der an agreement for sale to defendant, he to pay the purchase price of the same, the horses to remain the property of the owner until paid for and to be returned at a specified time if not paid for. The defendant refused to return the horses and did not pay for them. Held, that he was not guilty of larceny as bailee. In Pennsylvania it is settled that the bailee of goods who uses and enjoys them as if his own, cannot divest the title of the bailor, nor can the bailee's creditor seize them in execution of his debt. When delivered under a contract of bailment the owner will be entitled to them against every body. But a delivery on a conditional sale, the property to remain in the vendor until the goods are paid for, with right to reclaim them, is void as respects the vendee's creditors, or an innocent purchaser from him. The delivery being on the foot of a purchase, the vendor's right, as against the vendee's creditors, is regarded as a lien for the purchase-money. Chamberlain v. Smith, 8 Wright, 431; Haak v. Linderman, 14 P. F. S. 499. By the terms of the contract the seller may retain the right of property in the goods till paid for, as against tho purchaser, and in default of payment, he may reclaim them, or use civil remedies for recovery of possession, but the contract does not make him a bailor, as respects other persons, nor the purchaser a bailee in the sense of the word as used in the statute. The statute, as shown by Read, J., in Commonwealth v. Chatham, 14 Wright, 181, is taken from the English statute; and in that case the interpretation of the words "bailee and bailment,' as fixed by the English decisions, was adopted, which decisions were cited, showing that the words must be

interpreted according to their ordinary legal accepta

tion, that "bailment relates to something in the hands of the bailee," which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under any obligation to return it in precisely the identical coin which he originally received;" that "to bring a case within this clause, in addition to the fraudulent disposal of tho property, it must be proved, first, that there was such a delivery of the property as to divest the owner of the possession, and vest it in the prisoner for some time; secondly, that at the expiration or determination of that time the identical same property was to be restored to the owner." The term "bailee" is one to be used, not in its large but its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods bona fide and then fraudulently convert. When it does not appear that a fiduciary duty is imposed on tho defendant to return the specific goods of which the alleged bailment is composed, a bailment under the statutes is not constituted. Whart. Cr. L., § 1055 (8th ed.). Pennsylvania Sup. Ct., March 15, 1880. Krause v. Commonwealth. Opinion by Trunkey, J.

PROTECT OFFICER.

WARRANT-NOT DESCRIBING ACCUSED INVALID TO A warrant, wherein the only description of the accused is, "a person whose name is unknown but whose person is well known, of Vassalboro, in the county of Kennebec," is too defective in matter of substance to afford any protection to the officer who makes an arrest upon it. Such a warrant is too defective to be aided by any waiver in pleading. It is not in accordance with a constitutional provision that "no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and tho person or thing to be seized," nor with the precedents of the criminal law. "If the name of the party to be arrested be unknown, the warrant may be issued against him by the best description the nature of the case will allow." 1 Chit. on Crim. L. 39; Commonwealth v. Crotty, 10 Allen, 404. The omission of the name, as a means of identification, is justified only on the ground of neces

sity; and when this is not known the warrant must indicate on whom it is to be served in some other way, by a specification of his personal appearance, his occupation, his precise place of residence or of labor, his recent history, or some facts which give the special designation that the Constitution requires. The conclusion from all the authorities is that both at the common law and in conformity with our constitutional guaranties, proceedings may be instituted and carried on against an offender whose name cannot be ascertained; but in such a case such a description of him must be given as will point to his identity, while yet there is no exact form of the description required. It must be suggested by the particular circumstances; and of course it must conform also to any statutory provisions which may exist in the individual State. Bish. Cr. Proc., § 680. Maino Sup. Jud. Ct., Jan., 1880. Harwood v. Siphers. Opinion by Symonds, J.

RECENT ENGLISH DECISIONS.

CONTRACT-INCONSISTENT CONTRACTS — RIGHT OF ACTION.-A lease of land from A to B contained a covenant by B not to assign or underlet without previous written license. B, without license, underlet a part of the land to C, by an agreement which also gave Can option of purchasing tho whole within five years. B subsequently surrendered his lease to A and obtained a new one, which contained a similar covenant against assigning or underletting. C having exercised his option of purchase, but A having refused his license, notwithstanding that he had been cognizant of the agreement: Held, that C was not entitled to specific performance against A or B. A lessor in A's position will not be precluded from exercising his strict legal rights, unless he has so far acquiesced that it would amount to fraud for him to do so. Where a person has entered into two contracts which are inconsistent with one another, the earlier will be enforced. Ch. Div., June 18, 1880. Willmott v. Barber. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 97.

