"E. M. S." that C is to be paid in full except as affected by B's mortgage, would lead to the conclusion that B is to be paid in full, except as affected by A's mortgage, which is the only superior lien to B; this we will call proposition "2." And it would also lead to the conclusion that A is to be paid in full except as affected by C's mortgage, which is the only superior lien to A; and this we will call proposition "3." Starting with proposition "1," "E. M. S." uses a line of argument which leaves B "out in the cold." Now, if we start with proposition "2," using the same line of argument, we leave A out, and if we start with proposition "3" we leave C out. Substantially the same criticism may be made on the argument of "Subscriber" of Port Richmond, which in effect is that of "E. M. S."

"Sol. Kohn" says that B takes $5,000, leaving an equal amount for A; but C intervenes and by reason of his priority causes the balance which B left for A to be paid to him, thus leaving A out. The same reasoning would permit us to say that C takes $5,000, leaving an equal amount for B; but A intervenes and by reason of his priority causes the balance which C left for B to be paid to him, thus leaving B "out in the cold." The fallacy of these arguments and of the decision in Bacon v. Van Schoonhoven, mentioned by "Subscriber" of Troy, is that they assume that some one of the parties has a right to take the amount of his mortgage out of the fund, thus giving him that priority over the others which is the very subject of dispute.

The unsoundness, too, of the decision in Manufacturers' Bank v. Bank of Pennsylvania, mentioned by "S. T. N.," we think is apparent. The reasoning there is that the first purchaser will have priority over the third, because the third cannot hold his ground against the second, who must in turn yield to the first. The court ignores the fact that the third though unable to hold his ground against the second can nevertheless compel the first to yield to him. For instance: In the case there presented of the purchaser of an entire estate, we may suppose that A obtains possession after the delivery and record of the conveyances; C then sues in ejectment, and recovers against A; for, as between A and C, the priorities are C, A, B, C having thus obtained possession is in turn liable to be ousted by B, for as between B and C the priorities are B, C, A. B may then be ousted by A, for, as between A and B the priorities are A, B. C. And C may again oust A, and the parties might thus "swing around the circle" indefinitely, there being no ground upon which the doctrine of estoppel could be invoked against either.

As to the arguments which go to leave one or the other out on the ground of subrogation or substitution, as it is termed by some, we think the error is evident. They all assume that one of the parties has an absolute right to the amount of his mortgage (the fallacy above pointed out) and then applying the doctrine of equitable (?) subrogation between the other two only deny one of them any interest; forgetting that in each caso the victim of their system of subrogation has (if subrogation be applicable to the case at all) a right in turn to be subrogated to the position of the very one to whom they gave the amount of his mortgage by indisputable right. For instance, those who give C the amount of his mortgage and by subrogation give A the hare left for B, forget that B is really entitled to be subrogated to C's rights. The truth is that the doctrine of subrogation can lend us no assistance to the solution of "Midsummer's" problem, for the simple reason that if C can be subrogated to A's rights, B may be to C's, and A to B's, and so on. From what has been stated it will be seen that the writer claims that there is no 'priority in the case put by "Midsummer," but that A, B and C are entitled to share equally in the proceeds of the sale. He deems this capable of mathematical demonstration as follows:

Let me change the problem by striking out $10,000 as proceeds of sale of the mortgage premises, and inserting $5,000 in lieu thereof.

Question. Upon which one of the three mortgages mentioned by "Midsummer," should the money be applied?

Answer. As between A and B the $5,000 belongs to A, for B had notice of A's prior unrecorded mortgage, and B has therefore no claim upon the $5,000.

As between A and C, C takes the money, for the reason that C had not notice of A's prior but unrecorded mortgage.

It may be said that C stands behind B and that therefore B's claim should precede C's. Why so?

If the mortgage of C did not exist, B would not take the $5,000. Now, since C's mortgage is in esse does it make or operate a right in B to the money? If so, then B gets the money by virtue of C's mortgage, who, as between B and C, stands behind B, and this would be simply absurd, and is not demonstrable. C, there

fore, must have the $5,000.

