rects that the amended order be inserted in the case on which the appeal in this action is now pending before the General Term and affirmed as to the rest of the order without costs to either party in this court Carter v. Beckwith. Motion to dismiss appeal denied without costs, and order affirmed with costs Lord v. Harrison. Order modified by making it one of reversal simply, without costs to either party in this court In re Guardian of Hubbard. Appeal dismissed with costs-In re Kings County Elevated Railway Co.; American National Bank of New York v. Wheelock.

NOTES.

THE publishers of the American Law Review, in an

advertisement on the cover of the current number of that periodical, print some half dozen commendatory expressions, by eminent judges, concerning Judge Cooley's recent manual of American Constitutional Law, and then quote the adverse opinion of the Southern Law Review, remarking that it shows "how much a 'Review' may differ from such excellent judges, ou matters connected with their specialties." This is a cruel thrust at some of the independent book notices of the American Law Review.

Many of our contemporaries, legal and lay, at home and abroad, have copied from our columns Mr. Rogers' amusing article on "Drinks, Drinkers, and Drinking,” and have given him and this JOURNAL due credit; but the Luzerne Legal Register (with which we have not the honor of exchanging) copies it, apparently as original, leaving off the last paragraph and the name of the writer, and ignoring ourselves. Was the editor illustrating the subject in person?

The September number of the Criminal Law Magazine contains a leading article on Larceny by agent, servant, or clerk, and a number of interesting cases in full, among which are State v. Fellows, on what constitutes criminal adultery, and Gordon v. Commonwealth, on the competency of grand jurors as witnesses, both of which are annotated. The editor might have referred in the note on the former, to the recent case of Montana v. Whitcomb, 1 Mont. 359; S. C., 25 Am. Rep. 740, holding that a married person cannot commit fornication, and observing that if either of the offenders is married, it is adultery; and Hood v. State, 56 Ind. 263; S. C., 26 Am. Rep. 21, holding, contra the principal case, that to constitute adultery the woman must be married.

Mr. Benj. Vaughan Abbott announces an Index Digest of Text Books. "The purpose of the work is to direct the lawyer to the particular passage in any textbook where a given topic is treated; and to render available all that is valuable in the 1,500 or 2,000 volumes of text-books, so that the reader may know what text-books to consult, and the particular section or pages where the intelligent discussion of each point in all the topics of the law is to be found. The number of volumes of Abbott's Index Digest will depend somewhat upon the general voice of the bar upon the comparative advantages of embracing a large number of treatises, or of limiting the work to the consideration of the more modern text-books. At present, four or five volumes are contemplated, embracing about two thousand volumes of the most esteemed textbooks in all branches of the law. The publishers respectfully solicit any expression of opinion on this subject which the friends of such an undertaking may feel willing to give." Perhaps the request for "expression of opinion" does not contemplate any but favorable opinions, and therefore we withhold our

opinion. We agree with the publishers, at least, that such a work (if patronized) would tend to sell textbooks.

In these days when it is popularly supposed that a man's will may be set aside for almost any eccentricity which he can be shown to have possessed in his life, and which popular supposition is supported by many verdicts and by not a few courts, the case of Lee v. Lee, 4 McCord, is interesting as showing how differently things were managed in the year 1827. It is safe to say that such a will as that of Mason Lee, made and executed by such an individual, would not, in the year 1880, be permitted to stand. Here is the will: An estate worth $50,000 was left to the States of Tennessee and South Carolina, his heir at law and his two illegitimate sons being disinherited. No part of his estate, the will especially enjoined, should be "in any wise inherited by any of my relatives while wood grows or water runs." His executors, one of whom was described as "one of the first-rate Baptist preachers," were empowered to defend the will "so long as there is money left to fee the best lawyer in Charleston." Here is the testator: A man who believed in witches; who believed that an influence could be exerted on his body and mind from a distance; that some of his relations were in his teeth, and in order to dislodge them he had fourteen drawn. He made his own clothes; his pants were like petticoats, his coat was a blanket with a hole cut in it. He kept his hair cut close to prevent the witches getting hold of it. He had fifteen swords of great size, one of which he carried constantly. He slept in the day time, and kept awake at night. He believed he had the devil nailed up in his fire-place. His house was a hovel adjoining a pig-sty. He was easily alarmed; the ticking of a clock frightened him. He cut off the tails of his cattle, giving as a reason that they made themselves poor fighting flies, and if their tails were off they would get fat; he also cut off the ears of all his horses and mules. A reason which he gave for not providing for one of his sons was that he was his twin brother. The will of this extraordinary person being contested on the ground of insanity, was sustained by a jury, and on appeal by the Supreme Court.-Central Law Journal.

