gation; and (Earl and Johnson, CC., dissenting) that the ice was the proximate cause of the injury; and that defendant was not liable.

The policy also required that the boat should be safely moored during the winter, satisfactorily to the defendant. Held (Earl, C.), that this did not require the boat to be moored with absolute safety, but in a proper place and with reasonable care and safety; and notice to defendant of the place of mooring was not necessary. Allison v. Corn Ex. Ins. Co. Opinions by Reynolds and Earl, CC.

MORTGAGE.

Title: estoppel.-This action was brought to restrain defendants, who were loan commissioners for Washington county, from foreclosing a mortgage. It appeared that M. B. P., who was in possession of certain premises, which belonged to his father, forged a deed of the premises from his father to himself, and put it on record May 27, 1870. On October 1, 1850, he and his wife executed a mortgage of said premises, with covenants of seizin and title, to defendants. A deed of said lands, dated April 1, 1853, which purported to be executed by M. B. P. and wife to his father, was recorded January 23, 1860. The father conveyed said premises to M. B. P. December 16, 1859, and the deed was recorded January 14, 1860. Until this conveyance from his father, M. B. P. had no title to the land, although he remained in possession of the same from 1848. On January 31, 1867, still being in possession, he conveyed the lands to plaintiff, who had paid full value for them, without any actual notice of the mortgage to defendants. Held, that the title acquired by M. B. P. inured to the benefit of defendants, and he and his privies in estate, in blood and in law, were estopped from questioning that, at the date of the mortgage, the mortgagor had title; and that the record of the mortgage was constructive notice to plaintiff, and, under the recording act, gave the mortgage priority to his title. (Lott, Ch. C., and Reynolds, C., dissenting.) Tefft v. Munson et al. Opinions by Earl and Reynolds, CC.

PATENT.

Injurious publication: jurisdiction.-This action was brought to restrain defendant from publishing and circulating a circular or notice to the injury of plaintiffs' business, and for damages caused by such circulation. The plaintiffs' complaint alleged in substance that they were the owners of a valuable right, secured by letters patent, and were engaged in the manufacture of the patented article; that defendant had printed, published and circulated a circular or notice, claiming to be the owner of various letters patent securing such right, and that it was exclusively authorized to make and sell such patented articles, and threatening prosecutions for infringements of its right, in consequence whereof plaintiffs were injured in their trade, etc. Defendant set up in its answer, its letters patent, and alleged that the plaintiffs' trade was an infringement upon its rights. The court below found the issuing of the circular, that it was injurious to plaintiffs' business, but, having been issued in good faith, with the sole purpose of advising the public what the defendant considered its rights, the action was simply for an infringement of rights created by and under the patent laws, and was not one within its jurisdiction. Held, no error. Burrall v. Jewett, 2 Paige, 134, and Middlebrook v. Broadbent, 47 N. Y. 443, distinguished. Hovey et al. v. Rubber Tip Pencil Co. Opinion by Johnson, C.

BOOK NOTICES.

A Treatise on the Law of Guaranties and of Principal and Surety. By Henry Anselm De Colyar. With American Notes by James Appleton Morgan. New York: Baker, Voorhis & Co., 1875.

The treatise of Mr. De Colyar is the latest work on the subject of Guaranty and Suretyship which has appeared in England. It was published in April, 1874. In the present edition, the American Editor, Mr. Morgan, has added notes and references to about 1,200 American cases, thus producing, as the publishers call it, an English-American" work on the subject treated. The style of Mr. De Colyar varies somewhat from the standard English and American styles of lawwriting. By the English system of legal text-writing, a history of the adjudications on the subject is given; by the American system, principles and rules are deduced from the cases, and set forth as the results of the writer's researches. Mr. De Colyar's system is a combination of the English and American systems, and, as a consequence, his treatise is at once theoretical and practical, analytical and historical.

