subjects as follows: property within the statute; voluntary conveyances as against creditors at the time: voluntary alienations as against subsequent creditors; conveyances for value as against creditors; badges of fraud in conveyances for value; continuance in possession a badge of fraud; the bill of sale registration act, 1854; who are entitled to rank as creditors under 13 Eliz. c. 5. Part third treats of the rights of purchasers, and contains chapters on what conveyances are void against purchasers, and who are entitled to relief as purchasers. Part four is devoted to "what is a valuable consideration under the statutes of Elizabeth;" part five to voluntary dispositions of property, independently of the statutes of Elizabeth; part six to points of practice, and costs under the statutes. Each of these latter parts have several chapters, but we have not space to specify them further.

While the work hardly rises to the dignity of a "treatise," it will prove none the less a really useful text and reference book with the lawyer and student. The English cases have been very faithfully collected and accurately and amply stated, making it a well-ordered storehouse of all the English law there is on the subject. Of course, the American lawyer will not reap that benefit from it that he would had the American decisions been given, yet even to him it must prove a valuable help in the investigation of any topic coming within its scope, especially so as the American law is based upon and nearly identical with that of England.

The work is, in all respects, fitted to become the standard authority on the subject of fraudulent conveyances.

Reports of Cases determined in the Supreme Court of Michigan, from July 7, 1869, to January 5, 1870. Hovey K. Clarke, state reporter. Vol. 1, being XIX of the series. Detroit. Richmond & Backus. 1870.

This is the first volume issued by Mr. Clarke since his appointment as reporter in April, 1870, and is, in the main, a very fair specimen of what a report ought to be. Judged by some abstract canons of criticism, his headnotes and statements of fact, in many cases, would be pronounced too long and diffuse; but for the practical use of those for whom the report was prepared and intended, there is little, if any thing, to complain of. The more important cases contained in the report have been already set forth in our digest of American decisions, and we will not refer to them here. Typographically, the book is one of the finest specimens of a law report that we have seen.

The Law of Copyright in works of Literature and Art; including that of the drama, music, engraving, sculpture, painting, photography, and ornamental and useful designs; together with international and foreign copyright, with the statutes relating thereto, and references to the English and American decisions. By Walter Arthur Copinger, Esq., of the Middle Temple, barristerat-law. London. 1870.

The contents of this work are sufficiently described in the title. To begin with the most ungracious but most common part of a critic's duties; it seems to us, from a cursory review, that the main fault of the work is, that it gives us not enough of the law of copyright, and too much of the law of Copinger. In other words, that the author too frequently states his own conclusions and opinions, and not frequently enough supplies us with abstracts of the actual decisions. His remarks upon the "English and American decisions" are mere "references." On the subject of copyright in private letters, for instance, the author states that a certain doctrine "seems to have existed merely in the imagination of Sir Thomas Plumer," and gives a learned and ingenious argument to sustain his own view. Would it not be better to inform us what the cases decided, and what the judges said on the point in question, and to obey the

lesson of his own Latin quotation with which he introduces the discussion: "Non nostrum est tantas componere lites?" Not that an experienced and skillful lawyer may not, with the help of this book and all the reports cited, spell out the law; but a text book ought to "go alone." Mr. Throop's work on "Verbal Agreements" exhibits the best plan of a legal treatise that has recently come to our notice, and one upon which, we doubt not, succeeding law books will be written. Mr. Copinger's style is not so lucid as is desirable, and we hardly think his book will supplant Mr. Curtis' elegant work in this country, although it does form a useful supplement to it.

Its strong points are that it cites all the cases; that its classification is good; that it has all the requisite step-ladders of side-notes, table of cases and index; that it is elegantly printed; and that it treats of a subject so interesting that a poor book could scarcely be written upon it.

The Law of Negligence, being the first of a series of practical law tracts. By Robert Campbell, M. A., advocate (Scotch bar), and of Lincoln's Inn, barrister-at-law. London: Stevens & Haynes. 1871. Octavo, pp. 111.

In this little work Mr. Campbell has presented a very valuable review of the "latest phase of judicial opinion" on the subject of negligence. He has displayed much good judgment in the selection of cases calculated to elucidate the more important principles, and undoubted ability and discrimination in his comments on the value and effect of those cases. To the student the book will give a very accurate and succinct view of the main features of the existing law of negligence, while to the practitioner it will prove a most desirable aid in the examination of many questions.