The London Law Journal says, "It is stated that the attorney-general has granted his fiat for the issue of a writ of error from the judgment of the Court of Appeal to the House of Lords, in the case of Castro v. Reginam. In spite of the strong expression of opinion by Lord Justice James, we think this course is fully justified." A singular action is pending, says the London Telegraph, before the Imperial Royal Tribunal at Marburg. An Italian commercial traveller sues the Süd-Bahn Company, for injuries sustained by him through a railway accident which recently happened upon their line. The plaintiff, at the very moment in which the collision took place, was introducing a junk of Bologna sausage into his mouth on the point of a pen-knife, and the shock imparted to him by the accident caused him to widen that feature by an involuntary slit, some two inches in length. For the pain and disfigurement thus incurred he claims a large pecunniary indemnity. The railway company, however, refuses to admit any obligation to compensate a person for injuries incurred by his own indecorousness of conduct and evil manners, pleading that "no decent person eats with his or her knife, and that the plaintiff, having hurt himself in the very act of committing a social delict, must bear the consequences of his offense." We should suppose he might set up the custom of commercial travellers to eat in that way. The case resembles that of the dentist who was injured by a jolt of the cars while he was biting off a cigar.

A

The Albany Law Journal.

ALBANY, OCTOBER 2, 1880.

CURRENT TOPICS.

TTORNEY-GENERAL YOUMANS, of South Carolina, has sent us his argument for the plaintiff in the controversy between Messrs. Simpson and Willard as to the title to the office of chief justice of that State. The Constitution provides

that the judges shall be elected by joint vote of the general assembly, for the term of six years, to be so classified that one shall go out of office every two years, and that vacancies shall be filled by the like election, "provided, that if the unexpired term does not exceed one year, such vacancy may be filled by executive appointment." Chief Justice Moses died in office, and on May 15, 1877, Chief Justice Willard was elected in his place. The term for which Chief Justice Moses was elected did not expire until July 29, 1880. On December 18, 1879, the claimant, Mr. Simpson, was elected to fill the vacancy about to be occasioned by the supposed expiration of Chief Justice Willard's term. The question now is, whether Chief Justice Willard's election was in legal effect for a full term of six years, or only for the unexpired time of Chief Justice Moses' term. The argument involves the meaning of the word

vacancy," as used in the Constitution, and upon this point we should think the proviso quite signifi

cant.

Chief Justice Willard, however, in person, makes an ingenious argument to the contrary. He says: "It is clear that section 11 embraces both the case

of a vacancy occurring by reason of the expiration of the constitutional term of six years, and that of a vacancy occurring before the expiration of such constitutional term by reason of death, resignation, or removal. Its language is, 'All vacancies in the Supreme Court, or other inferior tribunal, shall be filled,' etc. Disregarding, then, the case of an unexpired term that does not exceed one year, which is treated of in the proviso to that section, it places all vacancies that may occur from any cause in a single class, and the authority for filling such vacancies is conveyed in the same language as it regards each member of that class." "But it is contended that there is reasonable ground to infer an intent that the Legislature should have power to elect for a term less than six years, in the case of casual vacancies. The source pointed out as the ground of this inference is the expression used in the Constitution to indicate the object of the classification there made, namely, 'that one of the justices should go out of office every two years.' It is claimed that this ought to be read as equivalent to a declaration that when any vacancy should occur by casualty, the Legislature should temporarily supply the vacancy until the end of the term comes around, so that the system of intervals of two years VOL. 22.- No. 14.

