property or upon a chattel' real; to compel the determination of a claim to real property; for waste; for a nuisance" (all local actions); "or to procure a judgment directing a conveyance of real property and

NOTES.

ment establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real (not necessarily local). "But where all the real property to which the action relates is situated without the State the action must be tried as prescribed in section nine hundred and eighty-four of this act," which provides that "an action not specified in the last two sections must be tried in the county in which one of the parties resided at the commencement thereof." (The word "must" occurs three times in the two sectious and should be allowed equal force in such place, viz. : must if it can, by law.) From these two sections your correspondent argues that the plaintiff can bring an action to recover damages for injury to real property or waste in the county in which he resides, notwithstanding the fact that the land lies in another State. Does not the same reasoning apply equally well to an action of ejectment, for partition, for dower to foreclose a mortgage, to compel the determination of a claim to real property, for a nuisance? It does; and if this construction of the Code is sound, our courts have jurisdiction to entertain all these classes of actions relating to real property without the State as well as those of waste and trespass.

NEW YORK, July 20, 1880.

EDW. B. COWLES.

CONTRACTS TO "SATISFACTION."

To the Editor of the Albany Law Journal: Nothing, it seems to me, is more "conceivable" and less "puzzling than the " wheeling about" capacity of "facts on new trials-your remarks under the head of "Notes" in the JOURNAL of the 17th inst. to the contrary notwithstanding. It is the law which we are taught to conceive of as unchanging. As to the case in question, non constat but that on the second trial, which was reviewed in the 45th Conn., the evidence, more ample than on the first hearing, showed the contract to have been one to meet the reasonable satisfaction of the defendant, thus introducing an adjective into the case so qualifying of the facts found on the first trial, that they, the facts, might with truth, as to their legal effect, be said to have "wheeled about," and this so conceivably, that the unchanging law, which previously denied a judgment to plaintiff, would now most obviously make such a judgment imperative. If it be inconceivable for facts to "wheel about" in this sense, then the uses for new trials in a majority of cases are equally so, it seems to me. July 19, 1880.

T. C. I.

[Let us hope the adjective above mentioned produced the righteous result of the second trial. As to the "unchanging" character of the law, we commend our correspondent's attention to the recent Pennsylvania decisions, commented on ante, p. 42. In connection with the subject of contracts "to satisfaction," we refer to the case of Gibson v. Cranage, 39 Mich. 49, where the agreement was to paint a satisfactory portrait. The holding was like that in the Connecticut case. The court said: "It may be that the picture was an excellent one and that the defendant ought to have been satisfied with it and accepted it, but under the agreement the defendant was the only person who had the right to decide this question."-ED. Alb. L. J.]

ports contains an account of the proceedings of the bench and bar on the death of Judge Ector, late of that court. He seems to have been greatly beloved and respected.. Mr. Freeman, the reporter of the Supreme Court of Illinois, is issuing advance sheets of his reports, in parts. The last part comes down to May 18, 1880.- -The July number of the American Law Register contains an article on Acts of agent after death of principal, by Joseph Wilby; the case of Scott v. Kittanning Coal Co., concerning breach of contract for successive deliveries of coal, with a note by Arthur Biddle; the case of Central Railroad of New Jersey v. New Jersey West Line Railroad Co., concerning election between suits in State and in Federal courts, with a note by John H. Stewart; and the case of Scribner v. Stoddart, concerning copyright in the Encyclopædia Brittanica. - -The August number of the Virginia Law Journal contains a translation of "The Value of the Roman Law to the Modern World," from the German of Prof. von Ihering.

The inaugural address of Dr. R. II. Ward, of Troy, as president of the American Society of Microscopists, recently delivered at Buffalo, contains some very interesting remarks on the value of the microscope in the examination of disputed hand writings. - Rowell's American Newspaper Directory, containing lists of all the newspapers and periodicals published in the United States, Territories, and the Dominion of Canada, together with a description of the towns and cities in which they are published, forming a closely printed volume of 521 pages, besides as many more of advertisements, must be of great use to the commercial community, affording detailed information of the best mediums of advertising. It is much fuller than the edition of 1879.

We extract the following from the address of Hon. Henry Craft, of Memphis, at the memorial proceedings on the death of Judge Trigg, of the Federal District Court of Tennessee: "I would not disparage what we call learning in judges. I would not decry the books in which judicial minds have embalmed all sorts of vagaries and absurdities, as well as the most splendid reasoning and the most wonderful analysis. But I do say that tho learned judge, in the sense of a judge who is ever exploring the reports, for decisions rather than for reasons, and who relies solely upon them, is the most dangerous of all judges. He is not much more wise than a man who would attempt to make his way through a morass at night, trusting to the guidance of the fire-fly's lamp. Technical rules are, in his hands, cast iron one day, and ropes of sand the next, according to the inspiration of the particular cases that chances to be operating upon him. It is safe to say that fully half of what makes up a law library is the merest trash, and the judge who is crammed-andcrammed-into the dimensions of case learning has, to say the least, filled much space with rubbish that were The man who should seek to construct a philosophy of better left open for the free play of his own faculties. human nature by study of the resemblances and differ

ences between the various features of the various faces that might come under his observation, would succeed as well as the man who seeks to find the philosophy of the law in study and analysis of the likeness and the unlikeness of the features of the cases in the books to each other, or to those of the case he holds in judgment."

