fornia, reversed. Heald v. Rice. Opinion by Matthews, J.

[Decided March 6, 1882.]

IN

MUNICIPAL BONDS -RECITAL THAT STATUTE WAS COMPLIED WITH CONCLUSIVE AS TO BONA FIDE HOLDERS- BURDEN OF PROOF IMPLIED REPEAL OF STATUTE IMPAIRING CONTRACT IRREGULARITIES ISSUE CURED BY LEVY OF TAX FOR INTEREST.-(1) A recital made in municipal bonds issued by a county in Illinois that they were issued pursuant to the orders of the board of supervisors (which board was authorized to adjudge whether a vote authorizing the issue of such bonds had been given) as authorized by virtue of the laws of the State of Illinois, held equivalent to a declaration by the board of supervisors, upon the face of the bond, that the election had been held and had resulted so as to authorize the lawful issuing of the bonds. When the bonds are in the hands of a bonu fide holder this recital is conclusive and binding upon the municipality. Town of Coloma v. Eaves, 92 U. S. 484; Marcy v. Township of Oswego, id. 637. (2) Where a county had under the law authority to issue bonds, and it did issue them, and they went into circulation and came to the hands of a bona fide holder, he is not in a suit upon the bonds required to aver or prove the performance of any of the requisites necessary to give them validity. The want of such performance is a matter of defense, and the burden of proof is upon the county to establish it. Lincoln v. Iron Co., 103 U. S. 412. (3) Where there is no repugnancy or inconsistency between an earlier and a later statute there is no implication of repeal. A statute can be repealed only by an express provision of a subsequent law or by necessary implication. To repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled. McCool v. Smith, 1 Black, 459; Wood v. United States, 16 Pet. 342. (4) The adoption of a State Constitution does not annul or impair a contract partly performed. Town of Concord v. Savings Bank, 92 U. S. 630. (5) Where taxes have been levied to pay, and interest paid on municipal bonds for nine and eleven years, held, that this fact would of itself cure mere irregularities in the issuing of the bonds when they were sued on by a bona fide holder for value. Supervisors! v. Schenck, 5 Wall. 72. Judgment of U. S. Circ. Ct. S. D. Illinois, affirmed. County of Clay v. Society for Savings. Opinion by Woods, J. [Decided Jan. 22, 1882.]

OHIO SUPREME COURT ABSTRACT. JANUARY, 1882.

AGENCY -WHAT CONSTITUTES-LOSS BETWEEN TWO INNOCENT PARTIES.-S. brought suit against N. and others to obtain a sale of land to satisfy a judgment lien thereon. To this suit H. was made a party defendant, who, upon receipt of summous, gave to C., his regular attorney, certain notes indorsed by him in blank, together with a mortgage upon the land to secure the same, for collection. C. caused a crosspetition to be filed on behalf of H., setting up his mortgage lien. The court, upon trial, ordered the land to be sold to satisfy the liens of S. and H. Pending the suit, H. agreed with N. to extend the note for a year from the time when it fell due. Before the time so extended had expired, N., fearing that the land would be sacrificed, employed a broker, who applied to C. to find a purchaser at private sale. C. went to J. S. and offered him the land for $3,500, telling him of the mortgage, and saying that he had in his possession all the papers necessary to make a clear title. J. S. paid him the money and directed him to pay off all

the claims upon the land, including the mortgage of H., and to obtain H.'s cancellation of the mortgage upon his return, he being then absent. C. paid the costs and the claim of S., but embezzled the remainder of the money. Held, that under this state of facts, C. acted as the agent of J. S., to make payment to H., and not as the agent of H., to receive payment from J. S.; and that as between the two innocent! parties, the loss must be borne by J. S. Patten v. Fullerton, 27 Me. 58, distinguished. Nolte v. Hubbard. Opinion by Longworth, J.

CONTRACT -FOR PERSONAL SERVICE.- Where one rendering service for another under a monthly employment says to his employer that he desires to have his employment made more permanent, and thereupon a specified amount per year is agreed upon, payable in semi-monthly installments, a hiring for a year may be inferred. Express words that the employment should continue for a year are not essential. Bascom v. Schillito. Opinion by Okey, C. J.

