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but otherwise if such attorney becomes a trustee to invest. The evidence showing that the attorney, in this case, promised the complainant to obtain first mortgages for her, he was held (it being a case of mingled trust and agency) accountable for the amount of the incumbrances on the property prior to hers, but not for any subsequent depreciation in the value, caused by general business depression, the property at the time of loaning being shown to have been, apart from the prior incumbrances, abundant security. Nancrede v. Voorhis. Opinion by Runyon, Chancellor.

CONSTITUTIONAL LAW-STATE CANNOT BE SUED WITHOUT ITS CONSENT.-Sovereign States cannot, without their consent, be sued in their own courts, where no provision to the contrary exists in their Constitutions or by special enactments. In 1872, the State granted certain lands under water to the West Line Co., which, as part of the consideration, gave thereon a mortgage of $82,000 to the trustees for the support of public schools. The complainants claim that at the time of this grant they were in possession of the mortgaged premises under an indefeasible title; that the grant was in violation of their vested rights; that in 1874, they themselves obtained from the riparian commissioners of the State a grant of certain contiguous premises, by an instrument containing an agreement that in case the State had no right and power to vest the title to the mortgaged premises in the West Line Co. by the grant of 1872 (which right the instrument declared was claimed by the State, but denied by the complainants), then the State should release to the complainants, free from any incumbrance thereon by mortgage given to the State, all its right, title and interest in the premises. On foreclosure of their mortgage by the trustees, held, that neither the trustees nor any prior grantees of the mortgaged premises could be enjoined from proceeding with the foreclosure and sale by reason of the agreement in the grant of 1874, or by reason of complainant's claim to have it specifically performed, because, even if binding on the State, the State cannot, in its own courts, be compelled to perform it, and also because if the trustees are other than the mere agents of the State, it is not binding on them or on any grantee of the State prior to 1874. Hovenden v. Annesly, 2 Sch. & Lef. 607, 617; Dicey on Parties, 4; Michigan State Bank v. Hastings, 1 Walk. Ch. 9; United States v. McLemore, 4 How. 286; Hill v. U. S., 9 id. 388; Beers v. Arkansas, 20 id. 527; State v. Kirby, 2 South. 835; Loder v. Baker, Arnold & Co., 10 Vr. 49; Priddy v. Rose, 3 Metc. 97; Calvert on Parties, 252, 253; Trustees v. City of Trenton, 3 Stew. Eq. 669; State v. Trenton, 11 Vr. 91; Nurse v. Lord Seymour, 13 Beav. 254; Michigan State Bank v. Hammond, 1 Doug. 527; Hill v. United States, 9 How. 388; Osborn v. U. S. Bank, 9 Wheat. 251; High on Inj., § 266; Freeman v. Elmendorf, 3 Hal. Ch. 475; S. C., on appeal, id. 658; Drake v. Jones, 27 Mo. 428. American Dock and Improvement Co. v. Trustees of Public Schools. Opinion by Runyon, Chancellor.

WIFE LEAVING HUSBAND

DIVORCE DESERTION BECAUSE HE GAMBLES.—(1) That a husband gambles and does not properly support his wife, in consequence of which she leaves him, does not constitute desertion by him on which to decree a divorce. It is a recognized principle that when a husband treats his wife with such cruelty or violence that she is obliged to leave him for safety, or to avoid personal injury, this compulsory flight amounts to a desertion by him, and if he does not seek her and try to persuade her to return, with promises of amendment, such compulsory leaving and consequent remaining away from him, if continued for the requisite time, will be regarded as equivalent to a willful and obstinate desertion by him. Laing v. Laing, 6 C. E. Gr. 248; Palmer v. Palmer, 7 id. 88. But if she leaves him because he gambles away

his money and does not properly support her, her leaving him cannot be held to be a desertion by him. Lewis v. Lewis, 2 Hal. Ch. 22. Sandford v. Sandford. Opinion by Runyon, Chancellor.

