This is a good season of the year to have your readers as well as yourself answer the following legal problem, taken from actual experience: A, B and C each hold a mortgage of $5,000 on a certain parcel of land. The order of time of delivery is A, B, C; the order of date of record is C, B, A.

When B took his mortgage he knew of A's unrecorded prior lien, and when C took his he had like knowledge of B's but not of A's.'

The property, at a public sale, brought $10,000. Which two mortgagees are entitled to be satisfied out of that? Awaiting your own solution, I am,

NEW YORK, Aug. 7, 1880.

THE

Yours truly,

NOTES.

64 'MIDSUMMER."

Southern Law Review for August-September contains the following leading articles: Negligence of telegraph companies, by Edwin G. Merriam; Formation of the Federal Constitution, by W. T. Brantly; Insurance Agents, by James O. Pierce; Liability of Directors of Corporations, by Seymour D. Thompson; and a number of most excellent book reviews, in which department the Review is easily at the head of all legal periodicals. The third volume of the North-western reporter, published at St. Paul, by West Publishing Company, has 1016 pages, and all the decisions of the Supreme Courts of Minnesota, Wisconsin, Iowa, Michigan, Nebraska and Dakota, from Nov. 22, 1879, to Jan. 10, 1880. The first volume of the Federal Reporter, issued by the same publishers, contains 976 pages and all the decisions of the Federal Circuit and District Courts from March to May, 1880. The books are handsomely printed on good paper. Statistics show that the volumes of Alabama Reports, from the 52d to the 61st, inclusive, contain 278 reversals and 276 affirmances.

A Kansas judge in a murder case, addressing the audience in the court room: "Gentlemen, the court wishes you would let somebody die a natural death here, if only to show strangers what an excellent climate we have. - George Jacob Holyoake, in "Nineteenth Century." Mr. Holyoake has wrongfully located this story. Kansas is a very orderly State. It is probably not predicable of any State. The recent statement in the newspapers that the only way for a mau to be hanged in Texas is to steal a four-dollar mule, is also libellous. They do a great amount of hanging in Texas, and it must be borne in mind that very many of the homicides there are committed in mutual affrays. We should have felt a little more sure of Texas justice, however, if that murderer Currie had not been acquitted.

In an election case before Judge Brady, of this State, some years ago, after considerable debate between the lawyers, the judge himself interposed with: "Well, | gentlemen, let us get to the merits of the case. I suppose that all that either party desires in this case is an honest count." At which there rose before the judge on the instant a wild and strange figure, not unfamiliar to the courts, nor yet to the footlights, which with hand upon its heart bowed low and uttered in sepulchral tones: "May it please the court, Ecce homo!" It was the Count Joannes. -The following forecast of the fortunes of Ex-President Grant, which is quite as good and veracious a prediction in its way as many ancient oracles, and more modern prophesies, may be found in the index to the first volume of the Probate and Divorce Reports, published 31st Desember, 1869, p. 786: "General Grant-Limited Administration.". Canada Law Journal.

The Daily News reports the following scene between judge, jury and advocate at the county court at Bridport. The judge was Mr. Lefroy, and in a case before him 10l. was claimed for breach of warranty of a mare which, as his honor said, could not be got into harness without people standing in danger of having their brains knocked out. The judge held that the animal being vicious, the plaintiff was entitled to his claim, and directed the jury before whom the case was heard to find a verdict accordingly. But on the ground that no warranty was given, the jury found for the defendant, whose solicitor, Mr. Joliffe, claimed the verdict, upon which the judge began to expostulate with the jury as to disbelieving respectable witnesses, and said their verdict was directly contrary to their oath. Mr. Joliffe said this was the most extraordinary course of things he had ever heard in his life, but was told to hold his tongue or he would be removed from the court. The jury, said his honor, had no power to find such a verdict. The jury said they could not alter their verdict; but his honor said they could. Mr. Joliffe said the jury thought with him and the public that the verdict was according to law. He dared say the lord chancellor would have something to say on the subject. His Honor said he did not care for the public, and (to Mr. Joliffe): You public nuisance, be quiet; you are a public nuisance. Mr. Joliffe replied that he did not care about His Honor intimated he would not allow effect to be given to the verdict. Mr. Joliffe: We will compel it by mandamus. His Honor said the jury were perversely obstinate, and was proceeding, when Mr. Joliffe protested against this intimidation of the jury, adding: His Honor had not taken a single note of the case. Where were his honor's notes? The Judge: Be quiet; be quiet! Mr. Joliffe said he was adopting his present course in order that this matter might be properly ventilated; he intended to see that an improper course was not taken. His Honor: Go and finish your speech in the street; I say the jury have found a verdict contrary to law. Mr. Joliffe: They have found a verdict not contrary to law. His Honor: I say it is not according to law or the evidence. I direct the verdict to be entered the other way. Mr. Joliffe: We will see about that, sir; that only shows the necessity. That is why the defendant had the prudence to summon a jury. I have no doubt the public will be very much benefited by the jury being summoned here to-day. The foreman of the jury, on being appealed to by his Honor, said he had given a verdict according to his conscience. Mr. Joliffe again complained of his Honor's conduct. The Judge: I wish you would exercise a little common sense. Mr.