If the proceeds of the sale were $10,000, as mentioned by "Midsummer," the remaining $5,000 must go to B, as heretofore stated by me, and as sufficiently shown by Mr. Sol. Kohn, at page 238 of this volume.

Never mind the adjudication of courts in other cases. We have examined the reasons upon which the answer to the question hinges.

C takes the first $5,000; B takes the remaining $5,000; A is "out in the cold" with his first mortgage unsatisfied, on the same footing, in this respect, as your correspondents, without compensation for their services in thinking out "Midsummer's" problem. Yours again,

EGBERT WHITAKER.

I read with much interest the account in your issue of September 18, of an incident mentioned in the London Law Times that occurred in the Bristol County Court where one of the counsellors objected to proceeding with the trial of the case because the judge was father to the opposing counsel, because of the interest I felt in the subject-matter, which has been greatly increased by the conduct of a trial justice in this State. Our statute provides that the town councils of the several towns shall elect a trial justice from the qualified justices of the peace, his court being designated the justice court of that town, which has exclusive jurisdiction of all civil cases in which the amount claimed does not exceed one hundred dollars, excepting actions commenced by attaching real estate and certain cases where the title to real estate or some easement therein is the subject-matter in dispute. The town council of the town to which I refer elected one of its members trial justice, and also elected him constable.

This same trial justice issues writs under his official hand and seal, serves them as constable by attaching the defendant's personal property or otherwise, as the case may be, renders judgment in the same case, charges fees both as officer and court, issues executions and by virtue of them sells the property originally attached or levies upon other property. In fact, performs all the functions both of officer and trial justice of the same court.

In one particular case the trial justice served the writ in which case his brother was the plaintiff, and rendered judgment for plaintiff for the amount claimed and costs, notwithstanding the defendant appeared by counsel and by proper pleas objected to the proceeding.

In another (criminal) case, the trial justice issues his warrant against the boy over whom he is guardian, alleging the offense of larceny; arrests his ward; finds him guilty; sentences him to the State reform school for two years, and to pay all costs of prosecution, which costs all go to the guardian as court and officer, and which bill it is reasonable to presume will be presented in the guardian's next account to the Court of Probate for allowance.

Quere, Is there any law outside the statute which prohibits a judge from officiating as officer of and in his own court, or which prohibits a judge from sitting in a case in which he may have an interest except an immediate pecuniary interest?

PROVIDENCE, R. I., Sept. 20, 1880.

LOOSE LEGISLATION.

Editor of the Albany Law Journal:

LAWYER.

Permit me to call your attention, and that of the profession and public generally, to some examples of loose legislation by the Legislature of 1880.

Without referring to chapter 480, to which attention has already been directed in your columns, the provisions of chapters 416, 423, 437 and 517 may be pointed to.

Chapter 416 amends sections 197 and 198 of title 3, ch. 3, part 4 of the Revised Statutes. By chapter 460 of Laws 1847, title three chapter 3 of part 4 of the Revised Statutes was repealed from January 1, 1848, and

chapter 460, Laws 1847, was substituted and directed to be published as chapter third of part fourth. Said chapter 460 is divided into titles, subdivided into articles, and the sections numbered. In such chapter sections 155, 156 are the ones no doubt intended to be amended by chapter 416, Laws 1880. After 1847 various laws were passed bearing upon the subject-matter of chapter 3, part 4, of the Revised Statutes, both amending and changing the same; but not all laws passed were made amendments; nor has there been any change made by such laws in the numbering of the sections of the Revised Statutes. In the fifth edition of the Revised Statutes the compilers inserted such changes and assumed to renumber the sections of chapter 3, part 4, and in such editions the sections in question are numbered 178 and 179. But the change is that of the compilers and not of the Legislature. Under these circumstances can the Laws of 1880 be of any effect, there being no sections 197 and 198 of the Revised Statutes proper?

