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Then afterward he refers

circumstances it must be so. to Boyes v. Bedale, and says: "I do not hesitate to follow that decision;" so that decision agrees with Boyes v. Bedale. I think, if it is agreed that those cases are decided rightly, in the case of a will of a domiciled Englishman, according to the statute of distributions, the word "children," wherever it occurs, must mean children according to the English law. It is impossible that there can be two meanings put on the same words in the statute. It must mean the same. Then as regards the actual decision, the declaration by Stuart, V. C., that they take under another will, cannot decide the question of legitimacy for all purposes.

Some further discussion took place, during which his lordship said that, as he understood, in Goodman v. Goodman, the opinions of Dutch advocates were taken, and that according to them all the brothers and sisters of Madame Pieret and Mrs. Denis were legitimate by Dutch law, and he did not at present see on what ground in that action any of them had been excluded from participating.

NEW YORK COURT OF APPEALS ABSTRACT

FORMER ADJUDICATION ACTION BY PLEDgee of MORTGAGE TO FORECLOSE- PAYMENT OF JUDGMENT BY OWNER OF MORTGAGE RESTORES HIS RIGHT TO FORECLOSE. A executed a mortgage to B to secure the payment of $4,500. B assigned the mortgage to plaintiff in his action. Plaintiff assigned it to C to secure the payment of, $1,334, and the assignment was expressed to be upon the condition that it should be void upon the payment of that sum. The sum secured by the mortgage was then due. The $1,334 not being paid as agreed, C commenced an action to foreclose the mortgage, all the parties to this action being made defendants. That action was defended by A, who set up that the mortgage was given for the sole purpose of securing against liability for indorsements upon notes which had been paid, and the mortgagee sustained no damage. Plaintiff in this action also appeared and denied personal liability. In that action judgment was given that C had a lien upon the mortgaged premises for the $1,334, and a sale of sufficient of them to pay that sum was ordered. The parties appearing appealed and the judgment was affirmed. Plaintiff paid the amount of the judgment and afterward commenced this action to foreclose the mortgage. The R. company, which had an interest in the mortgaged premises, appeared and set up the judgment in the prior action as a bar and defense to this action. Held, that the former judgment did not constitute a defense. The assignment by plaintiff to C constituted a pledge of the mortgage to him as security for the sum named. Hoskins v. Kelly, 1 Rob. 160; Campbell v. Parker, 9 Bosw. 322. Plaintiff remained the general owner of the mortgage. The court decided that Chad a lien upon the mortgaged premises to the extent of the sum named; that lien was discharged and the mortgage was restored to plaintiff as fully as she owned and possessed it before the assignment. The principle that there can be but one suit for the enforcement of one entire demand, and that where au action is brought for a part of the demand a judgment in such action is a bar to an action for another part of the demand (Phillips v. Berick, 16 Johns. 136; Bendernagle v. Cocks, 19 Wend. 207; Fish v. Folley, 6 Hill, 54), has no application to this case. If C had proceeded to judgment and sale for a part only of his demand, the whole being due, and then brought another action, the principle might have been invoked against him. But plaintiff did not hold the mortgage under C. Upon satisfying his lien the pledge was restored to her unaffected by any thing the pledgee might have done. The principle

mentioned is applied to prevent vexatious litigation and is rigidly enforced in common-law actions, but in equity will not be enforced unless the equity of tho case requires. In this case the action and judgment of Charmed only plaintiff and was enforced against no part of the mortgaged premises. Judgment affirmed. Dougherty v. Remington Paper Company, appellant et al. Opinion by Earl, J. [Decided Sept. 21, 1880.]

MANDAMUS-WILL LIE AGAINST TOWN BOARD of AUDIT TO COMPEL SPECIFIC EXAMINATION OF CLAIM.

