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The original jurisdiction of the Circuit Courts of the United States is restricted to cases in which the amount in controversy exceeds $500. An original suit could not, therefore, be instituted by this plaintiff in the Federal court. It is not suggested that jurisdiction in ancillary, dependent or supplementary suits would not be in like manner limited, but if it were not, and the Federal court might measure its equitable jurisdiction in such cases by that of the State courts, the amount in controversy would still be inadequate, since it is under $100. Comp. L., § 5059; Gamber v. Holben, 5 Mich. 331.

There is no statutory proceeding by means of which the rights of the plaintiff could have been tried and protected in the Federal court. It might be very proper and suitable to provide by statute some method in which one whose property has been seized on an execution against the property of another might have it released immediately on giving a forthcoming bond, or might have his claim summarily tried. But no such method is now provided. If the owner under such circumstances would recover his property in specie he must resort to replevin. Take away his right to bring replevin, and however inadequate it may be in some cases, he is limited to the remedy in damages. In many cases this would be utterly inadequate. And there is not a sentence or a line in Freeman v. Howe which affords any countenance to the doctrine that the Federal court must hold exclusive jurisdiction of such a case when from the circumstances it is incompetent to give the same full and effectual redress that the process of the State courts may afford. Neither is that decision based at all on the impropriety of allowing the proceedings in the courts of the one jurisdiction to be brought into controversy in the courts of the other. This is fully shown in Buck v. Colbath, 3 Wall. 334.

In this case the plaintiff claimed a particular remedy to which I think she was clearly entitled. The Federal court could not give it, nor could it give any other which would accomplish its essential purpose. She had a right, therefore, to sue in the State court. It is immaterial that the property here in question was such as could not have had to the plaintiff any peculiar value; that which is involved in the next case which arises may be something which, by reason of family association or other peculiar circumstances, may have to the owner a value which no damages can measure. The principle cannot depend upon the facts of special cases.

I am, therefore, of opinion that the plaintiff was entitled to maintain this suit. The judgment of the court below should be vacated and the cause remanded with leave to defendant to plead over. The plaintiff will recover the costs of this court, and the costs below will abide the result.

Campbell, C. J., and Marston, J., concurred.

Graves, J., in an opinion, favors reversal on the ground that a plea in abatement to an action in replevin for goods seized on process against a third person is insufficient if it merely alleges that defendant seized them under a certain described execution without also alleging that they were seized as the property of the defendant named therein or as liable to seizure for his debt.

Campbell, C. J., concurs with this view, but Cooley, J., dissents from it.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-DISCRETIONARY ORDER NOT APPEALABLE TO THIS COURT.- Defendant took an appeal from a Surrogate's Court to the General Term, which made an order which plaintiff claimed reversed the decision of the surrogate. Plaintiff thereafter, upon affidavits, made a motion before the General Term,

first, for leave to renew a former motion, and second, for a modification or amendment of the order previously made, so as to conform with the evident intention of the General Term," etc. This motion was denied. Held, that an appeal would not lie, the matter being within the discretion of the General Term, in the absence of an abuse of that discretion. Buckingham v. Dickinson, 54 N. Y. 682; Depew v. Dewey, 56 id. 657; White v. Coulter, 59 id. 629. Appeal dismissed. Bentley v. Waterman. Opinion by Danforth, J. [Decided Nov. 11, 1879.]

CONSTITUTIONAL LAW LIMITATION OF JUDICIAL OFFICE BY AGE LIMITS TERM.— The provision of the Constitution of New York that "no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age," creates a limitation or qualification of the term prescribed, and is not a merely personal disability creating a vacancy like death, removal, etc. Accordingly, where a county judge attains the age of seventy years before the last year of the full term for which he was chosen, held, that an election of a successor to him at the general election held during the year when he attained seventy years of age, whose term was to commence on the succeeding January 1st, was valid. The tendency of legislative and judicial construction has been in favor of the construction that the provision mentioned operates to limit the term of six years prescribed for the office of county judge. Laws 1870, chapter 86, provides for the filing by a judge of a certificate "in which he shall state his age and the time when his official term will expire, either by effluxion of a full term or by reason of the disability of age prescribed in the Constitution." See, also, Code of Civil Procedure, section 4, which re-enacts the same provision. Contemporary legislation will be given great weight in the construction of constitutional provisions. People v. Green, 2 Wend. 274; Contant v. People, 11 id. 513; Williams v. Dayton, 55 N. Y. 378. See, also, People v. Gardner, 45 id. 812. Judgment affirmed. People ex rel. Joyce v. Brundage. Opinion by Church, C. J. [Decided Oct. 14, 1879.]

