as to cents for six pages of the said article for each and every copy of said work sold by said" plaintiffs, and plaintiffs agreed to furnish a verified certificate the number of copies of said work actually sold and delivered to subscribers." In an action upon this contract it was shown that plaintiff had agents in every State and in Canada who canvassed for subscribers to books published by plaintiffs and then ordered the number of books required for delivery to subscribers, and paid for them and the books were shipped by freight or express, directed to the agents who delivered them to subscribers, the plaintiffs having no personal connection with the delivery and no knowledge of the individual subscribers except through these agents. Held, that evidence that plaintiffs had actually delivered to their agents and had been paid for a specified number of the books named was sufficient proof prima facie that they had sold the specified number in the way agreed, without evidence of a delivery to each individual subscriber. Held, also, that the contract did not call for a sale of the books in every State as a condition of defendant's liability. If the compensation had been fixed at a gross sum it might have been claimed that the consideration implied a sale in all the specified places, but otherwise, the compensation being limited to a specified sum for each book sold. See as sustaining the holding that evidence of delivery to agents was sufficient to establish a liability on the part of defendant, Burr v. Crompton, 116 Mass. 493. In that case it was held that the evidence was sufficient to justify a verdict for plaintiffs. Here it was held sufficient on this point, there being no conflicting evidence to set aside a decision of the referee for defendants. Order of General Term reversing judgment on report of referee affirmed. Burr & Hyde v. American Spiral Spring Co. Opinion by Church, C. J. Adopted as the opinion of the court. (This was the last opinion written by Chief Judge Church and was completed the morning of his death). [Decided June 1, 1880.] SALE OF PERSONAL PROPERTY -SPECIAL CONTRACT -WAIVER-WHEN PART DELIVERY GIVES RIGHT OF ACTION. By an oral contract plaintiffs agreed to sell and defendants to buy at a price named a certain number of boxes of glass, which were to be delivered together at one and the same time. Plaintiffs delivered a portion of the glass but did not deliver the remainder. It was shown that prior to the delivery of any glass defendants wrote plaintiffs to forward them at once a small portion of the glass, which was described. At the time of receiving the glass delivered, defendants received and used the same without any notice to plaintiffs that they would not consent to become liable to pay for that glass unless the remainder was delivered. Thereafter defendants wrote plaintiffs that they desired to have the contract completed within a reasonable time and a correspondence ensued which showed that the parties understood the contract differently. During this, plaintiffs notified defendants that they had such glass as was fitted to fill the contract and offered to complete it if the glass previously shipped and accepted was allowed to apply on the contract. Defendants declined to receive the glass on the ground that the time for completing the contract had expired, but nowhere did they claim that they were not liable to pay for the glass received. Held, that defendants were liable for the price of the glass received, having waived the full performance of the contract on the part of plaintiffs. While the general rule in this State is that no action lies upon a special contract, for the price agreed upon, until performance of such contract, this rule has been qualified in its application. Smith v. Brady, 17 N. Y. 173; Champlin v. Rowley, 13 Wend. 258. In the former case the rule that a party may retain, without compensation, the benefits of a partial performance of a contract, appears to have been confined to cases where the delivery was to be in parcels, at different times. While defendants were not bound to accept a delivery of a portion of the boxes of glass, and had a right to reject or retain the same, as they saw fit, yet if they elected to receive the part delivered, and appropriated the same to their own use, and by their acts evinced that they waived the condition, they became liable to pay for what was actually delivered. Vanderbilt v. Eagle Iron Works, 25 Wend. 665; Corning v. Colt, 5 id. 253; Krom