be directed to do so in the evening, that he should go the next day at the usual hour; 2, that the money handed him by the housekeeper is intended to pay for the meat thus ordered, and not as a present to him; that he should buy such meat and of such parts of the animal, as to his knowledge has commonly been used in the house he stays at, for making soups; 4, that he buy the best meat he can obtain, for a fair price; 5, that he go to that butcher who usually provides the family with whom the domestic resides, with meat, or to some convenient stall, and not to any unnecessarily distant place; 6, that he return the rest of the money; 7, that he bring the meat home in good faith, neither adding any thing disagreeable nor injurious; 8, that he fetch the meat for the use of the family and not for himself. Suppose, on the other hand, the housekeeper, afraid of being misunderstood, had mentioned these eight specifications, she would not have obtained her object, if it were to exclude all possibility of misunderstanding. For the various specifications would have required new ones. Where would be the end? We are constrained, then, always to leave a considerable part of our meaning to be found out by interpretation, which in many cases must necessarily cause greater or less obscurity with regard to the exact meaning, which our words were intended to convey.'

The work is very elegantly printed, but its punctuation is quite abominable.

CORRESPONDENCE.

To the Editor of the Albany Law Journal:

Your columns have borne testimony to the great desire of many of the profession to procure an

amendment of the Code of Civil Procedure, allowing an appeal to the General Term from an order sustainpassed the Senate at the session just closed, containing ing or overruliug a demurrer. Accordingly, a bill among other amendments, a provision adding to § 1347, a subdivision as follows: "7, when it sustains or overrules a demurrer." But the bill failed to pass the Assembly, and consequently the existing law on that subject must remain unchanged until next year.

It would be certainly a cause of just complaint if the new Code did not provide a means whereby the defeated party can take the opinion of the General Term upon a demurrer, without submitting to a final judg ment against him. And it is the object of this communication to show that such a means is provided therein, and that the difficulty in procuring a review of the decision of the Special Term proceeds from a failure to understand the effect of some of the provisions now in the new Code, and especially of one of the amendments made in 1879.

Doubtless most of the profession know that the commissioners who framed the Code intended to abolish orders upon the decision of demurrers, and to substitute an interlocutory judgment for the ordinary order, sustaining or overruling a demurrer, with leave to the defeated party to plead over. Sections 1200 and 1201, as reported by them and passed in 1876, contained definitions of a final judgment, and of an interlocutory judgment, the latter so framed as clearly to include such a decision upon the demurrer. Many subsequent

provisions relating to that subject were framed upon the idea that such decisions would always be interlocutory judgments, and not orders; and among others, § 1347 did not include such orders among those that were appealable. The appeal in such a case was intended to be provided for by § 1349, which allows, in every case, an appeal from an “interlocutory judgment." | But the Legislature, in 1877, struck out § 1201, and thus left an interlocutory judgment undefined. As the profession and the bench continued their former habit of treating the decisions referred to as orders, the question speedily arose whether such orders were appealable. This question was ultimately decided by the Court of Appeals in the negative, because § 1347 contained no provision including such an order, and the court held, that the decision was not appealable under § 1349, as an interlocutory judgment.

Thereupon the Legislature, in 1877, for the express purpose of relieving the profession from this difficulty, without disturbing the scheme of the Code, amended § 1021, so that it now reads as follows:

§ 1021. The decision of the court, or the report of the referee, upon the trial of a demurrer, must direct the final or interlocutory judgment to be entered thereupon. Where it directs an interlocutory judgment, with leave to the party in fault to plead anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it must also direct the final judgment to be entered, if the party in fault fails to comply with any of the directions given or herein imposed."

This section is peremptory, and requires in every case a judgment to be given upon a demurrer. It follows that an order made upon a demurrer is irregular; because by the very terms of the statute, § 767, an order is not a judgment. If, therefore, a party defeated upon the trial of a demurrer, against whom an order has been entered, will move to set aside the order, I do not see how the court can deny his motion. If he appeals from it, he must inevitably be met by the former ruling that such an appeal is not allowed, and a better reason for that ruling than the one which was assigned by the court is, that an appeal is not the proper method of correcting an irregularity.

