though such contracts grow out of and are connected with his official duties, so long as they are not a part thereof. Tobey v. Leonard, 15 Mass. 200; Waterhouse v. Waite, 11 id. 207; Gorham v. Gale, 7 Conn. 739. Dyer v. Tilton. Opinion by Barrows, J. [Decided Oct. 18, 1880.]

WISCONSIN SUPREME COURT ABSTRACT.

FEBRUARY 8, 1881.

CONSTITUTIONAL LAW-STATE LAW REGULATING DOWER DOES NOT IMPAIR CONTRACT. -The statute of Wisconsin which provides that "a woman, being an alien, shall not on that account be barred of her dower, but any woman residing out of this State shall be entitled to dower only of lands of her husband being in this State of which he died seized" (R. S., § 2160) is valid and not in conflict with the provisions of the Federal Constitution against impairing the obligation of contracts, or that preserving the privileges and immunities of citizens in the several States. In Barbour v. Barbour, 46 Me. 9, it was held that "the wife has no vested right of any kind to dower in the estate of her husband before his decease; and until then her right may be modified, changed or abolished by the Legislature." To the same effect, Magee v. Young, 40 Wis. 164; Lucus v. Sawyer, 17 Iowa, 517; Price v. Johnston, 4 Yeates (Penn.), 526; Moore v. New York, 4 Sandf. 456; S. C. affirmed, 8 N. Y. 110; Hammond v. Pennock, 61 id. 158; Noel v. Ewing, 9 Ind. 37; Taylor v. Sample, 51 id. 423. In Ware v. Owens, 42 Ala. 212, it was held that "the widow's right of dower is governed by the law that was in force at the time of the husband's death, and not that which was in force at the

time of marriage or may have been during its continu

ance." See also Betts v. Wise, 11 Ohio, 219; Rufner v. McLenon, 16 id. 654; Weaver v. Grigg, 6 Ohio St. 547; Johnson v. Van Dyke, 6 McLean, 410; Noel v. Ewing, 9 Ind. 37; Thurber v. Townsend, 32 N. Y. 517; Connor v. Elliott, 18 How. 591. Bennett v. Harris. Opinion by Cassoday, J.

DIFFERENT TIMES.

MORTGAGE-TO SECURE SEVERAL NOTES DUE AT - While it is the settled law of Wisconsin that in case of a mortgage given to secure several notes falling due at different times, the proceeds of a foreclosure sale are to be applied to the payment of the notes in the order of their maturity, yet where by the terms of the instruments any default in payment renders the whole mortgage debt absolutely due at once, the several holders are entitled to have the proceeds of the foreclosure sale applied pro rata to the payment of their several notes secured by the mortgage. Marine Bank v. International Bank, 9 Wis. 57, distinguished. See Wood v. Trask, 7 Wis. 566; Lyman v. Smith, 21 id. 674; United States Bank v. Covert, 13 Ohio, 240; Church v. Smith, 39 Wis. 492. Pierce v. Shaw. Opinion by Orton, J.

PARTNERSHIP RIGHT OF PARTNER TO SUE COPARTNER BEFORE FINAL ACCOUNTING. A contract between partners which can be enforced without a general accounting as to the partnership business, may be enforced at law if of such a nature as to be enforceable at law when made between persons not partners. If the several members of a firm, indebted in at least a certain sum, by mutual agreement apportion that sum among themselves, each promising the others, in consideration of their like promises, to pay a stipulated amount and save them harmless therefrom, the contract is enforceable at law. In such a case, if any one of the partners neglects to pay his stipulated part of the firm indebtedness within a reasonable time after the same becomes due, any other copartner may pay the same without awaiting an action therefor, and the whole amount apportioned being paid, may recover of

the delinquent partner the amount thus paid to make good his delinquency. Sprout v. Crowley, 30 Wis. 187; Brown v. Tapscott, 6 M. & W. 119; Veuning v. Leckie, 13 East, 7; Collyer on Part. (6th ed.), §§ 196, 197, and note on p. 332; 2 Lindley on Part. (4th ed.) 1027: Glover v. Tuck, 24 Wend. 153, 158; Wadsworth v. Manning, 4 Md. 59; Wheeler v. Arnold, 30 Mich. 304; Williams v. Henshaw, 11 Pick. 79; Collamer v. Foster, 26 Vt. 754; Gibson v. Moore, 6 N. II. 547; Coffee v. Brian, 3 Bing. 54; Wilson v. Cutting, 10 id. 436; Sedgwick v. Daniel, 2 H. & N. 319; Currier v. Webster, 45 N. H. 226, 233; Scott v. Campbell, 30 Ala. 729; Jackson v. Stophard, 2 Cr. & M. 361. Edwards v. Remington. Opinion by Taylor, J.