v. Levy, 3 T. & C. 704; 6 id. 253; Flanagan v. Demarest, 3 Robt. 173; Normington v. Cook, 2 T. & C. 423; Welch v. Moffat, 1 id. 575. The cases of Catlin v. Tobias, 26 N. Y. 217; Pratt v. Gulick, 13 Barb. 297; McKnight v. Dunlop, 4 id. 36; S. C., 5 N. Y. 537; Mead v. Degolyer, 16 Wend. 636; Paige v. Ott, 5 Den. 406, are not adverse to the case at bar. In most of the cases it was contemplated that the performance was not to be done by a single act at one time, but by a succession of acts, and the intention evidently was that all of these should be completed as a condition precedent to a right of recovery. The principle established is that the parties must fulfill the terms of the contract. They have a right, however, to act outside of the contract by changing the time aud conditions, etc. Judgment affirmed. Avery et al. v. Willson et al., appellants. Opinion by Miller, J. [Decided June 8, 1880.] STATUTE OF LIMITATION UNDER OLD CODE AS TO MARRIED WOMAN-STATUTORY CONSTRUCTION OLD CODE, § 101; NEW CODE, §§ 381, 414, Laws 1870, CHAP. 741; 1851, CHAP. 479-PAYMENT - RENEWING OBLIGATIONS.-(1) Under the provisions of the statute of limitations contained in the old Code, § 101, as it was until 1870, excepting a married woman by reason of her disability to sue, the fact that she was a woman and married created the disability. Until 1851 the time of the disability was no part of the time when the statute ran. By Laws 1851, chap. 479, the period in which an action could be brought could not as to her be extended more than five years, nor more than one year after the disability had ceased. The five years and one year acted independently of each other. If five years of disability had elapsed before the disability had ceased in case of a sealed instrument, the limitation of twenty years began to run. If the disability had ceased for a year, though the term of five years had not expired, then the twenty years' period began to run at the end of the year. Thus the lapse of five years alone was enough to stop the action of the disability, and the lapse of a year after the cessation of the disability alone, though the five years had not yet gone by, was enough to stop the action of the disability. So a married woman outside the act of 1870 (chap. 741) might have on a sealed instrument twenty-five years in which to bring action, or she might have but twenty-one years. In this case a cause of action on a sealed instrument arose Nov. 1, 1857, in favor of a married woman. Her husband died in 1866. Held, that she was under the act of 1851 entitled to twenty years from the expiration of the five years immediately succeeding the accruing of the cause of action. (2) But by the act of 1870 the disability excusing from suing was taken away from married women and the ordinary limitation applied to married women as well as to others, and thereafter a married woman must sue on a sealed instrument within twenty years after her cause of action had accrued, and as this act by express terms applied to actions pending or such as thereafter might be brought, it applied to rights of action whether then accrued or thereafter to accrue. A statute of limitation affects the remedy on contracts made before as well as those made after the passage of it. By that act plaintiff had but twenty years from November 1, 1857, to bring action. The new Code (§§ 381, 414), did not operate to extend plaintiff's time, which expired Nov. 1, 1877, and an action brought Dec. 10, 1877, was too late. (3) Before the instrument in question, which was a bond secured by a mortgage, was executed, defendant, to secure an indebtedness to plaintiff, took out a policy of insurance upon his life. That indebtedness was part of the sum secured by the bond and mortgage, and the policy was held as collateral to them. Defendant failed to make payment of the premiums, at what time it did not appear, on the life insurance, and in 1866 a sum of money was paid by the insurers to plaintiff. Held, that this would not constitute a payment taking the case out of the statute, even though plaintiff informed defendant at the time of the payment, and defendant did not reply. New Code, § 395; First Nat. Bk. of Utica v. Ballou, 49 N. Y. 155. The getting the policy and payment of the premiums might have had such an effect if they had been acts of defendant, within twenty years of the bringing of suit. Harper v. Fairley, 53 N. Y. 442, Smith v. Ryan, 66 id. 352. The payment of money by another as the result of a prior act