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in the Rochester Democrat and Chronicle. In this column there appeared from time to time comments on the militia, which were not entirely of a complimentary nature. Similar comments appeared in some of the other papers of that city. Now, had the author of these comments been simply and solely an editor, outraged military honor might have made its grievances known by some irreligious remarks, but it certainly would not have made them known in any other way. The fact that the author held a commission in the militia was the burden which sat heavy upon the souls of his comrades in arms.

Wherefore Col. S. S. Eddy, commanding the 54th regiment of the 12th brigade, preferred charges against Major Spahn, alleging that he had been guilty of conduct unbecoming an officer and a gentleman, and conduct prejudicial to good order and discipline, in causing and procuring to be published the comments before mentioned. Thereupon a court-martial was convened, which, on or about the 18th day of June, 1880, found Major Spahn guilty of the charges and sentenced him to be cashiered. This sentence was approved by Maj.-Gen. Henry Brinker, July 3d, 1880. On the 31st day of July, after the time within which an appeal to the commander-in-chief could be taken had expired, Major Spahn obtained a writ of certiorari at a Special Term of the Supreme Court, held by Hon. F. A. Macomber, returnable at a Special Term to be

August, 1880. This writ was directed to and served upon the members of the court-martial and AdjutantGeneral Frederick Townsend.

children by the second wife, is fatal to her application for a divorce. Bailey v. Ross, p. 544.- An intestate died without issue, wife, or father, and never having had any brother or sister of the whole or half blood. His mother survived, and was entitled to his lands for life. His nearest relatives were two brothers of his father, and a sister of his mother, and several children of deceased uncles and aunts. After his death, and during the life of his mother, the two uncles and the aunt died, leaving children. Held, that the last took to the exclusion of the uncles and aunts who died in his life-time. Gilmore v. Tuttle, p. 611.- A case concerning the proper exercise of a trustee's discretion in making investments. Fort v. Edwards, p. 641. A testator bequeathed his wife $5,000, "to be paid to her, as far as can be, out of the insurance money coming to my estate from the insurance on my life." He had three policies on his life, amounting to $2,500, all payable to his wife, on which he always paid the premiums, which he always kept in his possession, and which he delivered to his executor. He had no other life insurance. Held, that the amount of these policies, received by the widow, must be credited on the legacy. English v. English, p. 738.-In 1875 a wife left her husband, on account of his abuse of marital rights, taking with her their two children, a boy and girl, then aged six and four years respectively. She sued for a divorce, but this was denied on his promise of conjugal kindness. She refused to return to him, notwithstand-held in the city of Rochester on the last Monday in ing his entreaties. Held, that this was not such "misconduct" as should deprive her of the custody of the children, she being capable and willing to maintain and educate them, the boy being of a delicate constitution and they preferring to remain with her, although the father was sober, moral, industrious, and of pecuniary ability. We also note the following: Kuhn v. Jewett, p. 647.-Owing to defendant's negligence, pe-eral, to have the writ of certiorari “annulled, vacated, troleum being carried on a railway train, burst its tanks, was set on fire, flowed into a brook, and was carried by the water to and ignited the complainant's barn, at a considerable distance. Held, that defendant was liable. Thornton v. Ogden, p. 723.— A conveyance executed for a very inadequate consideration, by an unmarried sister to her brother, in whose house she was an inmate, in confidence that he would deal justly by her, set aside. Laible v. Ferry, p. 791.-Where executors, carrying on business under a will, had, without authority, used the proceeds to improve the lands of the testator, not subjected to the risks of trade, and which under the will belonged in remainder to married women and infants, held, that this would not justify the court in charging the estate of the remaindermen, to any extent, with the trade debts. Mayer v. AttorneyGeneral, p. 815.— In an insolvent mutual life insurance company, the holders of matured policies are preferred creditors, and the holders of running policies are members of the corporation, and the former cannot be called on to share, pro rata, losses occurring after their claims matured; but where, at the date of the insolvency, the risk on endowment policies had not been terminated, the holders of such policies are not creditors, although all the premiums liable to be called for had been paid.

CORRESPONDENCE.

'CERTIORARI FROM COURTS-MARTIAL. Editor of the Albany Law Journal:

A case, which may be of interest to the readers of the JOURNAL, is now pending in the Supreme Court in this county. Until quite recently, Jacob Spahn, Esq., of the city of Rochester, was major and engineer of the 12th Brigade, 7th Division, N. G. S. N. Y., on the staff of Brig.-Gen. Wm. H. Briggs, commanding said brigade. He was also editor of a military column