If I am right in these conclusions, the profession have in their own hands the remedy against all the difficulties in the way of reviewing these decisions upon demurrers. It is, in brief, to compel obedience to the statute which requires such decisions to be entered as interlocutory judgments, and then to appeal therefrom under § 1349.

Your obedient servant,
MONTGOMERY H. THROOP.

ALBANY, May, 29, 1880.

P. S.- See, also, § 990, amended in 1879 by striking out before "judgment," the words "order made or.' This was the only provision in the new Code which recognized an order made upon the trial of a demurrer. The provisions in addition to those above cited, relating to interlocutory judgments, and applicable to such judgments rendered upon a demurrer, are in §§ 1222, 1230, 1231, 1237, 1301, 1316, 1317, 1336 and 1350.

Or

Jagger v. Littlefield; Jones v. Seligman; Herrman v. Merchants' Insurance Company; Cohen v. Farthing; Heckmann v. Pinckney; Cone v. Delaware, Lackawanna & Western Railroad Company; Russ v. Troy & Boston Railroad Company; Hatfield v. Lesher; Haswell v. The Mayor, etc., of New York; Godillot v. Hazard; Volkening v. De Graf; Ferrer v. Pyne; Clements v. Ylerria. Judgmeut affirmed, without costs- Van Wyck v. Brasher. Judgment affirmed -Jones v. The People; Stratton v. The People. Judgment reversed and new trial granted, costs to abide event - Tuthill v. Morris; Van Brunt v. Day; Hazewell v. Coursen; Guggenheimer v. Grizler; Neudecker v. Kohlberg. Judgment reversed and demurrer overruled, with leave to defendants to withdraw demurrer, and to answer on payment of costs-Dederer v. Voorhis; Tallman v. Voorhis. Judgment and order affirmed with costs - Coit v. Marshall. der affirmed with costs - In re Roberts to vacate, etc.; In re Brooklyn, Winfield and Newtown Railroad Company to acquire lands, etc.; Kelly v. The New York and Manhattan Beach Railroad Company; In re accounting of Reiser; Ryerson v. Willis. Order of Special and General Term reversed and report of referee confirmed with costs - Hopkins v. Wolley. Order of General Term reversed and judgment of Special Term affirmed with costs. In re Grube; Acker v. Acker. · Order affirmed and judgment absolute for plaintiff on stipulation with costs- Burr v. The American Spiral Spring Butt Company; Bennett v. The North British and Mercantile Insurance Company. Order of General Term reversed and judgment on report of referee affirmed with costs Edgerly v. Bush. Order and judgment affirmed, with costsTaber v. Delaware, Lackawanna and Western Railroad Company; Crosby v. Day; Madan v. Covert. Order of General Term of Common Pleas reversed and order of General Term of Marine Court affirmed, with costs - Phonix Insurance Company v. Church. Order of General Term and Special Term reversed, with cost of appeal to this court to appellant - Fischer v. Raab.

Appeal Ap

· Order reversed and motion to vacate order of arrest granted, with costs- Field v. Bland. dismissed without costs Mills v. Hildreth. peal dismissed with costs- Van Gelder v. Van Gelder; Sherman v. Rook; Fisher v. Gould; Roe v. Boyle. Motion granted, and case ordered to be placed on present calendar, as a preferred case, without costs of motion-Taylor v. The Mayor, etc., of New York. Motion denied without costs-Sackett v. Waterman. Motion granted and remittitur amended so that the order of this court be simply one reversing that of the court below without costs of motion-Jordan v. Poillon. Motion for a re-argument denied with Raubitscheck v. Blank.

$10 costs

NOTES.

Na biographical sketch of the late Isaac Grant Thompson, by W. Downie Stewart, M. H. R., in the Dunedin Morning Herald, of April 3d, it is said: "This distinguished American, accomplished scholar, and able lawyer died on the 30th of August last, at the

striking illustration of how much may be done during even a short life, and at the time of his death thero was probably no American lawyer more widely known or more highly respected. He early realized the sentiment expressed by a Roman poet that life is not given for a lasting possession, but merely for use. He was admitted to the bar about fifteen years ago, and entered on a life of incessant mental labor. The amount of work which he afterward performed is simply marvellous, and shows what industry may overcome. Не was not a mere technical lawyer, a worshipper of