proves the reasoning of the authorities cited to sustain it. It should be observed however that the Iowa statute makes certain provisions for the sale of such franchise as real property upon execution, which do not exist in our statute, and which was referred to in the decision as strengthening the views therein expressed.

In Billings v. Breinig, 45 Mich. 70, it was held the franchise of keeping a ferry is property, having the valuable incidents of other kinds of property, and transferable from the original grantee to others, subject to conditions lawfully imposed, and to such government control as results from its public nature. Bowman's Devisees v. Wathen, 2 McLean, 376; Felton v. Deall, 22 Vt. 170; Berrson v. Mayor, 10 Barb. 223; Ladd v. Cholard, 1 Minor (Ala.), 566; Lewis v. Intendant and Town Council of Gainesville, 7 Ala. 85; Peter v. Kendal, Barn. & C. 703; Willoughby v. Harridge, 12 C. B. 742; Dundy v. Chambers, 23 III. 370.

It thus appears that some diversity of opinion exists in the authorities as to the right to sell or assign a ferry franchise, or whether the same is vacated by death, and that Knott v. Frush, supra, is not without authority to sustain it. That it may be done when the consent of the power that granted it has been obtained does not seem to be questioned. But whether the County Court, to whom the Legislature has delegated the power to grant ferry licenses, is authorized to give its consent to a sale or consignment of a ferry license upon filing the required bond, or by filing such bond, and the acceptance of the same by the court, the assignment would be unassailable, we are not prepared, nor is it necessary for us to decide, except that it may not be amiss for us to observe that the statute imposes no restrictions upon the sale or transfer of the franchise, nor is there any provision that upon the death of the party to whom the license was issued, that it shall be vacated and the franchise lost. The statute is simply silent upon that subject. But whether the assignment is void, or the effect of an assignment would be to vacate the license, we do not see how such matters are inquirable in this proceeding. The record, both as to the petition and order of the court, recognizes the validity of the existing franchise. No question is raised by the record about the Albina ferry license, or any sale or assignment of its franchise. The only question involved was the authority or power of the court to grant the Montgomery license. That was the object of and for which the writ of review was sued out, and the only matter necessary to be passed upon. When that was done the court had exhausted its power upon the case made by this record, and the decision of matters dehors it, without reference to the correctness of the principle decided, was a nullity, and ought not to stand. Besides it would seem to follow that if the franchise is a personal trust, and not assignable without the consent of the granting power, as argued and claimed, then the right to object to the transfer of the franchise, and its exercise by a party to whom it was not originally granted, was a right affecting the public which belongs to its officers to take advantage of by an appropriate proceeding, and could not be collaterally assailed here. People v. Duncan, 41 Cal. 508; Conner v. Paxson, 1 Blackf. 168; Edmondson v. De Kalb Co., 51 Ala. 103.

The judgment declaring the Montgomery license void is affirmed, but in all other respects reversed.

UNITED STATES SUPREME COURT ABSTRACT.

LIMITATION FEDERAL STATUTE WHERE SUIT

MIGHT BE REMOVED-ACTS DONE UNDER MILITARY

AUTHORITY.-An act of Congress provides that per

sons sued for acts, performed or omitted under orders of officers of the goverment, even when there was only color of authority, could, instead of having his case tried in a State court, where both court and jury might be prejudiced against him, remove his case into a court of the United States for trial. Its constitutionality, so far as it authorizes this removal, was settled in Mayor v. Cooper, 6 Wall. 247. The defendant however for some reason did not attempt to remove this case into the Circuit Court of the United States, probably because the Supreme Court of the State had decided in the case of the State v. Gatzweiler, 49 Mo. 17, that the limitation clause of the act of Congress was valid and was binding on the State court. The seventh section declares, "that no suit or prosecution, civil or criminal, shall be maintained, *** unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to have been done; provided that in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act." As to these acts, Congress had the power to vest the jurisdiction exclusively in the courts of the United States, and to regulate all the incidents of suits brought in any jurisdiction authorized to entertain them. This being so, it must necessarily have the power to regulate the remedy, including the right to prescribe the time within which the suit must be brought. In an action brought in a State court, the Federal statute was set up as a defense. Held, that the act of Congress by its terms applies to all cases of the character described in the statute, and we see no reason to limit its application to the Federal courts. If Congress has a right to legislate on this subject, it has the right to make that legislation the law of all courts into which such a case may come, and we think they have done this in the statute under consideration. Clark v. Dick, 1 Dill. 15; see Jenkins v. The Bank, 106 U. S. 571; Bean v. Beckwith, 18 Wall. 510. Mitchell v. Clark. Opinion by Miller, J.