EXAMINATION OF WITNESSES.-Whatever be the character or temper of a witness, he is likely to be not a little influenced by a composed and self-reliant aspect and manner in his examining counsel, or by one showing him to be flustered, fidgety and confused. It is a real triumph to a young counsel, to sit down calmly, after having satisfactorily completed an examination in chief of an important witness; having got on the judge's notes, and in the minds of the jury, a body of evidence which may defy assault, and so much more full than had been anticipated, as equally to delight his client and alarm his opponent. Mr. Best is perfectly correct in one of his many excellent observations on the subject of evidence. "Though mediocrity is more easily attainable in direct examination, it may be a question whether the highest degree of excellence is not more rare in this than in cross-examination. It requires mental power of no inferior order so to interrogate each witness, - whether learned or unlearned, intelligent or dull, matter of fact, or imaginative, simple-minded or designing-as to bring his story before the tribunal in the most natural, comprehensible and effective form." A student, bent on attaining eminence, should early take opportunities of watching experienced counsel, and also of practicing with a friend or two in private, there being three only present-one to play the part of witness, and the other two of opposing counsel-examining and cross-examining. A little persevering practice of this kind would certainly take off the dangerous edge of novelty when the youthful advocate has entered on the field of real action.-Warren's Law Studies.

The late Judge Ellis Lewis, of Philadelphia, bequeathed $5,000 to aid in establishing a professorship of medical jurisprudence in the Jefferson Medical College of that

city.

NEW YORK STATUTES AT LARGE.

CHAP. 68.

AN ACT to amend “An act for the incorporation of private and family cemeteries," passed April first, eighteen hundred and fifty-four.

PASSED March 6, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The act entitled "An act for the incorporation of private and family cemeteries," passed April first, eighteen hundred and fifty-four, is hereby amended by striking out section seven, and adding after section six of said act the following:

§ 7. It shall be lawful for any person to set apart, or dedicate by deed, or to devise by will, land to be used exclusively for a family cemetery, or burial-place, for the dead; to appoint trustees to manage the affairs of such cemetery; to direct and prescribe the manner of appointment of such successors in such trusteeship; to set apart and grant to such trustees and their successors personal property or money, to constitute a fund to be used, either the principal or the interest thereof, or both, for the purpose of improving, maintaining in good order and condition, and adorning such cemetery, or burial-place, subject to and in accordance with the directions of the grantor or testator in such deed or will; but the lands so set apart, dedicated or devised shall not, in any case, exceed the quantity limited by this act; nor shall the fund so set apart and granted as aforesaid, by will, exceed ten per cent of the clear value, in excess of the debts and liabilities other than legacies of the estate of the testator; nor shall the land, property or money set apart and devoted by deed, or otherwise under this act, to the purposes of a cemetery, as in this and the subsequent section provided, be exempt from levy and sale under execution, except as now or hereafter exempt by law.

§ 8. The executors, administrators or trustees of the estate of any deceased person may, upon the written authorization and direction thereto of all the surviving heirs, legatees, devises and next of kin of the testator or intestate, executed in person, or by their lawful attorneys or general guardians, set apart to be used exclusively as a family cemetery or burial-place for the dead suitable lands of the testator or intestate, or purchase with funds of the estate under their control suitable lands for such purpose, appoint trustees to manage the same and direct and prescribe the manner of appointment of their successors, set apart and pay to the trustees so appointed by them, from the funds of the estate under their control, personal property or money, or both, of the value and to an amount limited in the authorization and direction aforesaid, to constitute a fund to be used, either the principal or the interest thereof, or both, for the purpose of improving, maintaining in good order and condition, and adorning such cemetery or burial-place, subject to, and in accordance with, the rules and directions contained in the written authorization and direction aforesaid, but the quantity of land so set apart shall not exceed the limit prescribed in the foregoing section.