CONTRACT-IMPOSSIBILITY OF PERFORMANCE -- CONSTRUCTION. By an antenuptial settlement, dated Aug. 1873, and made in the Scotch form, A bound himself on or before the 2d July, 1875, to take out and effect upon his life for the full term thereof, in the name of the trustees therein mentioned, a policy or policies for the total amount of 10,000l. On the 1st July, 1875, A was so ill as to be unable to insure, and continued in a similar state of ill-health until his death in Sept. 1878. Held, that there was no implied condition in the covenant that A's life should be insurable, and that damages for non-performance of the covenant were payable out of his estate. In Bailey v. DeCrespiguy, L. R., 4 Q. B. 185, it is said "where the event is of such a character that it cannot be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterward happens." It is put in a very similar way in Taylor v. Caldwell, 8 L. T. (N. S.) 357. Ch. Div., May 8, 1880. T. Rep. (N. S.) 47. Re Arthur's Estate. Opinion by Jessel, M. R., 43 L.

GIFT CAUSA MORTIS - OF CHECK-OF BILLS OF EXCHANGE.-A dying man who was possessed of a banker's deposit note for 2700l., on tho back of which was printed a check form, and which had attached to it a notice of withdrawal, being in the expectation of death, stated his intention of giving his wife 500l. out of the 27001., and filled up the check form and the withdrawal notice for 500l., and sent the document to the bank. The practice of the bank was to require seven

days' notice before withdrawal, but the testator died only two days after the notice was given. Held, that there was no donatio mortis causa. Hewitt v. Kaye, L. Rep., 6 Eq. 198; Beak v. Beak, 26 L. T. Rep. (N. S.) 281; L. Rep. 13 Eq. 489. The same donor also gave two bills of exchange drawn by himself to his own order, but unindorsed, to a friend, and requested him to present them, and give the money to the donor's wife. The friend undertook to do so and handed the bills to the wife, who retained them until after the donor's death, at which time they were still unpresented. Held, that the bills passed by a donatio mortis causa. Veal V. Veal, 2 L. T. Rep. (N. S.) 228; 27 Beav. 303. Ch. Div., June 29, 1880. Re Mead Austin v. Mead. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 117.

MARITIME LAW - LIABILITY FOR LOSS OF CARGODEVIATION FROM COURSE TO SAVE PROPERTY.- The owner of a ship who has contracted not to be liable to

the freighters for loss of cargo by perils of the sea is,

nevertheless, liable to them for such loss, during a deviation from her course for the purpose of saving a ship in distress and her cargo, if such deviation was not (or was prolonged until it ceased to be) reasonably necessary in order to save life. Herman v. Western Marine and Fire Ins. Co., 15 LeB. 516; Natchez Ins. Co. v. Stanton, 2 Smed. & M. 340; Stewart v. Teunessee Marine & Fire Ins. Co., 1 Humph. 242. The court remark: "It is a remarkable fact that, while the commerce and the mercautile marine of Great Britain have been for so many years the largest in the world, the question as to how far a deviation for the purpose of saving life or property renders the ship-owner liable to a goods owner, whose goods have been lost through the deviation, has never come before the tribunals of this country, so as to be authoritatively determined; while in the United States both questions have on several occasions come before the courts, and the law may now be taken to be there settled by judicial decision, as well as by the consensus of jurists. In this country the question, with one exception, has only presented itself incidentally to that of salvage, and cannot be said even in that form to have been brought to the test of judicial decision. The exception in question is to be found in the case of Lawrence v. Sydebotham, 6 East, 54, in which the question of deviation to assist a vessel in distress was incidentally touched upon, but was not the point for decision. The case before us presents itself, therefore, so far as our courts are concerned, as one of the first impressions in which we have to declare, practically I may say, to make the law. I am glad to think that in doing so we have the advantage of the assistance afforded to us by the decisions of the American courts, and the opinions of American jurists, whom accident has caused to anticipate us on this question. And although the decisions of the American courts are, of course not binding on us, yet the sound and enlightened views of American lawyers in the administration and development of the law-a law, except so far as altered by statutory enactment, derived from a common source with our own-entitle their decisions to our profound respect and confidence. It is unnecessary to go through the American decisions in any detail. The effect of them is to be found in the well-known text writers, but is nowhere better stated than in the judgment of Mr. Justice Sprague, in the case of Crocker v. Jackson [Sprague (American) Rep. 141]. The result of the American authorities immediately bearing on the question which we have here to decide may be briefly stated. Deviation for the purpose of saving life is protected, and involves neither forfeiture of insurance nor liability to the goods owner in respect of loss which would otherwise be within the exception of perils of the seas.' as a necessary consequence of the foregoing, deviation for the purpose of communicating with a ship in

