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TENDENT PERFORMING DUTY OF OPERATIVE FELLOWSERVANT.The liability of a master to his servant for injuries sustained while in his employ, by the wrongful or negligent act of another employee of the same master, does not depend upon the doctrine of respondeat superior. If the employee whose negligence causes the injury is a fellow-servant of the one injured, the doctrine does not apply. Conway v. Belfast, etc., Ry. Co., Irish R., 11 C. L. 353. A servant assumes all risk of injuries incident to and occurring in the course of his employment, except such as are the result of the act of the master himself or of a breach by the master of some term, either express or implied, of the contract of service, or of the duty of the master to his servants. But for the mere negligence of one employee the master is not responsible to another engaged in the same general service. The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory, although having power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives. Albro v. Agawam Canal Co., 6 Cush. 75; Wood's Mast. & Servt., § 438; also §§ 431, 436, 437. On the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant if they result from the omission of some duty of the master which he has confided to such inferior employee. Flike case, 53 N. Y. 549. Tho liability of the master depends upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of this necessarily follows. If the act is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant for its improper performance. The doctrine in Mullan v. Phila. & S. M. S. Co. 21 Am. Rep. 2, sustains this proposition. Accordingly, where B. who represented the employer as financial agent or superintendent, overseer or manager, and stood in his place, held, that he did so only in respect to these duties, which the employer had confided to him; as to other acts about the employer's place, he was a mere employee. And where he turned on steam he performed the act of a mere operative, and the employer would not be liable to a fellow-employee for an injury caused by that act. Judgment reversed. Crispin v. Babbitt, appellant. Opinion by Rapallo, J.; Folger, C. J., Andrews and Miller, JJ., concurred; Earl, Danforth and Finch, JJ., dissented. [Decided Sept. 21, 1880.]

WILL-SERVICES TO TESTATOR PAID BY LEGACYCOURT OF APPEALS WILL NOT REVERSE ON FACTS-EVIDENCE PAROL, NOT ADMISSIBLE TO SHOW TESTATOR'S INTENTION AS TO LEGACY PRESUMPTIONS AS TO LEGACIES. (1) The doctrine in Reynolds v. Robinson, 64 N. Y. 589, that where an agreement is made between two parties that compensation for services rendered by one of them to the other shall be made by a provision in the will of the latter, and a provision is made sufficient only to compensate in part for the services, the party rendering them has, after the death of the other, a cause of action against his representatives for the balance remaining due over and above the testamentary provision, reaffirmed. (2) This court, in reviewing the determination of a trial court upon the facts, is confined to the inquiry whether there is any evidence to sustain it. It does not pass upon the weight or preponderance of evidence, nor in a case where opposing inferences may be drawn can it review a finding, because in its judgment the inference de

duced by the trial court is improbable or more unlikely to be true than the opposite one. (3) In an action against the representative of an estate for services rendered testator by plaintiff's wife, after her marriage, it was claimed by defendant that certain legacies to such wife and her daughter, which were for a less amount than the value of the services, were in payment of such services under an agreement between the testator and the wife. The legacies were given "after payment of debts." Defendant offered to show by the scrivener who drew the will, that at the time it was drawn testator stated that the legacies were given in payment of services rendered by the wife, in compliance with a promise. Held, that the testimony was inadmissible. The general rule is, that the declarations of a testator before, contemporaneously with, or after the making of a will, are inadmissible to affect its construction. 1 Redf. on Wills, 538. In Mann v. Executors of Mann, 1 Johns. Ch. 231, Chancellor Kent said that the rule was well settled that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of a testator, except in two cases, viz., where there is a latent ambiguity arising dehors the will as to the person or subject meant to be described, or to rebut a resulting trust. A legacy implies a bounty, and not a payment, and to admit extrinsic evidence to contradict this would be to contradict by oral evidence the legal effect of a written instrument and to violate the statute of wills, for then, as Lord Chancellor Talbot said, in Fowler v. Fowler, 3 P. Wms. 353, "the witness and not the testator would make the will." See, however, as to presumptions, Chancy's case, 1 P. Wms. 408; Hooley v. Hutton, 1 Bro. C. C. 390; Hurst v. Beach, 5 Madd. 351; Trimmer v. Bayne, Ves. 508; Osborne v. Duke of Leeds, 5 id. 369; Hall v. Hill, 1 Dr. & War. 94; 1 Redf. on Wills, 646. In this case no presumption arose that the legacies to the wife and daughter were intended as a satisfaction of the debt owing by testator to the plaintiff, for several reasons: first, the legacies were given "after payment of debts" (Boughton v. Flint, 74 N. Y. 476); second, they were of less amount than the debt (Cranmer's case, 2 Salk. 508; Graham v. Graham, 1 Ves. Sen. 263; Atkinson v. Webb, 2 Vern. 478); third, the debt was unliquidated (Williams v. Crary, 5 Cow. 368; S. C., 4 Wend. 449); and fourth, the legacies were not given to the creditor, but to a third person (Clark v. Bogardus, 12 Wend. 67). See, also, Eaton v. Benton, 2 Hill, 576; Phillips v. McCombs, 53 N. Y. 494. Judgment affirmed. Reynolds v. Robinson et al., appellants. Opinion by Andrews, J. [Decided Sept. 21, 1880.]