§ 9. The trustees appointed in accordance with the provisions of section seven or of section eight of this act, shall, before entering upon their duties as such trustees, file in the office of the clerk of the county in which the land set apart and dedicated for cemetery and burial purposes, under section seven or section eight of this act, is situated, their written acceptance of their appointment as such trustees, together with a copy of the deed or will, or written authorization and direction under which their appointment shall have been made, and, together with a certificate signed by all the trustees who shall accept and agree to serve, and acknowledged before an officer authorized to take the acknowledgment of deeds, containing a description of the land so set apart, the title of

the corporation thus proposed to be organized under this act, and the names of the trustees thereof; thereupon the said trustees and their successors shall be deemed legally incorporated, with all the rights and powers, and subject to the liabilities, of other corporations under this act; a certified copy of such certificate shall be evidence in all courts and places of the formation of such corporation. Said trustees, and all successors thereof, shall, before receiving the property, money and fund as herein and provided, for improving, maintaining adorning the cemetery under their charge, execute to the surrogate of the county in which it is situated, a bond, with sureties approved by the surrogate, in the penal sum of twice the principal sum of the fund placed in their charge, conditioned for the faithful preservation and application thereof, according to the rules, directions or by-laws prescribed in the instrument under which their appointment shall have been made, and, from time to time, renew their bond, or execute a new bond, whenever required so to do by said surrogate; they shall also, at least once in each year, and oftener if required by the surrogate, file with him their account of receipts and expenditures on account of the fund in their hands, together with vouchers for all disbursements by them; they shall have the general care and management of the cemetery under their charge, subject to the rules and directions contained in the instrument or instruments by or under which their appointment shall have been made, and shall be subject to removal for neglect of duty or malfeasance in office, in the same manner as trustees of other corporations.

§ 2. This act shall take effect immediately.

CHAP. 77.

AN ACT to punish mortgagors of personal property who shall fraudulently sell, assign, exchange, secrete or otherwise dispose of personal property mortgaged by them.

PASSED March 8, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Any mortgagor of personal property who shall hereafter, with intent to defraud a mortgagee or purchaser of such property, sell, assign, exchange, secrete or otherwise dispose of any personal property upon which he shall have given or executed a mortgage, or any instrument intended to operate as a mortgage, which at the time is a lien thereon, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding three times the value of such property so sold, assigned, exchanged, secreted or otherwise disposed of, or by imprisonment in the county jail of the county in which such offense is committed, not exceeding one year, or by both such fine and imprisonment.

§ 2. This act shall take effect immediately.

LEGAL NEWS.

The new house of representatives at Washington contains 131 lawyers.

According to the Chicago Tribune, there are one thousand lawyers in that city.

The Michigan senate has voted to increase the salaries of the circuit judges to $3,000, and limit the number of circuits between 1875 and 1881 to 15.

A correspondent of the Hartford Courant, writing from Rome, says that Rhinehard has completed, in plaster, a colossal statue of the late Chief Justice Taney.

The constitutionality of the state law of California, imposing a tax upon Chinamen, is to be argued at an early day in the supreme court of the United States. The circuit court of that state has decided against it, and fined the sheriff who levied it $20. All further collections are to cease until the decision is promulgated.

The Albany Law Journal.

ALBANY, MAY 13, 1871.

TO OUR READERS.

We have to ask the present indulgence of our readers for the non-appearance of the LAW JOURNAL for the past four weeks. On the morning of Friday, the 7th of April, the printing and publishing establishment of Weed, Parsons & Co., was totally destroyed by fire, and with it the entire edition of this journal for April 8th. This establishment was thought to be one of the largest and most complete in the country, and its destruction has entailed a heavy loss on the firm. But with characteristic enterprise, they at once set about the re-establishment of their works, and, we are glad to say, are once more in a condition to proceed with their business. A disaster so serious has, of course, necessitated the temporary suspension of this journal, and will, we trust, be a sufficient excuse to our readers for that suspension. Hereafter the LAW JOURNAL Will appear regularly, and the numbers omitted will be supplied as soon as may be possible.

Among the law books destroyed by the fire were the following: 19, 28 and 29 Iowa, 25 Wisconsin, and a few plates of Cooley's Blackstone. The 28 Iowa was printed and nearly ready for shipment; the plates were saved, however, and a new edition will be at once struck off. The plates of the 29 Iowa were upon the presses and were entirely destroyed, as were also the plates of the 19 Iowa, a new edition of which was being printed. The 25 Wisconsin was in the stereotype foundry and was wholly destroyed. These several reports will be reproduced at an early day.