MECHANICS' LIEN-RIGHT TO, MAY BE WAIVED BY CONTRACT.—(1) A mechanic furnishing material for the construction of a mill, under a contract with the owner, may by his agreement as to the manner of payment, and his acts with respect to the claims of other creditors, be precluded from asserting a mechanic's lien, as against such creditors, although he has made no express promise that he will not assert such lien. (2) The proposition of a manufacturing company incorporated under the laws of New York, to build a rolling mill at S., in this State, if its citizens would donate to the company ten acres of land and lend it $150,000, to be evidenced by the bonds of the company secured by mortgage on the property, was accepted by certain citizens of S., who conveyed to it such land, loaned to it said sum, receiving from the company such bonds and mortgage. Among the persons advancing money, and accepting bonds so secured, was K., who afterward sold such bonds to other persons. After the mortgage

was recorded, but before any considerable part of said sum was advanced to the company, and before any written consent of stockholders of the company to the execution of the mortgage was filed in the office where mortgages are recorded, as provided in the statutes of New York, K. commenced furnishing material for the construction of the mill, under an agreement that he should be paid in monthly installments out of the moneys received for the bonds. His account amounted to $76,000, and during the time it accrued, he received thereon, in installments, from the moneys so loaned to the company, $57,000, and the company paid out of the moneys advanced to it various sums to other creditors. Subsequently, when the company was in failing circumstances, K. asserted a mechanic's lien for the balance due him, and brought suit to enforce it. Held. conceding but without deciding that the objections to the mortgage would, under other circumstances, be fatal, that K. is precluded by his acts and agreement from asserting such objections, and that on the facts stated the mortgage lien is superior to the West v. Klotz. Opinion by Okey, C. J.

lien of K.

SET-OFF ONE JUDGMENT AGAINST ANOTHER.-A motion that one judgment be set off against another is an appeal to the equitable power of the court, to be granted or refused upon consideration of all the facts; and in granting such motion, the claim of the attorneys for fees will be respected, wherever it appears to be right, in view of the facts, that this should be done. As the court say, in Holmes v. Robinson, 4 Ohio, 90, "the practice of setting off one judgment against another, between the same parties, and in the same right, is ancient and well established." Even the fact that the judgments are in different courts, one for a tort and the other on contract, and some of the parties

in one case were not parties in the other, does not necessarily afford an insuperable objection to such setoff. But, as Gibson, C. J., observes (Ramsey's Appeal, 2 Watts, 230), there is a fallacy in supposing that such set-off is a legal right." Judgments are set off against each other," said he, "not by force of the statute, but by the inherent power of the court immemorially exercised. * * * An equitable right of setting off judgments therefore is permitted only where it will infringe on no other right of equal grade." And see Love v. Freer, Wright, 412. "Such power," said Devens, J., in Ames v. Bates, 119 Mass. 397, "is only to be exercised upon careful consideration of all the circumstances of the transaction out of which the judgments arise, and in order to protect the just rights of parties." "The privilege of setting off judgment," said Coleridge, J., in Simpson v. Lamb, 7 E. & B. 84, "is not an inherent incident of the suit, but is given by permission of the court, with reference to all the circumstances of the transaction." And it has been recently held that where the set-off is sought by motion, the matter so far rests in the discretion of the court that the refusal of an order for such set-off will not be reviewed on error. Chipman v. Fowle, 130 Mass. 352. Guided by this view of the law, courts have refused to order such set-off, where by granting it the just rights of assignees would be disturbed. So, it has been repeatedly held that where a debtor is entitled to hold a judgment a property exempt from execution, the object of the law being, not to exonerate the debtor from the payment of his debts, but "to protect his family" (Sears v. Hanks, 14 Ohio St. 298), a set-off as to such judgment will not be ordered. Curlee v. Thomas, 74 N. C. 51; Duff v. Wells, 7 Heiskell, 17; Wilson v. McElroy, 32 Penn. St. 82; Beckman v. Manlove, 18 Cal. 388. And see Comer v. Dodson, 22 Ohio St. 622; McConville v. Lee, 31 id. 447; Thompson on Exemp., § 893. And it has likewise been held in many cases, that a judgment will not be set off against another judgment, to the prejudice of an attorney who contributed by his skill and services in obtaining it. Johnson v. Taylor, 1 Disney, 169; Carpenter v. Sixth Av. Ry., 1 Am. L. Reg. (N. S.) 410, 424; Perry v. Chester, 53 N. Y. 240; Zogbaum v. Parker, 55 id. 399. Diehl v. Friester. Opinion by Okey, C. J.