So chapter 517, Laws 1880, amends section 20, title 14, chapter 9 of part 1 of the Revised Statutes. There is no such title. But the compilers of the fifth edition inserted as title 14, chap. 150, of the Laws of 1837, of which chapter section 18 is probably the one sought to be amended.

Chapter 423, Laws 1880, amends section 23 of title 2, chap. 5, part 2 of the Revised Statutes. By chap. 245, Laws 1880, the whole of title 2, chap. 5 of part 2 is repealed from September 1, 1880.

Chapter 437 of Laws 1880 amends section 16 of article 3, chapter 6 of part 1 of the Revised Statutes. The law probably intended to amend section 16 of article 3 of title III of chapter 6. The chapter is divided into eight titles, in four of which there is an article III. Though the subjects may not be of great importance the carelessness of the Legislature is, and suggests that perhaps it may be well in the future for some committee of the bar to examine bills introduced, and where there are errors like the ones noted above, have them rectified. Very truly yours,

XIX AMERICAN DECISIONS.

HIS volume contains cases from 2 Stewart; 1, 2, 3, J. J. Marshall; 8 Martin N. S.; 6 Greenleaf; 1, 2, Gill & Johnson; 7, 8, 9 Pickering; 6 Halsted; 1 Paige; 1, 2 Wendell; 4 Ohio; 2 Rawle; 1 Rhode Island; 1 Bailey; 2 Vermont; 1 Leigh; with important notes on who are officers de facto; judgment at law based on false return of process; power of equity to perfect or enforce defective execution or acknowledgment of instrument by married woman; quantum meruit under special contract; special deposit in bank; arrest; power of equity to relieve against judgment at law; crops on execution sale of land.

VI BRADWELL'S REPORTS.

Reports of the Decisions of the appellate courts of the State of Illinois. By James B. Bradwell. Volume VI. Containing all the remaining opinions of the first, second, third and fourth districts, up to August 12, 1880. Chicago: Chicago Legal News Company, 1880. Pp. 698.

We have noted the following cases in this volume as of special interest: Morrison v. Jones, p. 89. -On liability to pay for services by accepting them without express contract. Combs v. Bradshaw, p. 115. - Parol evidence is admissible to show that the consideration for an indorsement on a note, that the interest should be at the rate of ten per cent until paid, was an exten

NEW YORK CODE OF CIVIL PROCEDURE.

The Code of Civil Procedure of the State of New York, with notes by Montgomery H. Throop, lately one of the Commissioners to revise the Statutes. Part II, chapters 14-22, as enacted in 1880. Albany: Weed, Parsons & Co., 1880. Pp. xi, 1114.

THER

NOTES.

HE nomination of Mr. Seymour D. Thompson, the eminent legal author, as a candidate for the St. Louis Court of Appeals, is one eminently fit in every point of view. The Central Law Journal says his election is desired by nine-tenths of the bar; and very justly observes, that "the bar when left to itself may be safely trusted to select the best talent for the bench." It seems from Gabe v. McGinnis, 68 Ind. 538, that "under the fish" means the court-house at Bloomington.

A

OBITUARY.

MOS R. MANNING, ono of the associate judges of the Supreme Court of Alabama, recently died in New York city, whither he had gone to be treated for a disease from which he had been suffering for six years. He consulted a surgeon, who decided that the only hope of cure was in a surgical operation, which was very likely to prove fatal. Judge Manning, however, decided to have this performed, and it was accordingly done on the 14th ult. The operation lasted about fifty minutes and was performed by several surgeons. Judge Manning failed rapidly after the operation, and died on the next Friday. The body was taken to Perth Amboy, N. J., where the funeral took place. Judge Manning was born in Amboy, N. J., in 1810. While he was a boy his family removed to Huntsville, Ala. About 1870 he became an associate judge of the Supreme Court of Alabama. His opinions were remarkable for care and research.