CONTRACTOR AND CONTRACTEE. When a person is employed under an entire contract, in an independent employment, not subject to the direction or control of his employer, the relation is not that of master and servant, but, in modern phrase, that of contractor and contractee. "The word," says Thomas, J. (in Linton v. Smith, 8 Gray, 148), "is a bad one, but there is no substitute."

The growth of the law concerning contractors well illustrates the truth, that an important principle is only worked out after years of doubt and discussion; and probably no principle in the English law has occasioned more debate than this. The starting point in the discussion is the famous case of Bush v. Steinman, 1 Bos. and Pull. 404, decided in 1799. The familiar facts in this case are, that A. having a house, contracted with B. to repair it for a fixed sum. B. contracted with C. to do the work, and C. with D. to furnish the materials. A servant of D. placed lime in the road in front of the premises of A., by reason of which the plaintiff's carriage was overthrown, and the plaintiff injured. The court held that the plaintiff was entitled to recover of A., though "that clear headed judge, C. J. Eyre" (Thomas, J., in Hilliard v. Richardson, 3 Gray, 349), had "great difficulty in stating with accuracy the ground on which the action is to be supported." On one of two grounds it was necessary that it should be sustained, if brought within then recognized principles: First, that a master is responsible for the negligent acts of his servant, done while acting in the course of his employment, under the maxim qui facit per alium facit per se; or, second, that an owner of real estate is lia

66

ble for permitting a nuisance to remain on his land, under the maxim sic utere tuo ut alienum non lædas. The court in Bush v. Steinman decided that the case was maintainable on the first of these grounds, and courts since that time have striven hard to sustain it on the second. But after being cited and discussed through a long series of decisions, sometimes deferred to as "fully supported by authorities and by well established principles" (23 Pick. 24), and as frequently mentioned to be criticised and doubted, the authority of Bush v. Steinman has come to be wholly denied, and no case which was once esteemed as authority has been more completely overthrown." Cuff v. N. & N. Y. R. R. Co., 9 Law Reg. (N. S.) 541. The case of Quarman v. Burnett, 6 M. & W. 499, decided in 1840, in a great part settled the question in England, and it has since been uniformly followed.* See the subsequent cases given in a note to Painter v. City of Pittsburg, 3 Law Reg. (N. S.) 358; and also in the cases cited below. "The American cases," says Redfield (1 Law of Railways § 129), "have not, as yet, perhaps, assumed that definite and uniform line of decision which seems to obtain in the English courts upon the subject. But there is a marked disposition manifested of late to adopt substantially the same view." And it is quite safe at this day to say that the same view has been pretty definitely adopted here. Some of the leading cases are: Chicago v. Robbins, 2 Black (U. S.) 418; Scammon v. Chicago, 25 Ill. 424; Barry v. St. Louis, 17 Mo. 121; Cannon v. S. & T. R. R. Co., 4 Ohio, 399; De Forrest v. Wright, 2 Mich. 368; Pawlet v. R. & W. R. R. Co., 28 Vt. 298; Painter v. Pittsburg, 46 Penn. 213; Cuff v. N. & N. Y. R. R. Co. (Sup. Ct. N. J. 1870), 9 Law Reg. (N. S.) 541; Blake v. Ferris 1 Seld. 48- re-affirmed in a number of cases since that time, 1851; Hilliard v. Richardson, 3 Gray, 349 (1855), since re-affirmed in Linton v. Smith, 8 Gray, 147; Brackett v. Lubke, 4 Allen, 138; and Wood v. Cobb, 13 Allen, 58, in which last case the rule is said to be "too well settled to admit of debate."

From these cases the principle is to be evolved, that whenever an employer contracts with a person to do a piece of work which it is lawful to do, and which the employer is at liberty, though not bound by law or contract, to do in a particular manner, and the contractor employs servants to do the work, the original employer is not liable for an injury to third persons from the negligent acts of the contractor's servants; unless it be for acts done on real estate necessarily constituting a nuisance. And the same principle applies as between the contractor and his subcontractor. Rapson v. Cubitt, 9 M. & W. 710; Knight v. Ford, 5 Exch. 721; Overton v. Freeman, 11 C. B. 867.