EMINENT DOMAIN -RAILROAD CROSSING ANOTHER RAILROAD-WAIVER-EXCLUSIVE USE.-(1)In a proceeding to acquire lands for railroad purposes, held, that the objection that the petition is not properly verified cannot be raised for the first time on appeal. By answering and going to a hearing without objection, the one whose lands are sought to be appropriated waives such an informality in the petition. (2) The statute authorizing the crossing of one railroad by another does not limit to a single crossing, and a new road running parallel to the one sought to be crossed is not excluded from the operation of the statute. (3) The failure of the company owning the first constructed road to object to the location made of the new road in the notice of location within fifteen days does not deprive such company of the right to thereafter object. (4) The general language of the statute authorizing the crossing of an existing railroad by another one is not intended to authorize the invasion of lands and buildings already appropriated to railroad uses, which in their nature require an exclusive occupation, or which would be materially impaired by subjecting the land to new use. Matter of Boston & Alb. R. Co., 53 N. Y. 574; Matter of City of Buffalo, 64 id. 547, and 68 id. 171. Order affirmed. Matter of Boston, Hoosic Tunnel & Western Railroad Co. Opinion by Rapallo, J. [Decided Nov. 25, 1879.]

PRACTICE-ORDER OF DISCOVERY.-An order of the court below obtained by plaintiff in an action against a corporation, required, first, that several persons not parties to the action, but directors of the defendant,

should appear before trial and testify on plaintiff's examination; second, that these persons should at the same time produce certain books of the defendant for plaintiff's inspection; and third, give him sworn copies of certain entries. Held, that as the plaintiff's proceeding was not against the party, there was no warrant for either direction. People v. Mut. Gas-light Co., 74 N. Y. 434. Order of General Term affirmed.

Boorman v. Atlantic & Pacific R. Co. Opinion by Danforth, J.

[Decided Nov. 18, 1879.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

CORPORATIONS -STATUTORY LIABILITY OF OFFICERS OF STATUTE STRICTLY CONSTRUED.-By the statute of Connecticut it is made the duty of the president and secretary of every corporation annually to make a certificate showing the condition of the affairs of the corporation, as nearly as the same can be ascertained, on the first day of January or of July next preceding the time of making such certificate, stating the amount of paid capital, the cash value of its credits, the amount of its debts, and the name and number of shares of each stockholder, which certificate it is required shall be deposited, on or before the fifteenth of February or of August, with the town clerk of the town, who shall record the same at full length. The president and secretary of a corporation had failed to make the proper certificate. The corporation made an agreement with plaintiff for the purchase of an engine at a certain price, to be delivered thereafter, and it was thereafter delivered and partly paid for. After the agreement was made, and before the engine was delivered, defendant, who was not a stockholder in the corporation, was elected president thereof. He caused thereafter, and before the fifteenth of August succeeding his election, the required certificate to be filed. Defendant for less than two months acted as president, though it was claimed that he was not legally elected or authorized to so act. The corporation became bankrupt, and the engine was not paid for. In an action to charge defendant personally with the debt on account of the failure by his predecessor to file the necessary certificate, held, (1) that the statute is penal and must be construed strictly. Repeated instances have occurred where suit was brought in one State to enforce the statute liability for the debts of a corporation created by the Legislature of another State, in all which it is held that the statute is penal and that it can only be enforced in the State where the statute was passed. Halsey v. McLean, 12 Allen, 438; Derrickson v. Smith, 3 Dutcher, 166; Sturges v. Burton, 8 Ohio St. 215; Bank v. Price, 33 Md. 487; Irwin v. McKeon, 23 Cal. 472. (2) That defendant would not escape liability by the fact that he was not legally elected. Persons acting publicly as officers of a corporation are ordinarily presumed to be rightfully in office. Bank v. Dandridge, 12 Wheat. 64; Angel & Ames on Corp. (9th ed.), § 139. Individuals elected and serving as such officers may incur the statute liability for the corporate debts of the company, even though irregularities occurred in their election, if in all other respects the evidence brings them within the category of legal default. Newcomb v. Reed, 12 Allen, 362; Hagner v. Brown, 36 N.H. 545, 563. (3) But that as the agreement to purchase was made when the defendant was not president, he was not in default, and he was not so when the engine was delivered for the time within which he could file a certificate had not expired. Three things must concur in order that it can be held that the defendant is liable; that he was president of the corporation; that

