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COURT OF APPEALS ABSTRACT.

AGENCY.

Construction of power of attorney: ratification.- An agent had a power of attorney to draw and indorse "checks on any bank" in which his principal had an account, "and to do any and all things connected with my account in" such banks as the principal might do. After the word "checks," the words "promissory notes were interlined so as to make the power of attorney give authority to draw and indorse "checks or promissory notes on any bank," etc. Held, only to give authority to deal with the accounts mentioned, and not to give the agent authority to sign his principal's name to notes not connected with such accounts, but given for his own purposes. Held, also, that the execution of a mortgage for the purpose of securing such notes procured by the agent from the principal, the principal not understanding such to be the purpose, did not amount to a ratification of the agent's act. Judgment below affirmed. Craighead, appellant, v. Peterson. Opinion by Allen, J.

[Decided January 29, 1878. Reported below, 10 Hun, 596.]

EVIDENCE.

1. Invalid contract performed when admissible to show title.-In an action upon a promissory note made payable to the order of plaintiff, a married woman, who had it in her possession at the time of trial, the defense was that the note belonged to plaintiff's husband, and that defendant had paid him the amount due on it. Evidence was offered to show that the husband, who was an alien, wished to deal with his own money in real estate, and that he made an arrangement with plaintiff, whereby she was to take title to all lands bought by him, and to convey, when required by him, and that this note was given in a transaction made under such arrangement. Held, admissible, and not to be excluded on the ground that the arrangement in question did not constitute an enforceable agreement. Judgment below affirmed. Dunn, appellant, v. Hornbeck. Opinion by Folger, J.

2. Agency: presumption from usual course of dealing. - It was in evidence that the husband was, under the arrangement mentioned, accustomed always to do plaintiff's business for her, and to receive payments on account of the property sold by her. Held, a legitimate inference that he was entitled to receive payment on this note, though authority to do so may not have been given in specific terms. Ib. [Decided January 15, 1878.]

FRAUDULENT CONVEYANCE.

1. Bankruptcy: how far discharge affects debts: judgment confessed on old debts after discharge: fraudulent transfer void as to future creditors.-E., for the purpose of defrauding creditors, caused his real estate to be transferred to M., who was to hold the title thereto until E. could be discharged from his debts in bankruptcy, or otherwise, when M. was to convey the property to E. E. was discharged in bankruptcy, and thereafter confessed judgment upon plaintiff's debt, which was in existence when the bankruptcy proceedings were instituted. Held, that although plaintiff's debt was canceled by the discharge in bankruptcy, it furnished a sufficient consideration for the judgment which became a new debt and was not cut off by such discharge. That the transfer of the real estate of E. to M. being made to defraud creditors, was void, both as to existing and future creditors, and could be impeached by either class of creditors. Judgment below

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2. Effect of bankruptcy proceedings as to fraudulent transfer: rights of assignee: defense.-It was claimed on behalf of M., in an action to procure satisfaction of such judgment out of the property in his hands, that the assignee of E. in bankruptcy became vested with it by virtue of the statute. No such defense was set up in the pleadings. Held, that M. could not interpose the defense without pleading it, and even if he had done so, it would have availed nothing further than to require the assignee to be made a party to the action. Held, also, that the proceedings in bankruptcy as appearing, were not a bar to the action. Ib. [Decided January 15, 1878. Reported below, 9 Hun, 473.]

NEGLIGENCE.

1. Action by city over against one unlawfully obstructing streets so as to render city liable: defenses.-Defendant, in erecting a building in a city, negligently left materials and rubbish in the street at night so as to obstruct it without putting a barrier around the obstruction, or placing lights as required by the city ordinance. M., who ran into the obstruction and was injured, brought action against the city for the injury, and the city notified defendant to defend. M. recovered a judgment. Held, that defendant was liable over to the city for the amount of the judgment, and that in an action therefor, he could not set up contributory negligence on the part of N., but could set up his own want of negligence, and it was incumbent on the city to show that he was negligent. Judgment below affirmed. City of Rochester v. Montgomery, appellant. Opinion by Rapallo, J.

2. When contractor for city liable to city for negligent acts.-The fact that the building to which the materials causing the obstruction belonged was being erected by defendant for the city upon its land under a contract, would not furnish a defense. (Holloway v. City of Buffalo, 7 N. Y. 497, distinguished.) Ib.

3. Evidence: city ordinance on question of negligence. -A city ordinance which defendant violated in leaving the obstruction unguarded and unlighted held admissible on the question of negligence. Ib. [Decided January 15, 1878. 394.]

WILL.