Certain qualifications of the broad rule, that an employer is not liable for the negligent acts of a contractor's servants, are indicated in the above statement of the principle. These are:

1. The act must be lawful. If an act be unlawful the employer is liable to the same extent as if the person were a servant. Say the court in Hilliard v. Richardson, 3 Gray 363, "That a party employing another to do an act unlawful in itself will be liable for an injury such act may occasion, is very familiar and well-settled law." See Ellis v. Sheffield Gas Co., 2 Ell. & Bl. 767; Clark v. Fry, 8 Ohio (N. S.) 358.

*Quarman v. Burnett did not overrule Bush v. Steinman as to the liability of owners of real estate. But, in the same year, in Milligan v. Wedge, 12 Ad. & El. 737, Lord Denman suggested a doubt as to the correctness of the distinction, and in Reedie v. L. & N. Railway, 4 Exch. 244 (1849), the court came to the conclusion "that there is no such distinction."

2. A party will not be allowed under this rule to shift off an obligation imposed upon him by law or contract. Very frequent instances of a duty imposed by law upon a person or corporation, and which cannot be shaken off, are found in cases pertaining to the construction and maintenance of railways, canals, dams, highways, etc. In such cases the rule may be stated to be, that where parties are invested by law with authority to execute a work involving ordinarily the exercise of the right of eminent domain, and always affecting rights of third persons, they are to be liable for the faithful execution of the power, and cannot escape responsibility by delegating to others the power with which they are intrusted. A railroad company, therefore, is bound to construct its road in such a manner as not to injure others, and will be liable for negligent acts of a contractor's servants (see Lowell v. Boston & Lowell R. R. Co., 25 Pick. 24; Hole v. Sitting bourne, 6 Hurl. & Norm. 488; Hilliard v. Richardson, 3 Gray, 352); and to provide passengers a safe means of access to and from the cars. See Holmes v. N. E. Railway Co., 4 Exch. 254; Gillis v. Railway Co., 8 Law Reg. (N. S.) 729. So municipal corporations have been held answerable for the negligence of servants of contractors in making excavations in the public streets.* See Conrad v. Village of Ithaca, 16 N. Y. 158; Storrs v. City of Utica, 17 N. Y. 104; Willard v. Newbury, 22 Vt. 458; Chicago v. Robbins, 2 Black. (U. S.) 418. See further the cases of Bailey v. Mayor, etc., 3 Hill, 531; 2 Denio, 433; Pickard v. Smith, 4 Law Times (N. S.) 470; Brackett v. Lubke, 4 Allen, 140.

It is an elementary rule, that a person who has contracted to do a certain thing in a certain manner cannot avoid his liability upon the contract by acting through other parties. A class of cases illustrating the principle is that in which a master is held liable for acts of servants done outside of the scope of their authority and willful in their nature. A familiar and leading case is Weed v. Panama R. R. Co., 17 N. Y. 362, where a conductor willfully stopped a train and prevented the railroad company from carrying out its contract. See also Blackstock v. Erie R. R. Co., 20 N. Y. 48; 1 Bosw. 77, where the engineers of the road struck in a body; and the recent case of Goddard v. Grand Trunk Railway, 57 Me. 202, where the authorities will be found extensively noticed.

3. Acts done on real estate which necessarily result in a nuisance. + There was for a long time an effort made to hold owners liable for every negligent act done on their real estate, by which a third party was injured. But the later cases disregard this distinction between real and personal property. Say the court, in Painter v. Pittsburg, 46 Penn. 213: "This distinction has been exploded in England, where it originated, and it can be supported by no sound reasons." A real estate owner is now held liable only in cases where the act

*Some leading cases seem to have overlooked this principle. See criticism on Painter v. City of Pittsburg, 46 Penn. 213, in 3 Law Reg. (N. S.) 360. Perhaps it ought to be noticed that, at common law, towns, etc., are not liable for neglect to keep highways in repair (Angell & Durfee on Highways, $286), but such liability must be referred to a statute. Mower v. Leicester, 9 Mass. 247. In Bigelow v. Randolph, 14 Gray, 541, this rule is said to apply in case of towns only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs when a special duty is imposed upon it, with its consent, express or implied, or a special authority is conferred on it at its request. See also the cases of Eastman v. Meredith, 36 N. H. 284; Mitchell v. Rockland, 52 Me. 118; Morgan v. Hallowell, 57 Me. 378.