he intentionally neglected or refused to deposit the described certificate, as required by the statute; that the debt was contracted during the period of such neglect or refusal. Judgment of U. S. Circ. Court Connecticut affirmed. Providence Steam Engine Co., plaintiff in error, v. Hubbard. Opinion by Clifford, J.

MANDAMUS JUDICIAL ERRORS CANNOT BE CORRECTED BY.-The court cannot by mandamus correct the judicial errors committed by an inferior court in the progress of a cause. Ex parte Schwab, 98 U. S. 241. They can in this way in a proper case compel an inferior court to act, but cannot control its decisions while acting. In the present case the Circuit Court acted on the motion of the petitioner and denied him what he asked. The object of this proceeding was to obtain an order requiring that court to reverse its former decision and grant the relief it has once refused. Held, that that was the office of a writ of error or an appeal and not of a writ of mandamus. Ex parte Flippin, 94 U. S. 350; Ex parte Loring, id. 418. Neither is the case changed because the appropriate remedy may involve an inconvenient delay. In Ex parte Whitney, 13 Pet. 408, it was held that a writ of mandamus ought not to be used to correct orders made by a judge in the exercise of his authority, even though such orders may seem to bear harshly or oppressively upon the complaining. party" Petition refused. Ex parte Perry. Opinion by Waite, C. J.

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STATUTORY CONSTRUCTION — TAXES ON GAS FURNISHED FREE.-Section 94 of the Internal Revenue Act of 1864 (13 Stat. 264), levying taxes on illuminating gas, to be paid by the manufacturer thereof, as amended in 1866 (14 Stat. 128), contained the following provision: "All gas companies whose price is fixed by law are authorized to add the tax herein imposed to the price per thousand feet on gas sold; and all such companies which have heretofore contracted to furnish gas to municipal corporations, are in like manner authorized to add such tax to such contract price." Held, that this would not make a muuicipal corporation liable for the tax in a case where the gas company, for a valuable consideration, contracted to furnish the corporation with gas free of charge. Judgment of Pennsylvania Supreme Court affirmed. Pittsburgh Gas Co., plaintiff in error, v. City of Pittsburgh. Opinion by Waite, C. J.

IOWA SUPREME COURT ABSTRACT.

OCTOBER 28, 1879.

CARRIER OF PASSENGERS — EJECTION OF PASSENGER FROM RAILWAY TRAIN.- Plaintiff, who had entered a train of cars without a ticket, tendered the regular fare. The conductor required him to pay ten cents extra, which is allowed by the Iowa statute to be charged to passengers not procuring tickets before entering the cars. This plaintiff declined to do, whereupon the conductor stopped the train for the purpose of putting him off. Plaintiff thereupon tendered the full fare, including the ten cents, but he was ejected from the train. Held, that such ejection was justifiable. The court remark: The railroad company were entitled to full fare upon demand. The moment the plaintiff declined to pay it the company were released from all obligation to carry him upon that train. Stone v. Chicago & N. W. R. Co., 47 Iowa, 82; O'Brien v. B. & W. R. Co., 15 Gray, 20. The rule that a passenger may test the regulations of the company and the firmness of the conductor by refusing to pay full fare, and still save himself from expulsion by tendering full fare after expulsion had commenced, is not only uncalled for for the just protection of the recusant passenger, but would tend to encourage a practice which, if indulged in, would in

terfere with the convenience of the company, and the dispatch and quiet to which other passengers are entitled. Hoffbauer v. D. & N. Ry. Co. Opinion by Adams, J.