Reported below, 9 Hun,

1. Construction of: living children: grandchild.—Testator had made provision for a daughter of his deceased daughter, describing her as such in one clause of his will. In another, he gave the residue of his estate to his wife and "living children." Held, not to include the granddaughter. Judgment below modified. Low v. Harmony, appellant. Opinion by Rapallo, J.

2. When grandchild included in gift to children.-In another clause of the will he made a limitation over of the shares of his children in case of their dying without issue, to "my other children and wife or their heirs." Held to include the granddaughter. Ib.

3. Will so construed as not to exclude lineal descendant or heir.-When the language of a limitation is capable of two constructions, one of which would operate to disinherit a lineal descendant of the testator, while the other would not produce that effect, the latter should be preferred. An intention to disinherit an heir or lineal descendant will not be imputed to a testator by implication nor where he uses language capable of a construction which will not so operate. Ib. [Decided February 5, 1878.]

NEW BOOKS AND NEW EDITIONS.

MAY'S DEMOCRACY IN EUROPE.

Democracy in Europe: A history. By Sir Thomas Erskine May, K. C. B. D. C. L. Author of "the Constitutional History of England since the Accession of George III. 17601871." In two volumes. New York: W. J. Widdleton, 1878.

here are upon points of interest, usually in practice. The index is fair, and the book is well printed and bound.

HE subject of the present volumes is one of great A

interest to the student of political science, and we doubt if any writer could have been found more competent in every way to discuss it than Mr. May. His Constitutional History of England displayed his ability to deal with first principles in a philosophical manner, and to treat living questions with fairness and impartiality, while holding definite opinions of his own. The method pursued in the present work is best stated in his own words. He says:

"Taking Democracy in all its aspects as my theme I have illustrated it from the history of those States in which its incidents have been most remarkable. I have investigated the causes of the political development of nations. I have studied the inner life of many republics in ancient and modern times, and I have followed the most memorable revolutions and the greatest national struggles for civil and religious liberty to be found in the annals of European monarchies. While passing lightly over the beaten track of English Constitutional history I have dwelt upon the periods in which democracy has taken a prominent place."

After an introduction wherein the moral, social and physical causes of freedom are considered, a chapter is devoted to political conditions and influences in the East. Democracy in Greece and in Rome is discussed in four chapters. A chapter is given to the dark ages and the revival, and one to the Italian Republics. The last two chapters of the first volume treat concerning

Switzerland. The second volume opens with two chapters upon The Netherlands. Next follows France, embracing five chapters. The remaining part of volume two is given to England. The subject is, of course, treated from an English stand-point, and the author thinks that the condition of society in England

is in every respect superior to that in other European communities. In comparing the result of the influence of democracy in England with what the same influence has effected in France he says:

"A society so strong, so varied and so composite assures the stability of our institutions and the equitable policy of our laws. In France the disorganization of society has been the main cause of revolutions. In England its sound condition has been the foundation of political progress, and constitutional safety." The volumes ought to be read by every student of history.

SELDEN'S NOTES, SECOND EDITION.

Notes of cases decided in the Court of Appeals of the State of New York. To which are added a table of cases and index. By Henry R. Selden, State reporter. Second edition. Albany: W. C. Little & Co., 1878.

This is the second edition of a volume well known to the profession twenty years ago, though it has not of late years been so frequently met with. It consists of notes of cases decided by the Court of Appeals, made by Mr. Selden while State reporter. Very many of the cases referred to are reported in full in the New York Reports or elsewhere, but many of them are accessible to the public in this form only. Consequently a professional library, in order to contain a full collection of cases decided by our court of last resort, should embrace this volume. Some of the cases given only

BENCH AND BAR.

UGUSTUS C. HAND, formerly a Justice

of the Supreme Court of this State, died at his residence in Elizabethtown, N. Y., on the 8th inst. He was born in Shoreham, Vt., in 1806. He studied for his profession partly in this State and partly in Connecticut, and shortly after his admission to the bar settled in Elizabethtown. He was a Representative in Congress from 1839 to 1841, and a member of the State Senate from 1845 to 1848. From 1848 to 1856 he was a Justice of the Supreme Court. Since then he has devoted himself exclusively to the practice of his profession. He was considered one of the leading lawyers of the State, and he leaves three sons who have each achieved a high position at the bar.

Paolo Frederigo Sclopis di Solerano, an eminent Italian jurist, died on the 8th inst. at Turin. He was born in 1798, and received his diploma as doctor at law when twenty years of age. He presided at the Genava Court of Arbitration, and achieved great credit for his conduct on that occasion. He was considered as one of the foremost international lawyers of the age.

CORRESPONDENCE.

REORGANIZATION OF THE FEDERAL COURTS.

To the Editor of the Albany Law Journal:
SIR-I venture to propose another scheme for the
expedition of business in the Federal courts.

