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the contract under seal, without any variation or abandonment of it, that the plaintiff cannot maintain an action of assumpsit.

The plaintiff must therefore, agreeably to the agreement, become nonsuit, and judgment must be entered for the defendants for their costs.

ant's real estate, though no service had been made on him, could not be used to commence a new action of later date between the same parties. No case has been found where after a writ has been served and placed on the files of the court, it has been allowed to be used to commence a new proceeding. To allow such a practice “would tend give the process and files of the court an unseemly and slovenly appearance,” and deprive the officers of the court of their legal fees. Parsons v. Shorey, supra. In re Marson. Opinion by Appleton, C. J.





JUNE, 1880.



CONSTITUTIONAL LAW - MUNICIPALITY MAY NOT LEVY LOCAL TAX FOR GENERAL PURPOSES. - A tax, assessed for public purposes, cannot constitutionally be imposed upon a portion only of the real estate of a town, leaving the remainder exempt. A legislative act, authorizing a village corporation to levy a local tax upon the real estate of its municipality for public purposes thus imposing a local tax for general and public purposes upon the real estate of one part of a town, leaving the other part untaxed transcends the power of the Legislature, and is unconstitutional and void. Brewer Brick Co. v. Brewer, 62 Me. 62; Farnsworth Co. v. Lisbon, id. 451. There is no case to be found in this State, por, as I believe, after a very thorough search, in any other — with limitations in the Constitution or without them - in which it has been held that a Legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. It matters not whetber an assessment upon an individual, or a class of individuals, for a general, and not a mere local purpose, be regarded as an act of confiscation, a judicial sentence or rescript, or a taking of private property for public use without compensation; in any aspect it transcends the power of the Legislature, and is void." Sharswood, J., in Hammett v. Philadelphia, 65 Penn. St. 146. “A legislative act, authorizing the building of a public bridge, and directing the expenses to be assessed on A., B. and C., such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the persons designated to a public use.” Beasley, C. J., in Tidewater Co. v. Coster, 3 C. E. Green, 518. “It would be wholly beyond the scope of legislative power to authorize a municipality to levy a local tax for general purposes. A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation." Wagner, J., in McCormick v. Patchin, 53 Mo. 33. Dyar v. Farmington Village Corporation. Opinion by Walton, J.

PRACTICE - WRIT USED AND FILED MAY NOT BE USED IN NEW PROCEEDING.– When a petition for insolvency has been served and placed on the files of the court and the proceedings have been subsequently dismissed, such petition cannot be withdrawn from the files and reissued and made the basis of subsequent proceedings. In Lyford v. Bryant, 38 N. H. 89, a writ was quashed on motion for a defect apparent on its face. " It is said,” observes Bell, J., in delivering the opinion of the court, “that the cause for quashing the writ was, that it was drawn upon a blank, which had been before used for the commencement of another action which had been entered in court. Beyond doubt, such a blank, having been once so used, has performed its office and it has ceased to be capable of use to draw a valid writ upon afterward. The uniform practice has been to quash writs so drawn at once and there seems to us no doubt of its propriety.” So, in Parsons v. Shorey, 48 N. H. 550, it was held that a writ, which had been served by attaching the defend

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CONSIDERATION -- AGREEMENT TO ACCEPT PART OF DEBT AS FULL PAYMENT.– Where a creditor promised in consideration of the payment of part of the sum due on a note to accept that part as payment in full, no agreement under seal being made, held, that this did not relieve a guarantor of the note. The payment of part of an acknowledged debt after its maturity has often been held to be no sufficient consideration for a release, not under seal, of the remainder. It has no effect as an accord and satisfaction, and rests upon no legal or valid consideration. Harriman v. Harriman, 12 Gray, 341; Jennings v. Chase, 10 Allen, 526. Lathrop v. Page. Opinion by Ames, J. CRIMINAL LAW — JOINDER

