In Kennedy v. Railroad Co., U. S. Circuit Court, Southern District of Ohio, July, 1880, Int. Rev. Rec., Dec. 6, 1880, it was held that an action against the receiver of a railroad company, for damages for personal injury, cannot be sustained without leave of the court by which he is appointed, but that on application he will be permitted to go before a master or sue in a court of law, and that he has no absolute right to a jury trial if the Court of Chancery choose to retain jurisdiction. Baxter, J., says: "Such has been the uniform holding of the courts until recently, since which modifications of the rule have been attempted by a few exceptional adjudications, and by legislative enactments in some of the States. A statute of the kind exists in Ohio. But this statute cannot control the action of this court.

Jones on Railroad Securities § 503; 7 Cent. L. J. 146; and Thompson v. Scott, 4 Dill. 508. Nor can we yield to the modification of the rule adopted by some of the State courts. These decisions have been ably reviewed by Love, J., in the case of Thompson v. Scott, and his refutation of them maintained by a cogency of reasons that ought, we think, to forever foreclose all further discussion of the question. Mr. High, who advocates (in an article published in the Southern Law Review) the new doctrine, admits that the weight of authority is adverse to the exercise of any right of action against a receiver by any court other than that from which he derives his appointment, and to which he is amenable.' A similar decision was made by the New Jersey Court of Errors and Appeals, in Palys v. Jewett, 32 N. J. Eq. 302, where the power of the Chancery Court to ascertain damages is learnedly examined. Mr. Stewart, the reporter, adds a valuable note to this case.

SEVENTY-NINTH NEW YORK REPORTS.

THIS volume does not contain many cases of gen

THIS

eral interest. The following are the principal: Green v. Disbrow, p. 1. - Upon a store account the defendant had delivered to the plaintiff small quantities of merchandise at different times; held, a case of "mutual accounts " or "reciprocal demands," to which the statute of limitations did not apply.

Bruce v. Fulton National Bank, p. 154. — In a lease formally and technically drawn, with an evident attention to details, and containing various covenants, some mutual, and others binding only the one party or the other, there was a covenant on the part of the lessor for a new lease at the expiration of the term, but no corresponding covenant on the part of

the lessee to accept it. Held, that the lessee was not bound to accept it.

Stephens v. Board of Education, p. 183. —A member of a municipal board received moneys belonging to it, as its attorney, and appropriated them to his own use. Subsequently he procured moneys from the plaintiff on a forged mortgage, and with them paid his debt to the board, which received the same in good faith and in ignorance of the fraud upon the plaintiff. Held, that the plaintiff could not recover the same from the board.

Scattergood v. Wood, p. 263. In an action involving a breach of warranty that a cotton-gin was "equal in all respects to the best saw-gin then in use," the opinions of competent and experienced men are admissible on the question whether the cotton-gin was as warranted.

Bennett v. Garlock, p. 302. Lands were conveyed to trustees, their heirs and assigns, to sell sufficient to pay certain debts, and then to lease and support a certain beneficiary for life; the residuum to be held for the benefit of the grantors' heirs at the expiration of the life estate; reserving to the grantors power by appointment or will to direct where the residue should go; the trustees in their discretion, upon request of the grantors, to sell and convey any portion. Held, that the trustees took the whole estate, and the beneficiaries only an equitable interest; and that if by the acts or negligence of the trustees the estate of the trustees had been defeated by adverse possession, the interest of remaindermen was also defeated. This decision reversed the ruling of the General Term, and Rapallo, J., dissented. We are inclined to think that a good many will fall in with the dissent.

Pierson v. People, p. 424. - On a trial for murder by poison, a physician is not prohibited from testifying to the results of his examination of the deceased, while attending him in his last illness. On such trial, the prisoner, having challenged the array, may withdraw the challenge, and thus waive the irregularity.

Pratt v. Short, p. 437. A corporation which has discounted commercial paper without any statutory power to do so may recover the money thus loaned, although the securities are void.

Union Hotel Company v. Hersee, p. 454. — A subscription was made on condition that a certain sum be subscribed by the citizens of B. One of the subscribers was domiciled in A., but boarded, did business, and spent nearly all his time in B. Held, that he was a citizen of B. within the meaning of the subscription paper.