NEW HAMPSHIRE SUPREME COURT AB

STRACT.*

CONSTITUTIONAL LAW LEGISLATIVE POWER.- - A reserved power of amending and repealing the charter of a corporation is a legislative power. The foreclosure of a mortgage is not an exercise of legislative power. Ashuelot Railroad Co. v. Elliot. Opinion by Doe, C. J. DEED-CERTAINTY IN DESCRIPTION.-(1) An error in the name of a former owner of the land does not render a deed void for uncertainty, when sufficient remains to designate the premises intended to be conveyed after rejecting the erroneous description. Drew v. Drew, 28 N. H. 489; Eastman v. Knight, 35 id. 551; Packard v. Putnam, 57 id. 43, 51. In the absence of fraud, a deed cannot be avoided by showing that the grantor executed it in ignorance of its contents. White v. Graves, 107 Mass. 325; Faucett v. Currier, 109 id. 79; Thacher v. Churchill, 118 id. 108; Withington v. Warren, 10 Met. 434; McCobb v. Richardson, 24 Me. 82; Kerr on Fraud and Mistake, 407; Comegys v. Clarke, 44 Md. 108; 2 Wash. Real Prop. 576, § 17. Thompson v. Ela. Opinion by Clark, J.

ESTOPPEL-EFFECT OF JUDGMENT AS- FORMER ADJUDICATION- WRONGFUL FLOWAGE.-The effect of a judgment as an estoppel against another action, upon a different claim or cause of action, between the same * To appear in 58 New Hampshire Reports.

parties, and those in privity with them, is, that the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered. Dame v. Wingate, 12 N. H. 291; King v. Chase, 15 id. 9; Sanderson v. Peabody, 58 id. 116; Demeritt v. Lyford, 27 id. 541; Towns v. Nims, 5 id. 259; Fogg v. Plumer, 17 id. 112; Potter v. Baker, 19 id. I66. When the precise matter in issue in the former action does not appear upon the face of the record, extrinsic evidence is admissible to show what facts, not inconsistent with the record, were determined and concluded by the former judgment. Littleton v. Richardson, 34 N. H. 179; Taylor v. Dustin, 43 id. 493; Smith v. Smith, 50 id. 212; Bascom v. Manning, 52 id. 132; Cromwell v. County of Sac, 94 U. S. 351; Campbell v. Rankin, 99 U. S. 261; Packet Co. v. Sickles, 5 Wall. 580; Emery v. Fowler, 39 Me. 326; Walker v. Chase, 53 id. 258; Lander v. Arno, 65 id. 26; Burlen v. Shannon, 14 Gray, 433; Merritt v. Morse, 108 Mass. 270; White v. Chase, 128 id. 158; Clapp v. Herrick, 129 id. 292. A plaintiff claiming damages for flowage, and setting up a judgment as an estoppel to show that the flowage was wrongful, and relying upon facts not necessarily involved in the judgment, has the burden of proof on the question whether such facts formed the basis of the judgment. Morgan v. Burr. Opinion by Bingham, J.

