out the purposes and wishes of these great men to continue the work of justice than to suspend it. But I hesitate to make this change in practice now, especially as it might seem to be a slur on such a great and good man as the deceased. This will be matter for concerted action of the judges. To-day I grant the motion."

In the general term of the Court of Common Pleas, Chief Justice Daly, on a similar motion, while acknowledging the worth of the deceased lawyer, refused to suspend his court on account of the mass of business before it, but directed an entry to be made on the minutes of the court's regret for Mr. Anthon's death. In Supreme Court, circuit, before Judge Van Vorst, a motion to adjourn was made after recess by Mr. Dickerson and seconded by John E. Parsons, the counsel then engaged in trying a case, and Judge Van Vorst, with a brief eulogy of the deceased, directed an adjournment. In several of the other courts the judges, at the close of their business, directed an entry of regret for Mr. Anthon's loss to be made on the minutes.

To the President and Members of the Chicago Bar Association:

The special committee to whom was referred the matter of the preparation of a draft for a bill to be presented to Congress, to provide for appeals and writs of error from judgments, orders and decrees of the Circuit Court, held by the district judge of the district sitting alone, under the resolution adopted by the Association on February 13, 1875, beg leave to report that they have prepared a draft of a bill for the purpose contemplated by the resolution, which they herewith respectfully submit to the Association for its consideration and action.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States, in Congress assembled,

That from all final decrees in cases of equity rendered in any Circuit Court, held by the district judge of the district sitting alone, where the matter in dispute exceeds the sum or value of $500, exclusive of costs, and where no appeal to the Supreme Court of the United States is provided by law, an appeal shall be allowed to the circuit judge of said district, and such circuit judge is required to receive, hear and determine such appeal.

§ 2. In case of an appeal as provided by the preceding section, the judge and parties shall use the original papers and proofs in the cause, or such of them as may be necessary on the hearing of the appeal.

§ 3. Final judgments of a Circuit Court held by the district judge of the district sitting alone, in civil

actions, where the matter in dispute exceeds the sum or value of $500, exclusive of costs, and where no writ of error is provided by law from the Supreme Court of the United States, may be re-examined, and reversed or affirmed by the circuit judge of said district, upon a writ of error, which shall be tested by the circuit judge.

§ 4. In any of the cases of appeal or writ of errors from any final order or decree in any cause provided for in this act, the circuit judge may affirm, modify, or reverse any judgment, decree or order of the Circuit Court held by a district judge sitting alone, brought before him for review; or may direct such judgment, decree or order to be rendered, or such further proceedings to be had, as the justice of the case may require.

§ 5. No judgment, decree or order of a Circuit Court, held by the district judge of the district sitting alone, shall be reviewed by a circuit judge as herein provided, on writ of error or appeal, unless the writ of error is sued out or the appeal is taken within six months after the entry of such judgment, decree or order: Provided, that when a party entitled to prosecute such writ of error, or take such appeal, is an infant, non compos mentis, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within six months after the entry of the judgment, decree or order, exclusive of the time of such disability.

§ 6. When, upon a writ of error or appeal to the circuit judge as herein provided, the judgment, order or decree is affirmed by the circuit judge, there shall be adjudged to the respondents in error or appellees just damage for the delay, and single or double costs, at the discretion of said circuit judge.

§ 7. From all interlocutory orders or decrees made in the Circuit Court by the district judge of the district sitting alone, which affect a substantial right of either party to the cause, including the granting and dissolution of injunctions, and the appointment and removal of receivers, appeals shall be to the circuit judge in the same manner as hereinbefore provided for appeals from final judgments or decrees.

DIGEST OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF RHODE ISLAND.*
BOND

In debt on a writing obligatory, as follows: Know all men by these presents that we, William J. Clark, of the city of Providence, R. I., as principal, and A. E. Burnside, Eben A. Kelly, and John Gorham, as sureties, are held and firmly bound unto the president, directors and company of the Commercial National Bank of the city of Providence, R. I., in the sum of ten thousand dollars, that is to say, the said William J. Clark in the whole of said sum above named, and the said A. E. Burnside, Eben A. Kelly and John Gorham, each as surety respectively in the sum of thirtythree hundred and thirty-three and 33-100 dollars, to be paid to them the said Commercial National Bank, their attorney, successors, or assigns, for which payment well and truly to be read, we do hereby bind ourselves, our heirs, executors and administrators firmly by these presents." Held, that the obligation was several, Clark being bound in one whole sum of $10,000; and Burnside, Kelly and Gorham, being each

* From Arnold Green, Esq., Reporter, and to appear in Vol. 11, R. I. Reports.

bound in one sum of $3,333. Commercial National Bank v. Gorham.