of defendant would not have that effect. Order of General Term reversed and judgment of Special Term affirmed. Acker v. Acker et al., appellants. Opinion by Folger, C. J. [Decided June 1, 1880.] UNITED STATES SUPREME COURT ABSTRACT. OCTOBER TERM, 1879. PRACTICE-JURISDICTION OF COURT OVER ORDERS MADE AT SAME TERM - APPEAL. - The Supreme Court of the District of Columbia at General Term, upon the application of one Ordway, a party to an action which had been determined, allowed an appeal to this court. Nothing further was done and no bond was filed. During the same term an entry was made upon the minutes of the former court to the effect that the appeal that was allowed had been withdrawn by the party mentioned. Held, that that court had power to revoke its allowance of appeal during the term, upon the request of the party to whom it was granted. The allowance of the appeal to Ordway was a judicial act of the court in term time. The order was entered on the minutes as part of what was done in the cause by the court while in session. In ea parte Lange, 18 Wall. 167, it was said that "the general power of the court over its own judgments, orders and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable." Basset v. U. S., 9 Wall. 38; Doss v. Tyack, 14 How. 298. As part of the "roll of that term" they are deemed to be "in the breast of the court during the whole term." Bac. Abr., tit., Amendment and Jeofail, A. Under this rule it is clear that the court had the power during the term, at the request of Ordway, to set aside the order of allowance and thus vacate the appeal which had been granted in his favor. This was done before any adverse rights had intervened. We are unable to see how the allowance of an appeal differs in this respect from any other judicial order made in the cause. If the one is subject to revocation or amendment while the term continues, so, as it seems to us, must be the other. There is nothing in this which interferes with the rule that where an appeal is allowed all jurisdiction of the suit appealed is transferred to this court. Here the question is whether an appeal was in legal effect allowed. It is true an order of allowance was granted and entered on the minutes of the court. So long as this order continued in operation, it bound the parties, but as it remained subject to the judicial power of the court during the term at which it was entered, its revocation vacated what had been done and left the decree standing with no appeal allowed. Ex parte Roberts, 15 Wall. 385. Neither one of the parties was finally discharged from the court until the term ended, and each was bound to take notice of whatever was done affecting his interests in the suit until a final adjournment actually took place. Decree of Dist. of Columbia Supreme Court affirmed. Phillips, appellant, v. Ordway. Opinion by Waite, C. J. STATUTORY CONSTRUCTION WHEN THIS COURT WILL NOT FOLLOW STATE COURTS AS TO STATE STATUTES SALE OF LUNATIC'S ESTATE-NOTICE-JURISDICTION. (1) The statutes of Wisconsin relating to the sale of a lunatic's real estate provide, among other things, that a copy of the order to show cause why a license to sell the lunatic's estate should not be granted shall be published for four successive weeks before the motion therefor is heard, and a copy thereof be served personally upon all persons interested in the estate, "provided, however, if all persons interested in the estate shall signify in writing their assent to such sale, the notice may be dispensed with." It is also provided that the court, "upon proof of the due service or publication of a copy of the order, or of filing the consent in writing to such sale, of all persons interested, shall proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner and of all persons interested in the estate who shall think proper to oppose the application." Held (conflicting with Mohr v. Tulip, Wisconsin Sup. Ct., 1876, and following Grignon's Lessee v. Astor, 2 How. 319), that an objection to the jurisdiction of the court to grant a license for the sale of a lunatic's real estate, on the ground that the copy order to show cause was not published as required by law, could not be raised by the lunatic in an action brought thereafter by him to set aside a sale made by his guardian under a license granted by the court. The publication of notice of the hearing is only intended for the protection of parties having adverse interests in the property, and is not essential to the jurisdiction