[Decided March 3, 1884.]

STATUTES

CHALLENGE TO JURORS-ACCUSED MUST BE PRESENT -HEARSAY-CONFESSIONS MADE WHEN IN CUSTODYREGULATING PROCEDURE NOT EX POST FACTO. (1) The trial in Utah by triers appointed by the court, of challenges of proposed jurors in felony cases, must be had in the presence as well of the court as of the accused; and such presence of the accused cannot be dispensed with. Criminal Code of Proce dure, §§ 218, 239, 241-253. The natural life, says Blackstone, "cannot legally be disposed of or destroyed by any ndividual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority." 1 Bl. Com. 133. The public has an interest in his life and liberty. Such being the relation which the citizen holds to the public, the Legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution.for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution (2). The rule that hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who speak from their own knowledge, reaffirmed. 7 Cranch, 295. (3) A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given to such evidence, namely, that an innocent man will not imperil his safety or

prejudice his interests by an untrue statement, ceases when the confession appears to have been made, either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of such person, in reference to such charge. A confession made to an officer will not be excluded from the jury merely because it appears that the accused was previously in the custody of another officer; and the court will not, as a condition precedent to the admission of such evidence, require the prosecution to call the latter, unless the circumstances render it probable that the accused held a conversation with the first officer upon the subject of a confession, or justify the belief of collusion between the officers. 1 Greenl. Ev., § 215; 1 Archbold Cr. Pl. 125; 1 Phillips' Ev. 533-4; Starkie Ev. 73; 1 Leach, 263; Rex v. Clewes, 4 Carr. & Payne, 221. (4) A statute which simply enlarges the class of persons who may be competent to testify, is not ex post facto in its application to offenses previously committed. Such alterations relate to modes of procedure only which the State may regulate at pleasure, and in which no one can be said to have a vested right. See Kring v. Missouri, 107 U. S. 221; 27 Alb. L. J. 347; 45 Am. Rep. 541. Hopt v. Territory of Utah. Opinion by Harlan, J.

[Decided March 3, 1884.]

[As to last point, see also 4 Crim. L. Mag. 715; 46 Cal. 114.-ED. A. L. J.]

PUBLIC LANDS-DISPOSITION OF IN SATISFACTION OF MILITARY LAND WARRANTS, NOT A "SALE" ENTITLING STATE TO PERCENTAGE-PRACTICAL CONSTRUCTION OF STATUTE.-Under the act of March 3, 1845, ch. 76, relating to the admission of Iowa into the Union, or the act of April 18, 1818, ch. 67, for the admission of the State of Illinois into the Uuion, by which "five per cent of the net proceeds" of public lands lying within the State, and afterward "sold by Congress," shall be reserved and appropriated for certain public uses of the State, the State is not entitled to a percentage on the value of lands disposed of by the United States in satisfaction of military land warrants. Lauds disposed of by the United States in satisfaction of military land warrants are not sold, within the meaning of the statutes upon which the petitioners rely. A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent. When property or money is transferred or paid as a compensation for service, the property or money may be said to be the price of the service; but it can hardly be said that the service is the price of the property or money, or that the property or money is sold to the person performing the service. Nor can it be said that the pay of an officer or soldier in the army or navy is sold to him by the government in consideration of a price paid by him. Land or money, other than current salary or pay, granted by the government to a person entering the military or naval service of the country has always been called a bounty; and while it is by no means a gratuity, because the promise to grant it is one of the considerations for which the soldier or sailor enters the service, yet it is clearly distinguishable from salary or pay measured by the time of service. For example, it was held by Lord Mansfield and the Court of King's Bench in 1784, that though the master of an apprentice was entitled by the act of Parliament of 2 & 3 Anne, ch. 6. § 17, to the wages of his apprentice enlisting into the navy, yet the apprentice's share of prize money belonged to himself, and not to his master, because it was not wages, but the bounty of the crown. Carsan v. Watts, 3 Doug. 350; Eades v. Vandeput, 4 id. 1. Upon like grounds, it has been held that bounty money paid by the United