The Albany Law Journal.

THE

ALBANY, AUGUST 28, 1880.

CURRENT TOPICS.

THE Nation and the New York Times are having a little misunderstanding about the late Indiana decision on the constitutional amendments.

It does not concern us, except to set ourselves right as against a misconstruction of the Times writer. The Times says: "But it is asserted that the ALBANY LAW JOURNAL has given the opinion that there is a good deal to be said on both sides of the Supreme Court decision. We are not ignorant of the ALBANY LAW JOURNAL'S article out here, nor are we ignorant that it was written before the dissenting opinions of Judges Niblack and Scott were filed, and before all the facts in the case were fairly stated. Judge Biddle found 45 pages of legal cap to say on his side of the question, but yet that will not make good law or good sense, even re-enforced by the dictum of the ALBANY LAW JOURNAL, based upon partial information, not to mention the impertinent ignorance of the Nation." It is true that we have "given the opinion that there is a good deal to be said on both sides," and we have sustained that assertion by showing that the Supreme Courts of Minnesota and Missouri, and Mr. Justice Bradley, of the Federal Supreme Court, take the same view with the Indiana court, while the Supreme Court of Wisconsin take the opposite view. But we protest, first, against the statement that we wrote "before all the facts in the case were fairly stated," and second, against the inference that we approved the law of the Indiana decision. The facts on which the decision was based were fairly stated when we first wrote, and nothing new has since come out. In our first expression of opinion as to the merits of the decision we said we thought the decision wrong, and that the Wisconsin doctrine is right, and we have reiterated that expression in remarks on the opinions pro and con. On the whole

we are inclined to believe that the statement of the Times writer that "we are not ignorant of the ALBANY LAW JOURNAL's article out here," is not quite accurate. With the alleged back-stairs history of the decision we have nothing to do, and we have nothing to say about it.

But we

Perhaps we have said all that can be of edification on the decision of the Indiana Supreme Court on the constitutional amendments. would emphasize one criticism which has occurred to us on a re-perusal of the prevailing opinion. The court say: "This court holds that it requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment. We also hold that as the act of March 10, 1879, is defective in not providing for the count of the aggregate number of votes cast throughout the State on the day of the election, or in not providing some VOL. 22.- No. 9.

means to find out the whole number of votes cast, by which it might be learned what proportion the number cast in favor of the ratification bore to the whole number, there is no source from which this court can ascertain whether the amendment received a majority of all the votes cast at the election or not. As the amendment was submitted upon the day of the general spring elections throughout the State, and as there were, by law, officers to elect at the same time in the various counties, it must be presumed that other votes than those for or against the amendment were cast at the same time." Now why should the court presume that more votes were cast for officers than on the constitutional amendments? We should suppose the correct presumption would be that the electors all voted on every question. The fact was in evidence that the amendments received a majority of the votes cast on that question, and that, in the absence of evidence about the vote for officers, should control. If the evidence before the court, or that which it deemed to be before it, showed the fact assumed, there would be a basis for the conclusion that the court have

drawn, although we believe the conclusion wrong. But it appears that the conclusion of the court rests on a mere guess of a matter which certainly cannot come within the ordinary range of judicial notice. This seems to us the weakest reason imaginable for a wrong decision. To the foregoing suggestion, we only add that whatever may have been the vote for officers, the returns show that the amendments called out a vote of from 304,000 to 322,000, with majorities ranging from 17,000 to 50,000. This affords very small countenance for the impression, which the opinion seems intended to convey, that the amendments were carried on a meager vote.