CONSTITUTIONAL LAW.

An act authorizing change of venue to secure an impartial trial and to avoid local prejudice, is not in violation of article 1, section 15, of the constitution of the State, which declares, "The right of trial by jury shall remain inviolate." This provision of the constitution not meaning "trial by jury of the vicinage or county." Taylor v. Gardiner.

ESTOPPEL

Of judgment on a verdict applies in the case of title to realty only to those portions of the realty whereof the title was formally put in issue. City of Providence v. Adams.

HARBOR LINE.

1. The establishment of, in Rhode Island, gives to proprietors within the line the privilege of filling out and extending their land to it. Engs v. Peckham.

2. A and B owned each a projecting wharf. These wharves were separated by a dock. B also owned the land at the inland end of the dock. After the establishment by the State of a harbor line, running in front of the wharves, B proceeded to fill up the dock. A files a bill of complaint asking that B may be enjoined. A claiming relief: 1st. Because he has a private right or easement in the dock which will be destroyed by filling it. 2d. Because the fee of the dock is in the State, and filling it, if not a public nuisance, is an unlawful intrusion or purpresture which will be especially injurious to him. Held, that the bill could not be sustained. 3d. Query. How far the establishment of, is an absolute grant of all within the line. Ib.

INSURANCE.

1. After loss by fire the parties in interest fixed the amount of loss and damage, "subject to terms and conditions of several policies." In an action against the insurers, held, that this adjustment meant "subject to" all the "terms and conditions of the policies" not superseded by the agreement. Whipple v. N. Brit. & Mer. Fire Ins. Co.

2. Held, further, that the question of liability was not affected by this adjustment, which only determined the amount due in case of liability. Ib.

MASTER AND SERVANT.

1. A fireman employed to tend an engine was called upon by the engineer to assist in throwing on a belt which worked a pump used to fill the boiler. The fireman being injured by the belt brought an action for the injury received against the corporation which employed both the engineer and himself. Held, that if the fireman, although employed only for a fireman, was placed under the orders of the engineer, and was by him suddenly called upon to assist in throwing on a belt, out of his own sphere, but within the sphere of duty of the engineer, and was thus subjected to a risk with which he was not acquainted, or to a peculiar and greater risk at that time and of which he was not informed or cautioned, the defendant would be liable. Mann v. Oriental Print Works.

2. Held, further, that if the fireman was placed under the engineer as his superior, and this superior had a right to give orders in his department, the case did not come within the principle regulating liability in cases of fellow-servants, and that the engineer must be looked upon as representing the employer. Ib.

3. Held, further, that unless the plaintiff fireman

had been instructed not to obey the engineer except in the line of the fireman's employment, the engineer was authorized to call upon him for assistance in any matter within the engineer's department, and the defendant would be liable, even if there was another person who might more properly be called upon. Ib.

4. Held, further, that if the plaintiff fireman was instructed not to obey the engineer out of the line of his employment, and he chose notwithstanding to obey, he could not hold the defendant liable. Ib.

5. Held, further, that if the throwing on and off of the belts was not within the engineer's department, but was confined by the corporation to a belt fixer, the defendant would not be liable. Ib.

6. Semble, that if the person injured was an inferior servant, and was injured by the negligence of a superior servant in the same department, e. g., if he had been placed under a superior fireman by whose neglect he had been injured, the liability would not have accrued, as it might then be argued that he must have known and calculated the risks of such employment. Ib.

PROMISSORY NOTE.

A note payable to the order of W. was before issue indorsed by F. It was signed by G., and this siguature was at the request of W. changed to "G., agent." The note was given for G.'s private debt. F. did not assent to the change, and there was no evidence to show that G.'s principals were accustomed to pay notes drawn in this form. In an action against F., held, that the change was immaterial. Held, further, affirming Mathewson v. Sprague, 1 R. I. 8, and Perkins v. Barstow, 6 id. 504, that F. was not entitled to notice of non-payment. Manuf. & Mer. Bank v. Follett.