OFFENSES -- LARCENY - BURGLARY - RECEIVING STOLEN thief and a receiver of goods stolen may be indicted together. Commonwealth v. Adams, 7 Gray, 43. In an indictment for breaking and entering a building, with intent to steal, it is usual, though not necessary, to allege an actual stealing therein; and if one person is charged both with breaking and entering and with stealing, he may be convicted and sentenced for either offense, or if the two offenses are charged in separate counts and are proved to be distinct, for both. Crowley v. Commonwealth, 11 Metc. 575. If one person breaks and enters a building and steals therein, and another person takes no part in the transaction until after the breaking has been accomplished, but participates in the subsequent stealing, each may be convicted and sentenced accordingly, the one for the breaking and entering, and the other for stealing under an indictment which charges both defendants with having jointly committed both offenses. Rex v. Butterworth, Russ. & Ry. 520. Or they may be separately charged in one indictment according to the actual facts of the case, the one with breaking and entering and stealing, and the other with stealing only, or with receiving the goods stolen. Rex v. Hartall, 7 C. & P. 475; Commonwealth v. Hills, 10 Cush. 530. Commonwealth v. Darling. Opinion by Gray, C. J.

DIVORCE — IN ANOTHER STATE FOLLOWED BY MARRIAGE- ESTOPPEL – ACQUIESCENCE.-In an action by a wife against her husband for divorce and adultery it appeared that he had procured a divorce from her in an action in an another State in which action she had appeared; that she afterward executed a release, reciting the divorce obtained by him, and for a pecuniary consideration discharging all her claims upon him or his estate. And that he afterward married in that State. Held, that the wife could not treat his subsequent marriage and cohabitation with another woman as a violation of his marital obligations to herself. A defense to the action by the wife allowed, not upon the ground of a strict estoppel, but because her own conduct amounted to a connivance at, or acquiescence in, bis subsequent marriage. Kerrigan v. Kerrigan, 2 McCarter, 146; Palmer v. Palmer, 1 Sw. & Tr. 551; Boulting v. Boulting, 3 id. 329; Pierce v. Pierce, 3

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*To appear in 70 Maine Reports.

Pick. 299; Lyster v. Lyster, 111 Mass. 3:27. See, also, resentative had or had not collected such interest. Smith v. Smith, 13 Gray, 209. Loud v. Loud. Opinion Held, further, that although B's executrix was responby Gray, C. J.

sible for the interest falling due on the collateral notes, LORD'S DAY - INJURY BY DOG TO ONE TRAVELLING

she was not, in the circumstances, responsible for the ON - DEFENSE - CONTRIBUTORY NEGLIGENCE.

principal of these notes. Plain

It is undoubtedly the law tiff was driving his horse and buggy along the

that the pledgee of a chose in action, who receives it public highway in Boston on Sunday, not upon

as collateral security, is bound to use, not extraordia work of necessity or mercy, when defendant's

nary care, but ordinary or reasonable care and dilidog jumped at the head of the horse, frighten.

gence to secure its payment when due. 1 Am. Lead. ing him and causing him to be unmanageable so

Cas. 402-3; Lawrence v. McCalmont, 2 How. (U. S.) 426; that he overturned plaintiff's buggy. Held, that

Kiser v. Ruddick, 8 Blackf. 382. The law implies on the fact that plaintiff was unlawfully travelling

the part of the pledgee, from tbo nature of the transon the Lord's day would not relieve defendant from

action, an agreement to use such care to protect the liability under a statute for the injury caused by the

pledgor's interest and make the pledge available. dog. The fact that he was travelling unlawfully would

Accordingly, if the pledge consists of indorsed negonot defeat his right to recover, unless his unlawful

tiable paper, the pledgee must present it for payment act was a contributory cause of the injury he sustained. at maturity, and if it is not paid, must give notico to McGrath v. Merwin, 112 Mass. 467; Marble v. Ross,

charge the indorser, or if loss ensues, he will be liable 124 id. 44, and cases cited. It has been held in this

to make it good. 1 Am. Lead. Cas. 123, 124; McCommonwealth that if a person who is unlawfully trav- Lughan v. Bovard, 4 Watts, 308; Ormsby v. Fortune, elling on the Lord's day is injured by a defective high

16 Serg. & R. 302. And there aro cases which go so far way or by a collision with the vehicle of another trav

as to hold that the pledgee will be liable for neglecting eller, he cannot recover for the injury. This is upon

to put the collateral in suit, when a prudent man the ground that his illegal act aids in producing the in

would do it, if any loss results from the neglect. jury, or, in other words, is a contributory cause. Ly

