dence having been taken, the company's solicitor stated that he should be prepared with further evidence on a future day, and thereupon C. and the plaintiff were remanded for a week, the plaintiff being admitted to bail. Upon being brought up again on the 13th October, no evidence was offered against the plaintiff, and at the instance of the company's solicitor he was discharged, C. being committed for trial, and being afterward tried at the sessions and acquitted.

Upon the trial, before Brett, J., of an action by the plaintiff against the company for a malicious prosecution, the plaintiff in evidence stated the above facts, and positively denied having committed any felony, and declared his ignorance of any having been committed. Being cross-examined by the defendants' counsel as to what took place before the magistrate on the 5th October, his evidence as to that was objected to by his counsel, on the ground that evidence of what was said by other persons before the magistrate, at a time when the plaintiff was a prisoner, and could not answer, tending to show that a felony had been committed, was not admissible; but the objection was overruled. The plaintiff was nonsuited by the learned judge, on the ground that there was no evidence of a want of reasonable and probable cause, or of malice; the learned judge being also of opinion that, on the authority of Purcell v. Macnamara, 9 East, 363, 1 Campb. 199, the plaintiff was bound to give evidence of a want of reasonable and probable cause, which he had not done, and that there was evidence that evidence was given before the magistrate, which the plaintiff had not produced. Upon a rule to set that nonsuit aside, on the grounds, first, of misdirection, inasmuch as there was evidence for the jury of a want of reasonable and probable cause; and secondly, of misreception of evidence, it was held, by Kelly, C. B., and Cleasby, B. (making the rule absolute for a new trial, Bramwell, B., dissentiente,) that the nonsuit was wrong, and that there was evidence for the jury of a want of reasonable and probable cause.

-

By Kelly, C. B. — The evidence of a want of reasonable and probable cause is, of itself, if believed by the jury, evidence of malice to maintain the action; and the deputing, by the defendants, the power to charge a person with a felony, to a detective officer, who, without any knowledge of his own, but acting on information, swears positively that such person has been guilty of a felony, is, in the absence of evidence by the defendants of reasonable and probable cause for instituting the proceedings, evidence of malice entitling the plaintiff to maintain the action.

Sed quære, whether such an action will lie at all against a corporation.

By Cleasby, B.-A plaintiff must give some evidence of the want of reasonable and probable cause, а the mere discontinuance of the proceedings is not cient evidence of that. But the plaintiff here having negatived, as far as he could, the evidence of reasonable and probable cause, it was for the defendants to make it out, if there was any.

Sed contra, by Bramwell, B.- First, the evidence objected to was admissible on the grounds that it was given at the time when the plaintiff was in the dock, and had a right to cross-examine the witness, and that it was evidence which the defendants were entitled now to give, as showing that the plaintiff knew what the cause was on which they had acted. Secondly, the learned judge was right in holding that the plaintiff had failed to show a want of reasonable and proba

ble cause, and it was for the plaintiff to show what the alleged cause on which the defendants acted was, and that it was unreasonable and groundless. Purcell v. Macnamara, 9 East, 361; 1 Campb. 199; 2 Stark. on Ev. (3d ed.) 682. Thirdly, there was no evidence of malice against any one. Fourthly, the action will not lie against a corporation which is incapable of feeling or suffering from, or being actuated by, malice. Henderson v. The Midland R. R. Co., Ex. 24, L. T. R. 881.

MARINE INSURANCE.

Particular loss suffered by ship while insured under one policy, and total loss while insured under another: merger of partial into total loss: rights of insured.— Plaintiff insured his ship with various underwriters, among whom were defendants, for the voyage from L. to C., and thirty days after arrival at C. Before the ship reached C. she suffered a particular loss. Plaintiff, not knowing of this, insured her while at C., and on the voyage from C. to L., under a valued policy (the value taken fairly representing the real value of the ship in an uninjured state) with various underwriters, among whom were defendants. On arrival at C. the ship was taken into dock, where it was ascertained that considerable repairs were required. These repairs were set on foot, but before they were completed, and after the first policy had expired and the second policy had attached, the ship was totally destroyed by fire. The two policies were altogether independent of each other. Held, that plaintiff was entitled, under the first policy, to recover, not only the cost of the repairs actually executed, but the whole amount that it would have cost to complete the repairs rendered necessary by the damage sustained, and, under the second policy, the sum at which the ship was valued in the policy, without any deduction in respect of that part of the sum claimable under the first policy, which had not been actually expended in repairs. Lidgett v. Secretan et al. C. P. 24, L. T. R. 942.