PURPRESTURE.

Semble, that only the State can proceed against, either to abate or prevent. Engs v. Peckham.

BOOK NOTICES.

New York Supreme Court. John Kelly, late sheriff of the city and county of New York, against Luther R. Marsh and Alexander H. Wallis. Copy Judgment Roll on Dismissal of the Complaint. Sherwood & Howland, plaintiff's attorneys. Marsh & Wallis, defendants, in pro. per. New York, 1875.

WE

E do not know what we have ever done that respectable attorneys should try to play a joke on us. It has been our constant aim to make this journal serious, and to exclude every thing like humor from our columns. Burton, the actor, when the audience went into fits of laughter at his singing of "Villikins and his Dinah," used to say, "this is not a comic song;" and so we now say, once for all, this is not a comic newspaper. The purport of the above remarks will be evident when we disclose the fact that the publication in question is poetical - we beg pardon of the sacred muse- not poetical, but in rhyme, and very doggerel rhyme too. The preliminary statement and abstract of the pleadings, admission of service of summons and complaint, ditto of answer, letter of counsel for defendants, admission of service of notice of trial, request to put cause on short calendar and consent to adjournment, defendants' protest against Howland's foreign studies, consent to discontinuance without costs, proposition to refer, communication to Howland on his nomination for alderman, refusal of plaintiff to discontinue, defendants' nomination of proposed referees, notice to produce warrant of attach

ment, plaintiff's suggestion of additional names for referees, consent to refer to Wm. C. Barrett, defendants' brief on motion for nonsuit, decision of referee thereon, defendants' exceptions thereto, defendants' suggestions for summing up, notice of motion for extra allowance, notice of entry of judgment for defendants-all is in verse, a circumstance in itself calculated to excite adverse criticism. We have looked through the case to find a few good lines to quote for our readers, but we have looked in vain. We might conscientiously recommend it as a complete directory of the New York city bar, whose names apparently are all included in the two lists of proposed referees, arranged very cleverly in classes. Now we can stand bad verse in English; we have even written some in moments of relaxation; but when Brother Marsh is guilty of writing:

"Also a copy served on us

Was certified by Amicus."

he sins against classicism, and his verse is as bad in quantity as in quality. We feel bound to state, however, that the statement of the case would warrant even this abnormal treatment of it:

""Twas said that Hubbard had procured
A judgment (on appeal secured),

By aid of the defendants here,
Who as attorneys did appear;
Which judgment 'gainst E. Matthews was,
Being defendant in that cause.
"Twas then averred that Fassin had
A claim 'gainst Hubbard, good or bad,
(Ten thousand dollars was the figure,
And interest added made it bigger),
And that said judgment he could seize
By attacking those who got the fees;
And so said Matthews went acquit,
Not being served with any writ;
Although 'twas Matthews owed the debt,
Which was the fund that all were at.
Said Marsh thereafter transfer took,
And got the cash on his own hook:
Wherefore 'twas claimed that these attorneys
Should pay to Fassin all his moneys;
And so the sheriff sued the same,
Bringing the suit in his own name.

Now these are the best verses in the case. We cannot say ex pede Herculem, but we can and do say, et crimine ab uno disce omnes. Indeed, we can think of but one use for which these rhymes are fit, and that is, to be set to music and sung by Judge Tappen. However, we would temper our hostile criticism by conceding that the law of the case is good, and the verses are not so bad as those of two very popular poets, Tupper and Holland. Perhaps our friends would improve on appeal. But let us whisper to our jocose friends, although there is no danger of anybody's "committing" their verses, beware of Judge Davis - he may commit them.