MASSACHUSETTS

SUPREME JUDICIAL COURT ABSTRACT. SEPTEMBER, 1880.

BANK RIGHT TO APPROPRIATE SECURITIES OF THIRD PERSON DEPOSITED BY DEBTOR AS HIS OWN.

Plaintiff placed a promissory note, owned by him, made and indorsed by third persons, in the hands of J. for collection. J. deposited the same with the defendant bank where he did business, for collection, giving the bank no notice as to his relation to the note. The bank collected the note and applied the proceeds to the account of J., against whom it held an unrecovered indebtedness. Thereafter J. became bankrupt aud the defendant settled with his assignee in bankruptcy. As soon as plaintiff learned of the collection of the note and the disposition of its proceeds, about a year after such settlement he demanded such proceeds from defendant. Held, that plaintiff was not entitled to such proceeds. It has long been settled that a banker who has advanced money to another has a gen

eral lien on all securities of the latter which are in his hauds for the amount of his general balance, unless such securities were delivered to him under a particular agreement limiting their application. Bank of Metropolis v. New England Bank, 1 How. 234, and 6 id. 212; Sweeney v. Easter, 1 Wall. 166. One who takes a negotiable promissory note before maturity as security for a pre-existing debt is, by the law of this State, a holder for value. Culver v. Benedict, 13 Gray, 11. Such being the law, the defendant received the note, undertook its collection and applied the proceeds; and the unknown owner of it, who gave it to J. with all the appearance of title, cannot be permitted to defeat the right of the defendant, who, long before it had knowledge of the claim, had applied the same to the payment of J.'s debt and settled with his assignee in bankruptcy. See Locke v. Lewis, 124 Mass. 1. Wood v. Boylston National Bank. Opinion by Colt, J. NEGLIGENCE-DANGEROUS ARTICLE- -GAS-CONTRIBUTORY NEGLIGENCE-AFFIRMATIVE PROOF OF WANT OF. In an action for injury to plaintiff, a child of five years, from the inhalation of gas escaping from defendants' pipes, it appeared that plaintiff and his mother slept in a room adjoining a court in which the pipes from a crack in which the gas escaped were laid; that the mother was found dead and plaintiff insensible; that the accident took place in the night; that there were no gas fixtures in the room occupied by plaintiff, and there was no evidence that the mother had notice of the escaping gas or was conscious of its presence in time to take precautions against its deleterious effect; that on the day before the accident there was no smell of gas in the court; that the mother was a sober and prudent woman. Held, that there was evidence sufficient to sustain a verdict in favor of plaintiff for injury by the escaping gas. The burden was upon the plaintiff to show that he and his mother were in the exercise of due care in respect to the occurrence from which the injury arose. But this, as was said in Mayo v. Boston & Maine Railroad, 104 Mass. 140, although in form a proposition to be established affirmatively, need not be proved by affirmative testimony addressed directly to its support. It may be shown by evidence which excludes fault. And in the case at bar, there was nothing which excluded the inference that both mother and child on that night went to bed and to sleep in the usual manner with nothing to indicate that there was unusual exposure to injury, and that they were suffocated in their sleep by the gas which escaped from the defendant's pipes. If this were so, they were clearly in the exercise of such care as prudent people ordinarily use under circumstances of similar exposure to injury from hidden and unsuspected causes. Craig v. New York, etc., Railroad, 118 Mass. 437; Commonwealth v. Boston & Lowell Railroad, 126 id. 61; Hinckley v. Cape Cod Railroad, 120 id. 257. And there was sufficient evidence of defendant's negligence to make it responsible. Smith v. Boston Gas-Light Co. Opinion by Colt, J.