Reinhardt v. People; Goldstein v. People; Mack, alias McEnery v. People. - Judgment reversed and venire de novo Therasson v. People. - -Judgment reversed and new trial granted, costs to abide event - Dodge v. County of Platte. Order affirmed with costsTwombley v. Cassidy, in re Village of Middletown; Cowing v. Altman; Durkin v. Sharp. Order of General Term reversed, and that of Special Term affirmed with costs- - In re Depierris. Order of General and Special Term reversed, and motion granted with costs - In re Sanger. Order modified so as to require the values of annuity bonds to be computed by the American Experience Table with interest at four and one-half per cent, and as thus modified affirmed, costs of the receiver and of annuitants, who appealed to this court and have succeeded in procuring a modification of the order appealed from, to be paid out of the fund - In re Attorney-General v. North | American Life Insurance Company. Appeal dismissed with costs- In re Friedman. firmed without costs - In re Eldridge.

Order af

Mr. L. S. Jackson. The honor to the former is on account of the establishment of boards of arbitration between employers and employed; to the latter on account of judicial service in India. -The 4th volume of the North-western Reporter contains all the decisions of the Supreme Courts of Minnesota, Wisconsin, Iowa, Michigan, Nebraska and Dakota, from January 17 to April 10, 1880.

The correspondents of the ALBANY LAW JOURNAL are continuing the discussion of the constitutionality of the County Courts Jurisdiction Act of 1880. Thus far the negatives have the advantage in the debate, in respect of the positive conviction and unqualified assertion of the law; the affirmatives have the advantage of extent of argument. Meanwhile the county courts are not very desirable tribunals for litigation on money demands exceeding $1,000.- New York Daily Register. The following from the New York Daily Register, on lawyers returning from vacation, seems somewhat ambiguous in the closing adjective: "The returning absentees are seen in the streets and offices, bronzed and full-cheeked.". On the motion for re

argument on the question of the adoption of the Indiana constitutional amendments, the court adhere to their original ruling, by a vote of three to two, the judges dividing as before. The Loudon Law Times, speaking of the course of study recommended by the committee of the American Bar Association on Legal Education, says: "The law student who has mastered even the general principles of this wide range of subjects will have, it is scarcely necessary to remark, a far larger stock of theoretical knowledge at his command than is possessed by the majority of practicing lawyers."

The St. Louis Globe-Democrat, in an article entitled "A Legal Dilemma, says: "If the Hudson river tunnel deaths had resulted from willful malice instead of incurable stupidity, the crime would be equally beyond the purview of the law, as it is held that no murder can be proved unless the body of the victim can be produced before a legal tribunal. Such absurdities and inconsistencies are gradually disappearing from the codes of the States, but they survive with all the tenacity of all abuses. Under the old doctrine requiring the corpus delicti, a man might throw his victim over Niagara Falls in the sight of a thousand persons and go unpunished if the waters refused to give up their dead. Such a case would be an extreme one, but it would differ in degree only and not in kind from the New York case, where the coroner's inquests are postponed to await the arrival of the remains that are never going to come." This is indeed news, but we hope no more like it is "going to come."

ties having the same or similar laws of marriage, but there is danger of running against conflicting laws of different States, and there might arise a difficulty of proof in case the marriage were not consummated by cohabitation. People in love (for the first time) do not stop to consider these things, and are so afraid that they shall never see the like of one another again, that lightning is barely swift enough to seal their vows. Getting married in a balloon, or up in the dome of the National Capitol, both of which resorts we believe have been recently adopted by importunate lovers, is just as sentimental and rather safer than the telegraphic medium, although emblematically these modes are not the most satisfactory, for balloons are structures of gas and prone to collapse, and the National Capitol was once in sad danger from disunion. On the whole we should counsel people bent on marriage to wait until they can literally join hands, and then to be content with terra firma and the ordinary modes.