States, or by a State, city or town, upon the enlistment of a minor as a soldier, during the recent war, belonged to him, and not to his father or master. Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169. See also Alexander v. Wellington, 2 Russ. & Myl. 35, 56, 64. When each of these acts speaks of lands "sold by Congress," "five per cent of the net proceeds" of which shall be reserved, and be "disbursed" or "appropriated" for the benefit of the State in which the laud lies, it evidently has in view sales in the ordinary sense, from which the United States receive proceeds, in the shape of money payable into the treasury, out of which the five per cent may be reserved and paid to the State: and does not intend to include lands promised and granted by the United States as a reward for military service, for which nothing is received into the treasury. The question depends upon the terms in which the compact between the United States and each State is expressed, and not upon any supposed equity extending those terms to cases not fairly embraced within their meaning. The conclusion to which the court is brought, upon a consideration of the language of the statutes relied on, and of the nature of the subjects to which they refer, accords with the contemporaneous and uniform construction given to them by the executive officers charged with the duty of putting them in force. If the court had a doubt of the true meaning of their provisions, this practical construction would be entitled to great weight. Edwards v. Darby, 12 Wheat. 206; United States v. State Bank of North Carolina, 6 Pet. 29; United States v. McDaniel, 7 id. 1; Surgett v. Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; United States v. Moore, 95 U. S. 760; United States v. Pugh, 99 id. 265; Swift Co. v. United States, 105 id. 691, 695. Appeals dismissed. United States v. Watkins, 97 U. S. 219, distinguished. Matter of Iowa and Illinois. Opinion by Gray, J.

[Decided March 3, 1884.]

TAXATION-ABATEMENT OF TAX NOT REVOCABLE.— Where an abatement of taxes due from a distillery is once made by the secretary of the treasury, he has no authority to revoke such abatement and hold the obligors upon the distillery bond liable for such tax. United States v. Alexander. Opinion by Woods, J.

JURISDICTION - -STIPULATION OF PARTIES CANNOT GIVE.—In an action upon a policy of marine insurance the amount of insurance with interest would not exceed $4,800, but it was stipulated between the parties that if judgment was entered for plaintiffs it should be for the amount of $5,010. Held, that an appeal would not lie to this court. Parties cannot stipulate in contradiction to the pleadings in order to give jurisdiction. It was decided in Lee v. Watson, 1 Wall. 339, that "in an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment at its conclusion, must be considered in determining whether this court can take jurisdiction on a writ of error sued out by the plaintiff." Such is now the established rule. Schacker v. Hartford Fire Ins. Co., 93 U. S. 241; Gray v. Blanchard, 97 id. 565; Tintsman v. National Bank, 100 id. 6; Banking Association v. Insurance Association, 102 id. 121; Hilton v. Dickinson, 108 id. Webster v. Buffalc Ins. Co. Opinion by Waite, C. J.

JURISDICTION-WHEN JOINDER OF JUDGMENTS CANNOT GIVE. The rule is well settled that distinct judgments in favor or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction. The whole subject was fully considered in Ex parte Baltimore & Ohio R. Co., 106 U. S. 5;.