TRADE-MARK-ARABIC NUMERALS MAY BE.-Plaintiff used as a trade-mark for many years upon hosiery the figure of an eagle surmounting a wreath formed of the branches of the cotton plant. The wreath inclosed the words “Lawrence Manufacturing Company printed in a circle, having underneath it the word "trade-mark," and, below all, the figures "523," printed in large hollow block numerals. Before this, the plaintiff had used an eagle and scroll in combination with other numerals as a trade-mark upon the same grade of hosiery. Defendant stamped hosiery made by it with a device consisting of an eagle surmounting a double circle or garter, on which were printed the words extra finish iron frame" and beneath the figures "523," printed in large hollow block numerals of the size and description used by the

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plaintiff and occupying the same position with reference to other parts of the device. Held, under a statute protecting a person who uses any peculiar name, letters, marks, device or figures upon an article manufactured or sold by him, to designate it as an article manufactured by him, that defendant's stamp was a violation of plaintiff's trade-mark entitling plaintiff to protection. Lawrence Hosiery Manufacturing Co. v. Lowell Hosiery Mills. Opinion by Colt, J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER, 1880.

CONSTITUTIONAL LAW-SALARY OF JUDICIAL OffiCER RIGHT OF LEGISLATURE TO CHANGE TERM AND

COMPENSATION.-An act of the Legislature creating a county court of limited civil and criminal jurisdiction, and fixing the salary of the judge, payable out of the county treasury, may be amended so as to change the salary of e judge of such court during the term for which he has been elected; and the constitutional provision which forbids the "compensation of any public officer" to be "increased or diminished during his term of office." Constitution, art. 4, § 26, is inapplicable to such a case. It is well settled that, in the absence of any constitutional prohibitions or affirmative provisions fixing the term of office of any officer, or his compensation, the Legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected. The authorities fully establish this point. Butler v. Pennsylvania, 10 How. (U.S.) 402; Co. Com'rs v. Jones, 18 Minn. 199; Taft v. Adams, 3 Gray, 126; Connor v. New York, 5 N. Y. 285; People v. Barnard, 27 Cal. 470; In re Bulger, 45 id. 553; Cooley on Const. Lim. 276 and note; Supervisors v. Hackett, 21 Wis. 613; State v. Douglass, 26 id. 428; Hall v. State, 38 id. 89. State ex rel. Martin v. Kalb. Opinion by Taylor, J.

CONTRACT DURESS -ILLEGAL CONSIDERATION COMPOUNDING FELONY — RESCINDING OF CONTRACT.—

By duress of imprisonment on a criminal charge, with threats of future prosecution if a certain sum of money be not paid him, and promise to dismiss the prosecution on such payment being made, A. induces B. to procure for him negotiable promissory notes for said sum from X., a friend of B., and then causes the prosecution to be dismissed and B. discharged. B. thereupon gives X. his (B.'s) own notes, secured by mortgage, for the same amount, and X. pays his notes to A. when due. B. is not guilty of said offense. The complaint against him fails to charge him with any offense, the warrant on which he was arrested is void on its face, and both complaint and warrant are colorable only. Held, (1) that even if a felony had been charged and committed, the act of X., in giving such notes, would not have rendered him particeps criminis in the attempt to compound the felony; (2) that even if the original transactions were illegal as to all the parties yet after it has been fully performed, and A. has received the avails of it, he might be compelled by B. to account, on the ground of its illegal character; (3) that it is immaterial that X. paid his notes after the duress had ceased, such payment not having been induced by any act of B. after the duress had ceased; (4) that if B., after his release from duress, might by suit have restrained payment of the money by X. to A., and rescinded the whole contract, yet his failure to do so is no defense to his action against A. for the amount. Kiewert v. Rindskopf, 46 Wis. 481; Armstrong v. Toler, 11 Wheat. 258; McBlair v. Gibbes, 17 How. 236; Brooks v. Martin, 2 Wall. 70; Planters Bank v. Union Bank, 16 id. 483; Buehr v. Wolf, 59 Ill. 470; Deanville v. Merrick, 25 Wis. 688. Heckman v. Swartz. Opinion by Orton, J.