should not be deranged." "Certainly nothing but merely speculative ground exists for drawing such an inference." It seems to us that this argument is fallacious, first, in assuming that section 11 furnishes the only direction for supplying a vacancy caused by full service and expiration of term; second, that the two years' provision has any thing to do with the question. Section 2 prescribes that the judges shall be elected by the general assembly, and shall continue in office until successors are elected and qualified. That is complete in itself. Then section election as herein prescribed," except that when 11 prescribes that "all vacancies shall be filled by

"the unexpired term does not exceed one year, such vacancy shall be filled by " the governor. Does this section refer to any thing but casual vacancies? We think not. Otherwise it would be a superfluous provision, for the mode of election has been already prescribed and is moreover therein explicitly referred to. It seems pretty clear that the latter section was added simply to provide for casual vacancies and unexpired terms, and for the same class of vacancies as are referred to in the provision for executive appointment.

The General Term of the New York Supreme Court for the Third Department have affirmed Justice Westbrook's order, in the Belden case, to the effect that against the State, the courts cannot give an affirmative judgment, even for a counter-claim or set-off interposed by a defendant sued by the State; and that the usual stipulation to submit to judgment absolute on an appeal from an order granting

a new trial will not alone authorize an affirmative judgment against the stipulating party, on a counter-claim appearing in the pleadings, but not passed on at the trial. See 21 Alb. L. J. 481. The New York Daily Register, in connection with this decision, draws attention to the recent ruling of Judge Russell, of the New York Superior Court, in Rust v. Hanselt, to the following effect: Judgment absolute was rendered against a defendant in accordance with his stipulation, given on his appeal from an order granting to plaintiff a new trial, and a reference was ordered to ascertain the amount due to the plaintiff; the referee reported that nothing was due to the plaintiff, but that there was a sum due to the defendant on his counter-claim; held, that the defendant's right to affirmative relief was lost by the judgment rendered on his stipulation, and that he could not enter judgment for the amount found due him.

A correspondent last week, while agreeing with our views of brevity in law reporting, thinks no report should be considered complete which does not contain a memorandum of all authorities cited by counsel, not only to show whether prior cases in point were overlooked, but to assist counsel in similar cases. We agree to this with some modification. Of course our remarks were aimed against the practice of inserting entire briefs of counsel, but we think even a memorandum can well be dispensed with in a majority of cases, certainly in all

cases involving familiar and well-settled principles. Again, the memorandum can well be dispensed with where the opinion of the court elaborately discusses the cases in point. And finally, the memorandum can well be dispensed with, in nearly all cases, except as to the argument of the unsuccessful counsel. There are no better reports in this country than Mr. Chaney's Michigan, and Mr. Stewart's New Jersey Equity, and neither of these habitually furnishes even a memorandum of the arguments. On the other hand, we know of nothing more distracting and useless than the photographic reports of the arguments of counsel in the English reports, with the interruptions of the judges, pertinent or impertinent, as it may happen. It must be borne in mind, on the question of the usefulness of the memorandum, that as a rule, three cases out of four cited by counsel are not in point, and at least a quarter cannot even by courtesy be deemed to have any relevancy to the case under discussion. It is too much to require reporters to examine and sift the citations.

Partisanship received a just rebuke in the nomination of Judge Rapallo for the office of chief judge of the Court of Appeals, in place of Chief Judge Church, deceased, and in the discussions which took place in the convention. This nomination, and that of Chief Judge Folger for the same post, the public will recognize as the fittest that could be made. The nominees are two of the only three remaining members of the court as reorganized under the Constitution of 1870; and by their long and faithful service, by their large attainments and intellectual capacity, by their dignified and courteous demeanor, by their mental equipoise and calmness, and by the public and private purity of their lives, they have earned the entire confidence of the public, irrespective of party. They have adorned the judgment seat, and whichever shall be called to the chief post, the court will continue harmonious and efficient, and will feel in all its members the satisfaction that a just appreciation of excellent public service always brings to those who render it.