Farmers' Loan & Trust Co. v. Waterman, id. 265; Adams v. Crittenden, id. 576; Schwed v. Smith, id. 188. Tupper v. Wise. Opinion by Waite, C. J.

CONTRACT PERFORMANCE PREVENTED BY THE GOVERNMENT DAMAGES-LOSSES AND EXPENDITURES.

Losses and expenditures incurred by a contractor in the fair endeavor to perform a contract made with the government when the government stopped the performance of the contract, are recoverable as damages, and there is no presumption that the expenditures were unreasonable. The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage, namely, first, what he has already expended toward performance (less the value of materials on hand); secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. But when, in the language of Chief Justice Nelson, in the case of Masterson v. Mayor of Brooklyn, 7 Hill, 69, they are "the direct and immediate fruits of the contract," they are free from this objection; they are then "part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation." Still in order to furnish a ground of recovery in damages, they must be proved. If not proved, or if they are of such a remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense. This loss however he is clearly entitled to recover in all cases, unless the other party, who has voluntarily stopped the performance of the contract, can show the contrary. See also Planche v. Colburn, 5 C. & P. 58; S. C., 8 Bing. 14; Masterton v. Mayor of Brooklyn, 7 Hill (N. Y.), 61; Goodman v. Pocock, 15 Q. B. 576; Hadley v. Baxendale, 9 Excheq. 341; Fletcher v. Tayleur, 17 C. B. 21; Smeed v. Ford, 1 El. & El. 602; Inchbald v. Western Coffee Co., 17 C. B. (N. S.) 733; Griffin v. Colver, 16 N. Y. 489. United States V. Behan. Opinion by Bradley, J.

JUDICIAL SALE-SETTING ASIDE RESALE-SETTING REINSTATING-DAMAGES-USE OF PROP

ASIDE AND

ERTY.-Property was sold to H., by order of a court of bankruptcy. He not paying for it, the court, without notice to him, vacated the order of sale, and made an order selling it to C., who paid for it, and went into possession of it. Afterward, on review, the sale to C. was set aside, and the sale to H. reinstated. H. having paid for the property, received possession of it, and afterward the money paid by C. was repaid to him, held, that C. was not liable to pay to H. the profits derived by him from the use of the property while he had it. Conro v. Crane. Opinion by Blatchford, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

PARTNERSHIP-REAL ESTATE-DEBTS OF PARTNERSHIP.-Real estate purchased with partnership funds for the use of the partnership and used in the partnership business, is in equity regarded as assets of the

* To appear in 59 New Hampshire Reports.

partnership, and will be applied to the liquidation of partnership in preference to individual liabilities. Fairchild v. Fairchild, 64 N. Y. 471; Dyer v. Clark, 5 Metc. 562; Jarvis v. Brooks, 27 N. H. 37, 67; Cilly v. Huse, 40 id. 358; Parker v. Bowles, 57 id. 491, 495. Messer v. Messer. Opinion by Clark, J.

HEIRS-WHEN DOES NOT INCLUDE HUSBAND.-The word "heirs," in its technical common-law signification, does not necessarily embrace all who would share in the personal estate under the statute of distributions; and a bequest to the heirs of a deceased wife does not include her surviving husband, unless it appears from other parts of the will that such was the intention of the testator. Keteltas v. Keteltas, 72 N. Y. 312; Luce v. Dunham, 69 id. 36; Cleaver v. Cleaver, 39 Wis. 96; Esty v. Clark, 101 Mass. 36; Lord v. Bourne, 63 Me. 368. Welkins v. Ordway. Opinion by Clark, J.