NEGLIGENCE -PROXIMATE CAUSE FIRE COMMUNICATED BY BURNING OIL ON STREAM.-Damages caused by negligence, to be recoverable, must be not only its natural, but also its proximate, consequence. And "proximate," as here used, means closeness of causal connection, and not nearness in time or distance, and is intended to qualify the generality of the idea expressed by the word "natural." In cases where fire is negligently started, but is not immediately communicated to the property destroyed, but is communicated from one building to another until it reaches the property destroyed, causal connection will only cease when, between the negligence and the damage, an object is interposed which would have prevented the damage, if due care had been taken. When the burning matter is oil, a running stream may form a natural link in the chain of causation. Where a fire originates in the carelessness of a defendant, and is carried directly by a material force, whether it be the wind, the law of gravitation, combustible matter existing in a state of nature, or a running stream, to the plaintiff's property, and destroys it, the defendant is legally answerable for the loss. Kuhn v. Jewett. Opinion by Van Fleet, Vice-Chancellor.

PENNSYLVANIA SUPREME COURT ABSTRACT.

CORPORATION-INDIVIDUAL MEMBERS OF BOARD OF MANAGERS CANNOT BIND, AND CONTRACTS NOT IMPLIED FROM THEIR DECLARATIONS. - Plaintiff below claiming to have been employed by a corporation having charge of a county work-house, to sell all the barrels it should manufacture during a certain year, some two hundred thousand in number, brought action for commissions on making a sale. He endeavored to establish the fact of his employment by proving what had been said by the president of the board of managers of the corporation, by one of the members of the board, and by the superintendent of the work-house, each separately and on different occasions. He utterly failed to show that any corporate action was had by the board, by virtue of which he was employed, or by which the power to employ him was delegated to any member of the board or to the superintendent. Held, insufficient to prove the fact of his employment. Unless they are authorized, the individual members of a corporation cannot bind it by an express promise, nor can corporate engagements be implied from their unauthorized and unsanctioned acts or declarations. The acts or declarations of a director in a corporation will not bind or in any manner affect it unless they are shown to be within the scope of his ordinary powers or of some special agency. Ang. & A. on Corp., § 239; Soper v. Buffalo & Rochester R. Co., 19 Barb. 310. Corporate rights are not to be frittered away by loose and unauthorized declarations, made by persons who at the time had no authority to bind the corporation; and this principle applies as well to individual directors and employees of a corporation as to strangers. Nor is there any hardship in this, because, as is said in Cooper v. Lampteer Township, 8 Watts, 125: “Every person is supposed to know the restrictions on the power of the officers of a corporation of a public nature, and the extent of their authority." Allegheny

County Work-House and Inebriate Asylum v. Moore. Opinion by Sterrett, J.

[Decided October 25, 1880.]

NEGLIGENCE CONTRIBUTORY, OF PARENTS— RAILROAD COMPANY OWES NO DUTY OF PROTECTION TO CHILDREN TRESPASSING UPON ITS TRACK. - Parents

who permit their children to trespass upon the property of a railroad company are guilty of negligence; and where a child of tender years, who is allowed to wander upon railroad property is injured, the company owes no duty to the child nor to the parent and is not liable to either for the injury. In Mulherin v. Delaware, Lack. & W. R. Co., 31 P. F. S. 366, it was said: "Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track, does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes," and Railroad Co. v. Norton, 12 Harris, 465, was cited in support of the rule. In Philadelphia & Read. R. Co. v. Hummell, 8 Wright, 378, it is said that children "cannot be upon the railroad without a culpable violation of duty by their parents or guardians." In Philadelphia & Read. R. Co. v. Long, 25 P. F. Smith, 265, it is said: "To suffer a child to wander upon the street has the sense of permit. If such permission or sufferance exist, it is negligence." And in Duff v. Allegheny Val. R. Co., where a conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train, and the boy was killed by the negligence of the company, the right of his mother to recover was denied, upon the ground that the boy was a mere trespasser, and the company owed him no duty. Cauley v. Pittsburgh, Cincinnati & St. Louis Railroad Co. Opinion by Paxson, J.; Trunkey and Sterrett, JJ., dissented. [Decided November 8, 1880.]

