company do not make and maintain such fence, if their engine or cars shall kill, maim or destroy any cattle or other domestic animals, when they stray upon their line of road where it passes through or alongside of the property of the owners thereof, they shall pay to the owner or owners of such cattle or other domestic animals a fair market price for the same, unless the owner or owners of the animals so killed, maimed or destroyed shall be negligent or at fault." Held, that a company owning a railroad is not exempted from liability for the destruction of cattle by the fact that its road is leased. A strictly literal interpretation of the statute might exempt both the lessor and the lessee from liability, as the statute does not in terms provide for a case in which one company owns and another operates a railroad. The duty, however, of fencing devolves upon the company owning the road; and if it leases the road in an unfenced condition to be operated by another company, it is liable within the spirit, if not within the letter, of the law to the same extent as it would be if its instead of its lessee's engine and cars had run over the plaintiff's cattle. As was said in Tracy v. Troy & Boston R. Co., 38 N. Y. 437, in reference to a similar statute: "The passage of this act being induced by public considerations, and its purpose being to protect the travelling public and the owners of domestic animals along the line of their road, it should receive a liberal construction to effectuate the benign purpose of its framers. A rigid and literal reading would in many cases defeat the very object of the statute, and would exemplify the maxim that the letter killeth, while the spirit keepeth alive.' Every statute ought to be expounded, not according to the letter, but according to the meaning. Qui hæret in litera hæret in cortice. Dwar. on Stat. 695. And the intention is to govern, although such construction may not in all respects agree with the letter of the statute. Plowd. 205. The reason and object of a statute are a clue to its meaning (Dwar. on Stat. 695), and the spirit of the law and the intention of its makers are diligently to be sought after, and the letter must bend to these. 6 Bac. Abr. 384 (6th ed.), London, 1807; Kent's Com. 465; Smith's Com. on Stat., §§ 709, 710. In Illinois Cent. R. Co. v. Kanouse, 39 Ill. 272, which was an action against the lessees of the road, the court says: "In the case before us, admitting it was the duty of the first party to the agreement (the company owning the road) to fence this road, that they would be liable for this injury had they been sued, there can be no question." And in Toledo, etc., R. Co. v. Rumbold, 40 Ill. 143, the same court said, in an action against the lessors of the same road: "It was the duty of appellants to have fenced the road, and public safety demands that they should be held liable for all damages resulting from the neglect to fence it. And the same policy would require that the Illinois Central (the lessee) should be held responsible for presuming to use the road of another company fenceless and unprotected. Either company would be liable for the injury. Redfield, in a note to Parker v. Rensselaer & Sar. R. Co., 16 Barb. 315, in which it was held that the defendant, being the lessee of the road upon which the injury was committed, was not liable under the statute, says the only question in regard to the soundness of the decision is, whether both companies were not chargeable with negligence - the one for suffering the road to be used, and the other for using it in that condition. 1 Redf. on Railw. 618 (5th ed.). Fontain v. Southern Pacific Railroad Co. Opinion by Sharpstein, J. [Decided May 7, 1880.] STATUTORY CONSTRUCTION -SPECIAL ACT CONTROLLING GENERAL-MAJORITY OF OFFICIAL BOARD ACT IN ABSENCE OF DIRECTION OTHERWISE. - By a provision of the general statutes of California relative to the harbor commissioners of that State, "no contract or obligation entered into by the commissioners, which creates a liability or authorizes the payment of money, is valid and of binding force, unless the same is signed by all the commissioners and countersigned by the secretary of the board." Plaintiffs entered into a con tract with the board, the entire board concurring, and performed it on their part. The board refused the payment agreed upon, on the ground that plaintiffs' claim was an equitable one only. The Legislature of the State passed a special act authorizing the board to audit and pay such amount as plaintiffs should be equitably entitled to for their work and materials furnished under the contract. Held, that the board could, by a majority vote, audit and pay plaintiffs' claim, and the concurrence of all three of the commissioners was not necessary for that purpose. The authority exercised by the board in this case was given to them by a