CONTRACT-IN RESTAINT OF TRADE-STATUTE OF FRAUDS AGREEMENT NOT TO BE PERFORMED WITHIN

A YEAR.—(1) An agreement not to practice law in a specified town is valid. A contract in restraint of trade as to particular places is valid. Hedge, Elliot & Co. v. Lawe, 47 Iowa, 137, and cases cited; Jenkins v. Temples, 39 Ga. 655; Chappel v. Brockway, 21 Wend. 157. In Holbrook v. Waters, 9 How. Pr. 335, it was held that an agreement upon sufficient consideration not to practice medicine, nor in any manner to do business as a physician, in the county of Oswego, at any time after the 1st day of May, 1851, was valid. In Bunn v. Guy, 4 East, 190, a contract entered into by a practicing attorney to relinquish his business and recommend his clients to two other attorneys for a valuable consideration, and that he would not himself practice in such business within one hundred and fifty miles of London, was held to be valid. See, also, Heichew v. Hamilton, 3 G. Greene, 596; S. C., 4 id. 317. (2) The provision in the statute of frauds, respecting contracts not to be performed in a year, applied only to contracts not to be performed on either side, and not to a contract performed on one side within the year. Chery v. Heming, 4 Exch. 631; Donellan v. Read, 3 B. & Ad. 899; Riddle v. Backus, 38 Iowa, 81; Blair Town Lot & Land Co. v. Walker, 39 id. 406. Smalley v. Greene. Opinion by Day, J.

EVIDENCE -DECLARATIONS OF VENDOR AFTER SALE DO NOT AFFECT VENDEE.-C. sold property to L., who thereafter mortgaged it to H. Held, that declarations made by C. after such sale, tending to show that it was made to defraud creditors, were not admissible to impeach the title of L. or of H. Mere declarations of a vendor are not admissible to affect the title of the vendee, or persons claiming under him, unless made while the vendor is in possession. Taylor v. Lusk, 9 Iowa, 244; Thompson v. Mawhinney, 17 Ala. 362; Mims v. Sturdevant, 23 id. 664; Gill v. Strozier, 32 Ga. 688; Dunaway v. School Directors, 40 Ill. 247. Benson v. Lundy. Opinion by Adams, J.

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MARRIED WOMAN INCREASE OF PROPERTY OF, NOT LIABLE FOR HUSBAND'S DEBTS.-The increase of animals belonging to a married woman is not liable for the debts of her husband, even though it is shown that the husband voluntarily expended his labor and the products thereof in the care and keeping of such animals. In Webster v. Hildreth, 33 Vt. 457, it is said: "Equity has no jurisdiction to compel men to work for their creditors who may perversely prefer to work for the benefit of their wives and children, and leave their honest debts unpaid." See Hanson v. Millett, 55 Me. 184. Russell v. Long. Opinion by Rothrock, J.

VERMONT SUPREME COURT ABSTRACT. JANUARY TERM, 1879.*

EVIDENCE OF EXPERTS AS ΤΟ PATENTED MACHINERY. In assumpsit to recover money paid for an interest in a patent right for an improvement in sawframes, which was alleged to be an infringement on another patent right for a like improvement, plaintiff called experts to show the operation of the various parts of frames of the two kinds and to show that there was an infringement, and offered to ask the witnesses if the principle was the same in both frames. Held, admissible. It has been repeatedly held by the Federal courts in patent cases that the opinions of experts as to whether two mechanical structures or de

To appear in 51 Vermont Reports.

vices are identical in principle are competent evidence upon this question; and it is the almost every day practice to permit questions similar to the one excluded in the case at bar to be put to and answered by experts. See Barrett v. Hall, 1 Mason, 447, 470; Parker v. Stiles, 5 McLean, 44, 64; Allen v. Blunt, 3 Story, 712, 747. Such testimony does not differ in principle from that of medical experts, which is admitted upon the supposition that the questions involve matters which are beyond the scope of the observation, knowledge and experience of men in general, and that consequently the jury could not be presumed competent to arrive at a proper determination by the unaided exercise of their judgment on the facts. Dewitt v. Barley, 9 N. Y. 375. Tillotson v. Ramsay. Opinion by Dunton, J.