Noonan v. City of Albany, p. 470. — A municipal corporation has no right so to drain surface-water into a small natural stream that the stream is swelled beyond its natural capacity, and owing to an obstruction thus made in the stream, overflows and injures the land of an adjoining proprietor.

Morgan v. Schuyler, p. 490. On the dissolution of the firm of M. & S., S. bought M.'s interest in certain of the firm property, and assumed the rent of the old stand, where he continued the business, while M. opend an office for the same business in

from the old firm sign, but S. replaced it, placing | over it, "S. successor to," in small and almost imperceptible letters. Held, that S. should be restrained from such use of M.'s name.

Power v. Cassidy, p. 602. A testamentary trust of property to be divided by the executors "among such Roman Catholic charities, institutions, schools or churches in the city of New York" as the majority should select, and in such proportions as they should think proper, is valid.

This volume contains several interesting and important obiter dicta. In National Bank of Gloversville v. Wells, p. 498, the court said, by Andrews, J.: "The counsel have elaborately argued another question, viz.: whether a National bank can loan its credit, and become an accommodation indorser of a promissory note. If material to the decision of this case I should have no hesitation in denying this proposition. Such a transaction as is here disclosed on the part of the plaintiff is clearly outside of its corporate powers. If a bank may charge a compensation for loaning its credit, and procuring another bank to discount the paper of its customers, it would practically abrogate all restraints imposed by the usury clauses, in the National Bank Act. It will be easy, if the practice can be sustained, for banks, by a course of friendly and reciprocal dealings, to obtain from needy borrowers under the guise of commissions for indorsing, any rate of interest which they may see fit to exact. But it is unnecessary to decide whether this matter constitutes a defense." This agrees with the dissenting opinion of Talcott, J., at General Term, and with Seligman v. Charlottesville Nat. Bank, Browne's Nat. Bk. Cas. 195, and Johnston v. Same, id. 199.

So, in Mutual Life Ins. Co. v. Hunt, p. 541, the court, by Danforth, J., said that an obligation entered into by an insane person to repay a loan of which he had the benefit, is valid where the lender acted fairly and in good faith, and without knowledge of the insanity, or notice or information demanding inquiry, and the parties could not be put in statu quo.

late chief judge in the former, and in the latter by Danforth, J.

The volume contains very few dissents-only six upon decided points, so far as we have observed. It includes decisions of January 27, 1880. Why do not the court begin now to publish the current decisions, and bring up the arrears at leisure? They will never catch up in this way. This course has been adopted in several States.

THIS

PUNISHMENT FOR ESCAPING.

HIS subject has of late awakened considerable interest. Our esteemed contemporary, the ALBANY LAW JOURNAL, started the discussion -apparently in the very exuberance of its humanity; which, indeed, does great credit to the heart of the editor; and we are very glad to accept the indication that he is no selfish, unfeeling, cruel expounder of the law; but on the contrary, a gentleman of refined moral instincts; one who has a deep sympathy even with those erring ones who have too generally, perhaps, been regarded as mere outcasts, having no rights that law-abiding citizens are bound to respect.

Compassion should not be excluded from the necessary punishment of the violators of law. But yet it is not to be the paramount consideration. It should temper the infliction of penalties, but should not subvert the rigid sternness thereof. It is the very nature of sympathy to be blindly impulsive. And accordingly, our Creator has constituted the intellect cold and impassive, in order to serve as a check and a balance to the rushing emotions which are intended to warm our whole being but not to exert supreme control over it. A mere thinker without a heart is almost a nuisance; and on the other hand a man of impulsive generosity unchecked by reflection is as unserviceable as a runaway horse. If we allow intellect and sentiment to co-exist and co-operate, the true harmony of our nature and of our private and public relations will be promoted; but not otherwise.

We are not expounding 'mental philosophy. But so far we have thought it necessary to notice its principles briefly, as a preface to our response to the sentimental argument- and we can call it nothing else - of the ALBANY LAW JOURNAL, on the topic before us; in which it seems to have been followed by all the leading periodicals which have noticed the matter. We do not censure; but we think it well to utter a hint of caution.