decisive precedent. The chief justice dwells on the injustice of the plurality argument as follows: "The principle of plurality, which might ratify a constitutional amendment, irrepealable by legislative actions, binding the rights of two millions of people for an indefinite period, by the vote of two clectors against a vote of one when the whole number of votes cast was but three, is not only unconstitutional, but is dangerous to human rights and repugnant to the sense of mankind. As the adoption of a Constitution is the considerate act of an entire people, and as it binds all departments of the government and cannot be repealed except by the same power that made it, its adoption should not be left to the vicissitudes of a meager plurality of votes, which the accidents of a day might cast one way or another." He dwells much on the history of the arguments in the constitutional convention a very unsafe criterion of legislative intention. He thinks there is no analogy between the election of an officer and the adoption of a constitutional provision. Courts must judge from what conventions have submitted as the result of discussion; not from the changing phases of debate. He makes no attempt to answer the reasoning of the court in Gillespy v. Palmer, 20 Wis. 544, but dismisses it as follows: "This case presents a question similar to the one we are considering; and if the Constitution of the two States were the same upon this point the decision would be entitled to great respect as an authority in the present case. But as the two Constitutions are fundamentally different as to the proportion of votes necessary to ratify an amendment, the decision cannot be held as an authority in the present case." We have already shown, ante, 46, that the provision in the Wisconsin Constitution is much more stringent than that in the Indiana Constitution, the requirement being, "a majority of all the votes cast at such general election."

We are

It should be a cause of satisfaction to the lawabiding people of this State that the Governor has had the backbone to hang the wretches Cox and Balbo. His conduct has been heartily approved by all the press, so far as we know, with one abusive but insignificant exception. The usual disgusting exhibition of sentimental sympathy in Cox's case was not accompanied by any serious doubt of the justice of the verdict. In Balbo's case some of the judges above thought they might have brought in a different verdict if they had been the jury. glad that they were not the jury. We think Judge Daniels who tried the man is better qualified to form an opinion, and he says the verdict was right. Better leave these matters to the jury. There is little danger of their erring in the direction of severity. It would be a great pity if the safety of human life depended on the morbid sentimentalism, pity, and timidity of that considerable class, who send bouquets to murderers, and sign petitions for commutation in every instance, without knowing or having the smallest qualification, by nature or education, for knowing a right verdict from a wrong one. The

scenes after Balbo's execution were exceedingly disgraceful. In such cases it would be better for the public authorities to take charge of the body and bury it, than to have it the subject of riotous sympathy and exhibition for money. Worst of all is the attempt to make political capital out of the Governor's decision.

A curious mode of evading an injunction was practiced in Buenos Ayres Gas Co. v. Wilde, Ch. Div., July 10, 1880, 42 L. T. (N. S.) 657. On motion for injunction to restrain defendant from publishing a certain cautionary advertisement, or any other of a like nature, as calculated to injure the plaintiff's business, the defendant undertook until the trial not to issue the advertisements. Defendant afterward published in a newspaper a notice of the hearing of the motion, and of his undertaking, which virtually repeated the caution. This was in large type, occupying half a page. The plaintiff moved to commit the defendant for contempt. The court said, “it would have been well for Mr. Wilde to have abstained from further advertisements in the newspapers." "Silence is the best obedience in such a But the argument of the plaintiff, that having been ordered not to do a certain thing, the defendant was guilty of contempt in telling the world he was not at liberty to do it, did not prevail, and he was discharged.

case.

A

NOTES OF CASES.

NOVEL case of alteration of a note arose in Leonard v. Phillips, 39 Mich. 182. The note was payable in less than two years, and it was held that the addition of the word "annually" after "interest" did not avoid it. Marston, J., said: "If with this word added, we give it a literal construction, as claimed, and say that at the expiration of the first year interest thereon would be due and payable, interest for the remaining portion of the time for which the note was to run before becoming due would not be payable until the expiration of the second year, so that the second installment of interest would not become due at the time the principal did, but some months thereafter. So the note being payable on or before October 15th, had it been paid within the first year, the accrued interest could not have been collected until one year from the time the note was given. Such, we think, is not the proper construction to be given to it, and could not have been so intended by the party who added this word to the note. The proper construction to give the note as thus changed is as though it had been made to read ten per cent per annum.' Graves, J., and Campbell, C. J., concurred. Cooley, J., concurring, said: "When commercial paper is payable with annual interest, the expression means with interest at the end of the year. If the paper is to mature in less than two years, the expression is a very unsuitable one to apply, and as has been shown by my brother Marston, if construed strictly, the interest for the fraction of the second year would not be

payable when the principal is payable, but at the end of the year. I am inclined to think that in a note to run less than two years, the words specifying the rate of interest to be paid annually must be understood as naming only the rate to be paid for the yearly period, and not as requiring an installment to be paid when the first year was completed." | Graves, J., concurring, referred to the fact that another note in suit between the same parties at about the same time "was framed so as to provide in terms that the interest should not only be ten per cent, but at that rate per annum. Hence that instrument was shaped so as to contain a literal statement that the rate was by the year and not by a different period." This fact, notwithstanding its "unimportance upon the legal effect of the paper," " "is one which helps to show that word annually' was added in the same note for the same purpose, and not to prescribe yearly payments."