of the court. It may be dispensed with if the parties having such interests consent to the sale. The consent could not be signed by the lunatic, for he, by his condition, would be incapable of giving a consent, and yet upon the others' consent, the court could proceed to act without notice to him. Nor, indeed, was there any reason why publication of notice should be made for other parties than those who held adverse interests. The lunatic could not be affected by such publication any more than by his consent. The application of the guardian to the court was required by the law only as a check against any improvident action by him. There was nothing in the nature of the proceedings which required a notice of any kind, so far as the rights of the lunatic were concerned. The law would have been free from objection had it simply authorized, upon the consent of the court, a sale of the lunatic's property for the payment of his debts. The authority of the court in that case as in this would have existed to license the sale, whenever it appeared that the personal estate of the lunatic was insufficient to pay his debts, and that a sale of his real property was necessary for that purpose. (2) In explaining their reason for refusing to follow the decision of the Wisconsin Supreme Court in construing the statutes of that State, the court say: The framers of the Constitution, in establishing the Federal judiciary, assumed that it would be governed in the administration of justice by those settled principles then in force in the several States and prevailing in the jurisprudence of the country from which our institutions were principally derived. Among them none were more important than those determining the manner in which the jurisdiction of the courts could be acquired. This necessarily depended upon the nature of the subject upon which the judicial power was called to act. If it character of a corporation is not to be determined by the place where its business is transacted, or (even) where the corporators reside, but by the place where its charter was granted. With reference to inhabitancy, it is considered as an inhabitant of the State in which it was incorporated." Drake on Attach. (3d ed.), § 80; The Cairo Continental Ins. Co. v. Kasey, 25 Gratt. 268; Connecticut Mut. L. Ins. Co. v. Duersen's Ex'r, 28 id., do not conflict with this doctrine. The first of these cases had reference to the removal of causes to a Federal court from a State court, which was refused on the ground that the company had by its stipulation waived its right to a removal and the second involved the question of the running of the statute of limitations as to it, which was held to run, as it had a local domicile and residence in the State for the purpose of being sued. Virginia Sup. Ct. of Appeals, November Term, 1879. Cowardin v. Universal Life Insurance Co. Opinion by Christian, J. was invoked against the person, to enforce a liability, the personal citation of the defendant or his voluntary appearance was required. If it was called into exercise with reference to real property by proceedings in rem, or of that nature, a different mode of procedure was usually necessary, such as a seizure of the property, with notice by publication or otherwise, to parties having interests which might be affected. The rules governing this matter in these and other cases were a part of the general law of the land, established in our jurisprudence for the protection of rights of person and property against oppression and spoliation. And when the courts of the United States were invested with jurisdiction over controversies between citizens of different States, it was expected that these rules would be applied for the security and protection of the non-resident citizen. The constitutional provision owed its existence to the impression that State prejudices and attachments might sometimes affect injuriously the regular administration of justice in the State courts. And the law of Congress, which was passed to give effect to the provision, made it optional with the non-resident citizen to require a suit against are clear that a fire insurance company cannot avail him, when commenced in a State court, to be transitself of any breach of warranty in the policy to deferred to a Federal court. This power of removal would be of little value and the constitutional provis- made after the loss has occurred, and the company has feat a recovery upon an agreement to pay the loss, ion would