The question on which we recently commented, whether a sale of a good-will prohibits the vendor's subsequent dealings with the old customers unsolicited, is thus remarked upon by the Solicitors' Journal: "It seems to us, with deference, that the law as thus left permits great fraud. A man who sells his good-will has only to incur the damages caused by one breach of his duty not to solicit, and the custom of the old customers may be effectually stolen and lawfully retained. No doubt in many cases one purchase at a shop does not make the purchaser a regular customer, but in the case under consideration the trader is practically sure of the custom if he can only get the old customers to learn the existence of his business; and this can be done effectually by the solicitation of one purchase. It appears to us that the only point in favor of the decision of the Court of Appeal was stated by Lord Justice Brett - that an injunction against actually

dealing with the old customers would in effect be an injunction against the public. This is an ingenious theoretical quibble. The injunction would only touch a small number of the public. The honesty of the trading community at large affects them all. No doubt the public benefit is of paramount importance, but it is undoubtedly of vastly greater moment that the frauds of traders should be checked than that a limited number of persons should be deprived of the right of going to two shops instead of being confined to one." It seems to us that this reasoning is illogical in assuming that solicitation is the only means of resuming trade with the old customers. Advertising and setting up the business, without solicitation, would accomplish it to a large extent: If parties choose to bind themselves, on the sale of a business, not to resume that business in that neighborhood, that is one thing; if they choose simply to sell the good-will of the old business, that is quite another. Parties must be judged by their contracts. Unless a sale of a good-will shall be held to be equivalent to a covenant not to resume the same business, the decision in question must be right. The doctrine involved in the contrary argument has never been held, and probably

never will be.

N McAbe v.

NOTES OF CASES.

Thompson, Minnesota Supreme Court, Aug. 30, 1880, 6 N. W. Rep. 479, the question was whether unfinished burial cases and coffins, held by a manufacturer for the purpose of being finished and sold, constituted part of his stock in trade, within the meaning of the exemption law. The court said: "The respondent here, as shown by the findings, which are reasonably supported by the evidence, was a manufacturer, engaged in the business of buying burial cases and caskets, which were in an unfinished condition, but which were so far advanced in the process of manufacture as to be ready for the trimmings on the outside and the lining on the inside, and finishing them himself by his own work and labor, and the addition of such other materials as were necessary to fit them for sale and

use.

It is found as a fact that this additional work, labor, and material were necessary in order to finish them, and to fit them for sale and use; and the uncontradicted evidence shows that they would thereby be enhanced in value about two-thirds. The property which is the subject of this action, and which it is claimed was exempt, consisted of several of these incomplete and unfinished burial cases and caskets, which the respondent had thus bought and was holding for the sole purpose of so finishing and fitting them for sale and use. They constituted as much a part of his stock in trade, within the meaning of the statute, liberally construed, as it must be, as did the screws, nails, trimmings, and lining, which were used in completing or finishing them." It was also held that "the failure of respondent to interpose his claim of exemption as to such property at the time of the levy could not work any estoppel against his making the claim subsequently, for it is

neither found nor shown that the officer did, or omitted to do, any thing by reason of such act of omission of the respondent, or that the plaintiff in the execution was in any way prejudiced thereby." In Vanderhorst v. Bacon, 38 Mich. 669; S. C., 31 Am. Rep. 328, it was held that the right to exemption was not waived by the debtor's failing to claim it and receipting for the goods.