Let the Circuits be reorganized, so that there shall be twelve instead of nine, with a resident Circuit judge,

and, if need be in any Circuit, more than one in each.

The Supreme Court should be enlarged correspondingly by the addition of three judges, and would then sit in three divisions of four judges each. A cause will in the first instance be argued before one of these

divisions, with the privilege of a further hearing, in proper cases, before the whole court.

By these means the present calendar of the Supreme Court will be cleared in a year; and thereafter causes can be heard as soon as they are ready for argument. The terms of the court may be shortened after the first year, and the judges will have more time to devote to the Circuit Courts. Judge Dillon's just complaint of the impossibility of giving adequate consideration to all the cases that come before the judges of these courts will no longer be a reproach to our judicial system, and suitors will not be forced to wait several years after a trial in the District Court before the final determination of their causes in the Supreme Court. NEW YORK, March 4th, 1878.

THE LIABILITY OF A SURETY'S ESTATE.

G. Z.

To the Editor of the Albany Law Journal:
SIR-Were I a poet, as your Rochester correspond-
eut-" F. A. W."― proves himself to be by his happy
paraphrase from Goldsmith in your issue of the 2d
inst., I might construct another one founded on Moore's
famous-

"Oh, ever thus since childhood's hour," etc.,
which his ideal "surety" would surely feel inclined to
utter did he know the unpleasant truth concerning his
liability, the knowledge of which effectually destroys

the happy illusion occasioned by reading Risley v. Brown, 67 N. Y. 160.

Section 758 (amended 1877) of the N. Y. Code of Civil Procedure overrules the above case, which formerly appeared in 14 Alb. L. J. 359. Messrs. Throop and Bliss both note this fact in their respective editions of the Code. As Mr. Sickels fails to do so in his last volume, but prints the report of the case without comment, it is naturally to be feared that others than "F. A. W.'s" "Surety" may find themselves misled, to their great inconvenience and disgust.

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Johns Hopkins University. The first lecture was on The Accretion of Federal Power," and the other four were devoted to a discussion of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. A brochure has been issued containing the resolutions adopted by the Washington bar on the death of the late Geo. W. Paschal, and the address of Mr. Riddle on presenting the resolutions. Mr. Riddle's remarks are unusually interesting.- Mr. F. H. Norton has entered upon an undertaking in this city which, properly conducted, ought to be of service to the profession. He purposes to furnish to lawyers any information that they may desire from the State law library; to examine questions submitted, prepare briefs, procure copies of cases, etc. Mr. Norton is well recommended.

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Mr. Seymour D. Thompson, who has heretofore been the editor in chief of the Central Law Journal, has discontinued his connection with that paper. Mr. John D. Lawson, who has for some time been associate editor, succeeds Mr. Thompson. The Journal has, under Mr. Thompson's charge, acquired a high position in legal journalism, which we believe will be fully sustained by his successor.

The Real Estate Journal, Mansfield, Ohio, says: "The ALBANY LAW JOURNAL is a journal of rare worth, embodying comprehensive reports of the most important decisions rendered in the Supreme Courts of England and the United States, including an abstract of all the decisions of the Supreme Court of the United States, New York Court of Appeals and English Court of Appeals, together with a summary of legal intelligence and copious comments of questions of particular interest. It is received with popular favor and warmly indorsed by the most eminent meu of the profession."A former subscriber to the LAW JOURNAL who discontinued at the beginning of the year writes from Cleveland, under date of March 4th: "I find I miss the ALBANY LAW JOURNAL too much to longer be without it. Send it to me again together with the back numbers. I was led to believe that one of our western law journals would be more useful to me, but I find that such is not the fact."

The Rev. H. J. Dodwell, the assailant of the Master of the Rolls, is, says the Solicitors' Journal, the exchaplain of a workhouse in Sussex, who was dismissed from his position by the guardians, and presented a petition of right with a view to his being reinstated, which was summarily dismissed by Vice-Chancellor

Malins and the Court of Appeal. He applied a few days ago at Bow-street Police Office for a summons against Lord Justice James and other judges for calling him “a perjured man." Before making his way to the Rolls Court the morning of the attack he called at the Registrar's Office, inquiring for the chambers of the registrar who had charge of an order dismissing an application made by Dodwell to the Appeal Court; but, perhaps happily for the learned registrar, he had not yet arrived, and Dodwell left before the hour for the commencement of business.

The March number of the Scottish Law Magazine contains several interesting articles. The first, on Stair and Argyle, records one or two incidents in the life of Viscount Stair, and the son of that Marquis of Argyle who was beheaded in 1661, which are unrecorded in the usual historical treatises. "On Certain Principles affecting the liabilities of Masters and Servants" is a continuation of an able discussion commenced in a former number. "Implied Entry " is a well written article upon a subject of considerable importance in Scotch law. The other essays are local or selected. The editorial departments are of somewhat less than usual interest The notes of decisions of tho Scotch courts are of only local value. The number, as a whole, is not quite up to the average.