We cannot but think the argument is radically unsound. The doctrine advanced is substantially this: A prisoner ought not to bo punished for trying to escape, and for breaking prison bounds, because it is natural that he should seek to regain his liberty. In the first place, the impractical character of this

This volume also contains the important local cases of People ex rel. Dailey v. Livingston, p. 279, and People ex rel. Mayor v. Nichols, p. 582; the former concerning the disputed election of surrogate in Kings county, and the latter concerning the removal of the police commissioner by the mayor of New York. Both these cases, which were what is generally known as political cases, were unanimously decided, the opinion being written by the

Again, the theory is as much opposed to the exercise of discipline in the prison as outside of it. Because

all prison restraints are directed against personal liberty, and the rules are framed, not merely with the view of preventing a prisoner from interfering with the rights of his fellows, but directly with the view of contravening his freedom so as to subject him to the galling condition of absolute servitude and submission to the will of those whom the law has placed over him, without his consent, in order to punish him for previous crimes. It is natural for a man to desire to do as he pleases; and in a community every citizen has a right to do as he pleases, so long as he does not intrude upon the rights of others. And it is natural for a man to want to have his own way, in prison even; and it logically follows from the natural argument of the ALBANY LAW JOURNAL that he ought not to be punished for obeying the promptings of his nature by "peaceably and unresistingly " declining to yield full submission to the enslaving prison rules, any more than he ought to be punished for "peaceably and unresistingly" abandoning the place where such rules prevail.

Moreover, it is natural, likewise, for a man who has no control of his passions to do violent deeds. Is an uncontrollable force of temper an immunity against the claims of the law? Certainly it is, if we are to accept the natural impulses as the standard of the right of community to punish.

But it may be said there is this distinction to be observed; that it is natural for all men- even the incorrupt and conscientious-to desire liberty from bondage. But will our friend of the ALBANY LAW JOURNAL maintain that a pure, conscientious man will wish to evade, by illegal means, even the penal requirements of a statute? We have instances recorded of men who, by reason of their lofty integrity, voluntarily submitted themselves to punishments which they might have avoided-punishments, too, wholly undeserved, unjust and arbitrary. The case of Regulus affords an eminent example of this kind; and he stands before us in history, by the common consent of mankind, not as a reckless, headstrong, foolhardy man, but as an illustration of the most heroic virtue and honor.

It is certainly a hardship that if an innocent man is convicted -as innocent men may sometimes be convicted, through the infirmity of human judgment - he should not be allowed quietly to escape without incurring additional punishment by his act. But we hold that when an innocent man is placed in a position of condemnation, it is still his duty to submit to the requirements of the law, until some legal method of relief is available. In fact, the mistaken punishment of an innocent man does him no civil wrong.

One may

be falsely accused, and may be imprisoned for many weary months to await his trial; but it will not be contended that even when his innocence is clearly revealed on the trial, and he is acquitted, the community is under obligation to compensate him for his loss and suffering. Such a principle, if established, would inevitably bring in a train of abuses which would soon set aside all law.

We are now speaking of the obligations of citizenship. Where one is the victim of willful injustice on the part of the sovereignty itself, or where the right to imprison is derived merely from the capture alone, as is the case in war, and not from allegiance, perhaps something different may be said. And yet our Great Master would not escape from even an iniquitous legal proceeding, although he declared that he could, at once, have called twelve legions of angels to the assistance of his humanity then in peril.

At all events, every citizen is entitled to every legal method of redress; while no one is entitled to illegal devices. It has even passed into a maxim of law that one must not accomplish lawful ends by unlawful means. And to this the Scripture responds by denouncing the maxim, "Let us do evil that good may

But where one is actually guilty of a crime, does he not owe it to community to submit quietly to the penalty incurred? Has he any right whatever to evade or throw off his liability to make the due reparation? Will a man truly penitent of an evil deed ever seek to escape this liability? Have we not heard of men, moved by conscience to genuine repentance, voluntarily disclosing their guilt, and subjecting themselves to the penalty? Does not the very attempt to escape show a continued disobedience to the law? And is not obligation a far better standard than mere nature? Is it not every man's business to bring nature into harmony with obligation, instead of trying to break away from the latter by virtue of a natural impulse? The usual purpose of a convict escaping is that he may perpetrate his crimes anew. Has society no right to prevent this by punishing attempts to throw off the present requirements of the penal law?