In the late English case of Hatcher v. Ball, the question of restraining the use of a person's name, and the publication of a false advertisement, was decided. The plaintiff was the owner of an hotel at Dawlish called Hatcher's Royal Albert Hotel, and the defendant owned an adjoining hotel called the Royal Hotel. The defendant had married a daughter of Hatcher the father, and had since December, 1877, placed over his door "Hatcher's" Royal Hotel. The defendant had also recently advertised his hotel as the only hotel at Dawlish having an uninterrupted sea view. The plaintiff complained of this advertisement, as his hotel also had a sea view. The plaintiff had advertised his hotel as having a splendid sea view. Pollock, B., said: "Both on principle and on the authority of decided cases, there was no sufficient case here calling for the interference of the court. As to the first part of the motion in reference to the use of the word 'Hatcher,' it was clear that word had been used by the defendant without question since the year 1877, and therefore there was no case either for an interim order, or in fact for an injunction at all. As to the advertisement, he was also of opinion no case had been made out for interference. It was no doubt true that the defendant's advertisement would deceive, and in fact it could scarcely be said that any hotel could have an uninterrupted sea view from all its windows. People should no doubt not exaggerate in their advertisements, but it was a question of degree how far any advertisement constituted an actionable injury. Looking at the question in a reasonable light, would it be said that such an advertisement would constitute an injury, for instance, at Brighton or any of those towns where nearly all the hotels would have a sea view? The only question was, would such an advertisement make any difference where there was perhaps only one other hotel with a sea view? There was here no affirmative statement that the plaintiff's hotel had no sea view,

and therefore the case did not come within the class of cases of Thomas v. Williams and Thorley's, etc., Company v. Massam. It was also clear that defendant did not claim any distinctive name so as to come within another class of cases, and therefore on the whole the motion failed."

In United States v. DeMott, commissioner's court, district of New Jersey, 3 Fed. Rep. 478, it was held that section 3995 of the Revised Statutes, providing that " any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier carrying the same, shall, for every such offense, be punisha

ble by a fine of not more than $100," is applicable to a person stopping a train carrying the United States mail, although he has obtained a judgment and writ of possession from a State court against the railroad company in respect to the lands about to be crossed by such train. Patterson, commissioner, said: "Nor could the fact of want of remuneration by the relators to such owner, if proven in the case, enter as an element for consideration here. The United States were no party to any laches by the relators in that respect, nor are they alleged to have been or to be cognizant of or privy to that failure by this company, or any preceding organization. In the absence of notice, or of the fact being brought to their knowledge, they would be justified in regarding the title of the relators to the land on which their tracks were laid to be as

good as that of any other road over which their mails were carried. They found a road constructed and in running order, and recognized and used it for postal service, just as they do an ordinary highway. To apply the principle of caveat emptor to them in such cases, and say they were bound to look up the title of every railroad and spur and branch, and ascertain if it was clear of claim and cloud, would seem to impair, to a serious extent, the efficiency and benefit of the service." "My opinion is that no ultra or decisive steps should have been taken by the owner at so early a date. On being advised of the facts the authorities of the United States, in equity, would have been compelled to make compensation, or fall back on the bonds of the company. They would have no fair claim to use the road, upon notice of the facts shown here, unless by agreement with the owner. But until such notice their right to carry the mail remained the same as before."

Campbell v. James, U. S. Circuit Court, Southern District of New York, 3 Fed. Rep. 513, is a decision important to postmasters. The plaintiff had recovered a judgment of more than $60,000 damages against Postmaster James, of New York city, for unlicensed use of his patented stamp for cancelling postal stamps. The defendant moved for a cer

tificate under section 989 of the Revised Statutes of the United States. That section is as follows: "When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him, and by him paid into the treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the direction of the secretary of the treasury or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the treasury." The motion was denied, on the ground that a postmaster is not an "officer of the revenue." The court said: "It is clear that the word 'reve

nue,' in all these forms of expression, means only the revenue from customs. The act does not relate

to revenue from any other source. So far as it relates to revenue from any source it relates only to revenue from customs. The words 'officers of the revenue,' in section 12, mean officers of the revenue from customs. The words 'officers of the revenue' in section 989 of the Revised Statutes, which is a mere revision or reprint of section 12 of the act of 1863, can have no different meaning from what it would have had if there had been no revision or reprint. Under said section 12 the words 'other officers of the revenue' would never have been construed to mean a postmaster. Therefore, they cannot be so construed in section 989 of the Revised Statutes. The revision cannot change the meaning of the same words by displacing the enactment from the connection in which Congress originally placed it. This is the view held by the post-office department itself; for in the report of the postmaster-general to the president, of November 8, 1879, reference is made to this suit, and to the decision on it, by the interlocutory decree, adverse to the defendant James, and it is stated that 'there is no provision of Federal law to secure 'certificates of probable cause' to United States officials, other than treasury officials, in cases of adverse judgments for acts done in their official capacity.' This is unquestionably a correct view. For what acts

done in their official capacity 'treasury officials' may have certificates granted to them, under the statute, and whether such acts can ever include the act of infringing a patent, are questions not involved in this case.