Now the idea of having the matter brought before the civil tribunals was utterly repulsive to the militia; and so it came to pass that a motion was made at the August Special Term, in behalf of the adjutant-gen

and set aside," on the following grounds: 1. That the
writ should have been directed to the commander-in-
chief instead of the adjutant-general, and 2d, that
Major Spahn had made no attempt to take the appeal
to the commander-in chief, provided by section 195 of
the Military Code, as amended by chap. 275 of the
Laws of 1878. The motion was argued by George
Raines, Esq., for the respondent and R. E. White,
Esq., for the relator. The first ground was soon aban-
doned; but in support of the second ground the re-
spondent's counsel cited the cases of The People ex rel.
Gray v. Phillips, 67 N. Y. 582, and The People ex rel.
Corwin et al. v. Walter, 68 id. 403. The principal case
cited by the relator's counsel was that of The People
ex rel. Garling v. Van Allen, 55 N. Y. 31, and as it was
directly in point, it was decisive. The motion was
denied, and it was ordered that the adjutant-general
prepare and file with the clerk of Monroe county a copy
of all the record and proceedings directed by the writ
to be returned, on or before the last Monday of Sep-
tember, either party having the right to notice the writ
for argument at the Special Term to be held at the
city of Rochester, September 27, 1880. "So there the
thing remains;" and it now devolves upon the civil
courts to determine to what extent an entrance upon
the arduous and dangerous duties appertaining to the
life of a militiaman debars a citizen from carrying on
his business or exercising his profession.
Sept. 13, 1880.

APPARENTLY INCONSISTENT DICTA.
Editor of the Albany Law Journal:

H.

In the case of Armstrong v. Henry M. Cummings and Charles D. Ingersoll, 20 Hun, 313, Mr. Justice Barrett observes (Davis, P. J., concurring), the case being one concerning the jurisdiction in summary proceedings of a civil justice in the city of New York, whose power in such proceedings extends only over certain wards of

the city, "It is insisted that the justice was without jurisdiction. If that were so it should have been proved as a matter of fact that the premises were not situated in either the nineteenth or the twenty-second ward. * * * It is proper to say that the courts will take judicial notice of the statute creating these wards, and so we find the premises in question within their boundaries." P. 314.

In the case of The People ex rel. Duchardt v. William H. Kelly, 20 Hun, 549, the statement is mado per Curiam (Davis, P. J., Brady and Barrett, JJ.), this being a certiorari to review a summary proceeding had before the justice of the sixth judicial District Court in the city of New York, "the case was tried upon the assumption on both sides that the premises were in fact in the sixth judicial district. Although that fact is within our personal knowledge, we cannot take judicial cognizance of it." P. 551.

Why the court may not take judicial cognizance of the sixth judicial district if it may take notice of the wards of the city does not appear entirely evident.

From what source the members of the court derived their knowledge concerning that district, although not stated, is a matter of necessary inference. Knowledge concerning its boundaries could have been derived only from Laws of 1860, chap. 300, where the wards composing the district are mentioned.

Does not the court take notice of this public statute? Does not settled practice as well as the doubtful_virtue" of consistency require the court to do so? NEW YORK, Sept. 9, 1880.

C. W. S.

COOLEY'S AMERICAN CONSTITUTIONAL LAW. Editor of the Albany Law Journal:

Judge Cooley, in his manual of American Constitutional Law (Student's Series), after stating that the jurisdiction of the Federal courts in cases of prize is exclusive, goes on to say (p. 114): "But it is also exclusive in all cases of maritime torts and contracts, and liens for maritime services, though suits in personam in the same cases, whether authorized by the principles of the common law or by State statutes, are cognizable only in the State courts."

The word "only" in the above extract is probably a misprint for "also." It is not likely that the author overlooked common law remedies in the Circuit Courts of the United States, as well as libels in personam in the District Courts, the less so, as in Leon v. Galceran, 11 Wall. 187, one of the cases cited by him, the opinion of the court begins thus:

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Mariners, in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in rem against the ship or ship and freight, at their election. Where the suit is in rem against the ship or ship and freight, the original jurisdiction of the controversy exclusive in the District Courts, as provided by the ninth section of the Judiciary Act, but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the District Court, or he may, at his election, proceed in an action at law either in the Circuit Court, if he and his debtor are citizens of different States, or in a State court as in other causes of action cognizable in the State and Federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act."

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Clifford, J.), say: "Properly construed a party under that provision may proceed in rem in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into into admiralty at all, and may resort to his common-law remedy in the State courts, or in the Circuit Courts of the United States, if he can make proper parties to give the Circuit Court jurisdiction of his case."

It is submitted, however, that even after the text has been corrected as above suggested the author's account of the jurisdiction in admiralty and maritime cases is not entirely satisfactory. BALTIMORE.

LAW REPORTS.

