OFFICIAL BOND-MISTAKE IN NAME OF OBLIGEE

DOES NOT INVALIDATE. — The statute of Michigan requires the sheriff of a county to give a bond to the State for the purpose of indemnifying all persons in whose favor a duty may arise, to be performed by him. This bond is required to be approved by the county board of supervisors. A sheriff gave a bond which was duly approved, wherein the county in which he was sheriff, and not the State, was made the obligee. Held, that the bond was valid so as to sustain an action thereon by a party injured by a neglect on the part of the sheriff to levy an execution and a making by him of a false return thereon. If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced, no recovery could be had. But the statute does not impose the duties; they would be the same if no official bond were required, and a sheriff de facto is charged with them under the same circumstances as is a sheriff de jure. It needs no statute to enable the officer to give a valid bond to perform any such duty; and had the sheriff executed to the plaintiffs a common-law bond, conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validity. United States v. Tingrey, 5 Pet. 115; Thompson v. Buckhannon, 2 J. J. Marsh. 416; Governor v. Allen, 8 Humph. 176; Montrille v. Haughton, 7 Conn. 743; Commonwealth v. Wolbert, 6 Binn. 292. And any bond that may voluntarily be given to a party for his benefit will be equally valid if given to another for him. Van Hook v. Barnett, 4 Dev. 268. And in the case last cited this principle was applied to the bond of office of an administrator, which, though given to the county justices, when the statute required it to be given to the governor, was held to be a valid common-law bond, and available as such to any person in whose favor a cause of action against the administrator might arise. County of Bay v. Brock. Opinion by Cooley, J.; Graves, J., dissented.

COUNTY COURT JURISDICTION.

To the Editor of the Albany Law Journal:

I see several of your correspondents are "exercised" over chapter 480 of the Laws of 1880, which attempted to give county courts jurisdiction "when the relief demanded for the recovery of a sum of money not exceeding $3,000," etc. It seems to me there need be little apprehension of difficulty.

The Constitution, art, 6, § 15, provides that county courts shall "have original jurisdiction in all cases where the defendants reside in the county and in which the damages claimed shall not exceed $1,000."

This provision per se confers jurisdiction in cases where the relief sought is a money judgment not exceeding $1,000 if defendants reside in the county. No legislative provision was necessary in that class of cases. The Legislature has however provided therefor in subdivision 3 of section 340 of the Code of Civil Pro

cedure. This subdivision has not been attempted to be changed and is in full force.

By chapter 245 of the Laws of 1880, passed May 10, 1880, chapter 467 of the Laws of 1870 were expressly repealed. Laws 1880, p. 373, last clause of No. 46. By chapter 480 of the Laws of 1880, subsequently, May 28, 1880 (Laws 1880, p. 690), the Legislature perpetrated the blunder of amending section 1 of chap. 467, Laws 1870, which it had previously repealed.

Chap. 480, Laws 1880, is clearly unconstitutional and the jurisdiction of the court depends upon the provisions of the Constitution and of section 440 of the Code of Civil Procedure. Yours truly,

To the Editor of the Albany Law Journal: I suggest this solution of "Midsummer's" legal problem, published in your last number:

The order of record of the mortgages being C, B, A, and C, having knowledge of B's mortgage only, it is clear that C's mortgage must be paid in full, excepting as he is affected by his knowledge of B's mortgage, that is, after deducting the amount of B's mortgage, C must be paid in full. B, however, is entitled to receive the amount of his mortgage only after A's mortgage, of which he knew, is satisfied. The only fund out of which A can be paid, however, is the amount reserved as against C to pay B's mortgage. The order of payment would therefore be:

1. To A, the amount of his mortgage, not however exceeding the amount of B's mortgage. 2. To B, the amount, if any, by which his mortgage exceeds A's mortgage. 3. To C, the entire amount of his mortgage. 4. To A, the amount, if any, by which his mortgage fell short of the amount of B's mortgage. 5. To B, such part of his mortgage as he did not re-. ceive as second distributee, that is, an amount not exceeding the amount of A's mortgage.

In the case supposed by "Midsummer," of each mortgage being $5,000, and the property bringing $10,000 (disregarding expenses, taxes, etc.), the distribution would be: 1. $5,000 to A; 2. $5,000 to C; 3. Nothing to B.

B cannot complain because he took subject to C's prior recorded mortgage for $5,000, and to A's mortgage for $5,000, of which he knew.

The problem is more interesting if A's mortgage be less than $5,000, say $4,000, and B's mortgage more than $5,000, say $6,000. The distribution would then be: 1. To A, $4,000. 2. To B, $2,000. 3. To C, $4,000. C cannot complain, for he took with knowledge of a prior mortgage of $6,000, and it does not concern him how or to whom the $6,000 is paid. And B cannot complain for the reason mentioned in the former case.

If A's mortgage were $6,000, and B's $4,000, the distribution would be: 1. To A, $4,000. 2. To C, $5,000; $1,000 less than his mortgage. 3. To A, $1,000 additional, receiving in all $5,000; being

A cannot complain, because he took subject to the prior recorded mortgage for $5,000, of C, who was innocent as to A, nor for the same reason as before can B complain.