EASEMENT-RIGHT OF WAY-HOW MAY BE USED.-A right of way, granted or reserved without limit of use, may be used for any purpose to which the land accom. modated by the way may naturally and reasonably be devoted. The owner of a way on land o another is limited in its use to the terms of the grant from which the way is derived. If granted for one purpose he cannot use it for another. French v. Marstin, 24 N. H. 440; Cowling v. Higginson, 4 Mee. & W. 245; Kirkham v. Sharp, 1 Whart. 323; Wash. Eas. 185, 186. But while the terms of the grant cannot be enlarged beyond their natural meaning, they will not be so narrowed as to prevent the beneficial use by the grantee of what is granted, in the manner and for the purpose fairly indicated by the grant. Senhouse v. Christian, 1 T. R. 560; Russell v. Jackson, 2 Pick. 574, 577. Abbott v. Butter. Opinion by Allen, J.

CONVERSION-PLAINTIFF'S MONEY DEPOSITED IN DEFENDANT'S NAME-NO DEMAND NECESSARY TO MAINTAIN ACTION-STATUTE OF LIMITATIONS.-Where the defendant, at the request of plaintiff, deposited money of the plaintiff in a savings bank in the defendant's name, upon the understanding that the plaintiff was to have the money whenever she wanted it, but if she never wanted it, that it was to become the defendant's money at the plaintiff's death, and the defendant afterward, without the knowledge or consent of the plaintiff, withdrew the money and converted it to her own use, an action for the recovery of the money can be maintained without a previous demand. In such case the statute of limitations runs from the time of the wrongful withdrawal of the money from the savings bank. Giles v. Merritt. Opinion by Clark, J.

MICHIGAN SUPREME COURT ABSTRACT.

DAMAGES WHEN RIGHT OF ACTION ASSIGNABLE— BREACH OF WARRANTY-MEASURE.-The plaintiff sued in his own right and also as assignee, on an agreement made by defendant, on sale of an evaporator purchased by plaintiff and his assignor with "guaranty and warrant to work well." The machine was tried but did not work satisfactorily, and was subsequently tendered back. "The question is made whether the claim was assignable, so as to enable the plaintiff to sue alone. We have no doubt it was. It has been several times held that rights to sue to recover damages for fraud or deceit are not assignable, Dickinson v. Seaver, 44 Mich. 624; S. C., 7 N. W. Rep. 182; Dayton v. Fargo, 45 Mich. 153; S. C., 7 N. W. Rep. 758; see Brush v. Sweet, 38 Mich. 574; but there is no doubt of the right to assign a claim like this. The statute provides that the assignee of "any bond,

note, or other chose in action, not negotiable under existing laws," may sue upon it in his own name (How. St., § 7344), and we have held that even actions for torts, if they were such as would survive to the personal representatives, are within the statute, Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 id. 154; Grant v. Smith, 26 id. 201; Finn v. Corbett, 35 id. 318; but the present is not a case sounding in tort, and it is within the reason of the statute'as well as its terms." Felt v. Reynolds, etc. Opinion by Cooley, C. J. [Decided Feb. 8, 1884.]