FINANCIAL LAW.

BANK OF STOCK.-M. subscribed for shares of the capital stock of a bank. While there was an unpaid balance due upon this subscription he transferred his stock, with the consent of the officers of the bank, to C. Held, that he was not thereby released from liability for the balance due upon his subscription. Frank's Oil Co. v. McCleary, 13 P. F. S. 317; Coal Co. v. Otterson, 4 Week. Not. Cas. 545. The capital stock of a corporation is a trust fund for the protection and benefit of creditors, and this extends to the entire stock subscribed, and not merely to the percentage paid in. Pennsylvania Sup. Ct., Jan. 3, 1881. Messersmith v. Sharon Savings Bank. Opinion by Gordon, J.

- LIABILITY OF STOCKHOLDER IN-TRANSFER

NATIONAL BANK-JURISDICTION OF STATE COURTS AS TO. Where a National bank goes into voluntary liquidation, thus severing its connection with the United States government, it becomes subject to like proceedings as domestic corporations, and if its president had and held a fund liable to the payment of debts, a court of equity, at the instance of a creditor, could reach and appropriate the same to the payment of an outstanding judgment. Georgia Sup. Ct., Nov. 27, 1880. Merchants and Planters' National Bank v. Trustees of Masonic Hall.

NEGOTIABLE INSTRUMENT INDORSEMENT AFTER MATURITY. - B., the payee of a negotiable note of N., payable at the E. Bank, indorsed his name on it and put it in the bank for collection. It was not paid at maturity, and B. withdrew the note, and after holding it for some years, and after the E. bank had ceased to exist, he transferred it to II., writing over his name the words "protest waived." H. failing to obtain payment of the note from N. brought his action against B. to hold him responsible upon his indorsement of the note. Held, that when B. put his name on the back of the note it was only for its collection, and he was still the owner of it. And when he transferred the note to H. his indorsement must be considered as of that date. The indorsement of an overdue note does not relate back to the date of the note; but as a new and independent contract only takes effect from the time it is made, and must be determined by the laws and circumstances then existing. Edwards on Bills, 261; 1 Dan. on Neg. Inst., § 669. The indorsement of a bill or note is not merely a transfer thereof, but it is a fresh and substantive undertaking, embodying all the terms of the instrument indorsed in itself. In Brown v. Davis, 3 T. R. 80, Buller, J., said, when a note is indorsed after it becomes due, he considered it as a note newly drawn by the person indorsing it. Story on Prom. Notes, § 129; Young v. Bryan, 6 Wheat. 146; 2 Rob. Prac. 239. See, especially, Leidy v. Tammany, 9 Watts, 353. So entirely distinct and independent is the contract of the indorser from that of the maker, that at common law, a separate action against each was indispensable. Patterson v. Todd,

can editors. The present volume seems in every way equal to its predecessors. Each volume has an independent index and table of cases cited, and there is no general index or general table of cases cited. This is a defect, consequent, probably, on the plan of publication in separate volumes, but which ought to be corrected as soon as possible. In every other respect we regard the edition as quite unrivalled.

COPP'S UNITED STATES MINERAL LANDS. United States Mineral Lands; Laws governing their occupancy and disposal; decisions of Federal and State courts in cases arising thereunder, and regulations and rulings of the Land Department in connection therewith; with forms, glossary, and Rules of Practice. By Henry N. Copp. Published by the Editor, Washington, D. C., 1881. Pp. xxiii, 560.

This is an admirably constructed manual on a subject of importance, by a very competent editor. The book shows a great amount of faithful and minute labor. It is well printed, and is free from padding.

HOLMES ON THE COMMON LAW.

The Common Law. By O. W. Holmes, Jr. Boston: Little, Brown & Co., 1881.