Lamberton v. Windom, 12 Mimn. 232; Wakeman v. ons v. Desotelle, 124 Mass. 387; Conolly v. Boston, 117

Gowdy, 10 Bosw. 208; Slevin v. Morrow, 4 Ind. 425; id. 64. On the other hand, it has been held in several

Ex parte Mure, 2 Cox, 63; Williams v. Price, 1 Sim. & cases that if a person, who is at the time acting in vio

Stu. 581; Lyon v. Huntingdon Bank, 12 Serg. & R. 61; lation of law, receives an injury caused by the wrong

Hoard v. Garner, 10 N. Y. 261; but see 1 Am. Lead. ful or negligent act of another, he may recover there

Cas. 404. But the pledgee is not bound to exercise exfor if his own illegal act was merely a condition, and

traordinary care. Hence he is neither bound to forenot a contributory cause of the injury. Steele v. Burk

cast the markets for the pledgor, nor to watch the hardt, 104 Mass. 59; Kearns y. Sowden, id. 63, note;

markets for the most favorable opportunity to sell tho Spofford v. Harlow, 3 Allen, 176. We are of opinion

pledge. Granite Bank v. Richardson, 7 Metc. 407; that the case at bar falls within the last-named class.

Robinson v. Hurley, 11 Iowa, 410; Howard v. BrigThe plaintiff when travelling was assaulted and injured

ham, 98 Mass. 133; O'Neill v. Whigham, 87 Penn. St. by a dog for whose acts the defendant is responsible.

394; Richardson v. Insurance Co. of Va., 27 Gratt. 749; Gen. Stats., ch. 88, $ 59; Le Forest v. Tolman, 117 Mass.

Clark v. Young, 1 Cranch, 181. Whiton v. Paul. 109. The act of travelling had no tendency to produce | Opinion by Durfee, C. J. the assault or the consequent injury; and therefore, EXECUTORS — PAYMENT TO ONE OR SEVERAL DISthough the plaintiff was travelling in violation of law, CHARGES DEBT DUE ESTATE. - A and B were execuit does not defeat his right of recovery. White v. Lang. tors of an estate. A made collections and squandered Opinion by Morton, J.

the receipts; whereupon C, a debtor of the estate,

agreed with B to make no payments to A except upon RHODE ISLAND SUPREME COURT AB

orders bearing B's signature. A subsequently preSTRACT.

sented an order sigued by himself as executor, and

bearing a signature of B forged by A. C in good faith MAY AND JUNE, 1880.

paid this order. In an action by B against C to recover BAILMENT-DUTY OF PLEDGEE OF SECURITIES TO

the balance due to the estate, held, that the payment

by C made on the order bearing A's genuine siguature COLLECT INTEREST-NEGLIGENCE-DEPRECIATION OF SECURITIES — A transferred to B, as collateral, certain

and B's forged signature was valid. There can be no promissory notes secured by mortgages. The notes

doubt that the ordinary rule is that co-executors, howbore interest payable half yearly, and the mortgages

ever numerous, have each of them complete power to contained powers of sale if default was made in paying

administer the estate. Williams on Exrs. 946; Charlesthe interest when due, and also contained a provision,

ton v. Earl of Durham, L. R., 4 Ch. App. 433; Hall v. that in case of sale for non-payment of interest, the

Carter, 8 Ga. 388. A payment, therefore, to any one is principal should be due and payable on the day of such

equivalent to payment to all. Ordinarily, too, neither sale. A notified B by letter that the power to collect

can prevent the others receiving payment. See Herthe interest was wholly in B's hands; that B's duty

bert v. Pigot, 4 Tyrw. 28; Hill v. Simpson, 7 Ves. Jr. was to collect the interest, if necessary, by sale, and

152; Keane v. Robards, 4 Madd. Ch. 332; Whale v. credit A with the collections, and that A would hold

Booth, 4 T. R. 625, note a; Sherburne v. Goodwin, 44 B responsible for any neglect. After B’s death, A