NEGLIGENCE.

Railway: a brick falling from the structure of a bridge. The defendants' railway crossed a public highway by means of a bridge, which consisted of iron girders resting on perpendicular piers. As the plaintiff was passing along the highway under the bridge a brick fell out of one of the piers and did him serious injury. It also appeared that, the pier being shortly

afterward examined, there were several other places in it from which bricks appeared to have fallen since the accident. The jury having found for the plaintiff, held, that there was evidence of negligence sufficient to support their finding. Kearney v. The London, Brighton, etc., Railway Co., Ex. Ch. 24, L. T. R. 913.

TRADE-MARK.

Spurious imitation: consignment to agent ignorant of the fraud: injunction: costs.-Certain goods bearing a spurious imitation of the plaintiff's trade-mark were shipped by foreign merchants to the London docks, to the order of a London firm who were not dealers in the goods in question, but merely acted as forwarding agents. On a bill by the plaintiff to restrain the removal of the goods from the dock with the spurious brand on them, held, that the London firm were as liable as if they were dealers in the goods in question, but that, as it was proved that they were not guilty of participation in the fraud of the foreign merchants, and as they had given the plaintiffs all information in their power, no costs would be given against them on their under

taking to give information to the plaintiff in the event of their receiving a consignment of any more goods bearing a spurious imitation of his trade-mark. Upmann v. Elkan, Rolls 24, L. T. R. 896.

VENDOR AND PURCHASER.

1. Contract for sale: time essence of contract: objection. Under a contract for sale it was provided that the vendor should deliver his abstract within twentyeight days, and that the purchaser should make his requisitions within a like period, and that every objection not so made should be considered as waived, and that in this latter respect time should be of the essence of the contract. The vendor did not deliver the abstract within the specified time, and it was held that his omission to do so wholly relieved the purchaser in making his requisitions from any obligation as to time. Upperton v. Nicholson, Chan. 25, L. T. R. 4.

2. On the delivery of the abstract a valid objection was patent on the face of it, but it was not taken, though other requisitions were made; further abstracts were delivered and negotiations were continued, which ended in disagreement and the filing of a bill for specific performance by the vendor. A decree was made directing in the common form a reference as to title. Held (reversing the decision of the master of the rolls), that, as the decree contained no direction that any objection possible on the abstract should be considered as waived by the fact that the purchaser had not taken it when he first perused the abstract, it was still open to the defendant to insist on the objection which he had, at first, not made. Ib.

3. But under such circumstances he was allowed no costs of the suit, although the objection was a valid one, and fatal to the vendor's title. Ib.

4. Wherever a reference as to title is made, it means of necessity a title "having regard to the contract," whether these or similar words be in the decree or not. Ib.

VOLUNTARY DEED.

An old man of eighty-six years of age executed a conveyance of certain freeholds in consideration of natural love and affection, to his son, to the use of himself for life, with remainder to his son in fee. The deed did not contain any power of revocation, and the propriety of inserting such a power had not been suggested to the grantor. Subsequently the grantor conveyed all his property to his daughter, who, by the deed of conveyance, covenanted to indemnify him against a mortgage debt, to which part of the property was subject. On a bill by the daughter to set aside the prior voluntary conveyance, held, that the deed must be set aside, as it contained no power of revocation, and as it was clear that the propriety of reserving such a power had not been suggested to the grantor; but without costs, as there was no evidence that the execution of the deed had been obtained by fraud. Mountford v. Keene, Rolls, 24 L. T. R. 925.

WILL.

1. Construction: period of distribution: issue: children. The will of a testator contained a direction to trustees, after failure of limitations to A. and B., to sell and pay a share of the proceeds to the children of C., "then living" and to pay another share to D. for life, with remainder over to the children of C., "then living," as in respect of the first share. The words "then living" were held, in both clauses, to refer to the same class of children, namely, those living at the failure of the prior limitations. But where, after divers other limitations, there was a limitation to one for

life, and after his decease, to his issue, then living," "then" was held to refer to the death of that last tenant for life. Heasman v. Pearse, Chan. 24, L. T. R. 864. 2. The word "issue," meaning issue indefinitely, in some parts of the will, was held to mean issue in the first degree in others, but the word "issue" by refer ence to a parent was held to mean "children." Every limitation after an estate tail must, like an original estate, be good in itself, unless it be by way of contingent remainder, which must take effect, if at all, during the continuance of the estate tail or at the moment of its determination. Ib.