It cannot be denied that the decision has created a strong suspicion of unfair conduct on the part of the majority of the court. Making due allowance for the present demand for "political capital," among all parties, there seems to have been at least an extraordinary and undue precipitancy in the pronouncing of this opinion. The cause was argued for two full days, and the opinion was pronounced in twenty-four hours thereafter. One writer says of this: "The opinion bears upon its face evidence of great research and labor in the investigation of authorities and precedents and in twisting and construing them to sustain this most extraordinary decision. It fills nearly three and a half columns of a large newspaper in solid brevier, and contains six thousand words. It must be admitted that Judge Biddle is a man of wonderful parts; a 'lightning' penman and an indefatigable worker. Never since our Supreme Court was organized has such a quantity of judicial literature been piled up on paper in so short a time, and the like will not probably happen again in a hundred years. Deducting the hours usually required for needful sleep and refreshment, the task accomplished by the herculean constitutionwrecker, Judge Biddle, must ever be regarded as one of the most remarkable mental and physical

feats on record." This fact discloses insufficient reflection or a mind made up and formulated beforehand. It contrasts strangely and unpleasantly with the fact that the dissenting opinions did not appear for several weeks. We have no hesitation

in saying, at least, that the court had no moral right | to put forth such an opinion under such circumstances. It inevitably throws discredit on the court and weakens its conclusions. A country justice, who does not decide at once, takes four days for consideration. But the point of our animadversion is this: speaking of the weight and authority of adjudications, the result shows the impolicy of allowing an ultimate court to be constituted wholly from one political party. The dissent of two members in this case only strengthens the popular suspicion of the other three. If a single judge of the opposite political party had gone with the majority in the case, the accusation of corrupt political bias could hardly have been made. In the famous Tweed decision in this State the two Republican judges went with the democratic majority, and this fact took the sting out of partisan complaints. A court constituted from both political parties will frequently, perhaps generally, divide into political strata, but this is not always the case, and when it is, the scandal is less than where there is no difference of politics among the judges. Meantime, a motion has been made for reargument. If the court should grant it and reverse the present decision, they would not be much more fickle than they have been on several other subjects within our knowledge, notably, as to the intercalary day in leap-year, and indictments for selling "a pint" of intoxicating liquor, meaning "less than a quart."

we cannot contemplate without irritation, and surprise that it should be suggested.- The nomination by one party of the present chief judge, Folger, since the above was written, is perfectly unexceptionable, and settles one-half of the suggested difficulty.

ers.

The

The American Bar Association met in a large hall, but a small hall would have held them. A boy does not become a man by getting into his father's trousThe attendance was certainly no larger than last year, and it is whispered that the membership has fallen off very considerably. The old familiar faces of Bristow, Phelps, Poland, Potter, Hunt, Young, Butler, Bullard, etc., ruled the scene, and there was the same noticeable preponderance of southern and western, and absence of New York, representatives. Speaking of the portions of the exercises which we were able to attend, they were scarcely so interesting as those of last year. paper on "Sunday Laws" was an hour's dry statement of the statutory provisions of the different States for the observance of Sunday, with a few minutes of sensible suggestion for amelioration of these absurd laws. Much of the essay was inaudible, but it seemed to us that while the opportunity was favorable and the subject was a good one, the treatment was not exactly suited to the occasion. Mr. Parker's address on Hamilton and Patterson was a brilliantly-written and effectively-delivered production, albeit the information about Hamilton was already somewhat familiar. But why did Mr. Parker feel bound to treat of the "architects of the Constitution?" Is it made incumbent by the laws of the association? Are there not several topics of more absorbing present interest? It strikes us that way. Last year Mr. Phelps pronounced Marshall the architect of the Constitution. This year Mr. Parker pronounces Hamilton and Patterson the architects. When is this thing to end? If it goes on, we shall incline to the belief that the job was sub-divided to conciliate a number of rival bidders for the construction of that ancient edifice. Thus far only three States have been heard from, and we shudder when we think of the future constitutional possibilities. The vivacious Mr. Hunt presented his report on Legal Education and Admission to the Bar, and the association, after a spirited debate, nearly all on one side, from a suspicion that the

ment. There are very few persons in the State, off the bench—perhaps none who have had any extended experience as judges of that court, and who are competent in point of age, or who would be competent for more than a very few years. There is plenty of material, of both politics, in the present court, from which to make a good chief. Probably the judges would be satisfied with the promotion of any one of their number, so great is their harmony and so small is their partisanship. To ignore the deserts of these learned, experienced, faithful and approved judges, and to put over them a stranger to their decade of counsel and service, would be an unhandsome and ungracious act, which

it meant, and opened the door to permanent practice for non-residents, and that the scheme of education contemplated in the other resolutions was too ponderous, laid it on the table, as they also did Mr. Broadhead's substitute of State law schools whose

diploma should entitle to admission—a proposition in favor of which a good deal can be said. So much for what we heard.