OF

FORMER ADJUDICATION - ACTION ON PART FORMER CLAIM NOT ALLOWABLE.- Plaintiff agreed "to construct all the culvert masonry, cattle-passes, paving, and excavating foundation pits," on certain sections of railroad, for which defendants agreed to pay at prescribed rates. Defendants discharged plaintiff from performance before it was completed, and plaintiff brought an action for loss of prospective profit on that part of the work that he was not permitted to do, but in alleging the agreement to do the work, he omitted to include the paving in the enumeration of the several kinds of work, so that it was not alleged that he agreed to do the paving, nor that defendants agreed that he might do it, but merely that defendants agreed to pay him at a certain rate for what he did. On that declaration plaintiff was adjudged entitled to recover for loss of profit on culvert masonry, etc., but not on paving, and for the latter he thereupon brought another action. Held, adjudicated. The general doctrine that a party cannot divide up an entire claim into parts and maintain a separate suit for each part, whether the claim arises from contract or tort, is well established. Freeman on Judgm., §§ 240, 241; Bigelow on Estoppel, 127-133; Herman on Estoppel, $77; Adm'r of Whitney v. Clarendon, 18 Vt. 253; Secor v. Sturgess, 16 N. Y. 518. The same contract and the identical breach of that contract for which recovery is sought to be had in this suit, was in issue and recovered on the former suit. Hence that recovery is a bar to a recovery in the present suit. Morey v. King, Fuller & Co. Opinion by Ross, J.

AID

MUNICIPAL CORPORATION-AUTHORITY TO RAILROADS - STATUTE GRANTING MUST BE STRICTLY

FOLLOWED.-Express authority is required to enable a town to subscribe for stock in, and issue its bonds to, a railroad corporation in aid thereof; and all the precedent requirements of the statute conferring the authority must be observed. Thus: on petition for mandamus to compel the execution and issue of town bonds for such purpose, it appeared that the town of which the petitioners were selectmen and treasurer was by special statute authorized to aid in the construction of petitioner's railroad by subscribing for stock thereof. The statute provided that the subscription might be made when the assent thereto of a certain majority of the tax payers of the town had been obtained by an "instrument of assent," setting forth the substance of the subscription and the condition on which it should be made, and signed and acknowledged by each person so assenting; that such instrument should name three commissioners to make the subscription in the name of the town, who, when the instrument should have been signed and acknowledged by the requisite majority, should append thereto a certificate, stating that it had been so signed, etc., and cause such instrument and certificate to be filed and recorded in the town clerk's office, and a copy thereof, certified by the town clerk, to be lodged and recorded in the county clerk's office; and that until such rec

ords should be made, such commissioners should not proceed to make any subscription on behalf of the town. Held, that the commissioners had no authority to make such subscription without first causing such instrument and certificate to be both filed and recorded according to the requirements of the statute; and that filing alone would not, as in the case of deeds, have the same effect as recording. Held, also, that the burden was on the petitioner to show that the requirements of the statute had been complied with. There is no ambiguity in the language used in the act; the legislative will is clearly and sharply defined, and there is no occasion to add to or qualify by judicial construction the plain and unequivocal language employed. Newell v. People, 7 N. Y. 99; McCluskey v. Cromwell, 11 id. 593. And when the provision of the statute is the essence of the thing required to be done, and by which the right to do it is obtained, it is mandatory. Merchant v. Langworthy, 6 Hill, 646; Striker v. Kelly, 7 id. 9. A want of power, as between a town and a corporation that the town has voted to aid, has always been allowed as a defense in the Federal and the State courts, when the corporation has endeavored to enforce the giving of such aid. East Oakland v. Skinner, 94 U. S. 255; Ryan v. Lynch, 68 Ill. 160; Delaware County v. McClintock, 51 Ind. 325; Barnes v. Lacon, 84 Ill. 461; Jones' Railroad Securities, § 230; Jarvis v. Aikens, 25 Vt. 635; Ferris v. Smith, 24 id. 27; Bigelow v. Topliff, 25 id. 273, distinguished. Lamoille Valley R. Co. v. Fairfield. Opinion by Royce, J.