special act, and it is nowhere provided in said act that the concurrence of all three of the members of the board shall be necessary for the proper exercise of such authority. In People v. Nichols, 52 N. Y. 478, the common-law principle on this subject is stated. In that case the court had under consideration an act of the Legislature appropriating $20,000, or so much thereof as might be necessary, for the purchase of certain relics of George Washington, to be paid only upon the certificate of three persons named therein. Held, that a certificate signed by two of the persons named, stating that the third met with them but refused to join in the certificate, was sufficient. The court say that Grindley v. Barker, 1 Bos. & Pul. 229, is in point as to the general rule. Eyre, C. J., there said: "I think it is now pretty well established that where a number of persons are intrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." The cases hold that arbitrators, to determine controversies between individuals, are engaged in matters of private concern. Green v. Miller, 6 Johns. 39. The same principle was recognized by the Court of King's Bench in the case of The King v. Beeston, 3 T. R. 592, which arose under the statute of George I, that enables the churchwardens and overseers to contract for the providing for the poor. It was held that it was not necessary that all the churchwardens and overseers should concur, as the contract of the majority would bind the rest. When appraisers act between individuals and the State, it is a matter of "public concern," and a majority act as the whole when all have met. Ex parte Rogers, 7 Cow. 526. Tallcott v. Blanding. Opinion by Morrison, C. J. [Decided March 10, 1880.] MARYLAND COURT OF APPEALS REPORTS.* CORPORATION-WHEN LIABLE TO OFFICER OF, FOR SERVICES. To entitle a president or director of a corporation to recover for services rendered his corporation, he must prove an express contract of employment, if the services for which he claims compensation are within the line and scope of his duties as president or director. But if a president or director of a corporation renders service to his corporation which are not within the scope of, and are not required of him by his duties as president or director, but are such as are properly to be performed by an agent, broker or attorney, he may recover compensation for such services upon an implied promise. See Angell & A. on Corp., § 317; Chandler v. Monmouth Bank, 1 Green (N. J.), give the particular shares which the testator had in his possession at the time, the legacy must be construed as general, and not specific. According, then, to well settled rules of construction, in order to constitute a 260; Henry v. Rutland & Burlington R. Co., 27 Vt. 435; Hall v. Vermont & Mass. R. Co., 28 id. 408; New York & New Haven R. Co. v. Ketchum, 27 Conn. 181; Evans v. City of Trenton, 4 Zabr. 769. Agency for a corporation is not required to be shown by a resolu-specific legacy, it is necessary for the testator to distion of the board of directors or other written evidence, but it may be inferred from facts and circumstances. Union Bank v. Ridgely, 1 H. & G. 326; 1 Md. Chan. Dec. 398; Elysville Man. Co. v. Okisko Co., 5 Md. 159; N. C. Railway Co. v. Bastian, 15 id. 501; Bank of United States v. Dandridge, 12 Wheat. 69. Santa Clara Mining Association of Baltimore v. Meredith. Opinion by Grason, J. LAND TO HUSBAND AND WIFE-CONVEYANCE OF THEM MAKES TENANTS IN ENTIRETY. - By the common law of England which is the law of this State, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenauts, nor are they tenants in common. They are in the contemplation of the common law but one person, and hence they take, not by moieties, but the entirety. They are each seized of the entirety and the survivor takes the whole. 2 Black. Com. 182; Litt. Tenures, § 291; Coke Litt. 187; Cruise's Dig. 492; 1 Trest. Est. 131, 132; 4 Kent's Com. 362; 1 Washb. Real Prop. 672; Dias v. Glover, 1 Hoff. Ch. 71; Stuckey v. Keefe's Ex'r, 26 Penn. St. 397. Similar statutes to our own exist in a large number of the States of the tinguish or identify the stock or thing given by saying stock now in my possession, or now standing in my name, or some other equivalent expression, marking the corpus of the stock bequeathed, and showing the testator meant that identical stock, and no other should pass to the legatee. See upon the subject: Purse v. Snaplin, 1 Atkyns, 414; Bronsdon v. Winter, Ambler, 57; Avelyn v. Ward, 1 Vesey, Sr., 424; Sibley v. Perry, 7 Vesey, Jr., 522; Webster v. Hale, 8 id. 410; Gillaume v. Adderly, 15 id. 384; Iunes v. Johnson, 4 id. 568. Dryden v. Owings. Opinion by Robinson, J NEW BOOKS AND NEW EDITIONS. GODDARD'S LAW OF EASEMENTS. A Treatise on the Law of Easements. By John Leybourn Goddard, Esq., of the Middle Temple, Barrister-at-Law. Much enlarged