SALE OR RETURN- EVIDENCE OF SALE.- Where A takes to his own house a horse of B, intending to purchase it if satisfactory, with an understanding that he is to use it by way of trial until a specified time, and then, if not satisfied, bring it back to B, or if too busy for that, to let it stand unused until B comes for it, and A continues to use the horse after the time so fixed, and then refuses to buy and offers to return it, this is evidence for the jury on the question whether A, at the time so fixed, had determined to retain the horse, and is therefore liable for the price, but is not conclusive evidence. In any view of the case the evidence proved what is denominated "sale on trial" or "approval," or a "sale or return." In such cases the sale is not consummated, and the title remains in the vendor after the delivery and until the approval is signified by the vendee, or until he so conducts himself with regard to the property that the law will presume that he has approved of the property and is satisfied to keep it as his on the terms agreed upon. See Benjamin on Sales, § 595; Mowbray v. Cady, 40 Iowa, 604; Hunt v. Wyman, 100 Mass. 198. Kahn v. Klabunde. Opinion by Taylor, J.

IOWA SUPREME COURT ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-UTAH DIVORCE WITHOUT JURIS

DICTION INVALID-PAROL EVIDENCE SHOWING WANT

OF JURISDICTION.-In an indictment for adultery the defendant set up in bar a Utah divorce. The prosecution offered to prove by parol facts showing that the Utah court had no jurisdiction. The decree of the Utah court did not on its face show that it had jurisdiction. Held, that the evidence was competent and if the facts were proved the divorce was no defense. It has been held, in an action on a judgment or decree rendered in another State, that it was competent to establish by parol that the court had no jurisdiction. Lowe v. Lowe, 40 Iowa, 220; Webster v. Hunter, 50 id. 215. As the evidence offered to be introduced by the State would have tended to show the Utah court did not have jurisdiction, the district court erred in rejecting it. If there was no jurisdiction, the decree was absolutely void and the defendant guilty, if the allegations in the indictment were established to the satisfaction of the jury. Whitcomb v. Whitcomb, 46 id. 437; State v. Whitcomb, 2 N. W. Rep. 970. It was held in People v. Smith, 13 Hum. 414; Hood v. State, 56 Ind. 263; and Letowich v. Letowich, 19 Kan. 451, that a Utah divorce, obtained without jurisdiction, or where neither party was a resident of the territory, was absolutely void. State of Iowa v. Fleak. Opinion by Seevers, J.

MECHANICS' LIEN-INCHOATE RIGHT TO, NOT ASSIGNABLE ASSIGNMENT OF INSTALLMENT DUE ON CONTRACT.-One who performs work on a contract, for which he is entitled to a mechanics' lien, cannot before he has completed his work assign an installment due for such work so as to transfer the right to file such lien to his assignee, even when by statute the lien is assignable and transferable. As to the assignability of a mechanics' lien, independently of a statute especially authorizing it, there is a conflict of authority. The following authorities hold that the lien of a mechanic or materialman is a personal right and cannot be assigned. Caldwell v. Lawrence, 10 Wis. 33; Pearson v. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. Y. 766. The following authorities hold that where the contractor has completed his contract and filed his claim for a lien, he may assign both the debt and the lien. Tuttle v. Howe, 14 Minn. 145; Skryme v. Occidental Mill Co., 8 Nev. 219; Davis v. Bilsland, 18 Wall.

659.

In Young Stone Dressing Co. v. Wardens St. James Church, 61 Barb. 489, the assignment and lien were sustained, but not on account of any claim for a lien filed by the assignee, for the statement of the case shows that the assignee, upon the trial, discovered tho lien by him filed, as a ground of claim in the action. In Iaege v. Bossieux, 15 Gratt. 83, the contractor assigned his contract before the completion of the work, and it was held this assignment entitled the assignee to the contractor's lien. No case has been found where it is held that the assignment of an installment due before the completion of the work carried with it to the assignee the right to file a claim for and to enforce a lien. "The statute does not contemplate that a contractor or sub-contractor may, from time to time, as the work progresses, file successive liens for work and materials performed and furnished under an entire contract, but he is entitled to acquire only one lien, and for this purpose his claim must be filed within tho time specified in the statute after the completion of the work." Cox v. W. P. R. Co. 44 Cal. 18. See, also, Phillips Mech. Liens, § 324. Merchant v. Ottumwa Water Power Co. Opinion by Day, J.