RECENT ENGLISH DECISIONS.

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CONFLICT OF LAWS MARRIAGE ENGLISHMAN MARRIED TO FOREIGNER IN ENGLAND LIABILITY FOR ANTE-NUPTIAL DEBTS CONTRACTED ABROAD-LEX

LOCI CONTRACTUS.—An Englishman, resident in England, and married there, whose wife had, previously to her marriage, resided and contracted debts in Jersey, is not liable for such debts (in the absence of proof of any assets derived from the wife), notwithstanding that he would be so liable by the law of Jersey. Com. Pl. Div., June 19, 1879. De Grenchy v. Wills. Opinions by Grove and Lopes, JJ.

CONSIDERATION-ILLEGAL CONSIDERATION-MARRIAGE WITH DECEASED WIFE'S SISTER-TRUST UNTIL AN EVENT WHICH CANNOT HAPPEN SEVERANCE OF PARTIES CAPABLE AND INCAPABLE OF TAKING.-P., being about to go through the ceremony of marriage with the sister of his deceased wife, executed a deed, whereby, after reciting his intended marriage, he assigned a policy on his life to trustees to hold in trust for himself "until the solemnization" of the intended marriage, and after the solemnization thereof upon trust after his decease to receive the policy moneys, and hold them upon certain trusts in favor of his two children by his deceased wife and the children of the intended marriage. Held, that the "intended marriage" being an event which could not take place, the trusts of the settlement subsequent to that for the settler himself never arose, and that the property formed part of P.'s general estate at his death. The trust could not be severed so as to allow the children of the deceased wife to take. Chanc. Div., Nov. 5, 1879. Pawson v. Brown. Opinion by Malins, V. C. 41 L. T. Rep. (N. S.) 339.

MARINE INSURANCE - PARTIAL LOSS-COST OF REPAIRS ALLOWANCE OF ONE-THIRD NEW FOR OLD — SUING AND LABORING CLAUSE-SALVAGE EXPENSES.

A policy of marine insurance is not a perfect contract of indemnity, but must be taken with certain wellestablished qualifications, which must be applied even if the assured thereby receives more than a perfect indemnity. The appellants insured the respondent for

1,2001. upon a ship valued at 2,6001. The policy contained the usual suing and laboring clause. The ship suffered damage from perils of the sea, and incurred salvage expenses. The owner elected to repair, and the result of the repairs was to make the ship, which was an old one, more valuable than she had been at the time of the insurance. Held (affirming the judgment of the court below), that the measure of the loss was the cost of the repairs, with the usual allowance of one-third new for old; and that consequently the assured was entitled to recover up to the full amount insured for, though it might be more than the amount payable on a total loss with benefit of salvage. Held, further (reversing the judgment of the court below), that the assured could not recover, under the suing and laboring clause, a proportion of the salvage expenses in addition to the amount for which the policy was underwritten. Cases referred to: Nicholson v. Chapman, 2 H. B. 254; Hartfort v. Jones, 1 Ld. Raym. 393; Irving v. Manning, 1 II. of L. Cas. 287; Moss v. Smith, 9 C. B. 94; Le Cheminant v. Pearson, 4 Taunt. 367; Cary v. King, Cas. Temp. Hardwicke, 304. House of Lords, July 31, 1879. Aitchison v. Lohne. Opinion by Lord Blackburn, 41 L. T. Rep. (N. S.) 323.