N. H. 271; Dodson v. Simpson, 2 Rand, 294; Ashton v. wrote to B's executrix, who was sole legatee and de

Atlantio Bk., 3 Allen, 217. Stone v. Union Savings

Bank. visee, to the same effect. Both B and B's representative neglected to collect much of the interest and to MUNICIPAL CORPORATION - LIABILITY FOR TRESenforce payment by sale. By the depreciation of PASSES OF AGENTS. — The city of Provideuce, owning property the mortgages became nearly valueless, and by purchase certain lots on both sides of a private way, the mortgagors wero irresponsible. It appearing that the highway commissioners of the city excavated prompt sales would have realized enough to pay the gravel from the lots and the way until the latter becollateral notes in full, on a bill in equity to redeem, came impassable. The gravel was used for highway and for an account, held, that B’s executrix was re- repairs at various and remote points. All the expenses sponsible for neglecting to collect the interest as it fell were paid from the city treasury and from regular apdue. Held, further, that A was entitled to have his propriations. In an action against the city brought by principal debt reduced by the amounts of interest fall- another owner of land on the private way, held, that ing due on the collateral notes, whether B and B's rep- the highway commissioners were the agents of the



city. Held, further, that the city was liable for their trial, in giving his charge, or on the motion for a new tort in making the way impassable. The commission- trial.” (2) Held, also, that it was error not to permit ers, though they invaded the right of the plaintiff, did defendant to prove, if he could, his willingness to try so, not only for the benefit of the city, but also in the his shoe in the foot-prints formed upon the ground and general course of their employment. They may be supposed to have been made by the assassin, and also regarded as the agents of the city, even in the excesses that he requested the parties having him under arrest which they committed. Howo v. Newmarch, 12 Allen, to measure his horse's foot and apply the measure to 49; Levi v. Brooks, 121 Mass. 501; Carman v. Mayor of the horse tracks supposed to have been made by the New York, 14 Abb. Pr. 301; Lee v. Village of Sandy animal ridden by the assassin to and from the place of Hill, 40 N. Y. 442; Luttrell v. Hazen, 3 Sneed, 20; Hile killing. Texas Court of Appeals, March 13, 1880. dreth v. City of Lowell, 11 Gray, 345. The case is not Bouldin v. State of Texas. Opinion by White, P. J. within the rule laid down in Donnelly v. Tripp, 12 R. I. 97, for there the act complained of was not only un- NEW BOOKS AND NEW EDITIONS. authorized in itself, but was not committed in the course of or in excess of a work which was authorized. NAAR'S LAW OF SUFFRAGE AND ELECTIONS. Sprague v. Tripp. Opinion by Durfee, C. J.

The Law of Suffrage and Elections. Being a Compendium

of Cases and Decisions showing the origin of the ElectCRIMINAL LAW.

ive Franchise, and defining Citizenship and Legal

Residence, together with the clauses of the State ConPLEADING

stitutions prescribing the qualifications for Suffrage, COMPLAINT FOR UNLAWFULLY SELLING

and the law governing the conduct of Elections in the LIQUOR. — A criminal complaint for the unlawful sale

several States. With an appendix containing the proof liquor charged the defendant with unlawfully sell- visions of the United States Constitution and Revised ing on a day given “without license first had and ob- Statutes regulating the Election of Presidents, Senators, tained.Held, that these words sufficiently charged and Representatives. By M. D. Naar, Counsellor at the want of license to sell when the sale was made. A Law. Trenton, N. J. 1880. Pp. xiii, 317. complaint for unlawfully selling liquor need not aver IIE scope of this volume is aptly defined in the title the price paid for the liquor nor the residence and oc

page, and the work seems methodically and thorcupation of the purchaser. See as to the question of oughly done. It has frequent foot-notes and a table of license: Edwards v. State, 22 Ark. 253; Bolduc v.

There are several chapters which are perhaps Randall, 107 Mass. 121; Kadgihu v. City of Blooming

not suggested in the title, such as those on Bribery ton, 58 I1l. 229; Commonwealth v. Bryden, 9 Metc. 137 ; and Corruption, Election Contests, Taxes and Suffrage, Commonwealth v. Baker, 10 Cush. 405; Commonwealth Liability of Election Officers, etc. Doubtless the work v. Dunn, 14 Gray, 401 ; Lord v. Jones, 24 Me. 439; Com- would prove useful to, even if not purchased by all of monwealth v. Doherty, 10 Cush. 52; Commonwealth the class to whom it is dedicated — the voters of the v. Bugbee, 4 Gray, 206; State v. Price, 11 N. J. Law, United States of America. 203. As to the question of price: Commonwealth v. Bryden, 9 Meto. 137; Commonwealth v. Baker, 10

BURKE'S LAW OF PUBLIC SCHOOLS. Cush. 405; Commonwealth v. Dunn, 14 Gray, 401; Kil

A Treatise on the Law of Public Schools, by Finley Burke, bourn v. The State, 9 Com. 560; State v. Reed, 35 Me.