The American editor has not attempted to present all the American cases upon the subjects treated; but has made what is deemed a judicious selection of the important and leading cases. An appendix contains the Statutes of Frauds and Perjuries of England and of the several States, the compilation being brought down to the present time. This valuable addition to the work is entirely reliable. The general character of Mr. Morgan's work in this edition is admirable. His notes are clear, accurate, well-expressed, and, in some instances, elaborate; and his style of writing corresponds well with that of Mr. De Colyar. The immense importance of the law of guaranty and suretyship, the frequency of its application, as shown in the multitudinous decisions, and the accuracy and ability with which the present work has been prepared and edited, will insure its success.

Reports of Cases decided in the Circuit and District Courts of the United States for the Ninth Circuit. By L. S. B. Sawyer. Vol. II. San Francisco: A. L. Bancroft & Co., 1875. This volume embraces cases at law civil and criminal, in equity, admiralty and bankruptcy, and cases on appeal from the American Consular and Ministerial Courts, in China and Japan. The decisions are varied and generally well-considered. Among the more noticeable cases we find the following: Speyer v. Mary Belle Roberts, p. 1, holds that where goods arrived in a damaged condition and it appeared that the damage was in great part caused by the carrier's fault, and that damage, to some extent, would probably have been caused by perils of the sea encountered by the vessel, but to what extent the carrier was unable to show, he was liable for the entire damage. United States v. Mattock, p. 148, holds that the word "cattle" includes sheep and is used in that sense in § 9 of the act of June 30, 1833, prohibiting any person from depasturing Indian lands with "horses, mules or cattle," under penalty of $1 for each animal. In re Bailey, p. 200, holds that the word "armies" as used in § 20 of the act of July 17, 1872, relating to the citizenship of persons who have enlisted, does not include "marines." In re Francis, p. 286, is a very elaborate case and decides that participation in the profits of a business is not conclusive proof of a partnership and it may be shown that the profits were received as wages or as interest for money loaned. This case is in harmony with the later English decisions. In The Vancouver,

p. 381, it was held that a wire cable across a river as a guy for a ferry-boat is not an unlawful obstruction unless it in fact prevents or renders hazardous navigation. In The Merrimac, p. 586, it was held that the contract of towage is a bailment requiring only ordinary skill and diligence on the part of the master of the tug.

The volume contains about one hundred cases, and has a good index. We do not find any table of cases cited, a defect which should be supplied in succeeding volumes. The reporting is well done, though not uniform; and we may say that the volume shows that the administration of justice in the Ninth Circuit of the United States courts is in competent hands.

NOTES.

The London Law Journal says that Mr. Huddleston, the new Common Pleas judge appointed to fill the vacancy caused by the resignation of Justice Honyman, is the youngest son of the late Mr. Thomas Huddleston, R. M., by Alethea, daughter of Mr. A. Hichens. He was born in the year 1817, and was educated at Trinity College, Dublin. He was called to the bar at Gray's Inn, in Easter Term, 1839, joined the Oxford Circuit, and has been for some time counsel to the Admiralty and Judge-Advocate of the Fleet. He obtained the honor of a silk gown in 1857, and is a bencher of his inn, of which he has also been twice treasurer. He sat in the parliament of 1865-8 in the conservative interest as one of the members for Canterbury, and was returned for Norwich at the last general election. Mr. Huddleston married, about two years since, Lady Diana Beauclerk, only daughter of the late, and sister of the present, Duke of St. Albans.- It is said that in consenting to his transfer to the Common Pleas, Mr. Justice Archibald has, without asking for compensation, surrendered his chance of a valuable reversion. By 6 Geo. 4, ch. 84, § 7, a certain reward of £40 per annum, at the rate of £10 in every term, which, so far back as 1762, "had long since been assigned to the second judge of the Court of King's Bench in respect of his labor and trouble in giving the charge to the grand jury, and pronouncing judgment in the said court against malefactors," was expressly secured to the senior puisne judge of the court. "The said termly allowance of £10, or reward of £40 per annum," delares the statute, "shall continue to be paid to the said second judge of the said Court of King's Bench after the passing of this act, in addition to all other sums of money which such second judge shall be entitled to receive under or by virtue of this act, or any other act or acts."