REAL ESTATE - MINES - MORTGAGE-WASTE --ACTS PRESUMED LAWFUL.-(1) A mine or quarry opened by the lessee under a lease granted by a mortgagor after the date of the mortgage, but while he was stili in possession of the property, will inure to the benefit of the mortgagee after he has taken possession and foreclosed. (2) A tenant for life, or other owner of an estate impeachable for waste, may work an open mine or quarry on the estate, provided such mine or quarry has been previously worked for profit, not only for some definite and restricted purpose; and in such a case the sinking of a new pit on the same vein, or breaking ground in a new place on the same rock. is not necessarily the opening of a new mine or a new quarry. Clavering v. Clavering, 2 P. Wms. 388; Bagot v. Bagot, 9 L. T. Rep. (N. S.) 217; 32 Beav. 509; 33 L. J. 116, Ch. ; and Lord Cowley v. Wellesley, L. Rep., 1 Eq. 656; 14 L. T. Rep. (N. S.) 245; 35 Beav. 635. (3) When a court is called upon to say under what power or authority certain acts were done, and has before it a document which would render those acts lawful, the court ought to presume, in the absence of evidence to the contrary, that they were done under that authority which would render them lawful. Judgment of the court below affirmed. 38 L. T. Rep. (N. S.) 871. H. of L., May 12, 1879. Elias v. Snowden Slate Quarries Co. Opinions by Lord Chancellor Cairns and Lord Selborne, 41 L. T. Rep. (N. S.) 289.

WILL-CONSTRUCTION OF ORIGINAL AND SUBSTITUTED GIFT.-A testatrix devised and bequeathed real and personal estate to trustees upon trust for the children of her sister who should be living at her sister's death, and declared that if any child of her sister should die in her sister's life-time leaving issue, who should be living at her said sister's death, such issue should take the share which their parent would have taken if living at the sister's death. If there should be no such children or children's issue, there was a gift over. One child of the testatrix's sister died before the date of the will, leaving issue, who survived the testatrix. Held, that the gift was original and not substitutional, and that the issue of the child who pre-deceased the testatrix took under the will. Martin v. Holgate R. R., L. R., 1 H. of L. 175; Loring v. Thomas, 1 Dr. & Sm. 497. The cases of Christopherson v. Naylor, 1 Mer. 320; West v. Orr, 38 L. T. Rep. (N. S.) 5; Re Potter's Trusts, 20 L. T. Rep. (N. S.) 649; Re Hotchkiss' Trusts, L. Rep., 8 Eq. 643, commented upon and distinguished. Ch. Div., Feb. 18, 1879. Re Woolrich, Harris v. Harris. Opiniou by Hall, V. C., 41 L. T. Rep. (N. S.) 309.

FINANCIAL LAW.

ALTERATION — DISCHARGES SURETY, THOUGH NOT INJURIOUS TO HIM.-An erasure of a seal after the name of a surety on a promissory note is a material alteration which will discharge the surety, and this notwithstanding such alteration, does not prejudice the surety, but makes a contract more favorable to him. Tennessee Sup. Ct., December Term, 1877. Organ v. Allison. Opinion by Deaderick, J.

NATIONAL BANK-WHEN IT MAY TAKE MORTGAGE. -A National bank may take a mortgage of real estate executed in good faith, to secure pre-existing indebtedness; and it makes no difference that when the mortgage is executed the note evidencing the indebtedness is taken up and a new one given for its amount, and an agreement made for periodical renewals. The debt is the same though it be evidenced from time to time by different notes. Semble, that neither the mortgagor nor those claiming under him can avoid a mortgage given to a National bank to secure a loan, on the ground of want of power in the bank to take it. Vermont Sup. Ct., January Term, 1879. Howard National Bank of Burlington v. Loomis. Opinion by Powers, J.

NEGOTIABLE INSTRUMENT-BONA FIDE HOLDERFAILURE OF CONSIDERATION.-Defendant subscribed for certain corporate stock, to be paid for in installments. One installment he paid in cash; for the second one he gave his promissory note. After this note was due it was transferred for value to plaintiff. Thereafter, on default of payment of further installments, defendant's stock was declared forfeited. The stock was the only consideration for the note. Held, that plaintiff was entitled to recover on the note. The settled rule is that no equity arising after the transfer of an overdue note can affect the holder, and that he takes with the transfer all the rights of the indorser. 2 Parsons on N. & B. 26; Shipman v. Robbins, 10 Iowa, 208; Wilson v. Savings Bank, 45 Penn. St. 488; Baxter v. Little, 6 Metc. 7. Even such equity must grow out of and be connected with the note. Long v. Rhawn, Ex'r, 75 Penn. St. 128. Iowa Sup. Ct., Oct. 28, 1879. Whittaker V. Kuhn. Opinion by Seevers, J.