be practically defeated, if the ordinary rules established by the general law for acquiring jurisdic- had an opportunity to investigate the facts and circumtion in such cases could be thwarted by State legisla-interference, deception or fraud practiced by the instances affecting the fairness of the loss, without any tion or the decision of the local courts. In some in FIRE POLICY — COMPROMISE OF LOSS BREACH OF WARRANTY NOT DEFENSE IN ACTION ON-MISREPRESENTATIONS AS TO OWNERSHIP. - (1) The authorities sured at the time of such investigation, and that this stances the States have provided for personal judg- is especially so when the agreement is a compromise ments against non-residents without personal citation, upon a mere constructive service of process by publication; but the Federal courts have not hesitated to hold such judgments invalid. Pennoyer v. Neff, 95 U. S. 714. So, on the other hand, if the local courts should hold that certain conditions must be performed before jurisdiction is obtained and thus defeat rights of nonresident citizens acquired when a different ruling prevailed, the Federal courts would be delinquent in duty if they followed the latter decision. Judgment of U. S. U. Circ. Ct., E. D. Wisconsin affirmed. Mohr et al., plaintiffs in error, v. Manierre. Opinion by Field, J. INSURANCE LAW. DOMICILE OF INSURANCE COMPANY FROM ANOTHER STATE COMPLYING WITH STATE LAWS AS TO BUSINESS. - An insurance company, incorporated by the laws of New York, having its principal place of business in that State, which had complied with the laws of Virginia in relation to foreign insurance companies doing business in this State, by making the deposit, and appointing a citizen of Virginia an agent, by power of attorney, etc., as required by the statute of Virginia, is not a resident of this State, within the meaning of the foreign attachment laws of Virginia, and the property of said insurance company is liable to such attachment as a non-resident. Whilst a corporation may, by its agents, transact business anywhere, unless prohibited by its charter, or prevented by local laws, it can have no residence or citizenship except where it is located by or under the authority of its charter. As was said by Taney, C. J., in Bank of Augusta v. Earle, 13 Peters, 519, "It exists by force of the law (creating it), and where that ceases to operate, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty." In ex parte Schollenberger, 6 Otto, 377, Waite, C. J., said, "A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter, but it may, by its agents, transact business anywhere, unless prohibited by its charter or excluded by local laws." "The foreign of the claim at a less amount than the insured claims as his true loss. Smith v. Glens Falls Ins. Co., 62 N. Y. 85; National Life Ins. Co. v. Minch, 53 id. 144; Lapeyre v. Thompson, 7 La. Ann. 218; Metropolitan Ins. Co. v. Harper (U. S. W. D. Va.), 5 Rep. 491; Ins. Co. v. Chesnut, 50 Ill. 111; Ins. Co. v. Wager, 27 Barb. 354; Bilbie v. Lumley, 2 East, 469; Angel on Ins., § 409; May on Ins., § 575. In Smith v. Ins. Co., 62 N. Y. 85, Church, C. J., said: "The settlement and contract to pay a specified sum operates as a waiver of any warranty in the policy unless the settlement and contract were procured by the fraud of the assured. It is said that the company did not know of the breach of the warranty at the time of the settlement. The answer is, that when the claim was made for the loss the company was required to ascertain the facts as to any breach of warranty. If they saw fit to pay the claim, or compromise it, or to make a new contract without such examination, it must be deemed to have waived it, and in the absence of fraud it cannot afterward avail itself of such breach. It cannot urge payment or settlement by mistake on account of want of knowledge of such breach. The time for investigation as to breaches of warranty is when a claim is made of payment, and if the company elects to pay the claim, or, what is equivalent, to adjust it by an independent contract, it cannot afterward, in the absence of fraud, retract or fall back upon an alleged breach of warranty." (2) In this application insured had stated that his title to the insured premises was absolute, and that the buildings insured were situated on ground held by him in fee simple. In his proofs of loss he stated that the property insured was at the time of the fire still owned by him in fee-simple. The insurance was upon buildings erected