DAMAGES RULE WHERE ΝΟ MALICE -SAME ON CONTRACT OR TORT -PROFITS-CHATTEL MORTGAGEVOID FOR WANT OF FILING.-(1) There is a distinction between actions on contract and of tort, where malice is an element, but where parties are litigating disputed rights in good faith and there is a choice of remedies, the rule of damages ought not to depend on the form of the remedy selected. Estimates of profits are generally so unreliable as to be worthless as a means of arriving at the actual damages, and cannot be so used in the present case. The plaintiff delayed the replevy of the mill for three months, and he claimed on the trial to recover as damages the profits he might have made in the interval. The defense objected to the proofs offered, and referred to the decis ious in Allis v. McLean, 48 Mich. 428; S. C., 12 N. W. Rep. 640, and McKinnon v. McEwan, 48 Mich. 106; S. C., 11 N. W. Rep. 828, as authority against them. These cases are said not to be applicable, because they were suits upon contract, while the present is a suit sounding in tort. A distinction is undoubtedly to be taken between actions upon contract and actions of tort, in all cases where malice, express or implied, is an element; but where parties are in good faith litigating disputed rights, and there is a choice of remedies, the rule of damages ought not to depend upon the form of remedy the party has selected. This plaintiff elected to retake the property in an action sounding in tort; he might have waited until a sale and sued in assumpsit for the proceeds; but in either case the facts in controversy would have been the same, and the measure of damages ought to be by the same rule. The real question is, by what sale shall we with most certainty arrive at a knowledge of what they actually were? It was shown in the two cases just referred to that estimates of profits are generally so unreliable as to be worthless as a means of arriving at the actual damages; and in McKinnon v. McEwan, it is said that "the profits of running a saw-mill are proverbially uncertain, indefinite, and contingent. They depend on many circumstances, among which are capital, skill, supply of logs, supply and steadiness of labor, and one man may fail, while another prospers, and the same man may fail at one time and prosper at another, though the prospective outlook seems equally favorable at both times. Estimates of profits seldom take all contingencies into the account, and are therefore seldom realized; and if damages for breach of contract were to be determined on estimates of probable profits no man could know in advance the extent of his responsibility. It is therefore very properly held in cases like the present that the party complaining of a breach of contract must point out elements of damage more certain and more directly traceable to the jury than prospective profits can be." (2) A mortgage of chattels or a conveyance intended as such, not accompanied by delivery and continued changes of possession, is void as against creditors of the mortgagor and subsequent purchasers in good faith, unless a true copy shall be duly filed. Good faith in the mortgagee does not protect the unrecorded transfer which comes under this statute. Haynes v. Leppig, 40 Mich. 607; Fearey v. Cummings, 41 id.

383; S. C., 1 N. W. Rep. 946; Cooper v. Brock, 41 Mich. 491; S. C., 2 N. W. Rep. 660; Sutton v. Rowley, 44 Mich. 113; S. C., 6 N. W. Rep. 216; Anderson v. Brenneman, 44 Mich. 198; S. C., 6 N. W. Rep. 222; Wallen v. Rossman, 45 Mich. 333; S. C., 7 N. W. Rep. 901. Talcott v. Crippen. Opinion by Cooley, C. J. [Decided Feb. 8, 1884.]

AGENCY-EXCEEDING AUTHORITY-TITLE OF VENDEE. Where a husband, as agent for his wife, sells her goods upon terms not authorized by her the sale passes no title to the vendee (until ratification by the wife), and he cannot set up against the attaching creditors of the wife any claim that he cannot set up against her. Newburn v. Woods. Opinion by Campbell, J.

[Decided Feb. 8, 1884.]

DEED BREACH OF COVENANT - PERSONAL CLAIM OF GRANTEE SUBSEQUENT GRANTEE CAN ONLY SUE AS ASSIGNEE.-Where land is conveyed to a married woman by warranty deed, and there is a mortgage on the land, which is paid off by the husband of the grantee, said grantee having previously conveyed the land to her husband by a deed with no covenants, the husband has no right to recover under the covenants of the first deed. The default of the mortgage gives the wife a personal claim against her grantor, which the husband could only claim as assignee, and the deed to the husband conveyed only the land and not this claim. Nothing in the record indicates any intention to convey the claim. Post v. Campau, 42 Mich. 90; 3 Neb. Rep. 272, distinguished. Davenport v. Davenport. Opinion by Cooley, C. J. Decided Feb. 6, 1884.]

CORRESPONDENCE.

IN WESTMINSTER HALL.

Editor of the Albany Law Journal:

In my day the most conspicuous figure in Westminster Hall was Lord Chief Justice Cockburn. He was a little old man, with the most intellectual face I have ever seen-high, broad forehead, clear, brilliant eyes, and a most musical voice. His detractors said he was too fond of displaying his own powers, and too ready to take a strong view of one side of a case, but if there was some little foundation for these complaints, none could deny his rapidity of apprehension, clearness of thought and expression, and never-failing courtesy. His very faults arose from his desire to do justice. He could not sit on the bench a dummy and see the weaker made to appear the better reason to a befogged jury. Cockburn was generally admitted to be facile princeps in the strongest Queen's Bench Court that England has had for many years.

