ground against the second, and he in his turn must yield to the first." Several cases are there cited in support of this rule. See Manufacturers' Bank v. Bank of Pennsylvania, 7 W. & S. 335.

The following formula for the solution of the question is found in the opinion of Agnew, J., in Thomas's Appeal, 69 Penn. St. 122: "When the lien of the first creditor is superior to that of the second, but inferior to that of the third, and the lien of the second is superior to that of the third, the first creditor will take the fund because of his superiority to the second, by reason of the superiority of the second over the third." This rule would give A $5,000, and B $5,000, and C nothing. S. T. N.

TITUSVILLE, PENN., Sept. 8, 1880.

Editor of the Albany Law Journal:

E. M. S. inquires if "Midsummer's" legal problem ever arose? It was decided in Stephens v. Benton, in the Kentucky Court of Appeals. 1 Duvall, 112, (1863).

The Covington & Lexington Railroad Company had executed a first mortgage for $400,000, but had issued under it, by a mistake, $420,000 of bonds. It then made a second mortgage. Both were recorded in their order. Subsequently income bonds were issued, which were made in terms a charge upon the plant, but were not secured by any recorded instrument. Lastly, a third mortgage was executed, and was taken, with notice of the income bonds. Neither the holders of the second or third mortgage or of the income bonds had any notice of the over-issue. The road having been sold under foreclosure and the proceeds being insufficient to pay all liens, the question of the order of their payment arose. The court held as follows: 1. The company is estopped to deny that the over-issue is protected by the lien of the first mortgage. 2. But this lien must give way to innocent subsequent incumbrancers who claim under recorded instruments. 3. The lien by estoppel being prior in time to the unrecorded income bonds is superior in dignity to them, as such. 4. But the holders of the income bonds are entitled to be substituted to the rights of the third mortgage, which was recorded, and thus to a preference over the over-issue of the first mortgage.

It seems to the writer that upon the theory of substitution only the true solution can be found. Judge Bullitt, who delivered the opinion of the court, thus lucidly illustrated the principle: "The owner of land gives a title bond to A, and a second title bond to B, who has no notice of A's equity, and afterward conveys the legal title to C, who has notice of the equity of B, but no notice of the equity of A. Who is entitled to the land? As between A and B, A is entitled to it, his being the oldest equity; as between A and C, C is entitled to it, having purchased the legal title without notice of A's equity; but as between B and C, B is entitled to it, because C had notice of his equity. In such a case our opinion is that B would be entitled to it. If, in an action to which A was not a party, B had recovered the land and obtained a conveyance of the legal title from C, and A should afterward sue B, it seems clear that B, having united the legal title to his junior equity, could not be compelled to convey to A. The fact that all of them are parties to the action, asserting their respective claims, can make no difference, because the legal title cannot be taken from C except by virtue of B's equity; if taken from C it must pass to B; and as it then becomes united to his junior equity, it cannot be taken from him for the benefit of A. Moreover, the chancellor, if necessary, would consider that as having been done which should be done, and would treat the case as if C had conveyed to B, as he was bound to do."

LOUISVILLE, KY., Sept. 11, 1880.

WM. REINECKE.

Editor of the Albany Law Journal:

The case of Bacon v. Van Schoonhoven, 19 Hun, 158, you will find involves substantially the legal problem propounded by "Midsummer," in the LAW JOURNAL of Aug. 21, 1880. See, also, comment thereon, 21 Alb L. J. 79. Yours, SUBSCRIBER.

TROY, N. Y., Sept. 4, 1880.

COUNTY COURT JURISDICTION. Editor of the Albany Law Journal: Those who were exercised on the above subject, as shown in your issue of Aug. 21st ult., were quieted by a decision in your issue of 4th inst., that L. 1880, ch. 480, is clearly unconstitutional. As no grounds were stated in the opinion, a doubt may exist whether it was based upon a contradiction, by that statute, of an express mandate of the organic law, or wholly or partly upon defects in the employment of the machinery of statute amendments and repeals. If any considerations can be adduced in favor of the possible validity of the statute, its unconstitutionality becomes to that extent less clear.