HIGHWAY-DEDICATION-LAND PLOTTED INTO LOTS AND STREETS.- Where the owner of land causes it to be surveyed into house-lots with streets intersecting the same, causes a map of such survey to be recorded in the registry of deeds, and sells lots in conformity to such survey and map, he is entitled, prima facie, to no more than nominal damages when such streets are subsequently appropriated to the public use. Matter of Furman Street, 17 Wend. 649; Livingston v. Mayor of New York, 8 id. 85; Matter of Twenty-ninth Street, 1 Hill, 189. Where owners of adjoining lots cause them to be surveyed with streets intersecting the same, cause a map of such survey to be made and recorded in a public office, and agree among themselves that whenever either party lays out a street upon his land it shall be laid according to such map, a party to the agreement cannot revoke the same after having sold lots to purchasers relying upon the proclamation of such agreement. Holdane v. Trustees of Cold Spring, 21 N. Y. 474; Huber v. Gazely, 18 Ohio, 18 (where it is said, "The use vested at the instant the first lot designated upon the plat found a purchaser"); Godfrey v. Alton, 12 Ill. 29; Angell on Highways, 160; Bigelow on Estoppel, 558-560. Walker v. City of Manchester. Opinion by Foster, J.

NEGLIGENCE-PROXIMATE CAUSE.-Where the horses of a traveller, being frightened by an overturn of their load caused by a defect in the highway, escape from him, run ninety rods, and collide with another traveller, the injury of the latter may be a natural and probable consequence of the defect, for which the town is liable. Merrill v. Claremont. Opinion by Doe, C. J.

RELIGIOUS CORPORATION - RIGHTS OF PEW-HOLDER. -The right of a pew-holder to a pew in a meetinghouse owned by a religious society is subordinate to the right of the society to repair or remodel the house. A religious society may alter, remove or destroy a pew in its meeting-house upon paying or tendering to the owner full compensation, when it becomes necessary for the purpose of making needed alterations or repairs in their church edifice. Kimball v. Second Parish in Rowling, 24 Pick. 347. A person wrongfully occupying a pew may be removed from it by a police officer, or by the owner of the pew, or any one acting at his request. Jones v. Towne. Opinion by Doe, C. J.

-

TAXATION ASSESSMENT.-A vote "to raise $1,000 to repair highways and bridges, and $600 for winter purposes if needed," is sufficientiy definite to authorize the assessment of a tax. In Brown v. Hoadley, 12 Vt. 472, the vote was "to raise a sum not exceeding $100 for the support of the school to be kept in said district the then next ensuing winter; said sum to be the amount of the expenses of said school, after deducting $60 public money." It was objected that the tax voted was not sufficiently definite in amount. The court say: "It is objected that here was a discretion left with the prudential committee as to the amount to be raised within the limitation of $100. Admitting this to be true, we do not perceive that it furnishes any valid objection. The district protected themselves by the limitation, and the amount of expense to be incurred within the limit prescribed was a matter properly intrusted to the judgment of the committee. It is believed that votes of towns as well as school districts, to raise taxes not exceeding a specified sum, are sanctioned by very general practice." See also, Adams v. Hyde, 27 Vt. 221; Chandler v. Bradish, 23 id. 416; West School District of Canton v. Merrills, 12 Conn. 437. Taft v. Barrett. Opinion by Clark, J..

WHAT SUFFICIENT VOTE TO AUTHORIZE

ILLINOIS SUPREME COURT ABSTRACT.*

BOUNDARIES -MISTAKE IN DESCRIPTION MONUMENTS. A mistake in the surveyor's certificate, attempting to give a description of the land actually surveyed and platted into town lots, describing the town as being on a different quarter of the proper section, does not render the survey and subdivision of the property into lots and blocks uncertain, and for that reason void, when the monuments planted by the surveyor at the time of the survey fix the boundaries of the survey definitely and certainly. It is well settled law that the monuments established by a surveyor at the time of making the survey will always prevail over written descriptions when a contradiction exists. People of Illinois v. Stahl. Opinion by Scott, J. EVIDENCE