The London Law Times says: "A question of great practical importance to innkeepers and their guests came before the Court of Error in the Exchequer Chamber in the case of Threlfall v. Borwick. The character of the question will be at once seen from a short summary of the facts. In December, 1870, a man named Butcher hired some rooms at the hotel of the defendant for himself and family at a fixed rate, and also agreed to pay a sum for bis board. He brought with him a piano, which he had hired from the plaintiff. January, 1871, he left the hotel, being indebted at that time to the landlord in the sum of £52 for board and lodging. He left the piano behind, remark- | ing that Threlfall would send for it. The innkeeper thought the piano belonged to Butcher, and some time appears to have elapsed before he learned that the real

owner was the plaintiff. However, having discovered the whereabouts of the piano, the plaintiff demanded it, and upon his claim being resisted, brought an action for its recovery. At the trial, before Mr. Justice Lush, the point of law as to the innkeeper's right of lien was reserved, and the Court of Queen's Bench decided it in favor of the defendant. This decision has been upheld by the Court of Exchequer Chamber. 'It was admitted,' says Lord Coleridge, that the innkeeper has a lien on the goods his guest brings with him, and that he has the same lien on the goods, whether they are his guest's or another's. The only question is whether he has a lien on the goods, not the less because he was not bound to receive them.' But, as his lordship pointed out, this assumed that he was not bound to receive them; whereas, when a person went with an instrument such as that for which the action was brought, and intending to spend some months at an hotel, the innkeeper, if he had room for it, would be bound to receive it. The guest,' his lordship continues, might be in the habit of taking the musical instrument with him, for the purpose of reasonable recreation. But however that may be, having taken it, and having safely kept it for a certain time, it is too clear to be doubted that the innkeeper had a lien upon it, and both upon principle and authority the judgment must be affirmed.' It would certainly be difficult to come to any other decision than this upon the facts of the case; nor is it in the slightest degreee inconsistent with the principles laid down in Cayle's case."

·

A letter from St. Petersburg, published in the Memorial Diplomatique of Paris, states that some ladies have formed a society with a view of qualifying themselves for the bar, and demanding permission to plead after undergoing the prescribed examination. The Memorial Diplomatique says the Egyptian International Appellate Court will consist of Mr. Scott, as the representative of England; Herr Lapenna, of Austria; Signor Giaccone, of Italy; Herr Scaroqua, of Germany; M. Cumassy, of Russia; Baron Anspeld, of Sweden, M. Devos, of Belgium, and Dr. Baringer, of the United States. The French member will not be appointed till the convention has been ratified by the assembly.— Richard Ward Greene, formerly chief justice of the Supreme Court of Rhode Island, died March 14, 1875.

A bill has been introduced into the Pennsylvania legislature, providing "for the adjustment and settlement of disputes between persons, partnerships, ass0ciations and corporations engaged in the mining of coal, or the manufacture or production of iron or steel, and their operatives."

The Central Law Journal will hereafter eschew politico-legal subjects, such as the Arkansas case, an article on which appeared in its issue of February 26th; and such subjects will be discussed, when advisable, in the Southern Law Review. The forthcoming number of the Review will contain the fourth and last of a series of articles on "Modern Theories of Government," by Chancellor Cooper, of Tennessee, and also a paper on the "Legal Aspects of the Louisiana Case." -The Central Law Journal says that Dr. H. Meinertshagen, a member of the editorial staff of the Anzeiger des Westens, died recently in St. Louis. He was a man of eminent ability, and a lawyer by profession. He was born in Bremen, was highly connected, and was a judge of the Luebeck Court. After coming

to the United States, he occupied the position of managing editor of a German daily paper in Pittsburgh, and came west last summer.— -Lewis Tillman, Jr., has published a long and interesting article in the Nashville Commercial Reporter, on the "Administration of Insolvent Estates in Chancery," under the provisions of the Tennessee Code.

At a meeting of the Chicago Bar Association, held recently, about forty members were present. A resolution was adopted, that the Supreme Court of the State be requested to take into consideration the delay in the publication of the Illinois reports. This resolution was opposed by some members, on the ground that Mr. Freeman, the reporter, intends to get out a volume of the Illinois reports once in two months until the arrears are disposed of. The association has before it a resolution declaring it to be the duty of the general assembly to abolish the distinctions between actions at law and in equity. The Chicago Legal News, in speaking of this matter, says: "Our practice is constantly being reformed. It is not the legal profession that is forcing these reforms, but the mass of the people through the law-making power. And unless the attorneys of the State come to the front and take this matter in hand and direct these reforms, it will not be many years before we will have the most radical of codes in Illinois."