Probably it is within the powers of the Legislature to revive a repealed law by implication; and a law, in terms amending a repealed law, would be evidence of an intent to effect such a revival. Such a course might be termed unusual or a blunder. If, then, L. 1870, ch. 467, § 1, had been repealed by L. 1880, ch. 245, when its amendment was attempted by L. 1880, ch. 480, the latter act was effectual to revive and amend it. But had it been repealed? By its terms, L. 1880, ch. 480, took effect May 28, 1880. By its terms, L. 1880, ch. 245, took effect Sept. 1, 1880. It is submitted that an act, passed at a date prior to that of its taking effect, has no vitality in the interval, beyond the certainty of becoming law at the latter date, unless previously repealed. Therefore L. 1870, ch. 467, § 1, was not repealed by L. 1880, ch. 245, at the date, May 28. And L. 1880, ch. 245, though taking effect after L. 1880, ch. 480, and though repealing L. 1870, ch. 467, § 1, does not affect the act of 1880 amending that of 1870. See L. 1880, ch. 245, § 3, subd. 9. Hence L. 1880, ch. 480, must be law to-day, unless, for other reasons, it contravenes the Constitution. Does it?

The Constitution says, in art. 6, § 15 (a): "The county courts shall have the powers and jurisdiction they now (Jan. 1, 1880) possess, until altered by the Legislature." (b) "They shall also have original jurisdiotion in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed one thousand dollars." (c) "They shall also have such other original jurisdiction as shall, from time to time, be conferred upon them by the Legislature." To begin with the assumption that clause (b) is, ex vi terminorum, equivalent to "They shall not have original jurisdiction in any cases * * in which

*

the damages claimed shall exceed one thousand dollars" would be begging the question, which is whether clauses (a) and (c) do not preclude such a construction. The case of Landers v. S. I. R. R. Co., 53 N. Y. 450, may throw some light on clause (c), at least by analogy. As the jurisdiction of the superior city courts was subject to no pecuniary limitation, the question now at issue did not arise; but the decision discussed questions of residence of parties, and locus of subject-matter and of origin of cause of action, and intimated that L. 1873, ch. 239, in attempting to exercise, with respect to those courts, the power conferred on the Legislature by a clause of Const., art. 6, § 12 ("and such further civil and criminal jurisdiction as may be conferred by law "), was void, so far as it purported to erect those tribunals into courts of general jurisdiction. But it appears to have been conceded that the act was void, only so far, and is valid so far as consistent with the local character of the city courts.

Id.; People v. Green, 58 N. Y. 295; Story v. N. Y. El. R. R. Co., 3 Abb. N. C. 478. It is difficult to see why this principle does not govern, in the construction of clause (c), unless a fatal evil potency exists in the difference between "other" and "further." If it so governs, then L. 1880, ch. 480, is valid, unless inconsistent with the local character of the county courts. That it is so inconsistent is, to the minds of some people, not clear.

Is it impossible to contend that when (A. D. 1869) the people gave the Legislature authority to "alter" the then existing jurisdiction of the county courts, and, at the same time, doubled the pecuniary limitation in actions for damages, they intended to fix such a limit, in such cases, which the Legislature should have no power to diminish, while, by clause (c) they conferred power to increase the pecuniary limitation, in their discretion, generally.

Those who strictly construe clause (c) have to explain the consistency of the Constitution, in limiting money

actions to one thousand dollars, while allowing replevin

for a chattel of any value, or foreclosure of a mortgage for any amount.

If the people, in clause (c), intended only to confer authority to bestow "new powers" and jurisdiction upon "new subjects," it would be instructive, if, keeping in view the principle of the Landers case, and the extensive enumeration of powers and subjects possessed and controlled by the county courts, on Jan. 1, 1870 (old Code, § 30), one would indicate the powers and subjects intended to be added.

To construe clause (c) as justifying L. 1880, ch. 480, would be in the direction of a beneficial reform; relieving the over-burdened Supreme Court calendars and clearing away occasions for the exercise of [extrajudicial energies on the part of county judges.

NEW YORK, Sept. 8, 1880.

Editor of the Albany Law Journal:

T. F. C. D.

The letter of brother Moak, in your last issue, was sound in the conclusion that the Legislature exceeded their powers in attempting to confer upon county courts a jurisdiction superior to that authorized by the Constitution.

The "blunder" is only of the harmless kind so likely to be committed by legislators unfamiliar with the organic law.