from the second English edition of 1877, by Edmund H. Bennett, LL.D., Professor of Law in the Boston University. Boston: Houghton, Mifflin & Company, 1880. Pp. lviii, 542. Union, converting joint tenancies at the common law R. GODDARD'S original treatise has received into tenancies in common, except where in the instrument it is otherwise expressly declared, and the invariable construction has been that they do not apply to or affect the peculiar estate taken by husband and wife, under a deed to them jointly. Rogers v. Benson, 5 Johns. Ch. 431; Jackson v. Stevens, 16 id. 110; Shaw v. Hearsey, 5 Mass. 521; Brownson v. Hull, 16 Vt. 309; Thornton v. Thornton, 3 Rand. 179; Diver v. Diver, 56 Penn. St. 106; 4 Kent's Com. 362; 1 Bish. Mar. W., § 615; Bates v. Seely, 46 Penn. St. 248; Far. & Mec. Bk. of Rochester v. Gregory, 49 Barb. 155. McCurdy v. Canning, 64 Penn. St. 39. Marburg et al. v. Cole. Opinion by Alvey, J. WILL CONSTRUCTION OF SPECIFIC LEGACY.Courts lean against construing a legacy to be specific, and have gone so far as to say that in no case ought a will be so construed unless the language imperatively requires it. In case of a bequest generally of stocks, or of a sum of money in stocks without further explanation and without more particularly referring to or marking the corpus of the identical stock, the fact that the testator possessed such stock at the time of the execution of the will is not sufficient to justify the court in declaring the legacy to be specific. In order to constitute a specific legacy it is necessary for the testator to identify the property bequeathed. A testator by his last will and testament bequeathed as follows: "I give and bequeath to Virginia M. Owings, eight thousand dollars in State of Maryland bonds." Among the assets of the testator were found eight thousand dollars in State of Missouri bonds, and these were the only State of Missouri bonds owned by testator. Held, not a specific legacy. The general rule to be deduced from the cases is that in a bequest generally of stocks, or a sum of money in stocks, without further explanation, and without more particularly referring to or making the corpus of the identical stock, the fact that the testator possessed such stock at the time of the execution of the will is not sufficient to justify the court in declaring the legacy to be specific. Thus in Robinson v. Addison, 2 Beav. 515, where the testator had fifteen and a half of Leeds and Liverpool Canal shares, and bequeathed five and a half shares in the Leeds and Liverpool Canal to A, and five to B, and five to C, it was held that inasmuch as there was no reference in the will showing an intention to high encomiums from the English bench. It divides the subject into five branches, namely: the nature of easements; the modes of acquiring them; the mode and extent of enjoyment; the disturbance and its remedy; how they may be lost and extinguished. Each is treated generally, and subsequently, specifically, as applicable to the different easements of air, light, support, water-courses, and ways. Mr. Bennett's additions have been very important, as the American doctrine as to light and air differs widely from the English. He has added about 100 pages, and cited some 500 new cases. His high reputation is a guaranty that this labor has been conscientiously and intelligently performed, and from our own examination we find that the ground is well covered. The work stands as the latest on the subject in either England or America, and this fact alone must recommend it to the practical lawyer. It has moreover the merit of being a critical and excursive treatise, and not a mere digest. The subject is of prime practical importance, and beside is one of the most interesting to the scholar. The English prescription act is added, and there are an ample table of contents, table of cases cited, and general index. The volume is elegantly printed on fine paper, and well bound. XVII AMERICAN DECISIONS. This volume contains selections from 5, 6 T. B. Monroe, 6 Martin, N. S., 5 Greenleaf, 1 Bland's Chancery, 6 Pickering, 4 New Hampshire, 4 Halsted, 7 Cowen, 1 Devereux's Law, 3 Ohio, 17 Sergeant & Rawle, 4 McCord, 1 Martin and Yerger. There are important notes on the following topics: conflict of laws relating to age of majority; effect of executors' covenants in their own conveyances; waiving tort; compensation of trustees; absolute deed and agreement to reconvey; when apparent principal may show himself to be a surety; exemption from seizure under distress; recitals in tax deeds as evidence; acknowledging receipt of consideration in deed; reasonable time, when a question of law; what are fixtures; when conviction of felony bars other prosecutions. The series is now being issued rapidly, and grows in importance with every volume. Its completion is now assured, and we do not see how any