A correspondent of the Solicitors' Journal thus speaks of the practice of "deviling" at the bar in England. He says: "I wish to direct the attention of the profession to what has recently befallen a client of mine owing to this pernicious system. I was concerned as a solicitor for a petitioner in a divorce suit. On the case coming before the court, the respondent and co-respondent were unrepresented. I had briefed a young barrister, who is occupied with work other than that of advocacy or chamber practice. He had had his brief for months. To my horror, when the case came on, a gentleman was holding my brief of whom I knew nothing, far younger than the man I had briefed, nervous and-well, I will give you what happened. Of the facts of the case he knew little or nothing; in addressing the jury on the question of damages he simply said, 'I leave it entirely in your hands.' He asked the learned judge for a decree nisi before the finding of the jury, and said nothing as to costs, being of opinion that they followed the event.' My client (a poor man), in a clear case, therefore, only got a decree nisi, without costs and without damages, while the instructions in the brief warranted an urgent appeal for both. Never was greater injustice done to any client. Some means must be devised to arrest a continuance of this state of things."- Mr. Robert Hill Pinhey has been appointed a judge of the High Court of Judicature at Bombay. Mr. Pinhey was called to the bar at Lincoln's Inn in Easter term, 1869, and has been for several years a member of the Bombay civil service. He has recently held the post of sessions judge at Poonah.

a copy of the United States Revised Statutes: "It weighs eight and one-half pounds; measuring outside of the binding it is twelve inches long, eight and a half inches wide and three and one-quarter inches thick; the printed page measures eight and one-quarter inches by four and a half, not including the side notes."

Gov. Davis has appointed J. Gilfillan, of St. Paul, chief justice of the Supreme Court of Minnesota, vice Chief Justice McMillan, elected United States senator.

- By the constitution of Pennsylvania, adopted in 1873, a new organization of the judicial tribunals of the State was directed, under which the Nisi Prius, District and Common Pleas Courts of Philadelphia city and county ceased to exist on the first Monday of January, 1875. The judges of the Supreme Court theretofore in turn holding the Court of Nisi Prius, were relieved from original jurisdiction, and the judges of the District and Common Pleas Courts were transferred to the new Court of Common Pleas created by the constitution. On the final adjournment of the District Court, January 4, 1875, addresses were made by Judge J. T. Mitchell, Benj. Harris Brewster and Judge Hare. These addresses have been published in pamphlet form by J. M. Power Wallace, Legal Intelligencer office, Philadelphia.

We have received advance pages of Redfield's Surrogate's Practice now in the press of Messrs. Baker, Voorhis & Co., and have satisfied ourselves that the work will be one of sterling merit. The author has evidently looked into the reports and statutes within the last five years, and the publishers have not thought it necessary to swell the book by narrow pages and double leads. The edition will very evidently be an honest one, and, we do not doubt, a very useful one. Judge Hoffman's work on the Law and Practice as to References is announced to appear next week. (Diossy & Co.)

The report of Andrew H. Green, comptroller of New York, in response to resolutions of the board of aldermen, is published. It is entitled, "A Three Years' Struggle with Municipal Misrule." Mr. Green thus describes the chief cause of the great frauds: "The debt-contracting power was, under the late regime, exercised indiscriminately by all branches of the city and county government. Little or no regard was paid to the positive prohibitory provisions against expenditures in excess of authorized appropriations, and the natural result was an annual spawning of a mass of illegal claims to be settled as best they might."——Mr. Green says that, under the British government, offices have not unfrequently been constituted, and certain privileges, fees and emoluments attached thereto, as a reward for distinguished civil and military service. The beneficiaries of these offices often become distinguished personages in the State, enjoying their dignities and receiving the revenues, as it were, in lieu of a pension. In the course of centuries, questions arose in the courts as to their right to these emoluments, and the principle was laid down, that the holder of an office of this character need not render any contemporaneous service whatever; he had already rendered the service, and was entitled to the reward. The comptroller thinks that the principle underlying this custom has been misapplied in New York, and has been invoked to sustain all sorts of sinecures.