And

distress is allowable, inasmuch as the state of the vessel in distress may involve danger to life. On the other hand, deviation for the purpose of saving property is not thus privileged, but entails all the usual consequences of deviation. But where the preservation of life can only be effected through the concurrent saving of property, and the bona fide purpose of saving life forms part of the motive which leads to the deviation, the privilege will not be lost, because the purpose of saving property may have formed a second motive for deviating." Ct. of Appeal, April 20, 1880. Scaramanga v. Stamp. Opinion by Cockburn, C. J., and Bramwell, L. J., 42 L. T. Rep. (N. S.) 840.

NEW BOOKS AND NEW EDITIONS.

VOL. 4, JACOB'S FISHER'S DIGEST.

THIS volume contains the titles Error-Illegality, and columns 4651-6400. We can only reiterate our hearty commendation of the work, intrinsically so important and so well executed. It will entirely supplant the foreign edition, both in point of completeness and of economy. The publisher is George S. Diossy, 231 Broadway, New York. Wm. Gould of this city has it for sale.

WATERMAN'S MAINE PROBATE PRACTICE. Hand Book of Practice in the Probate Courts of the State of Maine. Containing Notes on the Execution and Probate of Wills, Duties of Executors, Administrators, Guardians and Trustees; also full Forms of Petitions, Orders and Decrees, with References to the Revised Statutes and Amendments thereof; and decisions of our courts. By Enos T. Luce, late Judge of Probate of Androscoggin county Revised by John A. Waterman, formerly Judge of Probate of Cumberland county. With an Appendix, containing the Assignment and Insolvent Laws of Maine, arranged as amended, and all the decisions of the Supreme Court hitherto rendered in insolvent cases. Portland, Me., Dresser, McLellan & Co., 1880. Pp. viii, 352.

So far as plan and expression go this is the most excellent manual of probate practice wo have ever seen. Its accuracy in details we must take on trust. It seems, however, to have stood the test of eight years' experience, and doubtless will be indispensablo to the Mainc practitioner.

BIGELOW'S HISTORY OF PROCEDUre. History of Procedure in England from the Norman Conquest, The Norman Period (1066--1204). By Melville Madison Bigelow, Ph. D., Harvard University. Boston: Little, Brown & Co., 1880. One vol., pp. 400.

The author of this work is known to the legal profession by his work on Estoppels, Leading Cases on Torts, and other publications; and to scientific students of the law by the volume entitled Placita AngloNormania, in tho introduction to which this work was promised. The latter has probably drawn the attention and perusal more of those who are interested in the curiosities and antiquarianism of the law than of the lawyer in busy, every-day practice. The present work is likely to do the same. It will, however, interest and instruct the philosophical student of the law, and well repay his careful perusal; and the leisure of the practicing lawyer may be spent upon it with profit. By its aid, tho former may trace the growth and development of some of the existing practical methods of modern times; and tho latter may find interest and amusement, and not seldom a fact for practical use or suggestion. Thus, it is recent, the public excitement at the theft of the body of Alexander T. Stewart, and the discussion that arose of whether there was a property in the dead human body. In this book it is stated, that in Abbot Peter v. Bishop Ramelin, in the

reign of Henry I, the plaintiff recovered the body of a deceased person carried away by force of the defendant, and Placita A glo-Normania is cited.

The purpose of the author was to give the lawyer's side of the subject of the courts and the conduct of causes during the Anglo-Norman period; to treat of it so as to be of service to the student of general constitutional history, and also the student of the growth of a special system of law, by showing the technical processes of the law at that time, and how causes were actually conducted through their different stages, and to elucidate the English procedure as a great branch of remedial law, developed and developing. The book treats of the constitution, kind, jurisdiction and methods of courts which then existed; the Witenagemot or "Assembly of The Wise Men," with legislative and judicial functions; the Ecclesiastical Court, with its jurisdiction, large at first, afterward narrowed and limited; the King's Court, its new processes and claims to large jurisdiction, and the final establishment of its supreme and almost universal authority; the Exchequer, how and when it originated, its first character and subsequent limit; the County Court, its ancient existence and continuance through the Norman period; the Burghmot or Hustings Court; the Hundred or Wapentake Court; the Manorial Court; the Forest Court; of the Writ Process, and how the writs were gradually developed in England; Distraint; Summons; the Issue Term; the Trial Term; the Final Judgment. There is also an appendix of Carta et Placita, records of litigations in Normandy from the time of William the Conqueror to that of Henry II. Upon the several topics there is a mass of minute and well-arranged information of highest interest.