A very important practical decision has just been pronounced by the General Term of the Supreme Court for the third department of this State, namely, that under section 1623 of the new Code, and other sections touching the subject, a judge or referee cannot be required or permitted to make additional findings of fact or law, upon the settlement of the case, after his report or decision has been rendered. Mr. Throop, in his note to section 1023, in speaking of the old practice, says: "It is always awkward and inconvenient, and is often insufficient adequately to protect the rights of the defeated party.' He adds: "It has not been abolished; but an additional method of securing the desired result has been provided by this section."

IN

NOTES OF CASES.

66

N State v. Foley, Supreme Court of Nevada, March, 1880, 10 Rep. 369, it was held that a conviction in one State, which disqualifies the convict from testifying, also disqualifies him from testifying in another State. The court said: 'But does a conviction in one State disqualify the convict from testifying in another State? It was conceded in the argument, and we have thus far assumed that it does. The question, however, is vital to the case, and we should not feel justified in deciding it in the affirmative merely because counsel has admitted that it must be so decided. Mr. Greenleaf, 1 Ev., § 376, declares that the weight of modern opinion is the other way; and Mr. Bishop, 1 Cr. Law, § 976, takes the same view. There is but one case, however, which supports this declaration, Commonwealth v. Green, 17 Mass. 539, while there are at least two well-reasoned and more recent decisions directly to the contrary. The first of these, State v. Chandler, 3 Hawks, 393, was decided very shortly after the Massachusetts case, and apparently without any knowledge of the grounds of that decision; but in the other case, Chase v. Blodgett, 10 N. H. 22, the grounds of the decision in Commonwealth v. Green

are thoroughly reviewed, and the argument, in our opinion, completely overthrown. There is a reference in the digest to a case in 42 N. Y. Superior Court Reports, where the point seems to have been held as it was in Massachusetts. We have been unable to procure that volume, but we presume it adds nothing to the reasoning of the court in Commonwealth v. Green. This case we have given a very attentive consideration without being at all convinced by it. The court adduces a number of reasons in support of its conclusions, but rests upon no one of them as a conclusive ground of decision. The argument to which most weight seems to be attached is, that a State will not enforce the penalty of a crime committed beyond its jurisdiction, and the denial to a convict of the right to testify, they say, is a part of this punishment. This argument is very satisfactorily met, and entirely refuted in both the North Carolina and New Hampshire cases above referred to. They say, in effect, that the ground upon which a convict is held incompetent to testify is that there is no presumption that he will speak the truth; he is excluded, not for the purpose of punishing him, but for the protection of the party against whom he offers to testify; if it thereby results incidentally that he is subjected to humiliation and disgrace, this is an inconvenience which it is entirely within the power of the State to impose, and of which he has no more right to complain than an atheist had to complain of the discredit which the laws of many countries formerly Without further comment attached to his oath.

on these cases we content ourselves with saying that, in our opinion, the weight of authority and the soundest reasons support the doctrine that a person convicted of an infamous crime in another State is thereby rendered incompetent to testify in our courts." This is directly contrary to Sims v. Sims, 75 N. Y. 466, and National Trust Co. v. Gleason, 77 id. 400. The New Hampshire and North Carolina cases were reviewed in the Sims case, and denied. The reasons stated are, first, that it is the sentence, and not the commission of the crime, that disqualifies; and second, that a record of conviction for a crime is not conclusive, if any, evidence, in a civil action, of the facts on which it is based.

In O'Connor v. Chicago, Milwaukee & St. Paul R. Co., Minnesota Supreme Court, September 13, 1880, 6 N. W. Rep. 481, it was held that in case of an accident by a railroad train running upon and injuring horses on the track, what was said by the engineer to the conductor of the train immediately after the accident and after the train had stopped, and while they were examining to ascertain what mischief had been done, indicating where he first saw the horses on the track, there not appearing any thing but the occurrence to cause or procure the statement, may be proved by the plaintiff as part of the res gesta. The court said: "To make declarations of an agent evidence against his principal they must not only have been made while he was engaged in the business of the principal, but they must be a part of the trans