All communications intended for publication in the Law JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, MARCH 27, 1875.

CURRENT TOPICS.

IN the United States Circuit Court at Memphis, Judge Emmons has made an exhaustive and able charge to the grand jury in reference to the civil rights bill. The judge holds that the denial of full and equal enjoyment of the accommodations, advantages and privileges of theaters and inns to negroes is not an offense within the jurisdiction of the United States courts. This is a matter which the State governments alone can control. The punishment of murder, arson, assault and battery, trespass, frauds, injuries to reputation, obstruction to the right of attending church, public schools, theaters, and of refusing accommodation at inns and in public

conveyances, the judge said, were matters not granted

to the general government, and the recent amendments to the constitution had not altered this. He

holds that the clauses forbidding States to deprive any person of life, liberty or property without due process of law, or to deny to any person equal protection of the laws, have no application to the cases enumerated.

There seem to be grave difficulties in the way of a settlement of the appellate jurisdiction in England under the Judicature Act. That act creates a court

of final appeal, and deprives the House of Lords of the power to hear final appeals. A strong opposition has developed against this scheme, and a committee has been formed for preserving the jurisdiction of the House of Lords as a court of final appeal, with the Duke of Buccleuch, Earl Powis, Lord Redesdale, and many others, as members. At a meeting of the committee recently held, a communication was read from the lord chancellor acknowledging the receipt of a memorial of four hundred and fifty of the leading members of the bar of England, which the chancellor said would receive the respectful consideration due to the number and weight of the signatures. Lord Redesdale read a resolution of the advocates of Scotland, expressing their preference for the jurisdiction of the House of Lords as the court of final appeal, and their desire that there should be only one court of final appeal for England, Scotland and Ireland. The proposed changes in the appellate jurisdiction in Great Britain are extensive and important, and the opposition which they encounter is naturally to be expected.

VOL. 11.- No. 13.

It will be remembered that an injunction was sought, some time since, against the Christopher and Tenth Street Railroad in New York, to restrain the accumulation of snow, on the sides of the streets, by the use of snow-plows and sweepers. The injunction was denied by Judge Robinson. Now the railroad company seek an injunction restraining the city authorities from throwing the snow back on their tracks. Judge Donohue, before whom this latter suit was brought, held that the company had a right to use the means employed to clean their tracks, and the company having done what they had a

right to do, the city authorities had no right to undo it. The judge said that he followed the well-considered opinion of Judge Robinson which we noticed recently; and, as a consequence, if the snow is replaced on the track the same sweeper could be resorted to put it off, and if the right is so possessed to clean the tracks, it must carry with it the right to have them left free. Whatever inconveniences or disregard of private rights there might be in the matter, redress must come from the legislature. The injunction was accordingly granted.

A remarkable case came before Judge Donohue

The

in the Supreme Court at New York recently. It appears that the Female Academy of the Sacred Hundred and Twenty-sixth street, Heart owns about fifty acres of land above One on which its school-houses and other buildings are erected. The assessors exempted the buildings and ten acres of land from taxation, but assessed the academy for taxation on the other forty acres. academy then brought action to have the whole fifty acres declared exempt from taxation. It was contended, on behalf of the city, that it was a proper question for a jury to decide whether all the fifty institution, or whether more than ten acres were acres were necessary to the charitable purposes of the necessary for the academy's purposes. On the other side, it was claimed that the question was for the court to decide. The decision was reserved.

In a recent lecture on International Arbitration before the Catholic Union in New York, General Martin T. McMahon alluded to the efforts that had been made in former years to devise means whereby armed contests between nations might be avoided. In the earlier ages civilized nations were united by a common faith, and the Pope was looked to as the great arbiter of national disputes. He acted by consent of nations, and by the authority of organic or constitutional law, and had for his sanction, when required, the sword of Europe. His decisions also had the sanction of the great moral influence derived from the spiritual character of the Pontiff. General McMahon showed that the success of modern arbitration depends entirely upon the enlightened

opinion of nations, and that even this cannot supply the physical power without which the wisest judgments and decrees of international courts are apt to remain a dead letter. The lecturer admitted, however, that the peaceable execution of the decision in the Alabama case was a striking instance of the efficacy of the moral sanction in international mat

ters.