Relator, who was commissioner of highways of the town of Elmira, presented his bill to the town auditors, in proper form and duly verified, for twenty-seven days' service, specifying by its date each day for which payment was claimed. The rate of compensation of commissioners of highways fixed by statute is two dollars per day. The auditor allowed relator thirtyfour dollars as a gross sum, without allowing or disallowing any specific item alleged in the account, and without deciding that any definite or particular days were not necessarily spent in the service of the town. Held, that the action of the town board of auditors was improper and a mandamus would lie to compel a proper award. Within the range of their discretion boards of auditors are sufficiently powerful. The courts may not dictate their conclusion, but may jointly require that they arrivo at one in a just and intelligent way and with some reasonable respect for the possible rights of creditors. A claimant is entitled to the judgment of a board of auditors upon each item of his claim, and a mandamus framed to compel the performance of that duty will bo sustained. People v. Supervisors of Delaware, 45 N. Y. 196. Order affirmed. People ex rel. Thurston v. Board of Town Auditors of Elmira, appellants. Opinion by Finch, J. [Decided Sept. 21, 1880.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

WHEN

AGENCY-PAYMENT TO AGENT BY MISTAKE AGENT NOT LIABLE TO REPAY. - It is a general rule that an agent, known and treated with as such, cannot be compelled to pay back money received by him under a mutual mistake of fact, and paid over to his principal. Holland v. Russell, 30 L. J. 312; 32 id. 297; Shand v. Grant, 15 C. B. (N. S.) 322-324; Newall v. Tomlinson, L. R., 6 C. P. 405; Buller v. Harrison, Cowp. 565-569; Frye v. Lockwood, 4 Cow. 454-456; Granger v. Hathaway, 17 Mich. 500; Morral v. McClellan, 1 Wend. 173; Costigan v. Newland, 12 Barb. 456. If the agent acts in bad faith, or with knowledge of his principal's want of right to receive the money, or is himself a party to an illegal exaction of the money, or is not authorized by his assumed principal to act for him, as where his power of attorney is a forgery, payment of the money over will be no defense. Miller v. Aris, 3 Esp. 231; Snowdon v. Davis, 1 Taunt. 359; Edwards v. Hodding, 5 id. 416 [*815]; Seidell v. Peckworth, 10 S. & R. 442. See, also, Story on Agency (8th ed.), $$ 300, 301, and notes. If the party receiving the money, though an agent in fact, does not disclose his agency to the party making tho payment, there is of course no presumed consent or direction that he pay over, and payment to his principal will be no defense. In such a case, having acted as a principal, he will not be permitted to defend on the ground that he was not the principal. Canal Bank v. Bank of Albany, 1 Hill, 287, 293, 294; Bank of Commerce v. Union Bank, 3 N. Y. 230, and Kingston Bank v. Ettinge, 40 id. 391, considered. District, S. D. New York, June 24, 1880. United States v. Pinover. Opinion by Choate, D. J.

Appearing in 3d Federal Reporter

While

CONSTITUTIONAL LAW-IMPAIRING CONTRACT-EXEMPTION FROM TAXATION - FEDERAL JURISDICTION. -The Legislature of a State may contract in a corporate character for exemption of the corporate property from taxation, unless there be some constitutional prohibition. Tomlinson v. Branch, 15 Wall. 460. Where a State has, by valid contract, exempted certain property from taxation, it cannot by subsequent legislation subject that property to taxation, nor prohibit the United States courts from using their injunctive powers to protect the contract from violation. the general rule is that courts will not enjoin the collection of taxes upon the mere ground that they are excessive or illegal, yet if their exaction is unconstitutional, and the party assessed has no other adequate remedy, or their enforcement will occasion irremediable oppression and produce a multiplicity of expensive suits, an injunction to restrain their collection will be granted. State Railroad Tax Cases, 92 U. S. 575. Circuit, M. D. Tennessee, 1880. Louisville & Nashville Railroad Co. v. Gaines, Comptroller. Opinion by Baxter, C. J.

MARITIME LAW-SEAMAN CAN BE REQUIRED TO WORK ON SUNDAY. - A seaman upon a schooner in the harbor of Frankfort, Michigan, where she was towed to receive a cargo of lumber, cannot refuse to work on Sunday, in loading the schooner, where the towing vessel is not able to enter the harbor by reason of an insufficiency of water, and is lying outside in the lake, awaiting the schooner, and is in a place of danger. Where the master of the schooner was of opinion that it was necessary, for the safety of the towing vessel, that the loading of the schooner (begun on Friday) should be completed on Sunday, and ordered tho work to be done, it was the duty of the crews to obey. In this case, held, that a seaman refusing to work on Sunday was rightfully expelled from the schooner, and forfeited his wages for his disobedience. The Richard Matt, 1 Biss. 440. District, E. D. Pennsylvania, Aug. 2, 1880. Smith v. Schooner J. C. King. Opinion by Acheson, D. J.