A Treatise on Pleading and Practice in Actions and Special Proceedings at Law and in Equity in the Courts of Iowa, under the Code of 1873. Revised Edition. By William E. Miller, Chief Justice of the Supreme Court of Iowa. Des Moines: Mills & Company, 1875.,

The Chief Justice of a State ought to be the very best authority on the legal procedure of the State, and it is a presumption that a Treatise on Pleading and Practice by such an official is of the highest merit. Judge Miller's work has this presumption in its favor; but it has also much more than this-it has in its original form been tested by years of use by the bar of

the State, and has been approved; and it has now been carefully and laboriously and extensively revised to conform it to an amended procedure and to the latest phases of Judicial law. The plan of the work is especially to be commended; the arrangement is systematic; the style is vigorous, and the statements of the law terse and compact. In these respects it reminds us of Cowen's Treatise, and is in pleasant contrast to some of those modern books which increase at the same time the bulk of the work and the confusion of the reader by copious quotations from judicial opinions, and a free use of the reportorial postils.

26th Louisiana Annual. Reports of Cases Argued and Determined in the Supreme Court of Louisiana for the year 1874. By Charles Gayarre, Reporter, New Orleans. Printed at the Republican office.

In one respect the Louisiana reports are unique among the reports of the country - the great number of cases contained in them. The ordinary State report contains, on the average, reports of about one hundred cases, and sometimes, as in the case of the late New York Supreme Court reports, two hundred or two hundred and fifty cases are crowded into a volume but the volume of Louisiana reports before us has reports of nearly eight hundred cases, and those are contained within 950 pages. The reporter is obviously not paid by the volume. If this is one of the results of the peculiar procedure of Louisiana, it may become necessary for us to adopt it the next time we make a change.

THE

COURT OF APPEALS DECISIONS.

HE following judgments of the Court of Appeals were handed down on Tuesday last, November 9, 1875:

Judgments affirmed, with costs-Lusk v. Campbell; Holden v. Burnham; Strum v. Atlantic Mutual Ins. Co.; Boynton v. Andrews; Hill v. Syracuse, Binghamton and New York R. R. Co.; McGarry v. Loomis; James v. Hamilton; Rider v. Stryker; Roehner v. Knickerbocker Life Ins. Co.; Freeson v. Bissell; The Union National Bank v. Kupper.-Judgment affirmed The People v. Powell; The People v. Linsday. Judgment reversed and new trial granted, costs to abide event - Carman v. Beach; O'Brien v. Commercial Fire Ins. Co.; Washburn v. Burnham.Order affirmed, with costs-Gibbs v. Queen Insurance Co.- Order granting new trial affirmed, and judgment absolute for defendant on stipulation, with costs -Strong v. Lyon.

WE

NOTES.

E have received the charge of Judge Wallace and findings of the jury in the case of Samuel M. Archer against the Ocean National Bank, "printed for the information of the creditors and stockholders of the Ocean Bank." The action was to recover special deposits alleged by defendant to have been stolen from its vaults.- Mr. Irving Browne, of counsel for the defendants in the case of Meneely v. Meneely (see ante, p. 220), has had his argument printed in a handsome pamphlet of sixty pages. The argument is a very thorough and able examination of the

-

question-how far may one be restrained from the use of his own name in business.- - Robert Clarke & Co. have issued Part 4, of vol. 25, of the Ohio St. Reports, pp. 337-464. It contains some interesting cases, which we will notice next week. The Vanderbilt University, of Nashville, has a Law Department, the Course in which commenced on the first Monday in October, and will occupy two years.— - By the annual report of Mr. Julius Rosenthall, the librarian of the Chicago Law Institute, it appears that 1,250 volumes have been added to the library during the year, of which 417 volumes were reports, and 198 volumes were textbooks. The total number of volumes now in the library is about 7,300. The membership of the Institute is 350.

The St. Louis Bar Association has just closed its first year, and the report of its executive committee shows it to be in a flourishing condition financially, while the work it has done during the year, especially in relation to the amendments of the State constitution, so far as respects the judiciary, displays a healthy and vigorous tone, which promises a useful career for the Association. It has also undertaken to rid the St. Louis bar of those members, who have disgraced it by professional misconduct. The following officers have been elected for the coming year: Samuel M. Breckenridge, president; E. W. Pattison, first vice-president; John M. Woodson, second vice-president; George A. Madill, third-vice president; James E. Withrow, secretary; Amos M. Thayer, treasurer; A. M. Gardner, member of the executive committee; Garland Pollard, John G. Chandler and E. B. Sheryer, members of the committee on admissions; George H. Shields, committee on admissions, to fill vacancy.