Wright v. West, 2 Lea. 78, is an interesting decision upon the rights of lunatics. It holds that a widow, who has been prevented by lunacy from dissenting from the provisions of her husband's will within the statutory time, may afterward recover her rights as if she had duly dissented. The case proceeds on the theory that the election must be personally exercised, and as a necessary consequence, if the widow is incapable of acting because of lunacy, she cannot make a valid dissent, nor can her committee. Kennedy v. Johnston, 65 Penn. St. 451;

S. C., 3 Am. Rep. 650. In Smart v. Waterhouse, 10 Yerg. 94, it was held that a widow, who had been prevented from making her election within the statutory time by the fraudulent conduct of those interested in the estate, might afterward assert her rights as if she had dissented in time. So, mere delay, and negligence of friends, will not prejudice the rights of one not in a mental condition to know or assert them. Alston v. Boyd, 6 Humph. 504.

In Tonkinson v. Cartledge, before the Master of the Rolls on the 16th ult., a motion was made to commit the defendant, her solicitor, and an auctioneer, who had sold certain effects which the plaintiff alleged belonged to her, and which had been seized under a distress for rent. The plaintiff obtained an ex parte injunction against the defendant on the 2d of July, restraining the sale under the distress about to take place that day at two o'clock at Newcastle-under-Lyme. Notice of the injunction was sent by telegram to the auctioneer and the defendant's former solicitor between eleven and twelve. The auctioneer, after consulting with the defendant and her solicitor, continued the sale, and the motion was made in respect of this contempt. In answer to the motion, it was alleged that the defendant, who was the aunt of the plaintiff, and her solicitor, and the auctioneer, all believed that no order had in fact been made, and that the telegram was a forgery. It was also proved that the local agent of the plaintiff's solicitors knew nothing of the injunction. The defendant's solicitor did not, however, communi

cate by telegram with the plaintiff's solicitors, and only wrote to them on the following day. It also appeared that the defendant's solicitor had a London office. The plaintiff did not now press for a committal, but simply that the respondents might be ordered to pay the costs of the motion. Jessel, M. R., said he thought he might strain a point in favor of the auctioneer, and not order him to pay the costs, in consequence of the observations of Lord Justice James, in Ex parte Langley, L. R., 13 Ch. D. 110. (See 20 Alb. L. J. 498.) It was no doubt the auctioneer's duty to have sent a telegram back to the plaintiff's solicitors, and so have inquired if the injunction were really granted, but as he had his positive affidavit (said by James, L. J., in the above case to be sufficient to save him from the contempt) that he thought the telegram a forgery, there was just sufficient to save him from the costs, more especially as there were other persons to pay them. As to the defendant's solicitor, the Master of the Rolls certainly thought he had acted with imprudence. He had an office in London, and he had a telegram between eleven and twelve stopping a sale to take place at two, and it was his plain duty, if he had any doubt as to the authenticity of the telegram, to have telegraphed to the plaintiff's solicitors and asked them if it was genuine or not. There was ample time before the sale to have done this, but he did nothing until the next day, when the sale

was over.

The next day he did write to the plaintiff's solicitors, with whom he evidently was acquainted, and asked them whether the telegram was genuine or not, and at once received the answer that it was. The solicitor's duty had been as plain as possible, and he must certainly pay the costs of the motion. As to the defendant, she did not even swear in her affidavit that she belived the telegram was a

forgery, she took the risk of allowing the sale to go on, and she must clearly also be ordered to pay the costs of the motion. The order for costs would be without prejudice to the question of damages that the plaintiff might have sustained by reason of the sale having been proceeded with.

In Black et al. v. The National Insurance Co., 24 Lower Canada Jurist, 65, the question was whether the rights of a mortgagee, to whom a policy of insurance had been made payable, could be defeated by the subsequent acts of the mortgagor. One Farrar had given the appellants a mortgage on his property and transferred to them a policy of insurance on the respondents' company, conditioned to be void if a subsequent assurance were effected without their consent. Later, Farrar did again insure the property, and a fire occurring, respondents declined to pay appellants. Sir Antoine A. Darian, C. J., pronounced the judgment of the Court of Appeals, and gives a careful review of the American authorities, together with a reference to the appeal. This seems opposed to the present doctrine French law on the point. The court maintained the in our State, Grosvenor v. Atlantic F. Ins. Co., 17 N. Y. 391; and in Pennsylvania, State Mut. Insurance Co. v. Roberts, 31 Penn. St. 438.