PARTIES-TO SUIT TO DETERMINE VALIDITY OF WILL -PERSONS NOT IN ESSE. — In a suit to determine the validity of a will it is a settled rule of law that where there are contingent limitations and executory devises to persons not in being, the suit may proceed against those in being holding the prior estate, and that a judgment or decree against the latter binds the former in all respects as if they were in esse and parties to the suit. Especially is this so when the former are before the court by representation - that is, where the rights and interests which those not in esse would have if then in esse are the same with those of parties in being and before the court. Gifford v. Hort, 1 Sch. & Lef. 408; Story's Eq. Pl., §§ 145, 792; Mead v. Mitchell, 17 N. Y. 210; Baylor's Lessee v. Dejarnette, 13 Gratt. 152; Falkner v. Davis, 18 id. 651; Powell v. Wright, 7 Beav. 444-449; Lorrillard v. Costar, 5 Paige, 172; Palmer v. Flower, 1 Eng. Rep. 664; Bassnett v. Moxon, 13 Moaks, 716; Willis v. Slade, 6 Ves. 498; Lloyd v. Johns, 9 id. 37-52. Circuit, S. D. Ohio, July, 1880. McArthur v. Allen. Opinion by Swayne, C. J.

RHODE ISLAND SUPREME COURT ABSTRACT.

EXECUTION-OFFICER'S RETURN ON, CONCLUSIVE UNTIL DIRECTLY IMPEACHED. — An officer's return on an execution is, until changed by proper proceedings operating directly on the record, conclusive upon the parties to the action in which the execution issued, and also upon an assignee of one of the parties who takes from him pendente lite, property attached in the action. In Angell v. Bowler, 3 R. I. 77, it was decided that an

officer's return on an original writ cannot be controverted by the defendant except as provided by statute; and in Estes v. Cooke, 12 R. I. 6, it was decided that the return on an execution was conclusive on the parties in a subsequent action. In other States, with two or three exceptions, the rule is that the return is conclusive on parties and privies until set aside in some direct proceeding. Swift v. Cobb, 10 Vt. 282; Bates v., Willard, 10 Metc. 62, 80; Campbell v. Webster, 15 Gray, 28; Whitaker v. Sumner, 7 Pick. 551; Sykes v. Keating, 118 Mass. 517, 520; Bramford v. Melvin, 7 Me. 14; Huntress v. Tiney, 39 id. 257; Messer v. Bailey, 31 N. H. 9; Herman on Executions, § 242. The return is in fact a part of the record, and while it stands is as conclusive as any other part of it. Barrows v. National Rubber Co. Opinion by Durfee, C. J. [Decided June 18, 1880.]

FRAUDULENT CONVEYANCE - -CONVEYANCE IN CONSIDERATION OF MARRIAGE NOT VOLUNTARY.-Marriage is deemed in law a valuable consideration. A conveyance, therefore, in consideration of marriage, stands upon a different footing from a voluntary conveyance. All the authorities agree to this extent, at least, that a man, though indebted, may settle a portion of his property on his intended wife, and that, in the absence of fraud, the settlement, if no more than a reasonable provision for the wife, will be upheld against existing as well as subsequent creditors. Campion v. Cotton, 17 Ves. Jr. 264; Armfield v. Armfield, Freeman (Miss.), 311; Croft v. Arthur, 3 Des. 223; Buckner v. Smyth, 4 id. 371; Davidson v. Graves, Riley's Eq. 232; Magniac v. Thompson, 7 Pet. 348; Marshall v. Morris, 16 Ga. 368; Smith v. Allen, 5 Allen, 454; Bonser v. Miller, 5 Oregon, 110. National Exchange Bank v. Watson. Opinion by Matteson, J. [Decided July 3, 1880.]