The returns from the Second Judicial District illustrate the extent of the dissatisfaction with Judge Tappen. In Newburgh, for instance, out of 2,595 votes Judge Tappen received but 28, and the Brooklyn Argus says that "in most of the towns he failed to get a solitary vote." The Argus adds: "The result is indicative of the influence exerted by an intelligent bar upon public opinion. If we except Brooklyn, at least eight-tenths of the lawyers in the Second Judicial District were opposed to the re-nomination of Judge Tappen. During his eight years' incumbency of the bench, he has failed to meet their expectations. It was perfectly natural, therefore, that when the time for making a new judge came around, they should take a deep and absorbing interest in the question. The convention was composed almost exclusively of lawyers. Those from the interior counties were free to express their hostility to Judge Tappen. Those from the city of Brooklyn were gagged,' and simply played the puppet to the boss's wire-pulling. The result, as is well known, was a bolt."

A correspondent writes as follows: "Having often heard agents recommend persons to be insured, on the ground that such insurance would prove the best savings bank, it occurred to me to ask your attention to a case very recently coming to my notice. September 1, 1868, a worthy man, then receiving a moderate salary, took out a policy upon his life for $2,000-premium $32.38 quarterly. Up to September 1, 1875, he has paid his accruing premiums punctually - his cash payments amounting to $939.02. The insured has been

left out of employment, and for further payments entirely helpless. He cannot make them. On writing to the company for terms upon which he could surrender, he was told that the present cash surrender value of same is $164." Of course no law can change a contract. But is it not very devoutly to be wished that some law should be passed that would leave such a case no chance to recur. The company referred to is a mutual company-at least in corporate name. More fortunate holders of policies may gain a benefit at cost of the unfortunate. Insurance is, no doubt, a gaming contract. So are all contracts on speculation gaming. There is, however, a line of demarcation between those contracts which are simply gambling, and those, as insurance against loss by fire, which, though wagers to be won or lost by the event or not of loss by fire, which gives a guaranty to the insured that their earnings and savings cannot be entirely destroyed by conflagration. To restrict the game to its useful scope, without unnecessarily taking from him who has paid premiums, and otherwise has nothing, all that he has paid, or so nearly all as to render the return so very small as to lose all proportion, would seem to be right—if right, wise."

It cannot be very long, in the course of nature, before some other vacancies will occur in the new Supreme Court of England. The Lord Chief Baron of the Court of Exchequer, Sir Fitzroy Kelly, is within a few months of eighty years of age, and aspiring barristers declare that he might well give way to a younger and more energetic man. The atmosphere of the Court of Exchequer seems, however, to be conducive to longevity, for the last Chief Baron, Sir Frederick Pollock, was eighty-three when he resigned, and would not have retired then had not the late Lord Derby pressed him to do so, the idea being to place Kelly on the shelf so as to make Sir Hugh Cairns attorney-general. Then there is Vice-Chancellor Bacon, who is of the mature age of seventy-eight, and besides his duties in the Court of Equity discharges those appertaining to the post of Chief Judge in Bankruptcy. When the late Lord Westbury was at the bar he was one day leading counsel in a case wherein Mr. Bacon led for the opposite side. The latter was elaborately arguing in favor of his client, Bethell at the same time disconcerting him by keeping up a running fire of rhyme upon his name:

"Mr. Bacon! you're mistaken!
You're mistaken! Mr. Bacon!
Is Mr. Bacon quite mistaken?
Quite mistaken is Mr. Bacon!"

The learned counsel who was the subject of this pleasantry was not best pleased at it, but Bethell, of whom everybody was afraid, had a license for doing any thing in the Court of Chancery. The vice-chancellor of to-day is an amiable old gentleman who does his best over his work, but when a man is within a couple of years of four score we cannot expect from him the incisiveness of one of five-and-forty. Lord Cairns once laid it down that seventy-five was quite old enough for a man to discharge judicial functions, and most people will be inclined to agree with him. Members of the house of commons are exempt from serving on committees after the age of sixty, the supposition being that deafness is then liable to come ou. That which is a disqualification in a committee-man ought not to be considered in any other light in a judge.

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

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, NOVEMBER 20, 1875.