Did this problem ever really arise?
NEW YORK, August 21, 1880.

E. M. S.

To the Editor of the Albany Law Journal: Your correspondent, Midsummer," in No. 8 of current volume, puts a question which at first sight appears to be a puzzler; but referring to his communication for a full statement of the case, it seems to me | that his figures as to amounts of mortgages, amount

The Albany Law Journal.

ALBANY, SEPTEMBER 11, 1880.

CURRENT TOPICS.

the current number of the Virginia Law Jour

and beloved friends of the Virginia bar, arraying themselves on the side of good sense, law and order, moral courage and christianity, against the false idea of chivalry and the infraction of human and divine law involved in duelling.

The apparent disadvantage of living in a country France or South Carolina, where

no

lett-grandson of Patrick Henry of Revolutionary fame who died in 1870, aged 45. He seems to have been a brilliant popular orator, a lawyer engaged in important causes, a leading politician, and a statesman of promise. At the present time we find an appropriate text in the following extract:

"In 1859, Patrick Henry Aylett challenged and fought a duel in North Carolina with the chivalrous and lion-hearted O. Jennings Wise, whose untimely fall at Roanoke Island lost to his native State a son whose valor and brilliant genius shone with meteoric splendor along the short path of his early manhood. Mr. Wise was editor of the Enquirer, and Mr. Aylett was writing for the Examiner; their articles, and the antagonism which they aroused, excited so much heat, that all efforts at amicable adjustment proved abortive, and a hostile meeting became unavoidable. Escaping the Richmond police, they got upon the Danville train some distance in the country, and fought with pistols early next morning, just over the North Carolina line. Mr. Aylett's bullet narrowly missed the person of Mr. Wise. Mr. Wise fired in the air. This ended the combat, as Mr. Wise's noble and magnanimous behavior disarmed every feeling of resentment in the brave and manly bosom of his antagonist. As Mr. Wise, in his duel with Hon. Sherrard Clemens, fired at and wounded him, it was never known why he should have discharged his pistol in the air in his fight with Mr. Aylett, unless it was because his adversary was very near-sighted, and was, moreover, a married man with several small children. Both gentlemen bore themselves before the duel, upon the field, and afterward, in a manner worthy of their names and ancestry. In courtesy, calor, and magnanimity, neither Richard of the IronHeart nor Ivanhoe could have surpassed them."

We have italicised some words to point our reflections. The picture that we have is that of a lawyer and statesman, deliberately breaking the law, and sending a challenge on account of an editorial discussion, resisting friendly intervention, evading the officers of justice, fighting a duel, spared by his antagonist on account of his defective eyesight, and for the sake of his little children whom their father seemed to have forgotten, and compared by his biographer, his brother, to a brutal and cruel hero of a barbarous age. This picture would better have been omitted from the memoir of a lawyer and statesman. It seems out of place in a legal journal. We would fain believe that the senseless, unlawful, and wicked fashion of duelling is going out of vogue in the new South. It seems to be growing unpopular even in South Carolina. If New Yorkers boast of the fame of Alexander Hamilton, they do not dwell on the manner of his death. He died as the fool dieth. But then and now are different eras. We should be glad to see our esteemed contemporary, the Virginia Law Journal, and our learned VOL. 22. No. 11.

de Tilly at Poitiers. A contemporary says: "The countess confessed to throwing vitriol in the face of a young girl, destroying one eye and disfiguring her for life, having been told the terrible effects of the liquid by the chemist of whom she bought it. The jury, after a 'touching address from her advocate,' acquitted her, on the ground that the girl was her husband's mistress, that she had paid the medical expenses and made compensation, had learned Latin and Greek to teach her children, and was generous to the poor. But the French jury had an excuse for so glaring a non sequitur which an English jury would be without. The Comte de Tilly was charged with infidelity and cruelty; and in England his wife might have sued for a divorce. Where no such remedy exists, the wild justice which the countess wreaked on her rival is not unlikely to be followed by the equally wild justice which the jurymen bestowed on her." In this country we do better, for we not only have divorce generally, but we usually acquit every person who pleads a "sexual" reason for his violence.

A citizen has libelled the excursion steamer Sea Bird for the recovery of penalties for carrying a greater number of passengers than she was by law authorized to carry. The action was brought under section 4465 of the Revised Statutes, and section 4469 makes the penalty a lien on the vessel. The libellant is entitled to recover the amount of the fare and $10 additional for each and every passenger carried in excess of the number which the vessel is allowed by her certificate to carry. Pollock claims that the Sea Bird carried an excess of 371 passengers on July 11 from New York to the Highlands, and an excess of 237 on the trip made that day from Sandy Hook to Bay Ridge. The case was before Judge Choate, in the United States District Court, recently, for hearing on objections made by the defendants, the libellees. These objections were that the suit should be begun in the name of the United States; that the statute does not give a remedy by libel in admiralty against the vessel, but only against the master and owners personally, and that the libellant does not appear to have been a passenger or to have been damaged by the act complained of. The objections were overruled. The statute makes the penalty recoverable by "any person suing for the same." Whether this citizen is actuated by motives of public or of private good, the step is an excellent one. A few recoveries will do much to prevent such horrible catastrophes as that of the Sewanhaka. It is a pity that more private citizens. will not interest themselves in the enforcement of the laws for public safety.