A curious omission is said to have been discovered in the Federal laws. A man was charged with personating a deputy United States marshal in New York, and a warrant for his arrest was applied for. A United States commissioner and two assistant

district attorneys, after a long search through the statutes, discovered that there was no law making it a crime for a man to personate a deputy United States marshal, and the warrant was refused.

A scandal case, in nearly every respect, quite as remarkable and important as the Tilton-Beecher case, has just come to an end in England. We refer to the Mordaunt case in which a petition for divorce was filed by the husband against the wife as early as April, 1869. Several persons were charged in the bill as having been guilty of adultery with Lady Mordaunt. On the first trial the Prince of Wales was called upon to testify that the relations between himself and the defendant were innocent. During the progress of the case the question of the wife's insanity came up, and whether it was a bar to the proceedings for divorce. This question was elaborately argued and went to the House of Lords, on final appeal, where it was directed that the suit should proceed on its merits. On the last trial the husband and the co-respondent, Viscount Cole, were represented by counsel but the defendant was not represented. Evidence was introduced which satisfied the jury's minds that the complainant's charges were true, and the court accordingly decreed a divorce.

was re

The definition of the word " "gentleman cently considered, in the English Common Pleas, before Lord Chief Justice Coleridge, and Justices Keating, Grove, and Denman. The case was Smith v. Cheese, and the question at issue related to the validity of a bill of sale. The statute requires that the affidavit of the execution of the paper in question should set out the name, address and description of the attesting witness. In the present case the attesting witness was described as a "gentleman." It appeared that he had been for many years managing clerk to a firm of proctors, which position he left six years ago. Since then he had lived chiefly on an allowance from his mother, but being well known he was frequently asked to write letters, advise people, collect debts and do other things, for which he was occasionally paid. It was contended that the description of the attesting witness was inac

curate. Justice Keating inquired how he should have been described, to which counsel replied that he should have been described as a letter-writer or a debt collector, and referred to Allen v. Thompson, where a government clerk was held to be improperly described as a 66 gentleman "and to Beales v. Tennant, where Mr. Talfourd contended that the term would include anybody who had nothing to do and was out of the work-house. Justice Denman thought the question was a serious one, for if it were held that this person was a "gentleman " it would be quoted as an authority all round the world. Lord Coleridge said, that it was no doubt important, if possible, to place this matter upon some intelligible footing, for if the word " "gentleman were allowed to cover all sorts of non-descript occupations it might be misleading. The decision was that the attesting witness was not properly described.

In the United States Supreme Court an opinion has just been delivered in the case of Burke v. Child, on appeal from the Supreme Court of the District of Columbia. The action was brought by Mr. Child to recover against the administrators of the late N. P. Triest, for services rendered in procuring action by congress for his relief, in the matter of his claim for compensation for negotiating the treaty of Guadeloupe Hidalgo. The court below rendered judgment in favor of plaintiff; but the United States Supreme Court reverses the judgment, holding that claims for lobby services are not founded in good morals and cannot be maintained in the courts. Lobbyists are not often driven to the courts for redress and cases of this kind are rare. They will now be rarer still.

The habeas corpus case of Mr. Tweed has been argued in the Court of Appeals, this week, with much ability and elaboration. Mr. Tweed's counsel claim that the indictment on which he was convicted and sentenced was never read to the defendant; that the indictment was found on the complaint of one person; that the seventh count contained no charge of any offense, and yet it was one of the counts on which sentence was specifically imposed. It is further contended that the commitment is not warranted by the judgment, and fails to show any authority for detaining the prisoner. The court of Oyer and Terminer had no jurisdiction to receive and try an indictment for misdemeanor without the previous action of a committing magistrate or the Special Sessions, and the court was not competent to render any judgment or sentence. Again the warrant of commitment directs that Mr. Tweed be imprisoned in the penitentiary of the city of New York; whereas the judgment directs that he be imprisoned in the county jail of the city and county of New York. It is also urged that all the sentences