+Many cases under this head would come under the class of acts which are unlawful.

can, in some way, be brought home to him: as where he suffers a nuisance to continue after knowledge (see Burgess v. Gray, 1 C. B. 578; Chicago v. Robbins, 2 Black, 418); or where he negligently selects incompetent persons to do the job-"the rule of law sic utere, etc., may well apply to such cases" (Pawlet v. R. & W. R. R. Co., 28 Vt. 298); or where it is his duty to have the approach to his premises safe and sufficient (see Brackett v. Lubke, 4 Allen, 140; Gillis v. R. R. Co., 8 Law Reg. [N. S.] 729); or where he directs an act to be done, which, in the ordinary course of doing, results in a nuisance. See Scammon v. City of Chicago, 25 Ill. 424; Chicago v. Robbins, 2 Black, 418.*

The question received a full examination in the supreme court of New Jersey, in the case cited above (Cuff v. N. & N. Y. R. R. Co.), and the rule is there stated to be "now firmly established, that where the owner of lands undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by a contractor exercising an independent employment, and employing his own servants. But when the work is not in itself a nuisance, and the injury results from the negligence of such contractor, or his servants, in the execution of it, the owner is in default in employing an unskillful or improper person as the contractor."

Whether or not the relation of contractor and contractee exists, thus becomes, in many cases, a question of primary importance; and it is often one most difficult of solution. "It is," says Shaw, C. J. (in Stone v. Codman, 15 Pick. 299), "often a question of great nicety, and various complicated cases may be stated, in which it would be extremely difficult to decide."

The following are convenient and practical tests which appear to be recognized by the courts:

a. Inquire whether the person in question exercised a distinct and independent employment. In Painter v. City of Pittsburg, the court state it as a general rule to be extracted from the cases, that, "when an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured." And so the court, in Linton v. Smith, 8 Gray, 147, say: "When the person employed is in the exercise of a distinct and independent employment, and not under the immediate supervision and control of the employer, the relation of master and servant does not exist, and the liability of a master for his servant does not attach." In that case the consignees of a vessel had made a contract with stevedores to discharge the cargo on the wharf in Boston; and "the business of stevedores," say the court, "is a separate, distinct, well-recognized business in Boston." So in Milligan v. Wedge, 12 Ad. & El. 737, the person employed was a licensed drover, and in De Forrest v. Wright, 2 Mich. 368, the party was a licensed drayman. See also Pierce v. O'Keefe, 11 Wis. 180; Brackett v. Lubke, 4 Allen, 138; Wood v. Cobb, 13 Allen 58.

b. Inquire whether the defendant retained the power of controlling and directing the manner of doing the work. Says Crompton, J. (in Saddler v. Henlock, 4 El. & Bl. 570,) "the test here is, whether the defendant retained the power of controlling the work." And say the court in Forsyth v. Hooper, (11 Allen 419) "the question in these cases whether the relation be that of master and servant or not, is determined mainly by ascertain

*These two cases arose on the same state of facts (digging an area), and although both cases agree as to the principle. they are directly contradictory as to the facts, necessarily causing a nuisance for which the owner will be liable.

ing from the contract of employment whether the employer retains the power of directing and controlling the work, or has given it to the contractor." See also Brackett v. Lubke, 4 Allen, 138; Cincinnati v. Stone, 5 Ohio (N. S.) 38.

This control must be over the manner of doing; and any reserved right to superintend the result of the work will not be sufficient to make the contractee liable. Pack v. Mayor, etc., 4 Selden, 222; Barry v. City of St. Louis, 17 Mo. 121; Cuff v. N. & N. Y. R. R. Co., 9 Law Reg. (N. S.) 548, and cases cited.

c. Inquire whether the work is done in the ordinary way in which servants proceed. This is one of the tests suggested by Coleridge, J., in Martin v. Temperley, 4 Q. B. 298. A person may thus be skilled in any particular department of labor, yet if he agree as an ordinary laborer to do a certain piece of work he will be regarded as a servant. As in Saddler v. Henlock, 4 El. & Bl. 377, where a person skilled in making drains agreed as a common laborer to clear a drain for a specified sum. Were this not 66 So, 'a party would be exempt from responsibility even for the negligent acts of his domestic servants, such as his cook, coachman or gardener." Bigelow, C. J., in Brackett v. Lubke, 4 Allen 140.