MORTGAGE.-CHANGE OF FORM OF INDEBTEDNESS DOES NOT DISCHARGE.-A corporation purchased real estate and as a part of the purchase money executed its promissory notes which were secured by a mortgage on such real estate. Thereafter the holder of the notes surrendered them and took other evidences of indebtedness in their place, the surrendered notes being marked paid. The mortgage was not discharged. Held, that the mortgage remained a valid security as between the debtor and creditor and as against a subsequent mortgage given to one who had been, while the change of evidences of indebtedness took place, a director in the corporation, and who had sufficient knowledge of the facts to put him upon inquiry. Bolles v. Chauncey, 8 Coun. 389; Funk v. Branch, 16 id. 259; Brinkerhoff v. Lansing, 4 Johns, 65; Tobey v. Barber, 5 id. 68; Watkins v. Hill, 8 Pick, 522; Pomeroy v. Rice, 16 id. 22; Cole v. Sackett, 1 Hill, 516; Putnam v. Lewis, 8 Johns. 389; Johnson v. Weed, 9 id. 310; Flower v. Ellwood, 66 Ill. 438; 2 Am. Lead. Cas. 245; Paine v. Voorhis, 25 Wis. 526; 2 Jones Mortg. § 924; Sloan v. Rice, 41 Iowa, 46; Farwell v. Grier, 38 Iowa, 83; Port v. Robbins, 35 id. 208; Farwell v. Salspaugh, 32 id. 582; Packard v. Kingman, 11 id. 219. Heivly v. Mattison. Opinion by Day, J.

MINNESOTA SUPREME COURT ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-FEDERAL PROVISION AS ΤΟ STANDING OF STATE JUDGMENTS-WANT OF JURISDICTION-DIVORCE.—The requirement of the Federal Constitution, that “full faith and credit shall be given in each State to the records and judicial proceedings of every other State," has no application to decrees and judgments in actions wherein the court has acquired no jurisdiction over the parties to be thereby affected. Bissell v. Briggs, 9 Mass. 462. If, therefore, upon an inspection of the record from another State, want of jurisdiction is disclosed as to a necessary party, the judgment or decree will be held void and of no effect as to such party, even in a collateral proceeding. Hahn v. Kelly, 34 Cal. 391. In determining the question of jurisdiction from such inspection in a case, when the record itself shows a particular mode or manner in which jurisdiction over the person of the defendant was acquired, it will not be presumed to have been obtained in any other way, in the absence of any averment or recital to that effect. Settlemeir v. Sullivan, 97 U. S. 447; Falken v. Gould, 10 Wis. 506. Where a

statute provides for constructive service of process by publication, as a substitute for personal service, it must be strictly followed in order to bring the party served within the jurisdiction of the court. Where a statute required that a defendant served by publication should be given three months in which to appear and plead, and an order made and published in a case gave defendant only two months, held, that a judgment entered therein was a nullity. Gray v. Larrimore, 2 Abb. C. C. 542; Settlemeir v. Sullivan, 97 U. S. 444; Brownfield v. Dyer, 7 Bush (Ky.), 505. Morey v. Morey. Opinion by Cornell, J.

MUNICIPAL CORPORATION-CANNOT BE GUILTY OF CONTEMPT.-A municipal corporation cannot be guilty of a contempt in disobeying an injunction; such contempt, if any, in disobeying a writ directed to the city must be the contempt of individual persons; as, for instance, of officers of the city. Davis v. Mayor, etc., of New York, 1 Duer, 484, 509-10; London v. Lyun, 1 H. Bl. 206. Bass v. City of Shakopee. Opinion by Berry, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

-

MAY, 1880.

CONSIDERATION-MORAL OBLIGATION OF MARRIED WOMAN. The debt of a married woman, which she is not bound to pay, will prove a sufficient consideration to support an obligation under seal, by a third person, to pay it. It is true, as a general rule, the contract of a married woman is void, so that no action will lie against her for its breach. To this, however, there are - some exceptions. Although no recovery may be had against her, it by no means follows that the equity of the claim may not be sufficient consideration to support the express promise of a third person to pay it. It has been held to be a sufficient consideration to support the promise of the wife herself, made after her coverture had ceased, and she had become sui juris. Brown v. Bennett, 25 P. F. Smith, 420; Trout v. McDonald, 2 Norris, 144. The tendency of the authorities is to treat the disabilities of a married woman as a personal privilege, which does not extend to any person who unites with her in a contract. Thus, if she execute a note jointly with her husband she may not be bound, yet he shall be bound for the whole. Unangst v. Fitler, 3 Norris, 135. Leonard v. Duffin. Opinion by Mercur, J.