Young nations are more prone to the practical than the theoretical. The results of the former are direct and immediate, while the successful pursuit of the latter requires a certain amount of capital, which is the product of time. So, though we are the most inventive people in the world, our discoveries in pure science compare unfavorably with those in Germany or England; and the same holds true in law. Our law schools are incomparably superior to those of England in the preparation of young men for practice. Our text-writers have produced a greater number of valuable works than hers, and our reports contain at least as many valuable opinions on the application of general principles to particular cases, or the adaptation of an old rule to a new set of circumstances. But in the history of the evolution of jurisprudence and the progress through custom and morality to positive law, a point to which constitutional law has but just attained, and from which international law is still far distant; and in the analysis of the principles which underlie the science, and the correct definition of its leading terms, our authors have been, hitherto, far behind those of the mother country. It is for this reason that the work on "The Common Law," by the son of the author of "The Autocrat of the Breakfast Table," will be welcomed by every student of the law who reads with other motives than the desire of better fitting himself to win a case. Its substance is familiar to the readers of the American Law Review, to which Mr. O. W. Holmes, Jr., has for a number of years contributed a series of articles upon the greater part of the subjects touched upon in this volume; and in a series of lectures delivered before the Lowell Institute in Boston, this winter, he went over the whole ground covered in it. But a certain obscurity of style which disfigured the essays has now been corrected, and the necessities of addressing a somewhat popular audience from the platform, prevented the use of some of the terse epigrammatic language which is here to be found. The entire work is written from the stand-point of the new philosophy; and those hackneyed terms natural justice and equity are excluded from it. On the contrary, we find (p. 44) a principle, which although familiar to most thinkers, we never saw so well expressed: "But it seems to me clear that the ultima ratio, not only regum, but of private persons, is force, and that at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference."

of the origin of the rights attached to provision which the State allows to prevent bloodshed.

The doctrine of negligence, too, has probably never been put in so clear a light. Brushing it clear of the cobwebs spun by Austin and Campbell, who define it as a state of a man's mind, he shows that it is such a voluntary act as one of ordinary intelligence must have foreseen would probably result injuriously to another. The scope of an ordinary intelligence, or as Mr. Holmes puts it, the intelligence "of the average man," is, in simple cases, determined by the judge; in doubtful ones, by twelve average men; and the dubious line of demarcation between the provinces of the court and the jury is traced by Mr. Holmes with great ingenuity, although many courts, even at the present day, refuse to admit its accuracy.

The history of the common law of contracts, which is brought down to a period before that with which Mr. Pollock begins, of succession and of bailments, which he seems to show is of Germanic rather than Roman origin, is also exceedingly interesting, and displays great learning. In short, the work is one which displays the qualities of a thinker, combined with those of an antiquary, and few can read it without feeling that their stock of knowledge has been increased and their minds broadened. R. F.

CORRESPONDENCE.

"WOOD ON MANDAMUS." Editor of the Albany Law Journal:

My attention has been called to a work bearing the above title, purporting to have been written by "H. G. WOOD, author of The Law of Nuisances, etc.,' and that certainly means me, but I never wrote the work; never authorized its publication under my name, and never aided or assisted in its preparation or publication. The text of the work seems to consist of the text of Tiffany and Smith's New York Practice, upon the topics covered, with some notes that I made thereto several years ago, injected into the text in a most uuskillful and slovenly manner.

The publisher had an undoubted right to publish the notes as notes to the text of that work, which he did do, but he had no right whatever to attempt to palm off such a heterogeneous mass of stuff, as my work, and whether the work is creditable or discreditable to me, I cannot consent to father it as my production.

THE

NOTES.

The Albany Law Journal.

ALBANY, MAY 14, 1881.

CURRENT TOPICS.