3. Leaseholds were settled to the same uses as freeholds by words of defective reference; but these words were, nevertheless, held to refer sufficiently to the limitations of the freeholders. Ib.

4. The will contained a devise on the decease of J. to the children of A. H. then living, and the issue of such of them as should be then dead leaving issue, share and share alike, but so as such issue should have no greater share than his or her deceased parent would have had if living. The children of A. H. living at the decease of J. were held, as a class, to take as tenants in common with the classes of deceased children, but the members of each such class to take as joint tenants. Ib.

DIVORCE.

THE MOHAMMEDAN LAW.-It is well that we have not in England any thing like the Mohammedan law of divorce, or wives would be in a sad way indeed. The high court of Bombay has just given a decision, under which a woman marrying a follower of the prophet may give up the idea of having any rights. It appears that the wife of a Mussulman of the Khoja caste having been cruelly ill-treated and banished from home by her husband, from whom she had lived apart for some years, applied to the police magistrate for a maintenance order, which was made accordingly. But three weeks after, the husband, without alleging any misconduct on the part of his wife, divorced her according to the regular forms of the Mohammedan law, which places the woman, in this respect, completely at the mercy of the man. He then applied to the magistrate to have the order for maintenance canceled, as the woman was no longer his wife. The question was referred to the high court, and the judges unanimously decided that the legislature, in granting to police magistrates a discretionary power to allow alimony to wives separated from their husbands, did not intend to create a new marriage law for either Mussulmans or Hindoos. Therefore the woman, having been divorced, had no claim upon the man for maintenance. The position of the judges is clear enough; but their decision has caused great alarm, as the present is only a representative case. There are hundreds of Mussulman women who wish to appeal to the English law against the brutality of their husbands, but dare not now do so for fear of being divorced. The emergency seems to call for special legislation. There is no need to alter the Mohammedan law of divorce: and religious prejudices could not be offended by an act providing for the maintenance by Mussulmans of their divorced wives, when the wives have been divorced without reasonable cause. English law has interfered with native customs, both Mohammedan and Hindoo, far more than this, and the provision would be a wholesome check upon a class peculiarly difficult to regulate in their domestic affairs.- Irish Law Times.

DIVORCE MADE EASY. The law courts of some of the States of North America - Indiana among others -are distinguished for the ease and readiness with which they grant divorces, but they apparently would have had to shorten their form of process if the Commune had not come to an untimely end last May. The following was the formula made use of by the citizens Michel and Aubry, who acted as secretaries to a commissary of police in Paris under the Commune:

"The citizen A- and the citizeness B- having recognized that, owing to the incompatibility of their characters, life in common has become insupportable for them, have agreed to ask for a friendly (à l'amiable) separation, which has been granted them. In consequence, they are, and remain separated, and are not to be troubled (inquiétés) by each other. Done, in a triple copy, at Paris, the floréal, year 78.

"Signed by the parties concerned, by the commissary of police, and witnesses."

We regret to say that the citizens Michel and Aubry were respectively condemned by M. Cazenave, the police magistrate, to twelve and six months' imprisonment for usurpation of legal functions. - Pail Mall Gazette.

CORRESPONDENCE.

DISTRIBUTION OF WIFE'S PERSONAL ESTATE. Editor Albany Law Journal:

Sir-If your correspondents, J. G. Collins, Esq., 4 Alb. L. J. 115, and Henry Brewster, Esq., id. 147, will allow a third person to put in an appearance, I would suggest: That, as sec. 29, title 2, chap. 6, part 2, R. S., remains unrepealed, as to granting letters of administration, the husband is now, as prior to the married woman acts of 1848-9, entitled to administration on his wife's estate, in all cases. The distribution of the surplus was provided for in old sec. 79, and is now provided for in new sec. 79. Prior to the amendment of 1867 repealing sec. 30, title 2, and nullifying old sec. 79, title 3, the husband was not bound to account to any one for the surplus of his deceased wife's personal estate after paying her debts. But now, by this sec. 79, as amended by sec. 11 of chap. 782 of 1867, if the wife die, "leaving descendants," he is required to account for and distribute to such "descendants" (which means children or descendants of children only, 2 Bradf. 413, and 1 id. 314, 318), two-thirds of such surplus, in accordance with the rule prescribed for widows in sec. 75, title 3, chap. 6, part 2, sub. 1. The authority for this is in the amended sec. 79, which provides that "The preceding provisions, respecting the distribution of estates, shall apply to the personal estates of married women dying, leaving descendants." ** * This reference embraces, at least, the preceding sec. 75, containing the "order of distribution," and fully authorizes the court in reading sec. 75, to read it with the addition to the word "widow" of the words "or widower, in case the estate be that of a married woman dying, leaving descendants," or some other apt words to make the distinction. For it is plain that, if the order of distribution prescribed in sec. 75 is to apply to the estates of married women "dying, leaving descendants," we must, when distributing the surplus of her estate, give the widower the position occupied by the widow in sec. 75. This is the plain import of the Lwo sections read together.

In this connection it will be well also to bear in mind the fact, that sec. 29, title 2, is under the head and on

the subject of granting letters of administration, while secs. 75 and 79, title 3, are under the head and on the subject of distribution, which is a step in setting up the estate before the surrogate subsequent to that of granting letters; and also, that sec. 29 is in title 2, and prior in its position in the statute, to secs. 75 and 79, title 3; and sec. 79, being in hostility to the latter clause of sec. 29, must prevail over and repeal it to the extent of such hostility. (10 W. R. 547, per cur.) Consequently we are to look to amended sec. 79 for the true and only rule in the cases provided for in it, viz.: those of "married women dying, leaving descendants."

Then, as to those dying, without leaving descendants; since the repeal of sec. 30, title 2, and the amendment of sec. 79, title 3, there does not appear, so far as I have been able to discover, any statutory provision extant, modifying "the rules of the common law," which give the surplus to the husband, as suggested in the closing part of Mr. Brewster's article.

If the case of Barnes v. Underwood, which I have not seen, gives the surplus in such cases to "cousins. and nieces," to the exclusion of the surviving husband, I should like to know upon what reasons or authority such a decision is founded or supported, without some further action of the legislature on the subject.

But with the foregoing views of the force of the sections as they now stand, I see no occasion for any further interference by the legislature.

BOOK NOTICE.

C. D. LAWTON.

The Law of Estoppel. By Henry M. Herman, Attorney and Counselor at Law. Albany, W. C. Little & Co., 1871.

We believe that this is the first extensive treatise that has appeared upon the subject of estoppel, and, so far as we are able to judge, the author has performed well the task he undertook. Heretofore the practitioner has, upon this somewhat important branch, been obliged to rely wholly upon digests and reports, so that this pioneer work will be welcomed by every one who is to any extent employed in the preparation of cases for trial or argument. The accumulation of reported decisions has already become so great that the lawyer can no longer hope to consult any considerable portion of them upon any one subject. Even the most industrious are compelled daily to rely more and more upon elementary books. To be sure, many of the present reported opinions are substantially repetitions of what has been said over and over again before, yet each new case is a variation somewhat from every old one.

The multiplication of decisions either evolve new principles or render the old ones better understood. In this result the lawyer of to-day has one advantage over the one of a hundred years ago. He has more and better law. But much being given much is required, so that he is expected to know the law with more accuracy than his predecessor. So it becomes necessary for him to do what was done by those who studied the law before there were reports or digests to study the principles. This necessity is evident from the demand there is for topical text-books.

That there have been, in answer to the demand, many hastily gotten up and inferior works issued is undoubtedly true, but these have not been wholly worthless. They were prepared in haste because the call was urgent; they were inferior because there was no time to make them better. The temporary want being

supplied a new and better school of legal treatises is coming forward, in which ability and industry are manifest. In this school we do not hesitate to place Mr. Herman's work. He has fully and clearly, and as concisely as the nature of the subject-matter would admit, set forth the principles of the law of estoppel as it stands to-day, citing sufficient authority of both late and early date in their support. The book contains 662 pages; is thoroughly indexed. Its mechanical execution is excellent.