The employers' liability bill has passed the House of Commons. It provides for the liability of the employer to the workman for injury by reason of defective machinery or appliances; the negligence of a superintendent or any person to whose orders the workman was bound to conform; the act or omission of any person done or made in obedience to the employer's rules or by-laws, or in obedience to particular instructions given by any person delegated with the authority of the employer; the negligence of any person who has charge or control of any signals, points, locomotive engine, or railroad train. The right of action survives in case of death, and in that case the right and remedies are the same as if the workman had not been in the service of the employer. In case of defective machinery, etc., the liability does not arise unless original defect or the omission to repair it springs from the negligence of the employer or some one in his service charged with the duty. No rule or by-law approved or accepted by any department of government under authority of Parliament shall be deemed improper. No liability arises in case the workman knows of the defect or negligence, and neglects within a reasonable time to notify the employer or some superior to the workman, unless he knows that the employer or such superior already knows of the defect or negligence. No action is maintainable unless written notice of the injury or death is given within six weeks, and action is brought within six months; but in case of death the want of notice shall be no bar if the judge thinks the omission excusable. The recovery shall not exceed the estimated earnings of a person in the same employment, grade, and district, for the three years next preceding the injury; and shall be diminished by the amount of any sum previously paid by way of penalty for the same negligence under any other act of Parliament. A superintendent is a person whose sole or principal duty is superintendence and who is not ordinarily engaged in manual labor; the term "employer" includes a body of persons, corporate or unincorporate; "workman" means a railway servant and any person to whom the Employers and Workmen Act of 1875 applies.

The Employers and Workmen Act of 1875 defines "workman" as excepting domestic and menial servants, and including laborers, servants in husbandry, journeymen, artificers, handicraftmen, miners, or others engaged in manual labor. It will thus be seen that the new bill excludes domestic and menial servants, and does not cover the case of a servant suffering injury from the negligence of a mere fellow-servant, having no authority over him, except when in obedience to the employer's rules or by-laws, or his particular instructions to a delegate of his authority, or in case of certain railway employees. Now what is meant by "rules"? Does it mean only written rules, or does it include oral instructions? This seem to us extremely vague, and doubtless will give rise to considerable discussion in the courts. Take the case of a foundry under the direction of a superintendent. One of the work

men carelessly spills. a pot of molten iron over another, while endeavoring to obey the superintendent's instructions. Is the master liable? If so, why should he be? He has not been careless, nor has his delegate, the superintendent. The master would not have been liable if the superintendent had not given "particular instructions." Why should the "particular instructions" make the master liable? It is probable that all the employers touched will now exact a contract of hiring, releasing them from these liabilities, in consideration of a trifling increase of wages, as Lord Bramwell has pointed out.

We publish in full the opinion of Judge Westbrook on the question of license to sell ale and beer. The question is not only important to a large body of people, dispensers and recipients of the beverages aforesaid, but gains interest from the fact that Judge Barnard disagrees with its conclusions. The point of disagreement seems to be this: when the act of 1870 extends the act of 1857, when not inconsistent with it, over the whole State, is the original act of 1857 alone extended, or does the extension also carry the amendment to that act passed in 1869? Judge Barnard holds that the extension does not embrace the amendment; Judge Westbrook holds that it does. Judge Barnard also holds that no beer license can now be granted outside the metropolitan police district, apparently overlooking O'Rourke v. People, 3 Hun, 225; 5 T. & C. 496. It is understood that Judge Erastus Cooke, of the Second Judicial District, sustains Judge Westbrook's view.

DVANCE sheets of the 13th Rhode Island Reports bring us several interesting cases. Bradbury v. Furlong, 14, F. owned and for purposes of repair controlled a yard occupied by a tenant. In the yard was a cistern on which F. had put a proper iron cover. knowledge of F., and a wooden cover weighted with

This was removed without the

a stone but claimed to be insecure was substituted. A child three years old living in a tenement, the yard of which was contiguous to F.'s yard and connected with it by an open gateway, fell into the cistern and was drowned. In an action by the administrator of the child against F., brought under the statute, giving a right of action for an injury inflicted by a wrongful act causing death, held, that F. was not liable. The court said: "This court has decided that in order to maintain an action under this section it is not necessary to prove that the injury was inflicted by the defendant in person, but that it is enough to prove that it was inflicted by his agent or servant, and also that it is not necessary to prove that the injury was purposely inflicted, but that it is enough to prove that it resulted from some act carelessly or negligently done by the defendant, his agent or servant. Chase v. American Steamboat Co., 10 R. I. 79; McCaughey v. Tripp, 12 id. 449. The court has gone thus far in compliance with the rule that remedial statutes are to be liberally con