NEW YORK STATE BAR ASSOCIATION.

THE

REPORT OF COMMITTEE ON GRIEVANCES.

HE Committee on Grievances complain of the State Bar Association and for cause of complaint state that last year this Committee reported several wise suggestions, as follows:

1. That all laws should be repealed or amended which permit surrogates to make allowance to the counsel of unsuccessful contestants out of the estates of deceased persons. The expectation of such allowances stimulates speculative contests.

2. That a special commission should be appointed to inquire and report what are the specific fees legally allowed to sheriffs and clerks for specific service, and whether there are any services which they are obliged to perform for which no fee may be legally charged, or when charges are of doubtful legality and this commission to report the facts and a bill, if it thinks best to settle uncertain questions as to the compensation of sheriffs and clerks.

We wish to do away with all constructive fees and fees of custom without law and at the same time give adequate compensation for all services actually performed.

3. That sheriffs ought not to be allowed to make money out of the keeping of prisoners. Let them have full compensation by salary for their services on

that behalf, but not what they can save out of what is allowed for prisoners' food.

4. Calling your attention to the present systems of consigning young and petty offenders to the same jail (rooms) with old and hardened offenders, and packing together those who are awaiting trial and those who are convicts, and converting our jails into schoolhouses for the manufacture of criminals and convenient places for concocting crime.

5. Recommending that in places of statutory foreclosure the law should require that when a sale is to take place in. any city having a daily newspaper, that sale should be advertised in a daily newspaper in that city, and then when the rights of minors are sought to be thus foreclosed, special guardians shall be appointed by a court of record to protect the rights of such minors, and upon whom all papers shall be served.

These suggestions, as reported, were unanimously approved by the Association, but no further action has been taken thereon, Hence this complaint, and we pray that this Association order bills to be framed and presented to the coming Legislature for enactment, which will carry into effect the said suggestions with such modifications as to the Association may seem best.

We further report that our attention is called to newspaper complaints of excessive latitude allowed to and taken by counsel in the examination of witnesses. Without undertaking to say to what extent this complaint is justified by facts, we are agreed that it is unprofessional and disgraceful to give any occasion for such complaints. It is the right and duty of lawyers to test the truth and accuracy of those who take the stand in court; but witnesses have rights as well as lawyers and clients, and the violation of these rights tends ultimately, if not immediately, to the injury of both counsel and client. The counsel's pride in his skill in what is termed "breaking down a witness," may be gratified at the expense of his client, and the injustice done to the victim is unpardonable.

If courts are permitted to become places of abuse or ridicule, or disrespect, witnesses will hide their knowledge of important facts to avoid being placed on the stand. The most powerful and effective cross-examination is not weakened by respect for the rights of the witness in manner or matter. It is cowardly to attack unfairly a person to whom the court allows no reply, and it seems to us that the evil complained of arises in part from the neglect of our judges to do their duty in protecting witnesses from the excessive zeal or viciousness of counsel.

It is a source of satisfaction to be able to state that the wrong complained of is strongly condemned in our law books. In Reed's Practical Suggestions for the Management of Law Suits, on pages 320 and 321, he says: "All of us should recollect that in the courtroom we are at home, and that parties and witnesses are in some sort our guests, frequently ill at ease. It behooves us that we be not rude and unmannerly in our own house. * Blustering with witnesses is of no advantage. * * *The court should protect

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witnesses from the uncalled-for assaults of counsel."

We believe this treatment of witnesses is not as common here as it is in England, if we may judge from a book entitled the " Adventures of an Attorney in Search of Practice." The author says: "I have often been disgusted, not less with the cowardly license assumed by the bar in their comments on third parties under the convenient plea of forensic liberty of speech than I have with the apathy of the judge who heard them, and silently committed the scandalous abuses which he ought to have checked with solemn indignation."

The apathy of the bench is no excuse for the mem

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