Counsellor at Law, Council Bluffs, Iowa. New York : 489; State v. Fuller, 33 N. H. 259; State v. Munger, 15

A. S. Barnes & Co. 1880. Pp. viii, 154. Vt. 290; State v. Whitney, 15 id. 298; People v. Adams,

This work is divided into the following chapters: 17 Wend. 475; People v. Gilkinson, 4 Park. Cr. 26; Can

taxation for publio schools; exemption from taxation nady v. People, 17 Ill. 158; Hintermeister v. Iowa, 1 Iowa, 102; State v. Ladd, 15 Mo. 430; State v. Miller,

of property used for educational purpose; condemna

tions of sites for school-houses; elections; school offi24 id. 532; State v. Fanning, 38 id. 359; State v. Melton, 8 id. 417; State v. Rogers, 39 id. 431; Hare v.

cers; use of school property; school district meetings; State, 4 Ind. 241; State v. Murphy, 8 Blackf. 498.

employment of school teachers; school regulations; As

corporal punishment. It has reference to statutes and to the description of the purchaser: Cotton v. State, 4

cases, an index, and a table of cases. It is a well-conTexas, 200; State v. France, 1 Overt, 434; State v.

sidered and useful manual. Black, 31 Texas, 560; State v. Bell, 65 N. C. 313; State V. Anderson, 3 Rich. 172; State v. Brite, 73 N. C. 26; PATERSON'S LIBERTY OF THE PRESS, ETC. State v. Henderson, 68 id. 348; State v. Doyle, 11 R. I. 574. As to the uncertainty of the complaint: United

The Liberty of the Press and Public Worship. Being Com

mentaries on the Liberty of the Subject and the Laws States v. Claflin, 13 Blatchf. C. C. 178; Regina v. Mans

of England. By James Paterson, M. A., Barrister at field, 1 Car. & M. 140. Rhode Island Sup. Ct., April 1,

Law, sometime Commissioner of English and Irish 1880. State of Rhode Island v. Hines. Opinion per Fisheries. London: Macmillan & Co., 1880. Pp. xxxi, Curiam.

568. TRIAL-- JURY TAKING WEAPONS CAUSING HOMICIDE The particular subjects treated in this work are the WITH THEM — EVIDENCE — FOOT PRINTS. — (1) In a following: freedom of public meetings, addresses, and trial for murder held that it was error for the court to | petitions; freedom of the press and of correspondence permit the jury to take with them, into their room by post; restriction of the press and of speech as rewhen they retired to consider of their findings, the gards blasphemy and immorality; abuse of free speech rifle gun and balls which had been exhibited and tes- by seditious words and writings; libels on Parliament tified about by the wituesses. As was said in Smith v. and right to publish parliamentary debates; libels and State, 42 Tex. 444: “If, by this means, they, the jury, comments on courts of justice, reports of trials, and or either of them, did obtain a personal knowledge of comments on public matters; abuse of speech and a material fact in the cause before finding their verdict, writing by defamation; characteristics of libels and and it was considered by them in finding their verdict, excusable libels; remedies for libel by civil and crimthen they acted upon a fact known to themselves, not inal proceedings; copyright ; patent right and tradedeveloped publicly on the trial as to how they under- mark; security of public worship. Some 200 pages stood it, concerning which defendant has had no op- are devoted to the last-mentioned topic, which has portunity to cross-examine them as witnesses, and no particular interest to any but the English, inasupon which, being unknown, the defendant or his much as it treats exclusively of the English church and counsel have not been heard, and of which he judge, its relations to others. The rest of the book is an extrying the cause, had no information either on the cellent generalization aud summary, expressed in an agreeable style, and forming an interesting compen- he what is needful on this topic, and few if any know dium for lay men. Lawyers must of course resort to better how to supply it. There is also a real demand the larger works, but a perusal of this work will even for a work like his, for as he says in his preface, the to them prove instructive and entertaining. It has | practice in these courts “to most of tho profession is a an index, references to cases, and a table of contents. mystery, passed over in their preparatory studies, and

in consequence not followed in after years.” In addiHALL'S INTERNATIONAL LAW.