PRESUMPTION FROM DESTRUCTION OF WRITING SECONDARY EVIDENCE.- It is a familiar rule that no evidence will be received of a fact which, from its very nature, shows there might be better evidence to such fact, without first satisfactorily accounting for the absence of the higher order of evidence. The counterpart of this rule is, that the law is satisfied where the fact sought to be established has been proven by the best evidence of which in its nature it is susceptible. Where one deliberately destroys, or purposely induces another to destroy, a written instrument of any kind, and the contents thereof subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded upon it. In such case slight evidence will suffice. So, where a will duly executed and attested was destroyed, with the connivance of a part of the heirs of the testator, and no copy appearing to be in existence, in a suit by a devisee not a party to such destruction, it was held, that the latter was only required to show, in general terms, the disposition which the testator made of his property by the instrument, and that it purported to be his will, and was duly attested by the requisite number of witnesses. Anderson v. Irwin. Opinion by Mulkey, J.

STATUTORY CONSTRUCTION -GRANT OF SPECIFIC POWERS EXCLUDES OTHER POWERS.-Where the legislature, by the general incorporation act, declares that the corporate authorities of cities and villages organ* Appearing in 101 Illinois Reports.

ized and acting under its provisions shall have power to license certain occupations and kinds of business, specifically enumerating them, such declaration, by a familiar rule of construction, must be construed precisely as if the law, in express terms, inhibited the lisensing of all trades and occupations not contained in the enumeration. City of Cairo v. Bross. Opinion by Mulkey, J.

RECENT ENGLISH DECISIONS.

CONTRACT, RESCISSION OF FOR FALSE REPRESENTATION. It is not necessary, in order to set aside a contract, to prove that the person who obtained it by material false representation knew at the time the representation was made that it was false, or even made it recklessly and without care. The judgment of Lord Cairns, L. J., in Re Reese River Silver Mining Company (16 L. T. Rep. N. S. 549) approved. It is no defense to an action for rescission of a contract on the ground of fraud, that the plaintiff inquired to a certain extent whether the representation made to him was true, but did it so carelessly and inefficiently as not to observe the fraud. If a plaintiff has made a material representation to induce a person to enter into a contract and the defendant has entered into the contract, it is not sufficient in order to uphold the contract against the defendant that he does not prove he entered into it relying upon the representation; but the plaintiff must show that the defendant abandoned such reliance, either by having knowledge contrary to the representation or by his explicit statement that he did not rely on such representation. In the absence of such evidence the inference remains that the defendant did rely on the representation. Attwood v. Small, 6 Cl. & F. 232, explained. The plaintiff, a solicitor with a gross practice of 2001. a year, inserted an advertisement in the Law Times stating that he was elderly and "of moderate practice," contemplated retiring, had no successor, and would take a partner "who would not object to purchase advertiser's suburban residence, value 1,600l." and continuing, "no premium required for business and introduction. A large field is here open for an efficient man." The defendant, another solicitor, attracted by the advertisement entered into negotiations with the plaintiff who stated that his business was worth 3001. a year, and that he had a large connection. The defendant requiring further information, the plaintiff allowed him to inspect a batch of papers which showed a gross business of 2001. a year for the last three years. In answer to the defendant's inquiry as to the other business the plaintiff said there was other business not entered on the batch of papers, and offered a second batch of papers (which showed other business of 51. or 61. value) for the inspection of the defendant who did not examine them. The defendant then entered into a writ ten agreement to purchase the house for 16001., and took possession of the house and entered on the business which was not referred to in the written agreement. Subsequently the defendant gave up possession and refused to complete the purchase of the house. The plaintiff commenced an action for specific performance of the agreement to purchase the house, and the defendant counter-claimed for rescission of the agreement. Held, by Fry, J., that the defendant did not proceed on the faith of the representation that the business was worth 3001. a year, or rely on the statement as to the business beyond 2001. being shown by the second batch of papers, but that he relied on his own skill to make a good business out of what was shown in the first batch of papers, and that having made an inquiry (though a careless and inefficient one) into the state of the business, he was bound to perform the contract. Held, on appeal (reversing the de

cision of Fry, J.), that the defendant did not proceed with the negotiations exclusively on the faith of the representation of the 3001. value, but that he did not give up his reliance on it; that having seen the first batch of papers he also relied on the plaintiff's statement as to the difference between 2001. and 300l. a year being shown by the second batch, and that his mere negligence to inquire (even if he had the materials before him) was not sufficient to disentitle him from being relieved from the contract. Ct. of Appeal, Nov. 28, 1881. Redgrave v. Hurd. Opinion by Jessel, M. R. Baggallay and Lush, L. JJ. (45 L. T. Rep. N. S., 485.)