STATUTE OF FRAUDS — CONVEYANCE OF REALTY WITH RENTS RESERVED-IMPLIED CONTRACT. - A conveyed to B certain realty by a deed poll in which specified rents were reserved for periods of time described. B entered under the deed. Held, that by his entry B contracted to pay the rents as reserved. Held, further, that B's contract being an implication of law was not within the statute of frauds. The contract to pay the rent reserved was not an express contract but an implied contract, or a contract raised by law from the nature of the transaction, and it has been repeatedly held that such contracts are not within the statute of frauds. Goodwin v. Gilbert, 9 Mass. 510; Fletcher v. McFarlane, 12 id. 43; Felch v. Taylor, 13 Pick. 133; Sage v. Wilcox, 6 Conn. 81; Allen v. Pryor, 3 A. K. Marsh. 305; Browne's Stat. of Frauds, § 166. In Goodwin v. Gilbert, the doctrine is broadly laid down that, where land is conveyed by deed poll and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved, and the promise being raised by the law is not within the statute of frauds. In Pike v. Brown, 7 Cush. 133, Shaw, C. J., in delivering the opinion of the court, instances the case of rent reserved in a lease by deed poll as a signal and familiar illustration of the doctrine. And that occupation under the lease is not indispensable to the recovery, if only the lease has been accepted, was distinctly decided in Kabley v. Worcester Gas Light Co., 102 Mass. 392, in a case in which the lessees never occupied at all. "It is enough," say the court, “that they accepted the conveyanco which gave them the right of immediate and exclusive occupation. The law would imply from such acceptance a promise to comply with the terms of the lease, and such a promise is not within the statute of frauds." Providence Christian Union v. Elliott. Opinion by Durfee, C. J. [Decided July 3, 1880.]

CALIFORNIA SUPREME COURT ABSTRACT.

CORPORATION-NOTICE - WHEN KNOWLEDGE OF DIRECTOR NOT THAT OF CORPORATION.- The knowledge of the director of a corporation acquired incidentally and not while acting for the corporation is not the knowledge of the corporation so as to charge it. Accordingly where structures were erected upon lands belonging to an agricultural society which were in the possession of W., a director of the society, under a lease for the benefit of W., held, that a mechanic's lien could not be filed against such lands on the ground that the knowledge of W. of the erection of the structures was chargeable to the society. Unless the knowledge of a director of a corporation was acquired by him in the management and conduct of its business, notice of it is not attributable to the corporation. If the agent acquires his knowledge casually, or privately, or by rumor, and he does not inform the corporation or its agents of it, the corporation is not chargeable with it. "I agree," says Nelson, C. J., in Bank of U. S. v. Davis, 2 Hill, 451, "that notice to a director, or knowledge derived by him while not engaged officially in the business of the bank, cannot and should not operate to the prejudice of the latter. This is clear from the ground and reason upon which the doctrine of notice to the principal through the agent rests. The principal is chargeable with this knowledge for the reason that the agent is substituted in his place, and represents him in the particular transaction; and as this relation, strictly speaking, exists only while the agent is acting in the business thus delegated to him, it is proper to limit it to such occasions." See, also, Fulton Bank v. New York, etc., Canal Co., 4 Pai. 127. So where a defective deed had been recorded purporting to convey certain land, and one of the directors of a corporation which had acquired an equity of redemption in the premises, not acting as agent of the corporation, and having no management of its business otherwise than as a director, went to the town records for the purpose of ascertaining the situation of the land, and there saw the record of the deed, but did not inform the corporation or any of its agents thereof, the Supreme Court of Connecticut held that the corporation was not, by reason of these facts, chargeable with knowledge of the deed. Farrel Foundry Co. v. Dart, 26 Coun. 376. Lothian v. Wood et al. Opinion by McKee, J. [Decided July 26, 1880.]