CONSTRUCTIVE FRAUD- PHYSICIAN

AND PATIENT.

N Audenreid's Appeal, 89 Penn. St. 114, A. was 70 years old, very wealthy, infirm and confined to the house, but of sound mind and judgment. F. was his physician and confidential friend. A. executed a contract with F., by which, in consideration of one dollar and F.'s services in securing certain stock for A., A. agreed to transfer a certain interest in the stock to F. F. received thereby about $50,000. A. having died, his executors sued to set aside the transaction. Held, that F. was at liberty to show that the transaction was a gift; that a physician is not prohibited from receiving a gift from his patient by reason of the mere relation; and that the burden of proof of fairness is not on the defendant.

So far as the burden of proof is concerned, we are inclined to believe this is opposed to the almost unanimous current of authority. The following are the principal cases of gifts from patient to physician and contracts between them: Gibson v. Russell, 2 Y. & C. 104. Here a deed of real estate from an aged and infirm person to his intimate friend and medical attendant was set aside for fraud, one of the circumstances in proof being that the deed stated, contrary to the proof, a pecuniary consideration, £1,000. In fact the grantor

furnished that sum to the grantee to support a colorable payment. It also appeared that the patient had been under insane delusions. On these grounds the decision is distinguished in the principal case. This is the only hostile decision there referred to.

In Dent v. Bennett, 4 My. & Cr. 269, Lord Chancellor Cottenham said: "A medical attendant obtains from his patient, eighty-five years of age, an agreement to pay him £25,000 for services completed two years before, the regular charge for which had been previously paid; and this privately, without the intervention of any third person, and carefully concealed until after the death of the patient." "It was argued, upon the authority of the civil law, and some reported cases, that medical attendants were, upon questions of this kind, within that class of persons whose acts, when dealing with their patients, ought to be watched with great jealousy. Undoubtedly they are; but I will not narrow the rule, or run the risk of in any degree fettering the exercise of the beneficial jurisdiction of this court by any enumeration of the description of persons against whom it ought to be most freely exercised. 'The relief,' as Sir S. Romilly says in his celebrated reply in Huguenin v. Baseley — (from hearing which I received so much pleasure tha: the recollection of it has not been diminished by the lapse of more than thirty years) — 'the relief stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over another;' and when I find an agreement, so extravagant in its provisions, secretly obtained by a medical attendant from his patient of a very advanced age, and carefully concealed from his professional advisers and all other persons, and have it proved that the habits, views, and intentions of the testator were wholly inconsistent with those provisions, I cannot but come to the conclusion that the medical attendant did obtain it by some dominion exercised over his patient." The court also held that the agreement was void at law, the money being payable at death, as it was an inducement to hasten the patient's death.

Doggett v. Lane, 12 Mo. 215, was a case of a sale by patient to physician, and there was no proof of inadequacy of price. The transaction was sustained.

Billaye v. Southee, 9 Hare, 534, was the case of a poor patient, becoming rich, and executing to his physician a note for £325, an amount greatly in excess of his services, and without the rendition of any account. The court restrained the enforcement

of the note beyond the amount justly due for services, saying: "No part of the jurisdiction of the court is more useful than that which it exercises in watching and controlling transactions between persons standing in a relation of confidence to each other; and in my opinion this part of the jurisdiction of the court cannot be too freely applied, either as to the persons between whom or the circumstances in which it is applied. The jurisdiction is founded on the principle of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied, whatever may be the nature