tion, the new Code has become the authoritative and International Law. By William Edward Hall, M. A., Bar- comprehensive and complete system of practice. We

rister at Law, Oxford, at the Clarendon Press, 1880. therefore agree that the new edition is “an absolute This work, recently published, is one of great merit. necessity.” So far as we can judge from a cursory exWe know of no one work which contains a more com- amination, not tested by actual practice under the new plete and thorough discussion of the many questions system, and not much aided by experience in these of international law than this. The learned author is courts, we should think that Mr. McClellan has done not a mere gleaner in a field in which he was preceded his work well. His divisions are methodical, and the by Grotius, Pufendorf, Heineccius, Vattel, Wheaton treatment is concise aud plain, and at the same time and other publicists. But he is an original thinker, sufficiently extensive. The forms must prove very who grasps with great vigor the many problems falling valuable assistants. The volume is furnished with within the scope of his work. He shows great research tables of contents and cases, an index of forms, and a and learning, and his views are generally in accord general index. We cordially recommend it as a timely with the ablest writers and statesmen who are consid- and useful work. ered authorities upon the matters discussed. Some of the principles of international law are yet open to dis

CORRESPONDENCE. pute, and when he differs from any of his predecessors

“MIDSUMMER'S” PROBLEM. in the same field the arguments pro and con are fairly presented and his views are generally found on the Editor of the Albany Law Journal: side of the most advanced thinkers. Those portions The interesting problem propounded by “Midsumof the work relating to the rights and duties of neu- mer," is, it seems to me, correctly solved by Mr. trals and to State sovereignty are particularly able and Whitaker, who leaves A out in the cold. interesting. We commend the work as a valuable ad- I reason thus: It is admitted that A's lien is prior to dition to legal literature.

B's; B's to C's, and C's to A's. There are $10,000 to

be divided between these three. B takes $5,000, leavMCCLELLAN'S SURROGATE's Court PRACTICE. ing an equal amount for A. But C intervenes, and by Practice in Surrogates' Courts : Being a Treatise of the Juris

reason of his priority, causes the balance which В left diction of the Courts and the Remedies offered thereby;

for A to be paid to him, thus leaving A out in the cold. comprising also the Law of Wills, Executors, Adminis. A cannot complain of B, because the latter acknowltration, Legacies, Guardians, and Dower, with complete edged his priority and provided for the payment of his Forms for Practice. Second edition, conformed to the

mortgage, and C's priority is recognized and yielded Code and greatly enlarged, by Robert H. McClellan,

to by A, who has only himself to blame for his sorry Counselor at Law, and former Surrogate of Rensselaer plight. The fallacy in the reasoning of E. M. S. and county. Albany, N. Y., W. C. Little & Co., 1880. Pp. xx, 1024,

Subscriber appears to be this, viz., they make B pro

vide $10,000 for A instead of $5,000. They make the We are sometimes inclined to think it is a gracious fund for distribution, as between A and B, $5,000 incourse in a critic to find the fault first, and to wind up stead of $10,000, by first withdrawing C's share. But with the praise. Does it not leave a more pleasant

B has nothing to do with this, as C takes A's share, taste? We should prefer a dose bitter in the mouth

which has been already provided for by B. According and sweet in the belly, to the contrary, as we read of

to the theory of these gentlemen, A would get the in regard to the book in the Apocalypse. At any rate, entiru fund, and giving C $5,000, would keep the balance we shall try this course for once.

for himself. On the third page of the text of this book we are

Again: B has the second lien. As there is enough startled at finding a section numbered 2483, succeeded

to pay the prior lien and his own, I do not see how he by others op other pages numbered up to 2800 and odd,

can be ousted. This statement seems to carry its own but skipping “all about between.” The explanation, demonstration with it. which the author has omitted to furnish, is that these

Another form of statement would be this: As B are the sections of the new Code. We find many

shares after A, and there being enough for both, B could marks of haste and bad proof-reading. For example, only be deprived of his share by C, whose lien is conthe author cites the famous Roderigas case, on the fessedly subordinate. first trial, in the Superior Court, from Howard, but