66

OFFICE WHEN OFFICIAL TERM COMMENCES-STATUTORY CONSTRUCTION. — A statute of California provided that the governor should appoint commissioners "who shall hold office for the period of three years from and after their appointment," that they should 'within twenty days after their appointment" meet and take an oath to faithfully perform their duties, etc. Held, that a commissioner appointed under the statute held office from the time of his appointment. This would not sometimes be the case. As was said by Field, J. (People v. Whitman, 10 Cal. 47): "To the complete investiture of an office, the acts of the appointing power and of the person appointed must, in some instances, concur. The appointment is complete when the commission is signed by the President; but it is competent for Congress to require the performance of certain acts by the appointee, such as the execution of security, the taking of an oath of office, and the like, before he can enter into the possession of the office. This has been done in relation to the office of surveyor-general. The performance of the acts are conditions precedent to the holding of the office." United States v. LeBaron, 19 How. 78. It is also competent for the Legislature to make the taking of the oath of office, etc., a condition subsequent, and to provide, as in the case at bar, that the appointees

should hold the office from the date of the appointment, subject to the condition that if they failed to qualify, or perform some other act, the appointment should go for naught. Ball v. Kenfield, Controller. Opinion by McKinstry, J. [Decided July 22, 1880.]

CRIMINAL LAW.

EVIDENCE-DYING DECLARATIONS-HOPE OF RECOVERY RENDERS INCOMPETENT. - An alleged dying statement of deceased set forth that "believing that I am very near death and realizing that I may not recover, I wish to make this, my dying statement," etc. She was then sick from the effect of an abortion. Held, that the statement was inadmissible. It is essential to the admissibility of such declarations that it appear that they were made under a sense of impending death. It is the impression of almost immediate dissolution that renders the testimony admissible. "Therefore," says Greenleaf, "where it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterward, the declaration is inadmissible. On the other hand, a belief that he will not recover is not in itself sufficient, unless there be also the prospect of almost immediate dissolution." 1 Greenl. Ev., § 158. This is the rule recognized and approved by all of the authorities. The only difficulty that arises comes from the application of the rule to the facts of the particular case. In the case before us, however, we think it appears upon the face of the paper itself that the deceased had not abandoned all hope of recovery. There is here a clear indication that the deceased at the time of making the declaration had not abandoned all hope of recovery. The declaration was therefore inadmissible. Wharton's Hom. 306-8; Rex v. Woodcox, 2 Leach's C. C. 267, 566; People v. Sanchez, 24 Cal. 24. In the last case cited this court said: "This species of testimony should always be received with the greatest caution, and too much care cannot be observed by the court in scrutinizing the primary facts upon which its admissibility is grounded. No person is entirely exempt from a disposition to excuse and justify his own conduct, or to inflict vengeance upon one at whose hands he has suffered a grievous wrong; and in the eye of the law this proclivity is presumed, in cases like the present, to be overcome and silenced only by the presence of almost immediate death. An undoubting belief existing in the mind of the declarant, at the time the declarations are made, that the finger of death is upon him, is indispensable to that sanction which the law exacts; and if it shall appear in any mode that there was a hope of recovery, however faint it may have been, still lingering in his breast, that sanction is not afforded, and his statement cannot be received." California Sup. Ct., June 7, 1880. People of California v. Hodgdon. Opinion by Ross, J.

PLEADING

ATTEMPT TO STEAL. — In an indictment for an attempt to steal, it is not necessary to specify the particular articles intended to be stolen. In Whart. on Cr. Law, §§ 292 and 1282, it is said that in indictments for attempts to commit crimes in themselves indictable, it is not necessary to observe the same particularity as is required in indictments for the commission of the offense itself. And as illustrative of that position, he says an indictment for an assault with an intent to steal from the pocket is good without stating the goods or moneys intended to be stolen. In accordance with this statement of the rule, it has been decided in various States that the offense of attempts to commit larceny is complete by an intention to steal and an act done in pursuance thereof apparently effi

cient to carry out the purpose, and it is not necessary in the bill of indictment to aver the specific articles intended to be taken, as such fact is extrinsic and not essential to constitute a criminal attempt. State v. Wilson, 30 Conn. 500; Comm. v. McDonald, 5 Cush. 365; People v. Bush, 4 Hill, 133; Spencer v. Ohio, 13 Ohio, 401; Hunter v. State, 29 Ind. 80. North Carolina Sup. Ct., January Term, 1880. State of North Carolina v. Ulley. Opinion by Dillard, J.