Chapter 245, Laws 1880, passed May 10, and which brother Moak says expressly repeals chapter 467, Laws 1870, was not to take effect until Sept. 1, 1880. The act of May 28, 1880 (ch. 245, Laws 1880), which brother Moak construes as amending a repealed statute, merely injects about three months of unconstitutionality into what was left of chapter 467, Laws 1870.

Yours truly,. NEW YORK, Sept. 4, 1880.

THE

NOTES.

EDWARD GEBHARD.

the Law of Slander as applicable to Physicians, by W. H. Whitaker; the case of Finch v. Great Western Ry. Co., concerning the restriction of use on an express grant of a private way, with a note by Edmund H. Bennett; and the case of Kincaid v. Hardin County, concerning a county's liability for negligence in the construction and keeping of a court-house, with a note by M. D. Ewell. In connection with Mr. Whitaker's article, we would draw attention to the recent case of Rodgers v. Kline, 56 Miss. 808; S. C., 31 Am. Rep. 389, where it was held that to charge a physician with "malpractice" in a particular case is not conclusively libellous in itself, if untrue, but it is for the jury to determine whether the word was used in a general and actionable sense. We are glad to learn, from the publisher's advertisement, that the (monthly) Register has facilities for publishing the most important decisions "long before they can be elsewhere reported."

following rule: "All records and arguments printed

The United States Supreme Court has adopted the

for the use of the court must be in such form and size that they can be conveniently cut and bound so as to make an ordinary octavo volume. After the first day of October, 1880, the clerk will not receive or file records or arguments intended for distribution to the judges that do not conform to the requirements of this rule." The requisite size is 9x5 inches.

"It is evident that the Albany Law Journal was not consulted in the organization of the American Bar Association. Its notes upon the meetings of the Association are written in an ill-natured, mocking spirit, which is discourteous to the gentlemen of the association and unworthy of the dignity of the Albany Law Journal."

So says the New Jersey Law Journal. On the same principle it is evident that the New Jersey Law Journal was consulted in the organization of the American Bar Association. In truth, New Jersey has had so much honor this year from the Association, that we fear the learned editor is not exactly in an impartial frame of mind. He says: "It is gratifying that New Jersey was called upon to furnish the second annual address of the American Bar Association, and that the occasion was so happily used to perpetuate the name and eminent services of one of our early lawyers and statesmen, William Patterson, honored and remembered here, but not elsewhere, according to his deserts." On the other hand, we have never desired, sought nor received honors from the Association, and regard ourselves as perfectly unbiased, and in a position to tell the exact truth about the new institution. We intend so to remain. So far from being ill-natured, or intending to be discourteous to its members, many of them are our friends, and we would gladly see it prosper. It is amusing to note that our contemporary regards our truth-telling about the Association as unworthy of our dignity. Unpleasant truths are frequently regarded by some people as undignified. We have dealt with the Association just as we have with that of our own State. We are not attending a bar meeting upon the death of a lawyer, and therefore we shall be understood literally and not euphemistically. We have said its membership is not increasing; that its recent meeting was not more largely attended than that of last year; that its proceedings were not so interest

that many of the committees do not perform their duty; that there is an apparent homage to great names rather than to humble, useful, working material; in short, that the Association "is not a great success." Is not this the exact truth? We will "put ourselves upon the country" upon this, and we will not even challenge the members of the association as jurors.

A

The Albany Law Journal.

ALBANY, SEPTEMBER 25, 1880.

CURRENT TOPICS.