lawyer can well afford to do without it. To the Editor of the Albany Law Journal: Does chap. 314, Laws 1858, give to a voluntary assignee the right to attack for fraud as against creditors a previous transfer by the assignor? This question is an important one since the repeal of the Bankrupt Act, and yet I cannot find that it has ever been decided by our courts. The statute is referred to in Fort Stanwix Bank v. Leggett, 51 N. Y. 552, 554, but this question receives no discussion. Miller v. Halsey, 4 Abb. (N. S.) 28, does not touch this point. The dictum, at page 33, relates only to the fraud of the assignor in retaining and concealing assets from the assignee. I am aware that Burrill in his work on Assignments, and Bishop in his book on Insolvent Debtors, state that this statute applies to cases of voluntary assignments, but they cite no authorities supporting it. Previous to this statute it was well settled that a voluntary assignee could not set aside such transfers, nor receive the fruits of them after they were set aside by creditors. Brownell v. Curtis, 10 Pai. 211, 219; Browning v. Hart, 6 Barb. 91. The reason given is that the assignee took only such rights as the assignor had, and of course the assignor could not impeach such transfers. WE NOTES. E forgot last week, in connection with our correspondent's letter about "Contracts to Satisfaction," ante, 20, to explain ourselves. What puzzled us was not the position of the appellate court, as reported in 45 Conn., but to see how the trial court, in the face of the decision of the appellate court, in 44 Conn., could have rendered the judgment they gave on the new trial; for it is scarcely conceivable that the facts could meantime have wheeled about. Perhaps "T. C. J." can explain this We regret to learn that Mr. Grattan, the old and well-known reporter of the Virginia Court of Appeals, is in feeble health. He has completed his labors to Feb. 19, 1880, and announces that these will be his last. His familiar name and faithful service will be missed. Among other valuable matter, the Virginia Law Journal for July contains a leading article on Impeachment of Witnesses. Judge W. R. Staples, of the Virginia Court of Appeals, writes us: "I desire to congratulate you on the ability with which the JOURNAL is conducted, and the reputation it has established throughout the country In this State it stands deservedly high both with the bench and the bar." The most extensive and important enterprise in legal reporting in this country is that of the West Publishing Company, at St. Paul, Minn. We have received the 1st volume of the new series of their North-western Reporter, containing 1,089 pages and 337 cases in full, being all the decisions of the Supremo Courts of Minnesota, Wisconsin, Iowa, Michigan, Nebraska and Dakota, from April 26, 1879, to August 30, 1879. These are issued in weekly parts, and give the opinions, as soon as filed, at $5 a year. The price of this volume is $2.50. In addition, this company issue supplements of the same character, giving the full opinions of the Supreme Courts of Ohio, Illinois, Missouri, Indiana, Kentucky and Kansas, at $3 a year each, separately, or with the Reporter, as follows: Reporter and one supplement, $8; Reporter and two supplements, $11; Reporter and three supplements, $14; Reporter and six supplements, $15; including indexes, tables of cases and postage. They also issue, in like manner, the Federal Reporter, giving the opinions in full of all the Federal Circuit and District Courts throughout the United States, at $10 a year. The editing and publishing are well done, and tho enterprise deserves the success which we are informed it meets. The Legislature, undoubtedly, had the power to give this right to voluntary assignees, however unwise it may be to exercise that power. But it seems to me clear that the plain intent of the act referred to is to give this right to those assignees only that are appointed by the court under the insolvent act. 2 R. S., p. 21, § 27. The second section omits the word " assignee," and speaks only of "executors, administra-justice, tors, receivers or other trustees" of a "deceased person, or insolvent corporation, association, partnership or individual." A voluntary assignee is nowhere called a "trustee" of an insolvent. On the other hand it was held in Ferriss v. Am. Ins. Co., 22 Wend. 586, that such an assignee is not a "trustee of a debtor" within the meaning of the statute regulating security for costs; but that an assignee appointed by the court under the insolvent act is such a trustee. If this statute applies to voluntary assignees, what a temptation it holds out to debtors to make fraudulent transfers of property, then make a general assignment to an assignee of their own choosing who will lend himself to the trick of bringing suits, ostensibly to set them aside, but really