-

PLEADING INFANTICIDE-SEX OF CHILD NOT REQUIRED TO BE STATED. In an indictment for infanticide, although convenient and advisable when it can be safely done, it is not indispensable that the sex of the murdered child be stated even though its name be unknown or it has no name. The law requires that an indictment shall be so certain as to the party against whom the offense was committed, as to enable the prisoner to understand who the party is, and upon what charge he is called upon to answer, as to prevent the prisoner from being put in jeopardy a second time for the same offense, and as will authorize the court to give the appropriate judgment on conviction. What would it practically add, in these respects, to the rights and safety of the accused to have the sex alleged? In a criminal proceeding, the allegation of name is enough though there may be more than one person of the same name in the same place. State v. Grant, 22 Me. 171. It is enough to allege the name to be unknown, although the grand jury might have ascertained what the name was. Com. v. Stoddard, 9 Allen, 280. An indictment need not describe, by an addition, the person upon whom an offense is committed. Varney, 10 Cush. 402. In Bac. Abr. (Indictment G.) it is said, "Sometimes it may be convenient, for distinction sake, to add it," but not essential, "for it is sufficient if the indictment be true, viz., that J. S. was killed or robbed, though there are many of the same name." The tendency of modern decisions is to less strictness than formerly in describing persons and properties in indictments. If it is sufficient to describe a man by his name alone without an addition, when there are many others of the same name, or allow the person to be nameless in a presentment of the grand jury because they do not know what the name is, although they could have ascertained it by some painstaking, it can be no stretch of legal principle, to say that in the case of an infant it is not essential that the sex should be stated. Com. v. Brettun, 100 Mass. 206; Com. v. Campbell, 103 id. 436; Com. v. Strangford, 112 id. 289. Maine Sup. Ct., Dec., 1879. State of Maine v. Morrisey. Opinion by Peters, J.

Com. v.

TRIAL EXCLUSION OF WITNESS FROM COURT-ROOM -FAILURE TO OBEY ORDER DOES NOT DISQUALIFY WITNESS. - On a trial of a prisoner for receiving goods knowing them to be stolen, on the motion of the attorney for the Commonwealth, without objection by the prisoner's counsel, the court directs the witnesses to leave the court- room; and they all leave but one, who was in the prisoner's box in the court-room, held on a requisition from the governor of another State, upon the charge of the larceny of the same goods. In the progress of the trial the attorney for the Commonwealth offers this man as a witness, and he is objected to by the prisoner, on the ground alone of his remaining in the court-room, after the order of the court, held, that he was a competent witness. Whero an order directing the exclusion of witnesses from the court-room during the trial is made, if a witness or the officer in charge willfully disobeys or violates such order, he is liable to be punished for his contempt, and at one time, according to the English practice, it was considered that the judge, in the exercise of his discretion, might even exclude the testimony of such a witness. But now it seems to be the practice to allow the witness to be examined, subject to observation as

to his conduct in disobeying the order. 2 Taylor on Ev. (7th ed.), SS 1400, 1401, 1402; 3 Wharton's Crim Law. (7th ed.), § 3009a. In Cobbett v. Hudson, 72 Eng. C. L. 11 (decided by Queen's Bench in 1852), Lord Campbell, C. J., observed, that with respect to ordering witnesses out of court, although this is clearly within the power of the judge, and he may fine a witness for disobeying this order, the better opinion seems to have been that his power is limited to the infliction of the fine, and that he cannot lawfully refuse to permit the examination of the witness. Citing Cook v. Nethercote, 6 C. & P. 471; Rex v. Colley, 1 Mood. & Mal. 329; Thomas v. David, 7 C. & P. 350. And in Chandler v. Horne, 2 Mood. & R. N. P. 423, Erskine, J., said: "It used to be formerly supposed that it was in the discretion of the judge whether the witness should be examined. It is now settled and acted upon by all the judges that the judge has no right to exclude the witness; he may commit him for contempt, but he must be examined; and it is then matter of remark as to the value of his testimony, that he has willfully disobeyed the order. See, also, Nelson v. State, 2 Swan, 237. Virginia Ct. of Appeals, Nov. Term, 1879. Hey v. Commonwealth of Virginia. Opinion by Burks, J.