HUSBAND AND WIFE-CONTRACT BY WIFE BEFORE MARRIAGE. —A woman hired a dwelling-house and took possession, agreeing to pay a specified rent. Thereafter she married, continued to occupy the house, her husband not living with her but visiting her frequently, and occasionally remaining with her over night. Held, that the husband was not liable for the rent of the house accruing after the marriage. The duty of a man to support and maintain his wife is well settled, and may be enforced by legal process in case of his refusal or neglect to do so. But he was a stranger to this contract. The lessee was in possession of the premises under a lease when he married her. The contract and liability were hers. He no more assumed the payment of her liability under the lease than he did of her other debts, if any existed. It is true she lived in and enjoyed the use of the house for some months after her marriage. In like manner her clothing purchased before was worn and used after mar

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The Association will reconvene at 3 o'clock P. M., when the following will be the order:

Annual Address, by Hon. George W. Biddle, of Philadelphia, Penn. Subject: "Retrospective Legislation."

Report of the Committee on Prizes. Mr. John I. Gilbert, Chairman.

Essays will be read by members of the Association, as follows: Hon. Matthew Hale, of Albany; Edward E. Sprague, of Flushing; James D. Teller, of Auburn; Joshua Gaskill, of Lockport, and others, upon subjects to be announced.

All members of the Bar are invited to attend the afternoon session.

At 6.30 o'clock P. M. the annual dinner will be had at the Kenmore Hotel.

Tickets may be procured at the Kenmore Hotel, and from the members of the Committee. By order of the Committee of Arrangements. TOMPKINS WESTERVELT,

riage-if unpaid for, the husband could not be held THIS responsible for it. Biery v. Ziegler. Opinion by Paxson, J.

WILLIAM M. IVINS,

Chairman.

Secretary.

CLIFFORD A. HAND, PEYTON F. MILLER, CHARLES J. BUCHANAN, S. W. ROSENDALE,

Committee.

NEW BOOKS AND NEW EDITIONS.

XX AMERICAN DECISIONS.

HIS volume extracts cases from 2, 3 Stewart, 8 Connecticut, 2 Blackford, 3, 4, 5 J. J. Marshall, 8 Martin, U. S., 1, 2 Louisiana, 6, 7 Greenleaf, 2 Bland's

Chancery, 2, 3 Gill & Johnson, 9, 10 Pickering, 5 New Hampshire, 6 Halstead, 2, 3 Wendell; and important notes on nuncupative wills; whether jury bound by erroneous instructions; nature and scope of bills of review; action of land officers, when conclusive; custody of child on habeas corpus; mandatory injunction, jurisdiction to grant; insurable interest; contribution between joint principals, one being insolvent; validity of mortgage for future advances; action for possession of chattels levied on under execution.

LANDRETH ON SALE.

A Brief Analysis of Sale. An Essay. By Lucius S. Landreth, of the Philadelphia Bar. Philadelphia: Rees, Welsh & Co., 1880. Pp. x, 65.

This monograph combats the almost universal idea that on a contract of sale of goods, where nothing remains to be done by the vendor, as between him and the vendee, the property vests in the vendee, the vendor retaining only a right of possession until payment. The author advocates his theory ingeniously, and fortifies it by some eminent authorities, but the contrary rule is so firmly fixed that nothing short of legislation can modify it. And for ourselves, we see "no need of a change."

SAXTON'S TAX LAWS, AND EXCISE LAW, ETC., OF NEW YORK.

Laws of the State of New York relating to the Assessment and Collection of Taxes, including the Statutes of 1880. Containing the Laws relating to Treasurers, Supervisors, Assessors, Collectors, and all officers under the General Tax Laws. With Notes of Judicial Decisions and an Appendix of Forms. By William W. Saxton. New York: S. A. Wilder & Co., 1880. Pp. 269.

Excise Law of the State of New York, with Civil Damage Act, and all Statutes, including 1880. With Notes of Decisions of the Courts and Forms. By William W. Saxton. Second Edition. New York: S. A. Wilder & Co., 1880. Pp. 76.