GREAT moralist has arisen in Danville, Va., in the person of a young man of the name of Dejarnette. This young man had a sister living out at domestic service, who was seduced under promise of marriage and abandoned, but who refused to divulge the name of her betrayer, and was at last driven by distress and desperation to a house of ill-fame. After a week spent in this life, she wrote to her brother, a telegraph operator in a neighboring town, expressing her penitence, asking forgiveness, and beseeching him to take her away from that place of shame. This was the first intelligence the brother had received of the desperate act of his unfortunate sister, and he at once went to her, and with six pistol shots deliberately killed her. He publicly confessed the act, avowing that he performed it to make an example of her sin and shame. A jury have just convicted him of murder in the first degree, with a recommendation to mercy. We hope the authorities will hang this moralist on a particularly high gallows. There is altogether too much of this lofty emotional virtue in society, which seeks to right one crime by committing another, and a worse one. Such was the severe virtue of the boy Walworth, who killed his father for writing offensive letters to the wife and mother, and a jury did violence to justice by acquitting him on the ground that his emotions were apt to be too much for him. Then there was that other young Virginia gentleman, who was filled with emotion against a shoemaker who praised the pretty feet of his betrothed, and slew him. He got off with two years' imprisonment. The Virginia jury in the present case have kept their oaths, but have shown great weakness in recommending to mercy one of the most cruel, merciless, unnatural, and wicked of his kind. Christ would have said, “neither do I condemn thee; go and sin no more; " but this hard-hearted brother coolly kills his erring and penitent sister as an "example." If the young man had simply killed himself from a sense of his shame, society would have condoned his fault. The jury would probably have acquitted him if he had found out and killed her seducer. This would have been bad enough. But the line must be drawn somewhere, and we say, draw it right here, and hang the careful Spartan brother. Otherwise society will grow so virtuously refined, emotional and hysterical, that every man will be administering his own code of morals, at the mouth of a six-shooter, upon the persons of his relatives who offend his sense of right, finer and holier than Christ's.

The eighth annual Conference of the Association for the Reform and Codification of the Law of Nations opened on the 24th ult., at the Federal Palace, VOL. 22.-No. 13.

Berne. The following gentlemen were appointed officers of the Conference: President of the Conference, Dr. F. Sieveking, President of the Hanseatic High Court of Appeal, Hamburg; Vice-Presidents of the Conference, E. J. B. Cremers, late Minister of Foreign Affairs, Member of the Second Chamber of the Netherlands; F. R. Condert, Counsellor-at

Law, New York; Theodore Engles, President of the Board of Underwriters, Antwerp; Daniel de Folleville, Professor of Law, Douai; Dr. Ch. G. Koenig, Professer of Law, Berne, and President of the Swiss Society of Jurists; Sir Travers Twiss, Q. C.; G. E. Wendt, D. C. L.; and General J, Grant Wilson, of New York. The president, Dr. Sieveking, delivered the opening address. Sir Travers Twiss read a paper "On Consular Jurisdiction in the Levant, and the Status of Foreigners in the Ottoman Courts of Law." One of the members of the Japanese embassy, Mr. Irige, a member of the English bar, read a paper on "Consular Jurisdiction in Japan." The latter was especially interesting. Papers were also read on Bankruptcy, by Dr. Fred. Tomkins, of London; on the International Protection of Sea Cables, by Sir Travers Twiss; on the International Law of Commandite and of Limited Partnership, by Mr. H. D. Jencken; on Domicile as Regulating tram; on the International Bearing of Marriage Testamentary and Matrimonial Rights, by Dr. TrisLaws, by Dr. J. G. Alexander. The latter recom

mended the abolition of all restraints on marriage not absolutely necessary. Important communications were read from the American committee on the subject of International Copyright, and discussion ensued. The Conference approved resolutions respecting international regulation of the law of securities payable to bearer. Notice was taken of the death of Dr. J. Thompson, of the United States. Ninety-eight new members have joined since the last meeting. The attendance was smaller than

usual.

On be

Our last Legislature passed a bill providing for the payment by the city of New York of certain money to the widow of the late Judge Stemmler in lieu of the salary of which he had been deprived by the action of the courts in delaying the decision on his contested election case. Gov. Cornell, it is said, signed the bill, and then, without proceeding further, changed his mind and erased his signature. half of Mrs. Stemmler, it is claimed that the governor's signature was final, and that he could not reconsider the case. Proceedings were therefore taken for a writ of mandamus requiring Comptroller Kelly to pay the amount of the appropriation. Thereupon Judge Beach issued an order for the examination of the governor and his private secretary to ascertain the facts. This order Gov. Cornell refuses to obey, on the ground that the proper places of inquiry for the ascertainment of the enactment of laws of the State are the officially published volumes of the State and the office of the secretary of State, and that any inquiry as to the details or particulars of the discharge of the governor's constitutional prerogatives in the executive chamber is