It will be seen, then, that we justify the decision in State v. Lewis, 19 Kans. 260, to the effect that even an innocent man ought not to escape.

However, we regard the following cases as involving an absurd and unwarrantable application of the true doctrine a travesty of justice, indeed: Riley v. State, 16 Conn. 47; State v. Davis, 14 Nev. 439; McLellan v. Dalton, 10 Mass. 191; Steere v. Field, 2 id. 486; and perhaps Stuart v. Supervisors, 86 Ill. 341.

It is an excellent token to find the ALBANY LAW JOURNAL resorting to the Scriptures in opposition to what it regards as iniquitous decisions. This does it great credit. But we would recommend a closer perusal thereof before venturing very far. We regret to see that, in condemning Steere v. Field, supra, the JOURNAL should be guilty of so gross an inaccuracy as in the following sentence: "Under this doctrine, St. Peter would have been indictable for escape, although he did not offer to go, and assured the jailer 'we are all here.'" Now we must gently inform the JOURNAL that it was St. Paul, with his companion, Silas, and not St. Peter, who was in the Phillipian prison on the occasion referred to. -Kentucky Law Reporter.

STATUTE OF FRAUDS — ORAL CONTRACT RELATING TO LAND PERFORMED BY ONE PARTY. ENGLISH HIGH COURT OF JUSTICE, EXCHEQUER DIVISION, JUNE 2, 1880.

ALDERSON V. MADDISON, 43 L. T. Rep. (N. S.) 349. A. desiring to retain in his service the defendant who had been acting as his housekeeper for many years, and to whom he was indebted in arrears of wages for such service, represented to her that if she would forbear to press him for the arrears of wages due to her, and giving up other prospects in life, would continue to serve him for the rest of his life without wages, he would make a will leaving her a life estate in certain property of which he became owner in fee. A. made a will which was void, not having been properly attested, by which he left the defendant a life estate in the property in question, and the defendant, relying on the representations so made by A., was induced to continue in his service till his death, when she took possession of the title deeds of the property. In an action brought by the plaintiff, as the heir-at-law of A., to recover possession of the title deeds, the defendant counter-claimed for a declaration that she was entitled to a life estate in the said property, and to retain the title deeds for her life. Held, (1), that the representations made by A. to the defendant were terms in a contract which was binding on A. and his heirs, and that the defendant was entitled to a life estate in the said property, and to retain the title deeds for her life. (2), That the contract related to land within section 4 of the statute of frauds, but that the statute did not apply by reason of the contract hav

ing been completely performed on the part of the defendant.

Hammersly v. De Biel, 12 Cl. & F. 45; and Loffus v. Maw, 6 L. T. Rep. (N. S.), 346; 3 Giff. 592, commented on and explained.

THIS action was tried at the Durham Summer Assizes

in 1879, before Stephen, J., by whom it was reserved for further consideration.

The statement of claim alleged that the plaintiff was brother and heir-at-law of Thomas Alderson, deceased, who died intestate on the 15th of December, 1877, and in whose service the defendant, Elizabeth Maddison, had lived as housekeeper for many years before his death. Thomas Alderson, at the time of his death, was owner in fee of an estate called Manor House Farm, and on his death his property descended to the plaintiff as his heir-at-law. The defendant took possession on Thomas Alderson's death of the title deeds of the property. The plaintiff claimed the restitution of the title deeds and damages for their detention.

The statement of defense admitted in substance the allegations of the statement of claim, but stated in detail that Thomas Alderson, becoming indebted to the defendant for wages, and wishing her to remain in his service, made an agreement with her to the effect that if she would forbear to press him for the arrears of wages due to her, and would serve him for the rest of his life without wages, he would at his death leave her a life interest in the Manor House Farm. It also stated that Thomas Alderson, meaning to carry out his promises, made a will by which he left the property in question (subject to a small annuity) to the defendant for her life.