MARITIME LAW BOTTOMRY CONTRACT.-A contract of bottomry is governed by the general maritime law as administered in the place where the bond is payable. It is no answer to cargo owners sued on a bottomry boud and setting up a defense that the master of the ship had not taken proper steps to apprise them of his necessity, that such communication was not necessary by the law of the country to which the ship belonged. Authorities cited The Hamburg, Brown & Lush Adm. 259; The Gratitudine, 3 C. Rob. 240; The Buonaparte, 8 Moore, P. C. 459; Lloyd v. Gnrbert, L. R., 1 Q. B. Div. 115; Pope v. Nickerson, 3 Story, 465; Kleinwort v. Cassa Maratima, L. R., 2 App. Cas. 156; Probate Div. & Adm. Div., Nov. 11, 1881. The Galtano and Maria. Opinion by Sir Robert Phillimore (45 L. T. Rep. N. S. 510).

SALVAGE. Where volunteers navigate a derelict for a time, and on falling in with another vessel abandon her, they are not entitled to salvage award. Prob. Div. & Adm. Div., March 9, 1881. The Killeena. Opinion by Sir Robert Phillimore (45 L. T. Rep. N. S. 622). SPECIFIC PERFORMANCE-INABILITY TO FULLY PERFORM.-Defendant, a widow lady, entered into an agreement with the plaintiffs to grant them a lease of certain premises in the city of London for the purposes of their business. The defendants afterward found that she was only entitled to an undivided moiety of the premises in question, the other moiety being vested in her son an infant, so that she was unable to execute a lease for the whole of the premises. The plaintiffs brought their action for specific performance with compensation, and also claimed damages in respect of their liability to eviction. Held, that specific performance must be granted in respect of the defendant's undivided moiety with an abatement of one-half of the rent, but that nothing could be awarded by way of damages, as those claimed were merely prospective. Authorities cited Mortlock v. Buller, 10 Ves. 252; Bain v. Fothergill, L. R., 3 E. & J. App; Price v. Griffith, 1 DeG. M. & G. 80. Chanc. Div. Dec. 3, 1881. Burrow v. Scammell. Opinion by Bacon, V. C. (45 L. T. Rep. N. S. 606).

CORRESPONDENCE.

DESPATCH OF LEGAL BUSINESS IN ENGLAND AND AMERICA.

Editor of the Albany Law Journal:

To those who are disposed to complain of the delays and expenses of litigation in this country I commend the perusal of the following extract from a letter written by a former Dublin solicitor, now resident in this country, who is also well acquainted with American practice.

"I think your practice is far ahead of the English practice, as less technical, and far less cumbrous and expensive. When English cases get into court they are quickly enough disposed of, but no American mind can conceive, or would endure, the horrible difficulty

of getting them into court. There are hundreds of petty offices through which the papers have to pass, each of them as rigid in the details of practice as if they were trying how not to do business. All officers hold during good behavior, and are quite independent of the practitioners; they have enormous power, and use it to save themselves trouble, principally, and sometimes very arbitrarily and injuriously to clients. No attorney likes to make personal enemies by exposing them. I tried it once or twice, and had good reason to rue it.

"The relations between attorney and counsel are also much better here than there. It is much harder for merit to fight its way to the front, because business is monopolized among the juniors, by those who are relatives or connections of the attorneys.