unconstitutional, and an unwarrantable interference with these prerogatives, and an implied censure upon the integrity and propriety of official action. He says: "There is but one tribunal authorized to make such inquiry, and the governor is unwilling to be questioned by any other authority." A bill to become a law not only needs the governor's signature, but his indorsement of approval, and delivery to the secretary of State. The statute law is as follows: “Every bill thus passed and certified must, before it becomes a law, be presented to the governor; if he approves he must sign it; and he shall indorse thereon a certificate of his approbation, and deliver the same so indorsed to the secretary of State, who shall certify and indorse upon every such bill the day, month and year when the same so became a law." All this before it "becomes a law." It is true the Constitution simply requires the signing, but the Legislature have added the other requisites, and they seem just as essential parts of the law as the signing. If this is a correct view, there can be no question that the governor's action is justifiable. Even if it is not a correct view, we do not suppose the governor is compellable as a witness in respect to his official action. This was held in the late case of Hartranft's Appeal, 85 Penn. St. 433; S. C., 27 Am. Rep. 667. The governor in refusing to obey the order, states that the bill was never "approved" by him.

The Legislature of Illinois must be an exceedingly careful and competent body. The Constitution of that State enjoins upon the judges the duty of pointing out every year to the governor such defects and omissions in the laws as they may find to exist, and of suggesting appropriate forms of bills to cure them. Only one report has been made under this provision, and that was in 1877. One of the judges recommends a modification of the divorce law, limiting the right of divorce to the single case of adultery. He says: "It is the testimony of careful observers that marital and family duties and rights are the more carefully observed, where divorces are not allowed. If the law did not allow a divorce, a vinculo matrimonii, then would people be more careful about contracting marriages. Hasty marriages would not take place. The laws of the country should not allow a divorce for any cause. Originally divorces were only allowed for the hardness of men's hearts.' It is not expected that this view, however sound, can prevail. But very many who have carefully considered the subject, do hold that divorce, a vinculo matrimonii, should only be granted for adultery." Possibly the "careful observers" above mentioned have never extended their travels so far as France. It is difficult, at all events, to understand why the denial of divorce should tend to restrain men from committing adultery. One would suppose that in very many cases the tendency would be precisely the contrary.

Speaking of the Employers' Liability Bill, the London Law Journal says: "With reference to the spirit of the bill it is somewhat singular to find an

American writer so little in harmony with the ideas of the working men's advocates as to pronounce this proposed change in the law 'so impolitic, unjust, and unequal as to verge on folly.' This is the language of the ALBANY LAW JOURNAL." When we wrote those words we had not the text of the bill, and supposed the changes much more sweeping than they are. The bill does not embrace menial or domestic servants. In regard to defective machinery and appliances, and in regard to the negligence of one delegated with the employer's authority, the bill establishes no new liability. So probably, in regard to obedience to rules, by-laws, or instructions of the employer, if we rightly guess at the meaning of the provision. The new liability seems to be in the following cases: first, when the injury arises from the negligence of a superintendent; second, when it arises from the negligence of a superior servant whose orders the injured one was bound to obey; third, when it arises from the negligence of any servant having charge or control of any signal, points, locomotive engine, or railway train. Now considering this new doctrine with respect to natural persons (and not to corporations, as to whom the common law makes some exceptions because they can only act by agents), we do not feel inclined to retract our former expressions concerning the impolicy of the bill. Even as to corporations we should scarcely modify them. For example, suppose it is a rule of a railway company that a certain train shall leave a certain station at a certain hour. The conductor is informed by telegraph from headquarters that an extra train is in the way, and he must delay ten minutes. He disregards this, directs the leaving as usual, a collision ensues in consequence, and the engineer is killed. Under the bill, the company would be liable, for the fatality occurred in consequence of the act of the superior

servant to whose order the inferior was bound to conform. Why should this be so? The master is not negligent. He exercised the precaution of a special direction, and the conductor's disregard was an act which he could not foresee nor provide against. Why should the engineer not take his chances, as against the employer? Or let us suppose the conductor told the engineer to delay ten minutes, and he delayed only eight, and in consequence the fireman was killed. Under the bill, the curred in consequence of the negligent act of one company would be liable, because the fatality ocin charge of a locomotive engine. And yet, not only had the employer been diligent, but so had the conductor who was set over the engineer. Why should the employer be held responsible? Why should the servant, who voluntarily incurs the risk and is paid for running it, be put on the footing of the public? The Legislature acknowledges the hardship of the new theory by limiting the recovery in any case to three years' wages. If the theory is right, why fix any arbitrary limit? The truth is, it is an unwise and idle tampering with the law out of tenderness for the working men and forgetfulness of justice to employers. We say idle, because the new provisions will be defeated by special contract.