to procure a decision upholding them, and which shall be conclusive on the creditors Several days ago a white man was arraigned before a colored justice, down in the country, on charges of killing a man and stealing a mule. "Wa'al," said the "de facts in dis case shall be weighed wid kerefulness, an' if I hangs yer, 'taint no fault ob mine." "Judge, you have no jurisdiction only to examine me." "Dat sorter work 'longs to the regular justice, but yer see I have been put on as a special. A special hez de right to make a mouf at Supreme Court if he chuses ter." "Do the best for mo you can, judge." "Dat's what I'se gwine to do. I'se got two kinds of law in dis court, the Arkansaw an' de Texas law. I generally gives a man de right to choose fur hisself. Now, what law does yer want, de Texas or de Arkansaw?" "I believe I'll take the Arkansas." "Wall, den, I'll dismiss you fer stealing de mule ” "Thank you, judge." "And hang you fer killing de man "I believe, judge, that I'll take the Texas." den, I'll dismiss you for killing de man —-” "You have a good heart, judge." "An' hang yer for steal "Well, (4 Barb. 232), except they can prove the conspiracy be-ing de mule. I'll jus take de 'cashion here to remark tween the assignor and assignee. B. UTICA, July 1, 1880. dat de only difference 'tween the two laws is der way yer state de case."- Little Rock Gazette. The Albany Law Journal. THE ALBANY, JULY 24, 1880. CURRENT TOPICS. freedom from such connections, and says that if we are wise (though, as an American, he would be proud to see us all under the Stars and Stripes), we will remain unannexed as long as the corruption of public morality and the betrayal of high office to ambition and gain continues as he has represented it and as Mr. Frost's case proves it to be." The American gentleman who could seriously utter such nonsense as this did well in carrying his wares to a foreign market. Let not the hysterical editor of the high latitudes be alarmed. We have foolish citizens enough without wishing to annex him. On the subject of annexation, Canada is always as nervous as the elderly lady at the siege in Don Juan, who HE London Law Journal says of the recent decision in the Tichborne claimant's case: "It can hardly be said that Regina v. Castro decides much, except, as Lord Justice James compendiously expressed it, that there is nothing in' the objections taken to the indictment. We think that there was 'something in' at least one of the points taken; and at all events, the argument is of interest to law-inquired, "when will the ravishing begin?" Let yers, as going over very obscure ground seldom traversed by so high an authority." "We confess that the judgment of the Court of Appeal on this point is disappointing in its tone. The reductio ad absurdum seems to us to have been out of place." "It is not unreasonable that there should be a distinct trial for every imposition of a distinct seven years." "It is fairly open to argument that the practice is in some cases hardly fair to the prisoner." The Solicitors' Journal says: "It does not seem to us altogether absurd to contend that under these words there can be only one sentence on one conviction, and that there can only be one conviction for this purpose at one and the same trial." The Law Times does not commit itself to an opinion, but says, "the lords justices were unusually severe upon the principle upon which that case proceeded " - meaning the Tweed case. In the next breath it says, "it does not appear, indeed, that the ratio decidendi of that decision was clearly stated." The fool-killer should go at once to the office of the Montreal Gazette. In the issue of that precious newspaper of July 13th is a long article, entitled "Justice in the State of New York." The text of the article is the pretense of one Frost, a native of England and a naturalized citizen of the United States, attorney and counsellor of this State and resident in New York city, that he has been unlawfully imprisoned on civil process for four years, and that the judges have connived at the injustice, and persistently denied him the writ of habeas corpus, and issued stays and prohibitions and injunctions most wickedly. Frost does not tell why he is imprisoned, but he ought to know that every judge refusing him the writ of habeas corpus, when legally applied for, is liable to forfeit $1,000 to him for every refusal. We advise Frost to set this machinery in motion, and if he is unlawfully imprisoned, we will furnish him a lawyer to vindicate his rights. But the Gazette continues: "An American gentleman of position, probity and intelligence, says that in the State of New York almost every judge is a huckster who sells his decisions for money, for favor or for political influence, that few decisions are unpurchased and that were one-tenth of the rascality practiced by the judiciary told, it