PROCESS -NOT PROTECTION TO PARTY BUT ONLY TO OFFICER. In a suit against the plaintiffs in an execution for seizing and selling property thereunder, they must show the judgments on which the executions issued, to justify the taking. The rule is held differently when the suit is against a sheriff or constable who are ministerial officers. When an execution, regular in form, and nothing on its face indicates want of jurisdiction in the justice, is directed to the constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands. He is not required to examine the record to ascertain whether the justice had jurisdiction, and whether the proceedings are all regular. The apparent regularity and presumed jurisdiction, as evidenced by the writ, not only protect him in its due execution, but make it his duty to proceed to execute the writ. Among the numerous decisions recognizing this principle may be cited: Kerlin v. Heacock, 3 Binn. 215; Paul v. Vankirk, 6 id. 124; Allison v. Rheam, 3 S. & R. 139; Kingsbery v. Ledyard, 2 W. & S. 37; Moore v. Allegheny City, 6 Harris, 55; Billings v. May, 11 id. 23; Cunningham v. Mitchell, 17 P. F. Smith, 78; Fall Creek C. and I. Co. v. Smith, 21 id. 230; Savacool v. Boughton, 5 Wend. 170; Beach v. Furman, 9 Johns. 230; Holden v. Eaton, 8 Pick. 437. Barr v. Boyles. Opinion by Mercur, J.

[Decided November 15, 1880.]

RECENT ENGLISH DECISIONS.

PATENT -RIGHT OF PATENTEE TO THREATEN LEGAL PROCEEDINGS AGAINST PURCHASERS FROM OTHER MANUFACTURERS -WHEN SUCH NOTICE RESTRAINED. — A patentee may give notice to persons that they are infringing his legal rights when such notice is given bona fide, without his being bound to follow up such notice by legal proceedings, and he is not liable, in default of his bringing such legal proceedings, to an action for

is not an infringement, and for the purpose of injuring the trade of the other manufacturers, or of the person selling the articles manufactured by them, he is liable to an action. A patentee may be restrained by injunction, notwithstanding he has given the notice bona fide, from continuing to issue the notice where it is shown that his allegation is not true. Rollins v. Hinks, 26 L. T. Rep. (N. S.) 56; L. R., 13 Eq. 355, and Axmann v. Lund, 31 L. T. Rep. (N. S.) 119; L. R., 18 Eq. 330, discussed. Chanc. Div., June 10, 1880. Halsey v. Brotherhood. Opinion by Jessell, M. R., 43 L. T. Rep. (N. S.) 366.

EASEMENT-ACCESS OF AIR TO SLAUGHTER-HOUSE.Where a slaughter-house had been used as such for upward of thirty years, damages were given for an obstruction of access of air, on the ground of implied covenant not to interrupt the free access of air suitable for the purpose of a slaughter-house. Chanc. Div., June 26, 1880. Hall v. Litchfield Brewery Co. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 380.

WILL -ON SEPARATE SHEETS OF PAPER — EXTRINSIC EVIDENCE TO SHOW CONSTITUENT PARTS.-M. R. executed her last will and testament on the 1st August, 1872. The will was entirely in her own handwriting, and was on two sheets of note paper stitched together like a book. On the first page of the outer sheet were the words, "I appoint my nephews, R. J. G. and R. G. L., to be my joint executors to carry my will into effect; I appoint my nephew R. J. G. to be my executor, and sole residuary legatee, M. R.; and placed with my will the 1st August, 1872." The second page of the outer sheet was blauk. Then followed the will, which was written on the first, second, third and fourth pages of the inner sheet, the signature and attestation clause being on the fourth page of the said inner sheet. Then followed the third page of the outer sheet which was in blank, while on the fourth page of the outer sheet was written as an indorsement the words "The will of M. R., 1st August, 1872." At a trial in which the issuo was whether the appointment of executors and residuary legatee on the first page of the outer sheet formed part of the document at the time of the execution thereof; the attesting witnesses having been called, and though able to prove the date of execution of the document, being unable to say what its contents were or on how many sheets of paper it was written. Held, that the declarations, parol and written, of the testatrix, both before and subsequent to the execution of the will, as to her intentions at the time of making it, and as to her subsequent belief that she had carried those intentions into effect, were admissible for tho purpose of showing what were the component parts thereof; and that the fact of the will being in existence, and not lost as in the case of Sugden v. St. Leonards, 34 L. T. Rep. (N. S.) 369, did not affect the question. Probate Div. and Adm. Div., June 22, 1880. Gould v. Lakes. Opinion by Sir James Hannen, P., 43 L. T. Rep. (N. S.) 382.