We have not the space to go more into detail. The book is a systematic and philosophical essay, and will increase the stock of general information upon the subject of which it treats, making easily accessible what but for the loving labor of the author was hidden in books and treatises at the hand of but few.

CORRESPONDENCE.

RESPONSIBILITY FOR COUNSEL FEES.

Editor of the Albany Law Journal:

Would some of your readers be good enough to acquaint me with the practice of American lawyers in a case like the following: A lawyer in New York sends to a confrère, say in Chicago, a claim for collection. Suit is entered and judgment obtained. To whom would the Chicago attorney look for his costs; the New York lawyer or the latter's client? It is, of course, understood that there is no express agreement. Yours truly, M.

RELEASE OF DOWER.

Editor of the Albany Law Journal:

Your correspondent "F. L. M." may find the following cases useful: Stevens v. Owen, 25 Me. 94; Wales v. Coffin, 13 Allen, 213; Melvin v. Proprietors, 16 Pick. 137; Greenough v. Turner, 11 Gray, 332; Burge v. Smith, 27 N. H. 338; Allen v. Reynolds, 4 Jones & Spen. 298; McFarland v. Febiger, 7 Ohio, 194; Witter v. Biscoe, 13 Ark. 423; Deutzel v. Waldie, 30 Cal. 149; Prather v. McDowell, 8 Bush, 46, and Laughlin v. Fream, 14 W. Va. 322. Yours truly, J. H. S. TRENTON, N. J., Oct. 21, 1880.

OBITUARY.

EDWARD G. RYAN.

HIEF JUSTICE EDWARD G. RYAN, of the Wis

Madison, Oct. 19th. He was born at Newcastle, county Meath, Ireland, in 1810, came to this country, and was admitted to the bar in New York in 1836, and immediately thereafter went West. For many years Mr. Ryan has occupied a prominent place in the affairs of the North-west. He founded the Chicago Tribune as a Democratic paper about thirty-eight years ago, and by his vigor and ability soon placed it in the lead of Western journals. Ho soon wearied of editorial work, however, and went to Milwaukee, where he engaged in the practice of the law, early taking the foremost rank at the bar of that city. He was an orator of raro power, commanding in presence, forcible, logical, and, where his feelings were enlisted, terribly vindictive. In 1856 he achieved a national distinction by the manner in which he conducted the prosecution in the impeachment trial of Judge Levi Hubbell before the senate of Wisconsin. When the civil war broke out, he issued the famous "Ryan address," a document remarkable for its fierce denunciation of the policy of the administration of President Lincoln. In 1874, a vacancy having occurred on the Supreme Bench, the bar of the State united in nominating him to the place, and he was elected without opposition. He was reelected for a full term two years afterward. He was a forcible and elegant writer, as the extracts from his address to the law class of Madison University, recently published in this JOURNAL, will bear witness.

NOTES.

wo anticipated, the Supreme Court of South Carolina have sustained the claim of Gov. Simpson to the office of Chief Justice, holding that the election of Chief Justice Willard to that post was not for a full term, but only to fill the vacancy which made the election necessary. A clerical friend of ours, speaking of our article on Escape, ante, p. 164, says it was St. Paul and not St. Peter who assured the jailer that we are all here," and suggests that as we are near Troy we would better join that lawyers' Bible class. He also says that lawyers are famous for misquoting Scripture. We notice, however, that one of our legal contemporaries, in copying the article, was well enough informed to correct our error. Perhaps he had recently been attending such a class.

In Lenoir v. Ritchie, the Supreme Court of Canada the highest tribunal in the Dominion-decided that the governments of the different Provinces had not the power to appoint Queen's counsel. The decision was rendered in such a way as to leave the question still involved in considerable doubt, and although some leading barristers whose commissions as Queen's counsel were derived from Provincial governments doffed their silk gowns and again put on the stuff, there were many eminent lawyers who persisted in maintaining the validity of the Provincial appointments. Matters have been in this state for some time, but at last the government of the Dominion has passed an order, in council, nominating a number of Queen's counsel. Most of these had already acquired the title from Provincial authority, but it is considered that the effect of the order will be to settle the vexed question once for all. The Provincial governments were very loose in their appointments, many of which, it is said, were really bad-the qualifications generally being political services rather than professional eminence. The action of the Dominion government will thus materially enhance the value of the title.