I therefore conclude that “Midsummer" will pay does not cite the case, on the first trial, in the Court of

the mortgages of B and out of the fund in his Appeals. It is exasperating to find the title as Rodri- hands, and will leave A to enter his judgment for gas, Rodrignez, Rodrignes, and Rodrigner, for this is


Sol. Konn. twice as many views of the name as the court took of

NEW YORK, Sept. 8, 1880. the principle. The book, although sumptuously printed, on fine paper, double leaded, with large margins, is too cumbersome for a book of constant reference, and

Editor of the Albany Law Journal : might well have been typographically compressed to The query of “Midsummer" as to the priority of two-thirds its size, with the advantages of convenience mortgages, which appeared in No. 8 (Aug. 31, 1880, p. aud economy of price. The forms might better have 160), of your current volume, seems to be satisfactorily been put smaller type and solid.

answered in White & Tudor's Leading Cases in Equity Mr. McClellan does not attempt to supplant elabo- | (last ed.), vol. 2, p. 216, where the following rule is rate treatises, like Williams and Redfield, but to give a found: “Where the same estate or interest is conveyed book of ready reference, with ample citations of our or pledged successively to different persons, and the statutes, simple and explicit directions, and carefully second purchaser has notice of the first grant or mortprepared forms. For this work be possesses unusual gage, and the third of the second, but not of the first, qualifications, being unquestionably one of the most the first purchaser will have priority over the third to experienced practitioners in the surrogates' courts the extent of the right or interest conveyed to the now living in this State. No man knows better than | second, because the third purchaser cannot hold his ground against the second, and he in his turn must Editor of the Albany Law Journal : yield to the first." Several cases are there cited in sup- The case of Bacon v. l'an Schoonhoven, 19 Hun, 158, port of this rule. See Manufacturers' Bank v. Bank you will find involves substantially the legal problem of Pennsylvania, 7 W. & S. 335.

propounded by “Midsummer," in the LAW JOURNAL The following formula for the solution of the ques- of Aug. 21, 1880. See, also, comment thereon, 21 Alb tion is found in the opinion of Agnew, J., in Thomas's L. J. 79.

Yours, Appeal, 69 Penn. St. 122: " When the lien of the first

SUBSCRIBER. creditor is superior to that of the second, but inferior

TROY, N. Y., Sept. 4, 1880. to that of the third, and the lien of the second is supe

COUNTY COURT JURISDICTION. rior to that of the third, the first creditor will take the fund because of his superiority to the second, by rea

Editor of the Albany Law Journal: son of the superiority of the second over the third.

Those who were exercised on the above subject, as This rule would give A $5,000, and B $5,000, and shown in your issue of Aug. 21st ult., were quieted by nothing.

S. T. N.

a decision in your issue of 4th inst., that L. 1880, ch. TITUSVILLE, PENN., Sept. 8, 1880.

480, is clearly unconstitutional. As no grounds were stated in the opinion, a doubt may exist whether it

was based upon a contradiction, by that statute, of an Editor of the Albany Law Journal :

express mandate of the organic law, or wholly or E. M. S. inquires if “Midsummer's” legal problem partly upon defects in the employment of the machinever arose? It was decided in Stephens v. Benton, in ery of statute amendments and repeals. If any conthe Kentucky Court of Appeals. 1 Duvall, 112, (1863). siderations can be adduced in favor of the possible