BOOKS RECEIVED.

We have received the following publications which we will notice at an early day:

Benedict's New York Civil and Criminal Justice. Fifth edition. W. C. Little & Co., Albany, 1871.

Civil Code of California. Division second; Part IV, Title IV.

The Insurance Law Journal. Vol. I, No. 1; September, 1871. Edited by Daniel T. Potter. New York, Baker & Voorhis; St. Louis, Hugh R. Hildreth. Waverly Novels. Vol. 22; centenary edition. Little, Brown & Co., Boston, 1871.

GENERAL TERMS.

1st Monday in November, first department, New York.

2d Tuesday in November, third department, Schenectady.

3d Tuesday in November, fourth department, Syra

cuse.

2d Monday in December, second department, Brooklyn.

COMPULSORY EDUCATION. -The English elementary education act contains several features which perhaps might be to advantage incorporated in our own school laws. Among other sensible provisions there is one, to be put in force at the discretion of the local school boards, for compelling the attendance at school of children not otherwise learning or working. The justice and wisdom of such legislation had been established by sound argument and sad practical experience, which proved that the community suffers a huge amount of mischief in every way from the idleness and ignorance, too readily seduced to positive crime, so frightfully prevailing among the poor, neglected youth of large towns. In London, society has been obliged, in selfdefense, to resolve on the application of a forcible treatment to remedy this growing evil, and the operations of the school board of that city have already been extended to the apprehension of vagrant boys, and their committal to the industrial schools. In Prussia this system has been in force for many years, and with the best results. In that country no person can grow up ignorant of the elementary branches of education, as every boy and girl is compelled to attend school a certain part of every year, and the consequence is, that Prussia has no ignorant class of people within her borders. The whole nation is intelligent. The practical worth of this national characteristic was signally displayed during the late war with France, when an educated and intelligent people came into conflict with one not less brave, but less educated and less intelligent as a nation, and defeated them as no nation was ever defeated before. It is worth while to inquire whether similar legislation could not be advantageously adopted in the several States of this Union. - Harper's Weekly.

LEGAL NEWS.

It has been judicially decided libelous in North Carolina to call a man a "Pennsylvania Yank." "Snoring on the levee" was the crime for which $5 fine was imposed by a New Orleans magistrate.

A lady has applied for admission into the Harvard law school.

The chief justice of India died at Calcutta on the 20th of September, from wounds inflicted by an assassin.

The Swiss federal council having tendered their hall at Geneva for the council chamber of the board of arbitrators, the commissioners have mutually designated December 15 as the day of the first meeting.

Virginia is re-establishing the whipping posts of "by-gone days." The criminals in that State, it is said, prefer taking retribution in that way, rather than in the shape of long imprisonment.

It is said that in certain districts of Hungary, the courts still extort confessions by torture from persons accused of crime. Minor offenses are not punished by imprisonment, but by flogging.

The commissioner of internal revenue decides that the interest on the new funded loan bonds of '81 is not to be included in the returns for taxation in computing the government tax of two and one-half per cent on the net earnings of the bonds.

No cases will be heard by the United States and British claims commission before December. The rules adopted do not exclude any claims having the color of justice. The claims of British subjects residing in the South during the late war will not exceed $5,000,000.

The supreme court will resume its sessions shortly, and among the first cases on the calendar which were argued last term and are awaiting decision, is the constitutionality of the direct tax on cotton levied a few years ago and afterward repealed, but under which several millions were paid into the treasury.

There are now pending in the various United States courts, internal revenue cases representing $2,771,993. These cases are principally assessments against distillers and tobacco manufacturers, suits for the recovery of which are instituted upon their bonds. These cases will all be pressed to a trial at the coming fall sessions of the courts.

A question has arisen in the courts of Maryland as to the rights of negroes to vote, who, previous to their enfranchisement, served terms in the penitentiary for infamous crimes. Judge Magruder, of the seventh judicial district, is said to have decided that such persons have a right to vote. In the second district, the full bench has decided the other way. The question will doubtless be referred to the appellate tribunal of the State for an authoritative and final decision.