The Albany Law Journal.

THE

ALBANY, NOVEMBER 6, 1880.

CURRENT TOPICS.

THE Albany Oyer and Terminer, Justice Osborn presiding, have quashed the indictment of Briggs for the murder of Woods, for the reason that the prisoner's wife was allowed to testify for the people against her husband before the grand jury. The same testimony was permitted on the preliminary examination before the magistrate, and at the time we expressed our opinion that this was error. See ante, 81. The court now take the same view. The statute under which this testimony was introduced is as follows: "In all criminal trials and examinations before trial a husband or wife may be examined on behalf of the other, but upon no such trial shall a husband or wife be compelled to testify against the other." The court say, by Justice Osborn: "Does this section confer the right claimed by the prosecution? It seems to me clearly not. The only innovation which this section makes upon the common law or the statutes as they formerly existed was to give a right to a husband or wife to be examined as a witness on behalf of the other in a criminal trial or examination. Suppose this were all of the section, would it be contended for a moment that either could be called as against the other? Of course not. Now, the other words are of a negative character. They certainly create no new right or privilege as to the husband or wife being witnesses that did not exist before." "The only construction that can be given to these words to warrant the position taken by the prosecution would be, that because the Legislature said they could not be compelled to testify against the other, the inference is they might do so, if such testimony was voluntarily given. But it would be most dangerous to allow any such interpretation or construction of the section. Such an innovation upon the common law would require a positive, affirmative provision or enactment of the Legislature. She could not be called as a witness in behalf of her husband until the Legislature so enacted. She certainly cannot be called to give evidence against him until the authority is expressly given. It may be that the latter part of the section amounts to nothing. Certainly no one claimed before its enactment that husband or wife by any law that ever existed could be compelled to testify against each other. Wylie v. People, 53 N. Y. 225. But it may have been placed there (and I think this the more probable reason for the employment of the language) to prevent a husband or wife after being called as a witness for the other, or on behalf of the other, as the language is, from being compelled on cross-examination to testify to facts injurious to the party in whose behalf he or she was called. For instance, a wife might be called as a witness on behalf of the husband to prove some one isolated fact. It VOL. 22.- No. 19.

versa.

may be that the Legislature, by saying that she should not be compelled to testify or give evidence against him, intended to prevent upon a cross-examination an inquiry into any other matters not inquired of upon the direct examination, and which might be very damaging to the husband, and so vice Whether this be the correct solution or not, is quite immaterial. It is enough that no positive enactment can be found making it proper to call husband or wife as a witness against the other. The following authorities (if indeed authorities are necessary on this point) go to substantiate this reasoning: 22 Alb. L. J. 81; State v. Houston, 50 Iowa, 512; Dill v. State, 1 Tex. App. 278; Hubbell v. Grant, 39 Mich. 641; State v. Donovan, 41 Iowa, 587." The extraordinary measure of quashing an indictment, because of incompetent testimony before the grand jury, is resorted to, in this case, because, as the court say, that testimony is clearly of the greatest substance, and it is not clear that the bill could have been found without it.

Our revised statutes require that ballots at public elections shall be "indorsed" in a prescribed manner. The Legislature last winter also prescribed that they should have a certain "caption." Deputy Attorney-General Ruggles has given an opinion that a ballot with the required "caption" printed on the face of it, will be "indorsed as required by the revised statutes if it is folded so as to leave the "caption" outside, the rest of the face of the ballot being folded inward. We cannot agree with the deputy attorney-general. The indorsement and the caption are distinct things, provided for by different enactments, and they must both be distinctly and separately observed. The caption is something additional to the indorsement. A caption is a heading; an indorsement is a backing. A heading cannot at the same time be a backing. The ballot may possibly have an indorsement when folded in the manner pointed out by the deputy attorney-general, sufficient to warrant its admission to the ballot-box, but how will it be when unfolded by the counters ? That is the more important occasion, and then it will prove to have no indorsement. A promissory note payable to the order of the maker would not be “indorsed” by him by his turning his signature over on the back of the note. These are matters of substance, not of mere form. The deputy attorneygeneral however admits that the ballot would not be hurt by printing the required indorsement on the outside, and this clearly being so, we cannot conceive why any risk should be run.

It is to be hoped that the judges will universally adopt the habit of citing the State reports by the title of the report and not by the name of the reporter. In our own State the Court of Appeals reports are uniformly cited as the "New York," except those of "Comstock" and "Selden," which seem to form an exception. Why they should be excepted we do not know, unless through a senti