HE New York Daily Register makes some excel

Stanley Matthews. It says: "A judge should be selected for his known possession of judicial qualities; and that brilliant political services or personal interest are no sufficient reason for selection but rather for the contrary, unless such judicial qualities are possessed." "And it is becoming more and more apparent to the country at large that gifts, character and attainments appropriate to the functions of a judge are peculiarly essential in any fit appointment, and that besides such attainments, some actual judicial experience and success are almost as essential to a fit candidate for elevation to the bench of a court of last resort. It is a wholesome sign that it begins to be instinctively felt that the judge of a State court of last resort should, other things being equal, be chosen from among the most eminent and able of the judges of courts of original jurisdiction; and that the most fit candidates for positions in the Supreme Court of the nation are those who have served with distinguished success in the Circuit Courts, or the State courts. When men" "whose judicial services have commanded the confidence of the country are named in connection with the vacancies in the Supreme Court of the United States, there is a general sense of the fitness and the public advantage of such principles of selection. When other considerations appear to have dictated or influenced the selection, no måtter how far above suspicion of any unworthy motive the nominating power may be, there is a sense of disappointment manifested in the comments of the press at large and in professional opinion, such as we may confidently expect will in the end compel a full recognition of the principles to which we have adverted." To this we must add, that Mr. Matthews is understood and believed to be in the interest of the great railroads, and it is even believed that his nomination has been brought about by the influence of these powerful corporations with a view to their own purposes. It is easy to select a nominee free from any such accusation or bias.

But it is urged that previous judicial experience is not essential; that the present composition of the Federal Supreme bench and of our own Court of Appeals demonstrates this. This may be. Perchance a lawyer may be as fit for the highest judicial post without previous judicial experience, but it is not the natural or customary result. Certainly judicial experience does not disqualify a man for the judicial office. Every judge must be the better for his judicial experience. If he has had no such experience there must be a period in which he is learning. He must learn to lay aside the mental VOL. 23.- No. 20.

habits of the advocate. Especially is this previous experience desirable in the case of the Federal Supreme Court, where the gravest and most unusual questions come. Does any man pretend, for example, that Judge Cooley is not just as good a general lawyer as Mr. Matthews, and that his long judicial experience, and his rare acquirements in constitutional learning, are not a peculiar advantage? Why should Mr. Matthews be preferred to such men ? What we may say on this subject can have little political influence, but we are bound, out of respect for our profession and in duty to the legal interests of our country, to protest against this nomination. It is brought about by Ohio men, through State pride or State interest, without due regard to judicial fitness or the rights and demands of other States. If Judge Cooley were nominated there would not be a protesting voice in the land. But Ohio having now the chief justiceship and the presidency, and having had them for years, wants another judge, and apparently political bargaining is going to give him to her. It is a dangerous thing to accumulate men from the same State on this bench. For two presidents from the same State in succession to try to do this thing, is not only dangerous but indecent.

The Howard Association in England have published statistics on the subject of capital punishment, supposed to show that it is difficult to inflict the extreme penalty, and that its abolition does not increase crime. It is stated, in respect to the former point, that "in Austria, during the decade 1870-79, there were sentenced to death for murder 806 persons, of whom only 16 were executed; in France, during the same decade, 198, of whom 93, or less than half, were executed; in Spain, decade 1868 to 1877, 291, and 126 executed; in Sweden (1869-1878), 32, and only three executed; in Norway (1867-1878), 14, and only three executed; in Denmark (1868– 1877), 94, and only one executed; in Bavaria (18701879), 249 committed for murder, seven executed; in Italy, about 1,600 homicides per annum, followed by very few executions or other severe punishments; in Germany (North), during the decade 1869-78, 1,301 persons were convicted of homicidal crime, of whom 484 were sentenced to death, and one executed (Hodel); in the United States about 2,500 murders per annum were committed, with about 100 executions and 100 lynchings' per annum. In Australia and New Zealand during a recent decade there were 453 sentences of death, followed by 123 executions. In England and Wales, from 1850 to 1879 inclusive, there were 2,005 committed for murder, of whom 665 (33 per cent) were convicted, and 372 (nearly 19 per cent) were executed. The proportion of convictions in England for non-capital crimes averaged 76 per cent, showing, it was argued, how much easier it is to secure conviction and punishment where the irrevocable penalty does not exist. In Ireland during the last twenty years sixty were sentenced to death, and 36 (54 per cent) executed; and in Scotland during the same twenty

years forty were sentenced to death, and fifteen (nearly 38 per cent) executed."