by him ou leased land, but what his title to the buildings was did not appear. Held, that thero was no such false and fraudulent representations as to ownership of the insured property as to avoid a settlement of loss agreed upon between him and the insurance company. In order to sustain such a defense it was necessary for the company to show that the insured had not an absolute title to the property at the time of the loss; that he knowingly, falsely and fraudulently asserted, at the time of making the set tlement, and for the purpose of inducing the company to make the same, that he had a perfect title; that the company, relying upon such false assertion of title, was, in fact, induced to make the settlement alleged to have been made; and that it would not have made such settlement if such false representations had not been made, See Mutual Fire Ins. Co. v. Sturges, 13 Gray, 177-180; Ins. [Co. v. Matthews, 102 Mass. 221. | Wisconsin Sup. Ct., March 30, 1880. Stache v. St. Paul Fire and Marine Ins. Co. Opinion by Taylor, J. cence. CRIMINAL LAW. BIGAMY — PRESUMPTION OF DEATH FROM ABSENCE. -In prosecutions for bigamy, where absence for a number of years of the wife or husband of the indicted party is relied on as a defense, held, that no artificial rule as to presumption is allowed to obtain in such cases, and the jury must draw their own inferences from the facts, without any anticipation by the law. After much controversy in the earlier cases, as to whether the presumption of innocence should outweigh the presumption of a continuance of human life for the period of seven years, it seems now to be generally conceded, that on principle, the one should be considered as neutralizing the other, though in a general way, the law prefers the presumption of inno1 Bish. Mar. & Div, § 453; Bishop's Stat. Crs., § 611; 1 Greenleaf on Ev., § 41; R. v. Harborne, 2 A. & E. 540; Coper v. Thurmond, 1 Kelly, 538; Newman v. Jenkins, 10 Pick. 515; State v. Moore, 11 Ired. 160. And such seems to be the tendency of former decisions in our State. Yates v. Houston, 3 Tex. 433; Lockhart v. White, 18 id. 110. In Regina v. Lumley, L. R., 1 Cr. Cas. Res. 196, it was said: "In an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he (or she) was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would, in all probability, find that he was so. If, on the other hand, it were proved that he was in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely with the jury. The law makes no presumption either way." Texas Ct. of Appeals, Jan. 24, 1880. Hull v. State of Texas. Opinion by Clark, J. R. R. R. Co., 14 Wend. 51; Hay v. Cohoes Co., 3 Barb. 42; Underwood v. Newport Lyceum, 5 B. Monr. 130; Humes v. Mayor of Knoxville, 1 Humph. 403; Hazen v. Boston & Maine R. Co., 2 Gray, 574; Illinois Central R. Co. v. Reedy, 17 Ill. 580; Baylor v. Balt. & Ohio R. Co., 9 W. Va. 270. See, also, South-eastern Railway v. European & Amer. Tel. Co., 24 Eng. L. & Eq. 513; Queen v. Great North of Eng. Railway, L. R., 2 Q. B. 151; Maund v. Moumouthshire Canal Co.,4 Man. & G.452. They are liable for the acts of their agents, though willfully or maliciously done. For libel: where the agent of a railway company telegraphed along its line that a banker had stopped payments. Whitfield v. SouthEast. R. Co., referred to in 21 How. 212, where a report was made to stockholders by directors. Philadelphia, etc., R. Co. v. Quigley, 21 How. 202. See, also, Maynard v. Firemen's Fund Ins. Co., 34 Cal. 48. In National Exch. Co. of Glasgow v. Drew, 2 Macq. H. of L. Cas. 103, a corporation was held liable for a fraudulent misrepresentation of its affairs in a report, whereby a party was induced to purchase its stock. And in Goodspeed v. East Haddam Bank, 22 Conn. 630, it was held that an action for a malicious prosecution could be sustained against a corporation. In Atlantic & Great Western R. Co. v. Dunn, 13 Ohio St. 162, and in Pittsburg, F. W. & C. R. Co. v. Shiper, id. 157, it was decided that a corporation might be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their authority; and in Moore v. Fitchburg R. Co., 4 Gray, 465, that a corporation might be sued for an act of its servant while acting within his authority, which amounted to an assault and battery. It may now be regarded as settled, not only that a corporation may be sued in tort, but that it may be indicted for a failure to perform certain public duties which the law or its charter imposed upon it. See Freeholders v. Strader, 3 Harr. 108; Regina v. Birmingham & Glo. R. Co., 9 Car. & P. 469; Susquehanna & Balt. Turnp. Co. v. People, 15 Wend. 267; Commonwealth v. Proprietors of Newburyport Bridge, 9 Pick. (Mass.) 142; Regina v. Great North. Ry. Co., 9 Ad. & El. (N. S.) 319; State v. Vt. Cent. R. Co., 27 Vt. 108; Commonwealth v. Proprietors N. B. Bridge, 2 Gray, 339. West Virginia Sup. Ct. of Appeals, June Term, 1879. State v. Baltimore & Ohio Railroad Co. Opinion by Green, P. J RECENT ENGLISH DECISIONS. CARRIER OF PASSENGERS-DUTY TO FURNISH SAFE MEANS OF ALIGHTING.