d. Inquire whether the defendant selected the servant or paid his wages. This is a ready test in the wellknown case of the carriage, horses and driver which occasioned so much trouble in the English courts. The owner of a carriage hired of a stable keeper a pair of horses to draw it for a day, the owner of the horses providing a driver, through whose negligence an injury was done. Which was responsible as master, the owner of the carriage or the owner of the horses? The case was first put by Hatch, J., as illustrating and supporting the decision in Bush v. Steinman. The question next arose in Laugher v. Pointer, 5 B. & C. 547, and the judges were equally divided. Again the question came up in Quarman v. Burnett, 6 M. & W. 499, and it was finally held that the defendant (the owner of the carriage) was not liable. While the owner of the carriage might have had the direction of the servant for the time being, it was the owner of the horses who selected him and paid him his wages, and who was therefore properly liable.

H. H. BOND.

MISDESCRIPTION IN WILLS.

KURTZ v. HIBNER.

A case has been decided, in the supreme court of Illinois, involving the admission of parol evidence to explain a description in a will, which seems to us to lay down a doctrine wholly at variance with the established authorities and with justice. We refer to Kurtz v. Hibner, reported in the February number of the American Law Register, and accompanied by a searching criticism from the pen of Judge Redfield. John Hibner made his will, containing, among other, the following provisions:

"3d. I give and bequeath to my daughter, Elizabeth Kurtz, all that tract or parcel of land situate in the town of Joliet, Will county, Illinois, and described as follows: The west half of the south-west quarter, section thirty-two, township thirty-five, range ten, containing eighty acres, more or less, together with all the appurtenances thereunto belonging or in anywise appertaining.

"7th. I give and bequeath to my grandson, James Kurtz, all that part or parcel of land described as the

south half of the east half of the south quarter, section thirty-one, in township thirty-five, range ten, containing forty acres, more or less."

Appellants offered to prove that testator, at the time of his death, owned only one eighty-acre tract in township thirty-five, which was the one described in the will; that a mistake was made in drafting the will, by the insertion of the words "section thirty-two, instead of section "thirty-three;" that Charles and Elizabeth Kurtz had been in the actual possession of the tract for a number of years; and, upon the repeated promise of the testator in his life-time that he would give the same to Elizabeth, had made lasting and valuable improvements, at their own expense, on the land; had fenced it, and erected thereon a dwellinghouse, barn and corn-cribs, dug wells and set out fruit trees.

Appellants also offered to prove that James Kurtz, at the time of the death of the testator, was in the actual possession of the forty-acre tract as the tenant of the deceased, and that the draftsman of the will, by mistake, inserted the word "one" after the words "section thirty," instead of "two," so as to bequeath to James land in section thirty-one instead of section thirty-two. This evidence was rejected by the court on the hearing.

The statement does not show whether the testator owned any other forty-acre lot in township thirty-five, but we take it for granted that he did not, because if he did, a latent ambiguity would have been created, which, we suppose, parol evidence would have been admitted to explain, even in Illinois. Judge Thompson bases his decision on the ground that there is no ambiguity in the language; that it correctly describes land in other sections, but not owned by the testator; that it is only the proof aliunde which creates any doubt, and such proof he held inadmissible.

Judge Redfield exposes the fallacy of the decision in the following language:

"In the principal case there could be no question of the admission of oral evidence to show the state and extent of the testator's property, in order to place the court in the same position the testator was at the time he made the will. No reasonable man could question this upon the decided cases. This being done, it appears the testator had no such land as that described in the particular sections named. This rendered it clear, absolutely certain, we may say, that the sections named were erroneous, and could have no possible operation, and must be rejected. The devise, then, was the same as if the sections had not been named at all, or had been named, leaving the numbers blank. We are then compelled to fall back upon the remaining portion of the description, 'eighty acres of land in range ten, in township thirty-five,' and 'forty acres of land in range ten, in township thirty-five; and, upon inquiry, we find precisely such pieces of land 'in range ten, in township thirty-five,' belonging to the testator. This renders the devise as certain as it is possible to make it. The description would not have been one whit more clear or certain if the true sections had been stated; nor is it, in fact, rendered any more uncertain by the insertion of sections thirty-one and thirty-two instead of thirty-two and thirty-three. It is entirely certain, from the language of the will, what the testator must have intended, in either form. He could not have intended to devise land to which he never had any title; he must have intended to devise land which did belong to him. He had two just such pieces of land as he names, and every way described as these