On the latter point, it is said that "experience now extending over many years shows this result in general, that wherever the capital penalty has been substituted by a severe secondary punishment, enforced with comparative certainty and under common-sense conditions, murders have not increased, but the certainty of conviction and punishment has increased, as, for example, in Holland and Finland." "In America the States of Michigan, Wisconsin, Rhode Island and Maine have abolished the death penalty, and without a concurrent increase of murder. In Michigan, where capital punishment has been abolished nearly thirty-five years, official statistics show that murders of both degrees have decreased, relatively to population, 57 per cent since 1847, the date of abolition." We were rather surprised by these assertions in regard to our own country, our opinion being pretty firmly settled that crime had greatly increased in those States where capital punishment had been abolished. Mr. Bishop's statistics published in this JOURNAL, some time ago, strongly contradict the above assertion in respect to Michigan. But these statistics present the following startling facts: the percentage of executions on convictions in England is nineteen, while in this country it is four; and Judge Lynch executes as many here as the legal courts. It should be noted, however, that the lynchings seldom occur except where the death penalty prevails a fact which emphasizes the allegation of the difficulty of enforcing the death penalty.

In the journal of the proceedings of the American Social Science Association, at the meeting held at Saratoga, last year, we find much of interest to our profession. The following papers are especially to be noted: Pensions in a Republic, Frederick J. Kingsbury; Modern Legislation touching Marital Property Rights, Henry Hitchcock; The German Socialist Law of October 21, 1878, Henry W. Farnam; The Study of Anatomy, Historically and Legally Considered, Edward Mussey Hartwell; Inde⚫terminate Sentences and their Results in New York, Z. R. Brockway. Mr. Kingsbury advocates pensions. In respect to the judiciary he observes: "The independence and purity of the judiciary is the corner stone of liberty-the only guaranty of freedom for the country or the individual. To maintain this, we should at all times be able to place upon the bench the best men whom it may be possible to select, whose character and acquirements most fit them for the high office. Successfully to do this we must, in all ways possible, exalt and dignify the position itself, so that the office may of its own force carry with it grandeur and nobility. This cannot successfully be done without seeing to it that the mind of the occupant shall be free from all pecuniary anxiety." "Thus far, it is true, we have, on the whole, been fortunate in our judiciary. The value of money has been greater in the time

past, and I fear, the honor of the position also. But we are beginning to suffer from a change. It has become notoriously difficult to fill the higher judicial places with the men whom public opinion designates as most fit. Do we appreciate as we ought the full significance of this? Is it not fraught with evil? A fact to make us tremble. Can it be well with a nation when she cannot freely command the services of her best citizens for her highest offices? Now, there are but two remedies for this trouble. Either salaries must be increased

to so large an amount as to bear some close relation to the professional gains of the ablest men, or a substitute must be offered, in such an assured support through life, as shall seem an equivalent therefor. We can hardly expect to bring ourselves at once up to the standard of the great but perhaps, not too great, judicial salaries of Europe, but we can accept the other alternative. Briefly, then, I would urge, that to our highest judicial positions, say our courts of last resort in the States, and to our Federal courts generally, there be attached pensions liberal in amount, either for life or beyond, to be entered upon whenever old age or declining health render the recipient unable longer to perform the duties of his office. That such a plan as this would have no place under a system which appoints or elects the judges of its highest courts, for terms of five or ten years, will, I trust, be no argument against it." In referring to Washington, Mr. Kingsbury says: Why was it that no man quite dared to speak of him as a bloated-bondholder, or a purse-proud aristocrat, or even as the owner of a barrel?" The truth is that Washington was spoken of in just that way, although not in those exact terms. The display and profusion of his personal expenditures in his administration were unsparingly censured, as well as his reserved manners. No one in our history was ever better abused than Washington.

The London Law Times contrives to bring the late Lord Beaconsfield within the jurisdiction of a law journal, by chronicling the statement that he was early in life in the office of an attorney. The Times continues: "To the deceased the legal profession owes a great deal as one of the most brilliant romance writers of the age, in whose works the tired pleader has found refreshment and relaxation, and the weary advocate reinvigorated his mind in the intervals of work in preparation for renewed efforts in the dusty arena of courts of justice." The idea that anybody could "invigorate his mind" by reading the flashy, fustian, forciblefeeble novels of D'Israeli, stuffed with sham sentiment and crammed learning, disfigured by bad grammar, resonant with thin sound, and vainly struggling to sink the reader in water in which one can wade, strikes us as singular. Literature owes absolutely nothing to D'Israeli. He never wrote a book nor made a speech that anybody will care any thing about or will ever read in the future. His success was that of Mephistopheles. He bullied, sneered, stung, gibed, and laughed at mankind, and became