THE ENGLISH EMPLOYERS' LIABILITY

THE

BILL.

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THE following is the text of this bill, "to extend and regulate the liability of employers to make compensation for personal injuries suffered by workmen in their service, as amended in committee on recommitment and on consideration as amended," and in the form in which it is presented to the House of Lords: "1. Amendment of Law. Where after the commencement of this act personal injury is caused to a workman (1) by reason of any defect in the ways, works, machinery, plant or stock-in-trade connected with or used in the business of the employer; or (2) by reason of the negligence of any person in the service of the employer who has superintendence intrusted to him while in the exercise of such superintendence; or (3) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman, at the time of the injury, was bound to conform, and did conform, where such injury resulted from his having so conformed; or (4) by reason of the act or omission of any such person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; (5) by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway-the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the samo right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work.

"2. Exceptions to Amendment of Law. A workman shall not be entitled under this act to any right of compensation or remedy against the employer in any of the following cases; that is to say, (1) under subsection 1 of section 1, unless tho defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, machinery, planks, or stock-in-trade were in proper condition. (2) Under sub-section 4 of section 1, unless the injury resulted from some impropriety or

defect in the rules, by-laws, or instructions therein mentioned; provided that where a rule or by-law has been approved or has been accepted as a proper rule or by-law by one of her majesty's principal secretaries of State or by the board of trade or any other department of the government, under or by virtue of any act of Parliament, it shall not be deemed for the purposes of this act to be an improper or defective rule or by-law. (3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.

"3. Limit of sum recoverable as compensation. — The amount of compensation recoverable under this act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury.

"4. Limit of time for recovery of compensation.- An action for the recovery under this act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or in case of death, within six months from the time of death; provided always that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice.

"5. Money payable under penalty to be deducted from compensation under act.-There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this act, any penalty or part of a penalty which may have been paid in pursuance of any other act of Parliament to such workman, representatives, or persons in respect of the same cause of action, and where an action has been brought under this act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman for compensation in respect of any cause of action arising under this act, and payment has not previously been made of any penalty or part of a penalty under any other act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other act of Parliament in respect of the same cause of action.

"6. Trial of actions.-1. Every action for recovery of compensation under this act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed. 2. Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. 3. For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this act in a county court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. County Court' shall, with respect to Scotland, mean the 'Sheriff's Court,' and shall,

with respect to Ireland, mean the Civil Bill Court.' In Scotland any action under this act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section 7 of the Sheriff Courts (Scotland) act, 1877. In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries.

"7. Mode of serving notice of injury.-Notice in respect of an injury under this act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a prepaid letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and put into the post. Where the employer is a body of persons corporate or unincorporate, the notice shall be served by delivering the same at or by sending it by post in a prepaid letter addressed to the office, or if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defense by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading.

"8. Definitions.-For the purpose of this act, unless the context otherwise requires, the expression 'person who has superintendence intrusted to him' means a person whose sole or principal duty is that of superintendence and who is not ordinarily engaged in manual labor; the expression 'employer' includes a body of persons corporate or unincorporate; the expression 'workman' means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies. "9. Commencement of act. This act shall not come into operation until the first day of January, 1881, which date is in this act referred to as the commencement of this act.

"10. Short title.-This act may be cited as the Employers' Liability Act, 1880."

CORRESPONDENCE.

MORE MIDSUMMER."

Editor of the Albany Law Journal:

It may seem presumptuous for the writer to suggest that "Midsummer's" problem has not been correctly solved by any of your correspondents; especially as some of them are supported by the authority of very respectable courts. He is, however, prepared to take that responsibility.

The fallacy of the reasoning of "E. M. S.," "Subscriber" of Port Richmond, and "Sol. Kohn," must bo apparent when it is seen that it would serve to leave either A, B or C "out in the cold," as follows.

"E. M. S." starts with the proposition that C is to be paid in full, except as affected by B's mortgage; for the purposes of this argument we will number this proposition "1." The same reasoning which satisfies

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