Editor of the Albany Law Journal:

T. B. M.

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Judgment affirmed with costs- Thornton v. Wabash Railroad Co.; Bommer v. American Spiral Spring Co.; Remington Paper Co. v. O'Dougherty; O'Dougherty v. Remington Paper Co.; Wayne County Savings Bank v. Low; Harris v. White; Simmons v. Cloonan; Thompson v. Bank of British North America; Taylor v. Mayor, etc., of New York; Hynes v. McDermott; Henlein v. Powers; Reynolds v. Robinson; James v. Burchell; Harrington v. Clark; McCombs v. Allen; Howe Machine Co. v. Harrington. Judgment affirmed

with costs. Appeal from order granting a new trial as to defendant Smith, dismissed with costs - Hun v. Cary. Judgment reversed and new trial granted, costs to abide event - Ponvert v. Belmont; Crispen v. Babbitt; Burnett v. Snyder (two cases); Carr v. Breese; Bray v. Farwell; Thompson v. MacGregor; Halstead v. Seaman; Viele v. Judson; Waring v. Somborn; Mansfield v. Beard. Judgment modified by striking out the affirmative relief as to parcels eight and nine and as so modified affirmed, without costs in this court to either party - Remington Paper Co. v. O'Dougherty. Order affirmed with costs - In the matter of opening of Eleventh avenue, People ex rel. Thurston v. Town Auditors of Elmira; Woodmansee v. Rogers, in re Manhattan Savings Institution.-Order of General Term reversed and judgment on verdict affirmed with costs - Brill v. Tuttle. Orders of General Term and Special Term reversed without costs The People ex rel. Egan v. The Justices of the Marine Court of the City of New York. Order of General Term reversed and that of Special Term affirmed without costs. Motion to dismiss appeal denied with $10 costs-Sheridan v. Andrews. Order

of General Term reversed, and that of Special Term affirmed with costs - In re Robbins to vacate, etc.; In re New York Episcopal Public School to vacate. Order affirmed and judgment absolute for respondent on stipulation with costs - Lafond v. Deems; Gerould v. Wilson. Order of General Term reversed and judgment of Special Term affirmed with costs - Conger v. Conger. Order reversed in so far as it di

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

NOTES.

THE publishers of the American Law Review, in an

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

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

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

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

64

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

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

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

A

The Albany Law Journal.

ALBANY, OCTOBER 2, 1880.

CURRENT TOPICS. TTORNEY-GENERAL YOUMANS, of South Carolina, has sent us his argument for the plaintiff in the controversy between Messrs. Simpson and Willard as to the title to the office of chief justice of that State. The Constitution provides that the judges shall be elected by joint vote of the general assembly, for the term of six years, to be so classified that one shall go out of office every two years, and that vacancies shall be filled by the like election, "provided, that if the unexpired term does not exceed one year, such vacancy may be filled by executive appointment." Chief Justice Moses died in office, and on May 15, 1877, Chief Justice Willard was elected in his place. The term for which Chief Justice Moses was elected did not expire until July

29, 1880. On December 18, 1879, the claimant, Mr. Simpson, was elected to fill the vacancy about to be occasioned by the supposed expiration of Chief Justice Willard's term. The question now is, whether Chief Justice Willard's election was in

legal effect for a full term of six years, or only for the unexpired time of Chief Justice Moses' term. The argument involves the meaning of the word "vacancy," as used in the Constitution, and upon this point we should think the proviso quite signifi

cant.

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

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

should not be deranged." "Certainly nothing but merely speculative ground exists for drawing such an inference." It seems to us that this argument is fallacious, first, in assuming that section 11 furnishes the only direction for supplying a vacancy caused by full service and expiration of term; second, that the two years' provision has any thing to do with the question. Section 2 prescribes that the judges shall be elected by the general assembly, and shall continue in office until successors are elected and qualified. That is complete in itself. Then section 11 prescribes that "all vacancies shall be filled by election as herein prescribed," except that when "the unexpired term does not exceed one year, such vacancy shall be filled by " the governor. Does this section refer to any thing but casual vacancies? We think not. Otherwise it would be a superfluous provision, for the mode of election has been already prescribed and is moreover therein explicitly referred to. It seems pretty clear that the latter section was added simply to provide for casual vacancies and unexpired terms, and for the same class of

vacancies as are referred to in the provision for executive appointment.

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

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

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

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

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

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

IN

NOTES OF CASES.

N McAbe v. Thompson, Minnesota Supreme Court, Aug. 30, 1880, 6 N. W. Rep. 479, the question was whether unfinished burial cases and coffins, held by a manufacturer for the purpose of being finished and sold, constituted part of his stock in trade, within the meaning of the exemption law. The court said: "The respondent here, as shown by the findings, which are reasonably supported by the evidence, was a manufacturer, engaged in the business of buying burial cases and caskets, which were in an unfinished condition, but which were so far advanced in the process of manufacture as to be ready for the trimmings on the outside and the lining on the inside, and finishing them himself by his own work and labor, and the addition of such other materials as were necessary to fit them for sale and use. It is found as a fact that this additional work, labor, and material were necessary in order to finish them, and to fit them for sale and use; and the uncontradicted evidence shows that they would thereby be enhanced in value about two-thirds. The property which is the subject of this action, and which it is claimed was exempt, consisted of several of these incomplete and unfinished burial cases and caskets, which the respondent had thus bought and was holding for the sole purpose of so finishing and fitting them for sale and use. They constituted as much a part of his stock in trade, within the meaning of the statute, liberally construed, as it must be, as did the screws, nails, trimmings, and lining, which were used in completing or finishing them." It was also held that "the failure of respondent to interpose his claim of exemption as to such property at the time of the levy could not work any estoppel against his making the claim subsequently, for it is

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