would not be credited. In conclusion he congratulates us on our VOL. 22. No. 4. the Gazetteer hide his fevered and timorous brow in the snows of Labrador, and shout his compatriot's grievances to the inhabitants of the north pole, who may possibly think him right. An esteemed correspondent, who sends us this amusing extract, a lawyer of experience and high standing in Canada, writes us: "You will be better able to deal with it than I, whose only means of judging are the exceptionally learned and able opinions of the New York bench which appear in your columns." We assure our friend it is no more possible to deal seriously with such midsummer madness as this, than with the ravings of a lunatic who should complain that the man in the moon was making faces at him. were, in 1875, 4,515 indictments presented, and 1,177 convictions had, being about one conviction to every four indictments. In 1877 there were 3,130 indictments and 641 convictions, being about one conviction to every five indictments. In 1878 there were 3,548 indictments and 799 convictions, the ratio of convictions to indictments being about the same as during the preceding year. For the year just past there were only 2,942 indictments for these crimes, while there were 907 convictions, being nearly one conviction for every three indictments. This statement shows not only a decrease as to the number of crimes committed, but also a corresponding increase in the number of convictions had, and argues well for those charged with the execution of the law, besides showing that crime is greatly on the decrease in our State." It is noteworthy, however, that the decrease is mainly in the crime of theft. Murder has not decreased, but comparing the last two years with the first two, it has greatly increased, showing 893 as against 729. Is it possible that there is some foundation for the colored judge's remark, which we published last week, that in Texas they hang a man for stealing a mule, and only imprison him for murder? The convictions for murder of late, however, have more than kept pace with the increase of the crime, and there can be no doubt that the good men of the State are seriously trying to render life and property safe there. It will interest the members of the profession in this State to know that, at a recent meeting of the trustees of the State Library, a subject-index catalogue of the law library was directed to be made. The matter was brought to the attention of the trustees by a communication from Mr. S. B. Gris The heathen Chinee has scored another victory. In the cases of Ah Chong, Wong Hoy, Ah You, Foo Hoy, Foo Hee, and Ah Mee, in the Federal circuit for the district of California, 5 Pac. C. L. J. 451, it was held that a statute of California prohibiting all aliens, incapable of becoming electors of the State, from fishing in the waters of the State, is unconstitutional and in conflict with the treaty with China. The court distinguish McCready v. Virginia, 94 U. S. 341. They say: "Citizens of other States having no property right which entitles them to fish against the will of the State, a fortiori, the alien, from whatever country he may come, has none whatever in the waters or the fisheries of the State. Like other privileges he enjoys as an alien by permission of the State, he can only enjoy so much as the State vouchsafes to yield to him as a special privilege. To him it is not a property right, but in the strictest sense, a privilege or favor. To exclude the Chinaman from fishing in the waters of the State, therefore, while the Germans, Italians, Englishmen, and Irishmen, who otherwise stand upon the same footing, are permitted to fish ad libitum, without price, charge, let, or hindrance, is to prevent him from enjoying the same privileges as are enjoyed by the citizens or subjects of the most favored nation;' and to punish him criminally for fishing in the waters of the State, while all aliens of the Caucasian race are permitted to fish freely in the same waters with impunity and without restraint, and exempt from all punishments, is to exclude him from enjoying the same immunities and exemptions as are enjoyed by the citizens or subjects of the most favored nation;' and such discriminations are in violation of articles V and VI of the treaty with China, cited in full in Parrott's case. The same privileges which are granted to other aliens, by treaty or otherwise, are secured to the Chinaman by the stipulations of the treaty. Conceding that the State may exclude all aliens from fishing in its waters, yet if it permits one class to enjoy the privilege, it must permit all others to enjoy, upon like terms, the same privileges whose governments have treaties securing to them the enjoyment of all priv 6 THE NOTES OF CASES. wold, the law librarian, in which he states that THE Vienna "Juristische Blaetter" reports an im- |