"In my judgment, the English practice is founded on a hopeless, though long sustained and partially successful effort to reduce to mechanism a business that does not admit of being done mechanically. It is gotten up regardless of expense to the client, and this is in itself a terrible abuse. It necessitates the maintenance of a small army of copying clerks and mechanical drudges, and burdens the intelligent members of the profession with office expenses and mechanical detail, that is inconsistent with the employment of any great intelligence in the conduct of their cases. Verbiage is spun out, because men are paid by the folio; time is wasted in order that it may be charged against the client; energy can produce no adequate results either to the client or to the practitioner; the whole machine, including especially that connected with bills of costs, is too cumbrous, and is intentionally kept so, supposing that professional interests require it to be so. Thus, though perhaps no country in the world has so large a proportion of high-minded men among its lawyers of all grades, there is no other country in which the lawyers as a class, are so decidedly, and yet so innocently, humani generis hostes. Custom, precedent, routine, and the effort to consecrate these are the cause of it all; the result is that the profession is not worth following by any man of independent mind, and society is lawyer-ridden quite too much."

If the English practice be superior to ours in any respect, it is in the prompt and rapid disposition of

cases after the trial has commenced. The technicalities of English practice end with the swearing of the jury- the very point at which they begin with us. Counsel are thoroughly prepared and fortified with briefs (a system almost unknown here), witnesses are called only to the exact point in issue, questions are rapidly put, cross-examinations are short and to the point, interlocutory matters rarely argued, and authorities never cited; counsel seldom take more than an hour in summing up, and a case which with us would occupy a week, is there disposed of in a day. Judgments are rarely reversed, except for errors which go to the merits, and in criminal cases scarcely one verdict in a thousand is set aside for an error of law.

Indeed, the administration of criminal law in England is as superior to ours in the conviction and punishment of the guilty, as we excel them in the attainment of substantial justice in civil cases. Certainty and swiftness of punishment are recognized as the chief restraints upon crime. Sufficient time is allowed to elapse between the conviction and execution of a murderer for public excitement to cool, but not enough for it to lapse into indifference or maudlin sympathy. It is safe to say that the disgusting spectacle of pandering to the abnormal lust of a convicted murderer for notoriety, by turning a government jail into a shop for the sale of pictures and autographs, would never be tolerated for a moment. The difference between the two systems is admirably illustrated by the trials of Guiteau and McLean; one dragged along its tiresome details for nearly two months, the

assailant of the Queen was tried and acquitted upon the same issue in a single day.

The consequence of this expedition in the disposal of cases is that the entire legal business of a kingdom of 23,000,000 people is despatched by about as many judges as are required here in a single State of perhaps one-tenth its population. QUATORZE.

[It is quite unfair to compare the trial of McLean with that of Guiteau. There was practically no issue or trial in McLean's case. It should be kept in mind also that the English judges cannot do the business of the country. Our legal exchanges are full of complaints on this score.- -ED. ALB. LAW J.]

RECEIVERS IN FORECLOSURE. Editor of the Albany Law Journal:

The answer to the query put by Mr. Levi in your issue of April 22d (which I have just seen), whether the usual mention in a mortgage of rents and profits does not amount to a specific pledge of them, is, as it seems to me, three-fold.

First. The words are found in the habendum clause, the phraseology of which was taken from a deed, a mortgage having originally been nothing but a deed defeasible. The intention of the clause was to convey all interest in the lands of every kind. Hence it does not afford any evidence of special intent beyond that. The rule noscitur a sociis applies. Our courts hold, in the very teeth of the habendum, that it conveys no legal or equitable title to the mortgagee. Those decisions apply equally to the rents as to the land.

Second. The courts have in effect decided that these words in the habendum clause do not amount to a specific pledge. In Classon v. Corley they say the mortgagor has the title to the rents down to the time the purchaser gets his deed, and when he collects them he may retain them to his own use. Lofsky v. Manger holds the mortgagee gains no lien on the rents by filing his bill. Neither of these cases (cited in my article) could be sound if the mention of the rents in the habendum clause amounted to a specific pledge.