NEW BOOKS AND NEW EDITIONS.

LASCELLE'S HORSE WARRANTY.

The Law relating to the Purchase, Sale, Letting and Hiring of Horses, and the Rights and Liabilities of Innkeepers, Livery-Stable Keepers and others, using Horses, with Hints as to Procedure in Cases in Dispute. By Francis Henry Lascelles. Second edition. London: Reeves & Turner, 1881. Pp. xii, 184.

damages or for an injunction restraining him from THIS

issuing such notice; but where a patentee threatens the purchasers from other manufacturers, or advertises that the articles sold by other manufacturers are infringements of his patents, knowing that his patent is invalid, or that the article sold by the manufacturers

HIS book is designed for buyers and sellers and users of horses, rather than for lawyers, and with this limited scope, and for the English market, it is well executed. It will not be amiss among lawyers and in this country, although there are no American cases cited, and we have already a good work on the

same subject in Hanover on Horses, which cites the English as well as the American cases. If we are to believe Cicero, from whom the present author quotes on his title page, there is after all much more need of such a book in England than in this country, for Cicero said: "Tu qui cæteris cavere didicisti, in Britannia ne ab essedariis decipiaris caveto."

XXI AMERICAN DECISIONS.

CROSS-EXAMINATION.

Editor of the Albany Law Journal:

In Rollwagen v. Rollwagen, 63 N. Y. 504, Wm. H. Arnoux and Wm. A. Beach, for the appellant, maintained that: "The General Term erred in holding that the right of cross-examination is confined to subjects upon which the witness has been examined by the party calling him," citing authorities; yet the judgment in that case was affirmed.

Can you inform me, through the columns of your
JOURNAL, considered to be a court of reliable resort,
how the law of this State now stands upon that point?
Yours,
J. B. DALEY.

WINDHAM, N. Y., Dec. 14, 1880.

This volume has cases from 1 Saxton, 1 Halsted, 2 Paige, 4, 5, 6 Wendell, 2 Devereux Law, 1, 2 Penrose & Watts, 2 Rawle, 1, 2 Bailey Law, 1 Bailey Equity, 2, 3 Vermont, 2 Leigh, 3 Stewart, 1 Stewart & Porter, 8, 9 Connecticut, 2 Blackford; and notes on privilege of witness; power of appellate court after remittitur; justification of officer by process; notes payable in [There can be no doubt that the rule here is, that specific articles; definition of “in jeopardy; tools" cross-examination is not limited by the direct, but in exemption laws; what is necessary to attach per- if it exceeds it, the witness in so far becomes the sonalty; effect of foreign divorce. witness of the cross-examining party. —ED. ALB. L. J.]