- Plaintiff took a return ticket at Richmond station on the S. company's line, over which defendants had running powers. On his return journey plaintiff travelled in defendant's train, managed by defendants' servants. In alighting at Rich which was built to suit the stations on defendants' own line, being too high above the platform. Held (affirming the judgment of the Common Pleas Division), that defendants were bound to provide reasonably safe means of alighting, and that there was evidence to justify a verdict for plaintiff. Great West. R. Co. v. Blake, 7 H. & N. 991; Thomas v. Rhymney R. Co., L. R., 5 Q. B. 226; S. C., 6 id. 266, Marshall v. York, etc., R. Co., 11 C. B. 655; Austin v. Great. West. R. Co., L. R., 2 Q. B. 442; Dalyell v. Tyrer, 28 L. J. 52; Reynolds v. North-East. R. Co., Roscoe's N. P. 596, (14th ed). Ct. of Appeal, March, 1880. Foulkes v. Metropolitan District Railway Co. Opinion by Bramwell, Baggallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 345. CORPORATION-MAY BE INDICTED FOR SABBATH BREAKING. A corporation may be indicted for "Sabbath breaking" under the Code of West Vir-mond station he was injured owing to the carriage, ginia, which provides that "If a person on a Sabbath day be found laboring at any trade or calling, or employ his minor children, apprentices, or servants in labor, or other business, except in household or other work of necessity or charity, he shall be fined not less than five dollars for each offense." The modern authorities agree that corporations are liable for torts committed by their agents in the discharge of the business of their employment and within the proper range of such employment; and that too, whether the tort be one the responsibility for which is to be enforced by an action on the case, or by trespass. See Yarborough v. Bank of England, 16 East, 6; Rex v. Mayor of Stratford, 14 id. 348; Regina v. Birmingham, etc., Co., 3 Ad. & E. (N. S.) 223; Maund v. Monmouthshire Canal Co., 4 Man. & G. 452; Chestnut Hill & Spring H. Turnp. Co. v. Rutler,4 Serg. & R. 16; Whiteman v. Wilmington & Susq. R. Co., 2 Harr. (Del.) 514; Bloodgood v. Mohawk & Hud. PREMISES LEASE -COVENANT AS TO USE OF WAIVER BY ACCEPTING RENT.-The defendants held certain premises of the plaintiffs for a term of years under a lease whereby the lessees covenanted not to THE ALBANY LAW JOURNAL. permit or suffer, at any time during the said term, to be used, exercised, or carried on upon the premises, or any part thereof, any art, trade, profession, or business whatsoever, without the license or consent in writing of the lessor, first obtained for that purpose. The lease contained a power of re-entry upon breach of covenant. The lessees had, by consent, made some alterations in the premises, and part of the new building was occupied by two of the defendants as plumbers, and they carried on their business there in a shop suited for the purpose. There was no written license or consent of the lessor for this business, but two quarters' rent was paid as usual by the lessees after the business commenced, with the lessor's knowledge of this use of the premises. There was no evidence of the nature of the plumber's tenancy, but within a year of its commencement the plaintiffs took proceedings to recover the land on the ground of a forfeiture by a Held, that it continuing breach of the covenant. could not be presumed that a plumber's business would be commenced upon a less tenancy than a year of the shop in which it was to be carried on; and that the plaintiff's waiver of the breach by receipt of rent was sufficient under the circumstances to render these proceedings ineffectual. Q. B. D., March 8, 1880. Griffin v. Tompkins. Opinion by Lush and Manisty, JJ., and Cockburn, C. J., 42 L. T. Rep. (N. S.) 359. NEW YORK STATE BAR ASSOCIATION. SUBJECT AND REGULATIONS FOR THE POST-GRADUATE PRIZE OF TWO HUNDRED AND FIFTY DOLLARS, FOR 1880. Committee on Prizes of the New York State Bar