Third. If such mention does so amount, rents before

default must be deemed included as well as those after. If a mortgagee has a lien on the rents due before default, he cannot be denied the right to enforce that lien. In default of remedy at law, equity would have to devise an action for him to recover these rents in the face of the statute abolishing ejectment. Therefore it cannot be that the mere recital of the words "rents and profits" in the habendum clause is any evidence of an intention to make a specific pledge of them. Separate and apart from the corpus of the estate, in the words of Vice-Chancellor McCoun (Post v. Dorr), which were quoted in and really gave rise to any article. May it not well be asked, is it not time to stop the long jargon, the senseless verbiage, the useless lingo, in our deeds and mortgages? Under the Revised Statutes one word is sufficient; John Doe "deeds" the following property to Richard Roe, is just as effective for deeds and mortgages as the fifty words now employed. But this is getting away from the subject

in hand.

of the Supreme Court of the United States, beginning with, and in advance of volume 104 of the official reports. Edited by Hon. Samuel F. Miller, LL. D., one of the justices of the court." This number contains 112 pages, and is well printed. We see no particular evidences of the distinguished editor's superior hand. Indeed, almost any other reporter would be laughed at for adding the letter "R" to citations of reports, or for citing "Supreme Court of New York R.," or for adding "et al." to the name of the leading party, or setting forth a negotiable instrument in a head-note, and the like. We give in the ALBANY LAW JOURNAL every opinion of this court, of general importance and application, either in full or in very ample abstracts, and abstracts of all other cases, much more promptly than a monthly publication can do it. We must be allowed to suggest, also, that it looks singular for Mr. Justice Miller to take on himself the supposed labors of a reporter at a time when the whole profession, Congress and the country are troubled to contrive some way of enabling his court to keep up with their business.- The Kentucky Law Journal, for May, contains a leading article on Testamentary Disposition of Property, by Hon. J. C. Hemingray, and an opening one on Express companies, by Morris A. Sachs.- -The American Law Register, for May, contains an opening article on Action for Malicious Prosecution of a Civil Suit, by John D. Lawson; also the following opinions in full: Bonaparte v. Baltimore (U. S. Sup. Ct.), on Taxation by one State of the registered public debt of another, with note by C. J. McGwinn; Cuddy v. Horn (Mich. Sup. Ct.) on imputable negligence, with note by Albert Hamilton; Washington Ice Co. v. Shortall (Illinois Sup. Ct.), on right of riparian owner to ice in navigable river above tidewater, with note by Marshall D. Ewell; Lynn v. Polk (Tenn. Sup. Ct.), on constitutionality of act to compromise State bonded debt, with note.

The Hindoo-English author of a "Memoir of the iate Honourable Justice Onoocool Chunder Mooker

jee" thus describes the merits of the subject of the memoir before his elevation to the Bench: Since he joined the native Bar down ad finem of his career as a pleader, he had won a uniform way of pleading. He made no gairish of words, never made his sentences long when he could express his thoughts in small ones. Never he counterchanged strong words with the pleaders or barristers of the other party. In defeating or conducting a case his temper was never incalescent and hazy. He well understood the interest of his client, and never ceased to tussle for it until he was flushed with success, or until the shafts of his arguments made his quiver void. He was never seen to illude or trespass upon the time of court with fiddle-faddle arguments to prove his wits going a-wool-gathering, but what he said was nude truth, based upon jus civile, lex non scripta, lex scripta, etc., and relative to his case and in homogeneity to the subject-matter he discussed, and always true to the points he argued. He made no quotation having no bearing whatever to his case, but cited such acts, clauses, and precedents that have a direct affinity to his case, or the subject-matter of his argument. By-the-by, I should not here omit to mention that he had one peculiarity in his pleading which I have observed very minutely. Having first expounded before the court the anatomy of his case, he then launched out on the relative position of his client with that of the other, pointing out the quidproquo or bolstering up the decision of the lower court with his sapience and legal acumen and cognoscence, waiting with quietude to see which side the court takes in favourable consideration, knuckling to the arguments of the court, and then inducing it gradually to his favour, giving thereby no offense to the court."