Now as to what we did not hear. President Bristow's address seems to have been well received, and to have been an intelligent and complete summary of last year's legislation, much of which was peculiar and interesting. It must

be said in Mr. Hunt's praise that he made a report. He was the only committee-man who succeeded even so far. Mr. Butler was prevented by the absence of his colleagues and his inability to confer with them, although his report was otherwise ready. None of the other committees had heard from their chairmen. Mr. Evarts, strange to relate, not only made no report, but was not even present, and sent no excuse. Of the papers of Messrs. Bispham and Hyde, we can only say that while Mr. Hyde's subject was well chosen, it seems to us that Mr. Bispham's subject was neither of importance nor of interest sufficient for the occasion.

a

It is evident that the association is not great success, and is not likely to be. Why is it not? Is it because lawyers are not naturally gregarious, or have no interest in these matters, or are intent on their own enrichment and aggrandizement; or is it because of some fault of management? Every other class of men can hold successful

conventions — clergymen, physicians, dentists, manufacturers, publishers, strong-minded women, Concord philosophers, and fanatics of every description. The "masonic order" will travel a thousand miles for the privilege of pranking about the streets of Chicago and tumbling down in a sunstroke. But it seems impossible to persuade a hundred lawyers to meet in council. We are no better off so far as our own State Bar Association is concerned. We do not believe that lawyers are averse to the counsel and companionship of their professional brethren. We know that they are the most harmonious and sociable of all classes of men.

We

do not think them particularly selfish. Therefore we are fain to suspect that the cause of this state of things is in the management, but wherein we do not feel called upon just now to offer a conjecture. It would seem obvious, however, that it is better to select for chairmen of committees men who are able and willing to do something, like Messrs. Hunt and Butler, than to put great names on the programme and get no response.

Our correspondents ask us a good many questions which we cannot answer. Now we propose for once to give them some questions. If Dr. Buchanan has committed suicide, can his bail be held? Ordinarily, death of the principal releases the bail, but how is it when the principal has brought about his own default by a voluntary death? Again: if a rescue is attempted, and the sheriff's posse is overpowered, has the sheriff a right to kill the prisoner, as is reported to have been done recently in Georgia?

what is a table of the like kind with those specified in the statute, according to its true intent and meaning, there are two decisions of this court which seem to settle the matter beyond all controversy. They are, Commonwealth v. Wyatt, 6 Rand. 694, decided in 1828; and Huff's case, 14 Gratt. 648, decided in 1858. In Wyatt's case it was unanimously held by the late general court, in an opinion delivered by Daniels, J., that 'the distinctive feature in the character of the games called A B C and E O and faro bank, is that the chances of the game are unequal, all other things being equal, and those unequal chances are in favor of the exhibitor of the games or tables. If other games resemble those standard games in that distinctive feature, they come within the terms of the 17th section of the Gaming Act (corresponding with the 1st section of the present Gaming Act), being 'gaming tables of the same or like kind,' and are liable to the penalties denounced against those standard games, whatever may be the denomination of those other games, and whether played with cards, dice, or in any other manner.' In Huff's case it was unanimously held by this court, in an opinion delivered by Allen, P., that 'an indictment for gaming under the 1st section of chapter 198 of the Code (corresponding with the 1st section of the Gaming Act in the present Code), must charge the playing of one of the games specified; or it must show by averment that the gaming charged is of the like kind as those specified — that is, that the chances of the game are unequal, all other things being equal.' These two cases clearly show that the game proved to have been played in this case was not a game of the like kind with any of those specified in the statute, as it was clearly not one of the games so specified." In Stith v. State, 13 Ark. 680, it was held by the Supreme Court of that State that the owner or occupant of a house, etc., cannot be indicted under the 4th section of the Gaming Act for permitting poker or any of the small games of cards mentioned in the 8th section of the Act to be played in his house, etc., but only for suffering some of the games, tables, cards, etc., embraced in the previous sections to be played, etc., therein. The court said: "An attentive perusal of the statute makes the conclusion almost irresistible that the first seven sections are intended to relate exclusively to the banking games, whether called by the names specified or by any new name or device. They are usually exhibited by persons whose occupation it is to prey upon the community, and who are therefore peculiarly obnoxious to the laws, which design also to punish with equal severity those who allow them to be exhibited in their houses." In Kennon v. King, 2 Mont. 437, the court held that poker was a game of chance, and they would take judicial notice of it.

In Smith v. Schooner "J. C. King," U. S. District Court, 10 Pitts. Leg. Jour. 274, it was held that a seaman upon a schooner in the harbor of Frankfort, Michigan, where she was towed to receive a cargo of lumber, cannot refuse to work on Sunday in