About seven thousand five hundred claims have been indexed by the southern claims commission; the aggregate amount of alleged damages being upward of twenty millions of dollars, owing to seizures of supplies, etc., for the United States troops, belonging to those claiming damages who have been Union men during the late war. Evidence has been taken in six hundred cases and decisions arrived at on one hundred and fifty.

JUVENILE OFFENDERS AND VAGRANTS. One of the questions which our advancing population and the increasing number of thickly settled districts brings to the legislature is, what shall be done with juvenile offenders and vagrants? We have, growing up in our midst, a large number of young persons, who are either without parental restraint, or are under the control of fathers and mothers whose training is wholly injurious. If the outside public did not interfere, and the power of law or the influence of individual effort was not brought to bear in the matter, nearly all these youths would remain in ignorance and vice, and in the end become criminals and outcasts.

In the cities of the old world, where this unfortunate and dangerous class has been longer known than with us, numerous attempts have been made, looking toward the restraint and reform of youthful offenders, and the education of those whose only sin was poverty and the want of a good home. Charitable associations have been in existence for many years, designed to furnish vagrant children with food and shelter, to instruct them in trades, and to secure for them permanent employment during their minority. Provision has been made in most countries, by law, for the care of those having no parents, or whose parents had abandoned them, and schemes without number devised to afford these children opportunity for leading a respectable life, and to shield them from the almost certainty of an existence of misery and crime. What has been done abroad has, of course, as the necessity became evident, been followed here, and we have all over the country institutions designed for the reception of offenders and vagrants, whose tender years not only forbade their incarceration with older persons occupying a similar position, but gave hope that under proper treatment their morals and manners might be mended, and they be enabled to start in life with a fair prospect of obtaining its material blessings. These institutions have different titles, being known as asylums, houses of refuge, protectories, reform schools, etc., the names being evidently chosen for the purpose of conveying the idea that the place designated was not a prison, but a sort of home where the erring or unfortunate child was to receive guidance, and not punishment, where the discipline savored not of a jail but of a household, and the restraints of parental care, rather than those of penal servitude, should be felt.

These institutions have been partially successful, and only partially. Through them many persons have been rescued from the disaster of a life of infamy. Still we find in every city numerous boys who obtain, through uncertain employment and petty

So the

theft, means for supplying their necessities or gratifying their desires, and young girls who choose a life of shame as a step upward. Some of these children have parents who not only acquiesce in the conduct of their offspring, but encourage it for the sake of personal profit. All these regard such institutions as places of confinement, and use every effort to prevent the consignment of any person to their care. very class whom it is designed to benefit are antagonistic to every effort made for them in this direction. There must be some reasons for this antagonism, which we believe those interested in the matter would do well to consider. Some of these reasons are valid and some, perhaps, should be allowed no countenance. Yet it is proper to look for the causes of even partial failure of any work and see if something may not be learned from experience, and, if possible, make ill success a means for the accomplishment of what we have undertaken to do.

We have made a distinction between those who are sent to these various institutions, by classing them as offenders and vagrants. By offenders we mean those who have been convicted of some criminal act, and have, instead of being committed to some penal establishment, been, in pursuance of a humane statute, sent to one of these places; by vagrants, those with no regular home, who have, in one way or another, come into one of the same places. Perhaps, when he or she reaches there, it would be impossible to determine to which division any particular person might belong. Undoubtedly in very many, if not in most, instances, the moral character of the vagrant and the offender does not much differ. But in the one case society has branded the individual with the stigma of a conviction for crime; in the other, he is guilty only of involuntary poverty. The latter dereliction men frequently forgive; the former, hardly ever. Thus we have, theoretically, two classes of inmates at these quasi charitable establishments. When the period of probation or education is over, one is to go forth into the world with a reputation free from blemish, while the other must bear through life the odium of proved or acknowledged guilt, from the full legal penalty of which his years alone saved him.

But, practically, these results follow. The guilty and innocent going to the same place and receiving the same treatment, the popular mind is apt to forget the distinction between the two classes, and it soon becomes a disgrace to have been an inmate of an institution of this character. In the State of New York it is as insulting to tell a boy he has been to the house of refuge, as to tell a man he has been to the State prison. The impression made in both instances is, that the party addressed has been convicted of some felony or misdemeanor, for which detention, in one place or the other, was the punishment. Of course, the matter may be explained, but, in most instances, the explanation will be not understood or not believed.