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Judgment affirmed with costs-Maas v. The Missouri, Kansas and Texas Railroad Company and ano: Wehle v. Conner; The Phoenix Insurance Company of Brooklyn v. Floyd. Judgment reversed and new trial granted, costs to abide event - David v. The Williamsburgh City Fire Insurance Company; Bryan v. Stewart; Baird v. The Mayor, etc., of New York; Haynes v. Rudd; Sparman v. Keim.- -Judgment of General Term reversed, and judgment on report of referee affirmed with costs Church v. Simmons. -Orders of General Term and Special Term reversed, and an order entered vacating the attachment as against the land embraced in Mrs. Alberger's deed, with costsThe Steuben County Bank v. Alberger.-Order reversed and proceedings remitted to recorder, with directions to proceed and try the prisoner The People ex rel. Comerford v. Dutcher, sheriff.- -Order affirmed, with costs In re Kendall to vacate assessment. Order of General Term reversed, and judgment of Special Term affirmed, with costs-Josepthal v. Steffen. Motion for reargument denied, with $10 costs - Lord v. Harrison; The Pacific Pneumatic Gas Company v. Wheelock. -Motion to amend return denied, with $10 costs-Schultz v. Hoagland.-Appeals dismissed, with costs of appeal, and $10 costs of this motion · Stevens v. Glover.- -Motion denied, without costs. The People ex rel. Egan v. The Justices of the Maring Court of the City of New York.

CORRESPONDENCE.

POWERS OF NATIONAL BANKS.

Editor of the Albany Law Journal:

MR.

NOTES.

[R. NATHANIEL C. MOAK, of this city, has issued a complete and useful Subject Index of Elementary Law Books, used by him in his lectures to the Albany Law School, class of '81, on Books, their Selection and Use. Mr. Moak indicates which he regards as best, second best, and third best. No one is better fitted to advise on this subject than Mr. Moak, and the Index will be useful to every student and lawyer.F. D. Linn & Co., of Jersey City, publishers of the Criminal Law Magazine, Jarman on Wills, and other admirable issues, have put forth an edition of Fielding's Novels, in four volumes duodecimo, at $7. The book is elegantly printed and bound, and has reproductions of Cruikshank's famous illustrations. The page is one of the fairest we have ever seen. Fielding is one of the half dozen greatest masters in English literature, whose works can never grow obsolete, but must have a constantly-increasing value as faithful and vivid pictures of his time. Amelia is one of the strongest, sweetest and sincerest novels ever written. Every lawyer should read Fielding, for he was himself a lawyer and a useful magistrate. It is much better to resort to this grand and genuine old master than to devour such namby-pamby stuff as Endymion. Fielding is called coarse. His coarseness was simply that of his time, like Shakespeare's. He is never gratuitously nasty. There is more unadulterated "smut" in many a modern society novel, like one of Ouida's, or in a modern play, like Frou Frou, or a modern opera, like La Traviata, than in all of Fielding's works, while there is in these modern works no healthy counteracting air like that which blows on every page of Eng

In your note of cases on the power of banks to pur-land's "prose Homer." chase notes (ante, p. 462), you say at the end: "This important question ought to be settled, as to National banks, by the Federal Supreme Court." Has it not thus been settled, practically, by the decision of the United States Supreme Court in The Union National Bank, Skinker et al. v. Matthews, October term, 1878, 19 Alb. L. J. 132? The effect of that decision, as I understand it, is that a private person has no right to set up in defense the assumption by a bank of a power not conferred, or prohibited (which is the same thing), but that "the sovereign alone can object; " the government must exact a forfeiture of the charter, obtain judgment of ouster, etc., and "a private person cannot, directly or indirectly, usurp this function of the government." Respectfully yours,

J. KOPELKE. CROWN POINT, INDIANA, Dec. 14, 1880.

Debenham v. Mellor, respecting a wife's right to pledge her husband's credit for necessaries (see 21 Alb. L. J. 344), has been affirmed in the House of Lords. Lord Justice Coleridge succeeds Sir Alexander Cockburn as lord chief justice of England. This appointment was expected, and we believe gives satisfaction. It is said that Lord Justice Blackburn was conspicuously absent from the late lord chief justice's funeral. Lord Penzance was also probably absent. The Chicago Legal News says that the Illinois Supplement of the North Western Reporter has been discontinued for want of patronage. We can easily appreciate the difficulty when the Illinois reporter issues advance sheets and the News publishes head-notes very promptly. Still it was a good enterprise, and we are sorry it has not been successful.

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