CURRENT TOPICS.

THE effect of the decision of the Supreme Court of the United States in the National Bank Usury case, which we published last week, is popularly supposed to be that when a national bank stipulates for more than lawful interest, it is at the hazard only of losing all the interest stipulated for, both that lawful and that unlawful; and that where such bank takes unlawful interest, it is at the risk only of an action, within two years, to recover it back from it. This is perhaps the only immediate pecuniary loss to a national bank by contracting for, or taking payment of, more than lawful interest. But the law does not end here. It has other sanctions. Each director, when appointed or elected, must take an oath that he will not knowingly violate, nor willingly permit to be violated, any of the provisions of the law. Rev. Stat. U. S., p. 1001, § 5147. It would be a breach of this oath, for a director to assist in, or consent to, the taking or contracting for, by the bank, of more than the lawful rate of interest. This may be a mere brutum fulmen. It does not appear that the banking laws of the United States, as revised and incorporated into the United States Revised Statutes, impose upon a director who does not keep this oath any direct personal punishment. Nor do we find in the United States Revised Statutes any definition of the crime of perjury which touches the

case.

Perjury is defined to be the breach of an oath to testify truly, or of an oath that a deposition or testimony in writing is true. U. S. Rev. Stat., p. 1050, § 5392. There is also perjury at a courtmartial (p. 190, § 1023); in procuring pay, etc., in the military or naval service (p. 235, art. 60); in custom-house oaths (p. 569, § 2924), and in oath of internal revenue officers (p. 608, § 3158); but nowhere do we discover any penalty prescribed for the violation of an official oath. It is true (or it should be true) that the character of the directors of the national banks is such that it does not need the fear of the pains and penalties of perjury, nor the additional restraint of an oath, to induce them to an observance of the law. There is, however, another sanction. If the directors shall knowingly violate, or knowingly permit any of the officers of the bank to vioVOL. 12.- No. 21.

late any of the provisions of the law, the rights, privileges and franchises of the bank shall be thereby forfeited. U. S. Rev. Stat., p. 1010, § 5239. It can seldom happen that, as a practice, the officers of a bank can take usury, and the directors not know and assent to it. So that, we are not to have, on the part of the national banks, that indulgence in the loan of money at unlawful rates of interest which it is commonly supposed will result from the decisions of the United States court. The common opinion seems to be, that the penalty of the loss of all interest, in a case now and then, is not enough to restrain the desire for large gains. The common opinion may be right in that respect. Doubtless, were there nothing else to act as a hindrance to the desire, the risk of occasional loss would be often taken. But it is unlawful, and it is, otherwise than in the chance of pecuniary loss, hazardous.

It is a matter for curious speculation why the General Term justices of the First Department have not seen fit to call Mr. Ira Shafer to account for his late obvious and extraordinary contempt of court. When the counsel in the Tweed case respectfully and privately asked of Judge Davis that the cause might be tried before some other justice, he promptly construed the petition into a contempt, and, claiming to act with the sanction of his associates, summarily punished the petitioners. When Mr. Shafer, in open court and during the progress of a cause, calls Judge Davis a "perfectly infamous judge," and Judge Daniels "a mere spaniel," no notice is taken. No one can fail to deplore such occurrences, or to sternly reprehend them, who has any hope for the orderly administration of justice or the dignity of our courts. And, although Mr. Shafer subsequently made, voluntarily, a handsome apology, such apologies are inadequate to atone for the offense. His position as an officer of the court, censuring his official superiors, made his conduct most injurious in its public effects, and therefore unpardonable. The distance, in professional relation, between the ordinary counsel and any member of the Supreme Court, is less than that between the individual members of the Supreme Court and the Court of Appeals. It is fresh in our recollection how a member of the Supreme Court has publicly undertaken to arraign the Court of Appeals for its determination of a case properly before it. We denounced that act at the time, and we cannot help believing that that evil example has borne its legitimate fruit in the conduct of Mr. Shafer. The poisoned chalice is commended to its author's lips. According to the degree of his own indignation, he is able to measure the injury his act inflicted. But this alone cannot be a test. Judge Davis may not regard the language of Mr. Shafer as more than the idle wind. It is to be hoped that he was stung by it, not for himself per