Association announce the following subject and regulations for the Post-graduate prize of $250 for 1880: First. The Post-graduate prize of $250 for 1880 will be awarded to the writer of the best original thesis, argument or work upon the following subject: "The propriety of regulating commercial intercourse (especially that relating to railroads) between the States by National legislation; or, what National legislation (if any) should be had to regulate commercial intercourse between the States." Second. The essay must be sent to the Chairman of the Committee, at Malone, on or before the fifteenth day of September next, sigued merely with a nom de plume, and accompanied with the real name of the writer in a sealed envelope. Only the envelope containing the name of the author of the winning essay will be opened; all others will either be destroyed unopened, or returned with the accompanying manuscript to the author upon his request. The successful essay will be the property of the Association, and all the other essays, not requested to be returned, will be filed for preservation in the archives of the Association. Third. The prize will be awarded at the annual meeting of the Association in Albany, on Tuesday, the 16th day of November, 1880. Fourth.-Only those can compete for this prize who are members of the Bar of the State of New York, of five or more years' standing, and the prize can only be awarded when there shall be at least five competitors. Fifth.-Every production submitted will be examined by each member of the Committee, and the award of the prize will be made by the Committee upon a majority or plurality vote; or in case of a failure of a plurality vote, by the Chairman, from those productions having the highest and equal votes. invited to compete for this prize. Its founders, by The Committee hope that the response to this invi- JOHN I. GILBERT, Chairman, Malone, 4th Dist., NEW BOOKS AND NEW EDITIONS. ABBOTT'S TRIAL EVIDENCE. Trial Evidence. The Rules of Evidence applicable on the THE plan of this work is entirely novel, so far as we know. It "assumes that the reader is familiar with the general principles of the law of evidence, and is concerned with their proper application in actual practice." In a word, it assumes to instruct the practitioner exactly how to try every kind of case, so far as the evidence is concerned. It states the appropriate evidence in every class of actions; it describes the proof, and suiciency of evidence, of witnesses and documentary evidence, and of the effect of the Codes on the rules of evidence. In preparing his case, if the practitioner wants to know is his guide. It is therefore a practical as distinguished exactly what he must prove and how to prove it, here from a theoretical work of evidence, and if well executed cannot fail to be the most important and useful All of Mr. Abbott's previous text-book issued in many years. That the work is sufficient guaranty. faithfully performed the reputation of its author is a work is characterized by exactness, thoroughness, and ume sufficiently to be warranted in saying that it is discrimination, and we have dipped into this large volclearly stated, and every rule is fortified by reference worthy of his reputation. The rules are neatly and to authorities. There is an analytical table of contents and also a good index, but no table of cases cited. The book should find a place in the library of every The and referee. Indeed, we cannot see how our profeslawyer, and should lie at the right hand of every judge sion have so long done without such a work. typography is very compact but legible enough, and the paper is of the best. V BRADWELL'S REPORTS. ConVolume V. Reports of the Decisions of the Appellate Courts of the State of Illinois. By James B. Bradwell. taining all the remaining opinions of the first district up to March 29, 1880, all the remaining opinions of the second district up to the June term, 1880; all the remaining opinions of the third district up to the May Chicago Chicago term, 1880, and a part of the opinions of the fourth district of the February term, 1880. Legal News Co., 1880. Pp. 692. We note the following cases: Egan v. City of Chicago, p. 70. An action may be maintained against a city for services rendered, in pursuance of a resolution The members of the legal profession are cordially of its common council, in examining the walls of a Sixth.-No member of the Committee on Prizes shall in any manner compete for said prize. |