These are convenient manuals, but the former will hardly supersede Mr. Thompson's Supervisor's Manual and Assessor's, Collector's and Town Clerk's Manual. Neither of the present works professes to be in any sense a treatise, and the references to decisions are the barest. The latter manual we should judge likely to be the more useful, and quite useful, although under the civil damage act the references to decisions ought to be much more ample. Mr. Lawson's manual on this subject is a model. In one point of view, however, these manuals have a superiority- they propose to come down to the present year in statutory citations and adjudications.

THE

OBITUARY.

LORD JUSTICE THESIGER.

HE Right Hon. Alfred Henry Thesiger, one of the judges of the English Court of Appeal, died October 20th, suddenly and unexpectedly, at the age of forty-two. He was the third surviving son of the first Lord Chelmsford. He was educated at Eton and at Christ Church, Oxford, and was called to the bar in 1862. In 1873 he received a silk gown from Lord Selborne. At first his leading business was mainly confined to parliamentary committees and to compensation cases, but he soon acquired a leading business at Nisi Prius, and was extensively employed in the House of Lords, and he acquired a practice worth £10,000 annually. He served upon the Extradition Commission and the Fugitive Slave Law Commission. In 1877

he was appointed Attorney-General to the Prince of Wales, and two months afterward was appointed a Lord Justice of Appeal, and was sworn a member of the Privy Council. As he was then only thirty-nine years old, the appointment was severely criticised, but he soon justified Lord Cairns' selection. His judgments were carefully prepared and well reasoned, and his courteous manner rendered him a general favorite with the bar. The Law Times says: "A brilliant career, which those who knew the Lord Justice well anticipated would be crowned with the highest honors attainable by a lawyer, has been abruptly terminated; but not until abundant evidence has been furnished that he possessed all the qualifications of a judge. At the bar Mr. Alfred Thesiger was distinguished for his grasp of detail, his lucidity of statement and the perfect fairness with which he stated his case. He appreciated with rapidity and accuracy points of law when they were presented to him, and without difficulty ho laid before the court the whole of his case in logical order. As Lord Justice the powers which he possessed shone conspicuously. He was peculiarly fitted for the high order of judicial work provided by a court of appeal. His judgments are models of clearness, free from verbosity-which too frequently covers confusion of ideas and couched in language singularly apt and judicial. His demeanor to the bar was that of a courteous gentleman who knew that the business of a judge is to hear arguments, not to interrogate or interrupt counsel. That he felt his position-a judge of appeal when not yet forty-to be delicate and difficult, wo believe; and in the present year, when congratulating a county court judge on his appointment, he expressed a doubt whether the office of the latter was not more to be envied than that of a Lord Justice. After three years of conscientious and valuable labor he has been cut off. The country, the law and the legal profession thereby sustain a loss which it is difficult to exaggerate. Judicial intellects are rare. Lord Justice Thesiger promised in the progress of years to develop a judicial intellect of the highest order." The Law Journal says: He was not one of those of whom there have been many examples in English legal history men who made their way, in spite of adverse circumstances, by force of genius and perseverance alone. He was rather one who, being placed in the best situation for success, was quite equal to the situation, and succeeded. He would not have succeeded had he not possessed great industry and conscientiousness. Those who sent their briefs to Mr. Thesiger knew that the law and facts would be mastered by him. He was not a man of great quickness of parts; but he knew his defects. He acquired by labor what others had by intuition, and was able to equal and sometimes beat them in the race. He had not the faculty of picking up facts as the case proceeded, and perceiving the law as if by intuition; but by hard work he made himself practically almost as effective a forensic ally as if he had been gifted by nature with these qualities. The process he pursued was in the highest degree creditable to his powers of application and self-constraint; but it required great bodily and mental exertion. Without any wild theorizing, it may well be supposed that under this strain the machine wore out. The rest which the bench supplied-coming, although it did, much earlier than any one born under inferior auspices could have expected -was not sufficient to restore the balance. He was not long enough on the bench to make a judgment of his judicial capacity possible. The moral qualities which had served him so well at the bar asserted themselves in the higher position. He was patient, dignified and painstaking. It fell to his lot to prepare several of the judgments of the Court of Appeal in the cases in which he took part, and they are examples of close reasoning and clear expression. He also exhibited great independence of judgment."

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