The Covingtou & Lexington Railroad Company had validity of the statute, its unconstitutionality becomes executed a first mortgage for $400,000, but had issued to that extent less clear. under it, by a mistake, $420,000 of bonds. It then Probably it is within the powers of the Legislature made a second mortgage. Both were recorded in their to revive a repealed law by implication; and a law, in order. Subsequently income bonds were issued, which terms amending a repealed law, would be evidence of were made in terms a charge upon the plant, but were an intent to effect such a revival. Such a course might not secured by any recorded instrument. Lastly, a be termed unusual or a blunder. If, then, L. 1870, ch. third mortgage was executed, and was taken, with 467, § 1, had been repealed by L. 1880, ch. 245, when its notice of the income bonds. Neither the holders of amendment was attempted by L. 1880, ch. 480, the latthe second or third mortgage or of the income bonds ter act was effectual to revive and amend it. But had had any notice of the over-issue. The road having it been repealed ? By its terms, L. 1880, ch. 480, took been sold under foreclosure and the proceeds being effect May 28, 1880. By its terms, L. 1880, ch. 245, took insufficient to pay all liens, the qnestion of the order effect Sept. 1, 1880. It is submitted that an act, passed of their payment arose. The court held as follows: 1. at a date prior to that of its taking effect, has no The company is estopped to deny that the over-issue is vitality in the interval, beyond the certainty of beprotected by the lien of the first mortgage. 2. But coming law at the latter date, unless previously rethis lien must give way to innocent subsequent incum- pealed. Therefore L. 1870, ch. 467, S 1, was not repealed brancers who claim under recorded instruments. 3. by L. 1880, ch. 245, at the date, May 28. And L. 1880, The lien by estoppel being prior in time to the unre- ch. 245, though taking effect after L. 1880, ch, 480, corded income bonds is superior in dignity to them, as and though repealing L. 1870, ch. 467, § 1, does not such. 4. But the holders of the income bonds are affect the act of 1880 amending that of 1870. See L. entitled to be substituted to the rights of the third 1880, ch. 245, $ 3, subd. 9. Hence L. 1880, ch. 480, must mortgage, which was recorded, and thus to a prefer- be law to-day, unless, for other reasons, it contravenes ence over the over-issue of the first mortgage.

the Constitution. Does it? It seems to the writer that upon the theory of sub- The Constitution says, in art. 6, § 15 (a): “The stitution only the true solution can be found. Judge county courts shall have the powers and jurisdiction Bullitt, who delivered the opinion of the court, thus they now (Jan. 1, 1880) possess, until altered by the lucidly illustrated the principle: “The owner of land Legislature.” (b) “They shall also have original jurisgives a title bond to A, and a second title bond to B, diotion in all cases where the defendants reside in the who has no notice of A's equity, and afterward con- county, and in which the damages claimed shall not veys the legal title to C, who has notice of the equity exceed ove thousand dollars." (c) “They shall also of B, but no notice of the equity of A. Who is enti- have such other original jurisdiction as shall, from tled to the land? As between A and B, A is entitled time to time, be conferred upon them by the Legislato it, bis being the oldest equity; as between A and C, | ture.” To begin with the assumption that clause (6) is, C is entitled to it, having purchased the legal title with- ex vi terminorum, equivalent to - "They shall not have out notice of A's equity; but as between B and C, B is original jurisdiction in any cases * in which entitled to it, because C had notice of his equity. In the damages claimed shall exceed one thousand dolsuch a case our opinion is that B would be entitled to lars" would be begging the question, which is it. If, in an action to which A was not a party, B had whether clauses (a) and (c) do not precludo such a conrecovered the land and obtained a conveyance of the struction. The case of Landers v. S. I. R. R. Co., 53 legal title from C, and A should afterward sue B, it N. Y. 450, may throw some light on clause (c), at least seems clear that B, having united the legal title to his by analogy. As the jurisdiction of the superior city junior equity, could not be compelled to convey to A. courts was subject to no pecuniary limitation, the The fact that all of them are parties to the action, question now at issue did not arise; but the decision asserting their respective claims, can make no differ- discussed questions of residence of parties, and locus ence, because the legal title cannot be taken from C of subject-matter and of origin of cause of action, and except by virtue of B's equity; if taken from C it intimated that L. 1873, ch. 239, in attempting to exerm'ist pass to B; and as it then becomes united to his cise, with respect to those courts, the power conferred junior equity, it cannot be taken from him for the on the Legislature by a clause of Const., art. 6, § 12 benefit of A. Moreover, the chancellor, if necessary, ("and such further civil and criminal jurisdiction as would consider that as having been done which should may be conferred by law”), was void, so far as it purbe done, and would treat the case as if C had conveyed ported to erect those tribunals into courts of general to B, as he was bound to do."

jurisdiction. But it appears to have been conceded

WM. REINECKE. that the act was void, only so far, and is valid so far as LOUISVILLE, KY., Sept. 11, 1880.

consistent with the local character of the city courts.

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