His coadjutors were Blackburn, Lush, Mellor, Quain and Haunen. Blackburn, a master of the common law, profound and exact, but justly unpopular with the bar for his bullying tendencies and merciless treatment of unknown jurors, a fault the more inexcusable in one who had himself been promoted from obscurity to the bench. Lusk, a gentleman really beloved by all who practiced before him, modest and unassuming, but withal having a quiet dignity which stood him in far better stead than his colleague's sneers and impertinences. Mellor, a sound, steady, thorough lawyer, rather prolix, but always equal to his work, and Quain and Hannen, both men who wanted years rather than ability to make them equal in weight with their more prominent brethren.

Outside the Queen's Bench the two best known and ablest judges were Brett and Bramwell. Brett was reputed the best man on the bench for a shipping or commercial case, and Bramwell had a fame all his

own for strong common sense, and a rough, pithy way of putting things. Perhaps no judge was a more general favorite than Bramwell, both with the bar and the public, and none cared less for popularity. Then there was poor old Kelly, the chief baron, the wreck of a splendid advocate, now capable of nothing but "words, words, words."

In the equity courts, which, by a legal fiction we may treat as being at Westminster, where indeed they sat once every term, Romilly's somnolent tendencies were still an unforgotten jest, and his great successor, Jessel, was commencing that magnificent but too short lived career which remains the wonder and admiration of the English bar. Malins, an able lawyer, but a peppery and undignified judge, was constantly kicking up his heels, and sedulously kept up the title of his court as the "Chancery Bear Garden." Still he got

THE SPEAKERSHIP. Editor of the Albany Law Journal:

As to the speakership of the House of Representatives, the facts are these: There have been twentynine speakers to the present time. They are classified as follows: One medical doctor, 1 merchaut, 1 minister, 2 journalists, 6 politicians, 18 lawyers.

Of the lawyers re-elected, James K. Polk served two terms: Andrew Stevenson, four; and Henry Clay, five. Both Stevenson and Clay were re-elected more often than any other name on the list.

The lawyers have had their share, Mr. Editor.
ALBANY, April 14, 1884.
R. W. THOMAS.

COURT OF APPEALS DECISIONS.

no few well considered decisions to modern equity jurisprudence.

In appeal James and Mellish, the inseparable twins, delivered their constantly unanimous judgments, and James carried to its extreme the conversational style of argument, much to the bewilderment and disgust of the less ready members of the bar. Mellish generally confined his share in the spoken labors of the court to the words "I assent," invariably following his colleague's judgment. Notwithstanding these apparent defects, the decisions of this court always carried great weight, and were seldom reversed by the lords, both the lords justices being well known as lawyers of unexceptionable bearing.and ability.

The House of Lords itself I only saw once in legal session. Jessel, then solicitor-general, was delivering his famous argument in the Mordaunt divorce case. Benjamin, if I remember rightly, was his opponent, and his little figure appeared to be utterly swallowed up in the full-bottomed wig which it is de rigueur to wear before their lordships. On the woolsack was the chancellor in lonely majesty. Immediately before him were three or four common-law judges, wearing their huge wigs with an air of sulky resignation, and on the benches around in ordinary civilian dress were the Law Lords Hatherly, Chelmsford, Selborne and one or two others whom I have forgotten. The whole scene was strangely like morning service in an empty cathedralthe full, sonorous tones of Jessel-the sacrificial vestments of the judges, and the great spaces of blank emptiness in the gorgeous chamber, partially lit up in many columns by the morning sun struggling through the stained glass, whilst the law lords themselves, in their lounging attitudes and evident jauntiness, suggested the little group of dilettanti always to be found around the choir waiting for the anthem.