By way of counter-claim the defendant repeated the statements above mentioned, and added that the will referred to, though signed by Thomas Alderson, was not properly attested, whereby he had failed to fulfill his engagements to her. She claimed a declaration that she was entitled to a life estate in the Manor House Farm, or to such life estate as the draft will purported to devise to her, and that she was entitled to retain the deeds for her life. In the alternative she claimed to be entitled to retain the deeds till she had been paid all wages due to her, or fair remuneration for her services. The only questions before the court were whether the defendant was entitled to a life estate in the property, and whether she was entitled to a lien on the deeds.

At the trial it was proved that Thomas Alderson had made the will referred to, and that it had not been properly attested, so that as a will it was void.

At the suggestion of the counsel on both sides, the following question was put to the jury, viz.: whether the defendant was induced to serve Thomas Alderson as his housekeeper without wages for many years, and to give up other prospects of establishment in life, by a promise made by him to her to make a will leaving her a life estate in Manor House Farm, if and when it became his property? The jury replied, "Yes," and the judge thereupon reserved for further consideration the effect of this finding and the evidence.

STEPHEN, J.. after stating the facts as given above, continued - The substantial question appears to me to arise upon the defendant's counter-claim. Has she a right to the declaration for which she asks that she is entitled to a life estate in possession in the property, and to the custody of the deeds for life? If not, I do not see how she can be entitled to a lien upon the deeds for any amount of wages which may be due to her. Indeed, it was hardly contended in argument that she was so entitled. The defendant's case is put in two ways. First, it is said that Thomas Alderson made representations to her which influenced her conduct, and which his heir is bound to make good. Next, it is said that what took place between them amounted to

a contract, that in consideration of her serving him for his life he would leave her by his will a life interest in the farm, if it became his property during his life and if she survived him. I think that if this was so she is entitled to what is equivalent to specific performance of the contract. The law upon the subject is, I think, clear and consistent when all the decisions are considered, but I am led to believe that an impression exists that there may be such a thing as a representation which, though neither a contract nor part of a contract, may have the effect of binding the person who makes it as if it were a contract. I do not agree with this view, and I think it desirable to state fully the way in which the matter presents itself to me. It seems to me that every representation, false when made or falsified by the event, must operate in one of three ways if it is to produce any legal consequences. First, it may be a term in a contract, in which case its falsity will, according to circumstances, either render the contract voidable, or render the person making the representation liable either to damages or to a decree that he or his representatives shall give effect to the representation; secondly, it may operate as an estoppel preventing the person making the representation from denying its truth, as against persons whose conduct has been influenced by it; thirdly, it may amount to a criminal offense. The common case of a warranty is an instance of a representation forming part of a contract. Pickard v. Sears, 6 Ad. & E. 469, and many other wellknown cases are instances of representations amounting to an estoppel. A false pretense by which money is obtained is an instance of a representation amounting to a crime. Besides these there is a class of false representations which have no legal effect. These are cases in which a person excites expectations which he does not fulfil, as, for instance, where a person leads another to believe that he intends to make him his heir, and then leaves his property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of contract, and may involve greater moral guilt than many common frauds, it involves no legal consequences, unless the person making the representation not only excites an expectation that it will be fulfilled, but legally binds himself to fulfil it, in which case he must, as it seems to me, fulfil it. It will, I think, be found that all the difficulties of the subject may be solved by keeping in mind this classification of the different classes of false representations. Nothing need be said here of criminal false representations, nor need I, on the present occasion, say more of false representations amounting to estoppels than that it does not appear to me that the law upon that subject has any thing to do with this case. Thomas Alderson neither did nor said any thing that could estop either him or his heir from denying any stato of facts whatever. He promised to leave his housekeeper a life estate in the Manor Farm. He intended to do so, and had a will prepared which purported to do so. He signed that will in the presence of two witnesses, but unfortunately they were not both present at once, and accordingly the will was void. What relation can estoppels by consent or by statements have to such a case as this? To say that Alderson's heir-at-law is estopped by Alderson's conduct from denying the validity of the irregularly attested will would be to repeal the Statute of Wills; but I do not see what other estoppel would affect the case. Who is to be estopped? What assertion is he estopped from? The question, therefore, comes to be this: Were the representations made to the defendant terms in a contract, or were they merely voluntary revocable promises which were not in fact carried out? In other words, did Thomas Alderson contract with his housekeeper that he would leave her a life interest in the Manor Farm if she would serve him for his life, and if the farm became his property and if she survived him;