I fear I have unconsciously trespassed upon your space. Possibly however the space trespassed on will be your waste-paper basket. Time will show. Any way here is a full stop to my scribble. A. B. M.

PROVISION THAT LEGATEE CONTESTING WILL SHALL FORFEIT HIS LEGACY.

Editor of the Albany Law Journal:

In answer to the inquiry of "A Reader," of Poughkeepsie, asking for a recent decision bearing on the question whether or not a clause in a will is valid, which provides that in case a legatee contests the will, such contestant shall forfeit his legacy, I beg leave to cite Jackson v. Westerfield, decided by Judge Van Vorst, of New York, in August, 1881, and reported in 3 Law Bulletin, 83.

In that case Judge Van Vorst held such a clause void, on the ground that it imposed a restraint upon proper inquiry into testamentary capacity, and the legal validity of dispositions of property. ALBANY, April 14, 1884.

J. T. M.

day, April 22, 1884:

Judgment reversed, new trial granted, costs to abide event-Maria M. Miller, appellant, v. Marilla Mackenzie and another, administratrix, etc., respondents; Charles Stanford, assignee, appellant, v. Willston B. Lockwood, et al., respondent.-Order affirmed with costs-William Ashemoor, respondent, v. Samuel Emmert, appellaut; in re petition of Edward Roberts to vacate, etc.; in re application of George C. Genet, etc., Buffalo Lubricating Oil Co., limited, appellant, v. Charles M. Everest, impleaded, respondent.- Appeal dismissed John C. Phillips et al., respondents, v. Cornelius A. Wortendyke, appellant.-Motion to advance cause to date of filing first; return granted without costs.-Nathan Pakalinski, an infant, v. The N. Y. C. & H. R. Co.-Denied without costs-Hebrew Free School Association v. The Mayor of New York. Motion to stay proceedings; denied without costs-William H. Hills v. The Peekskill Savings Bank.- -Motion to correct remittitur; denied without costs-In re will of John Hancock. Motions for reargument; denied with costs-Josephine Todd v. Albert Weaver and others, executors; Mary Jane Peck v. Patrick Callahan.

-Motion to put criminal case on calendar; granted. -The People v. Bernardino Carmano.— Motion to correct remittitur. The court having ordered that the appeal be dismissed with costs, and not having ordered absolute judgment for the plaintiff, and the remittitur being unauthorized in the shape in which it was sent down, the court below, upon such terms as may seem just, in view of all the circumstances, is requested to cause the remittitur to be returned to this court, to the end that it may be made to conform to the decision actually made-Susan A. Rogers v. The Village of Sandy Hill.-Motion to advance cause; granted without costs-A. Burton Hepburn, executor, v. William H. Montgomery and others.- -Motion to open default; granted upon payment of $10 costs and the disbursements consequent upon the default, the printed papers to be served within ten days from the entry of this order-Erastus B. Searles v. The Manhattan Ry. Co. Motion to withdraw appeal; granted on payment of costs and disbursements on appeal to the Court of Appeals, except the fee for argumentThomas Vernon and others v Albert Palmer.-Motion to correct remittitur; granted, and remittitur amended so as to read: "Judgment of the General Term of the Supreme Court is reversed, and that portion of the judgment of the Special Term appealed from to the General Term is reversed, and the complaint is dismissed as to all matters and claims as to which such appeal was taken, with costs to the appellants and to the guardian ad litem of the infant defendants, appellants."-Mary E. Johnson, executrix, v. John J. Lawrence and others, trustees.-Motion to dismiss appeal; denied with $10 costs -- - In re estate of David M. Peyser.-Motion to set cause down for day certain; denied, but counsel is permitted to submit brief in the pending cases within ten days, brief to be served upon counsel in these cases-Elisha Carpenter v. The N. Y., L. E. &. W. R. Co.