That railway companies carry passengers' luggage as insurers may be considered) as settled by Macrow v. Great Western Railway Company, L. R., 6 Q. B. 612, although the question has never been expressly decided by a Court of Appeal. But in Talley v. Great Western Railway Company, L. R., 6 C. P. 44, it was held by the Court of Common Pleas that if luggage be placed in a railway carriage with the passenger, with his assent, and he retains control over it, the company's liability as insurer ceases, and they become liable for negligence only; and this view of the law has been affirmed by the Court of Appeal in the recent case of Bergheim v. Great Eastern Railway Company. The facts were these: The plaintiff went with his wife to the Liverpool-street station of the defendants' railway, intending to go to Yarmouth, and the bag which was the subject of the action was placed in a first-class carriage in which the plaintiff and his wife were to travel, with his assent. He asked a porter whether the bag would be safe while he and his wife went to luncheon, and was told that it would be. The travelers, having lunched, returned to the carriage, and just as the train was starting discovered that the bag was lost. The jury found that the porter had acted within the scope of his employment in putting the bag into the carriage, that neither the plaintiff nor the company had been guilty of negligence, and Mr. Justice Manisty directed a verdict for the company. The plaintiff appealed from this ruling, and the Court of Appeal took time to consider. Lord Justice Cotton, in delivering judgment for the company, appears to have rightly distinguished the case of a passenger retaining control of his luggage and the ordinary case of luggage being consigned to a van. But the strong point for the plaintiff appears to have been, that the porter promised him that his bag would be safe. With regard to this, however, it seems that the porter would have no authority to give such a promise, 80 that the judgment appears to be quite correct. The case is rather an important one, not so much from the difficulty of the question of law involved, as from the frequency with which railway passengers absolve the companies from their liability as insurers. And there are few lines upon which a railway porter will not, on the slightest hint from a passenger, place luggage in a railway carriage.-Law Times.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

needed to render the system of procedure complete, this being in answer to the claim made by the friends of the new Code that the proposed law is necessary to give us a harmonious, consistent pro

Communications on business matters should be ad- cedure. The necessity of amendment admitted by dressed to the publishers.

The Albany Law Journal.

THE

ALBANY, MARCH 23, 1878.

CURRENT TOPICS.

HE Court of Appeals of this State resumed its sitting on the 18th inst. On the 19th it handed down several decisions, among which was a judgment of affirmance in the case of Lange v. Benedict, wherein the question of the liability of a judge for false imprisonment under an erroneous

sentence was involved. The court also made an

order amending the third one of the rules regulating the admission of attorneys, so that an applicant for admission who holds a degree in law from any law school out of the State which maintains a

course of instruction covering at least two academic years of not less than eight months each, and gives its degrees only after public examination, is to be allowed the time spent in such law school in lieu of an equal period of clerkship in the office of a practicing attorney in this State. This amendment is a very proper one as it permits students who desire to do so to pursue a portion of their educational course at institutions of standing outside of the State. As the rules stood before the amendment, graduates of the Harvard law school, where the training is certainly not less rigid and thorough than in the best of our local institutions, were required to spend as many years in fitting themselves for practice as beginners, a manifestly unfair requirement. The rules for admission to the bar are now about what they ought to be, and we trust they will receive no legislative tinkering in behalf of any interest.

The message of Governor Robinson in returning without his approval the bill enacting the last nine chapters of the Code of Civil Procedure, presents with great force the objections which have been raised to the completed work of the revision commissioners. The first point he raises is that the bill was not constitutionally passed, in that the reading of it before passage was dispensed with in the Senate. He claims that the "last reading" of a bill, referred to in section 15 of article 3 of the Constitution, is not satisfied by a reading of the title merely, but that the entire bill must be read unless that formality is dispensed with by unanimous consent. The second ground is that the last nine chapters are not VOL. 17.- No. 12.

those who favor the Code is made a further ground of objection, as it shows that the friends of the law do not believe that it is what it ought to be. Numerous specific objections are also raised, the principal of which are that the proposed law legalizes champerty; that it furnishes a long and clumsy substitute for the action of replevin; that it increases the grounds for which an arrest can be made, and renders them uncertain; that it unduly enlarges the powers of surrogates; that it substantially destroys the present mode of recovering possession of land by summary procedings. The governor further says, that the act, while professing to be a code of procedure, and to deal only with the maintenance of rights, constantly oversteps its proposed limits and deals with the law of rights itself. As instances of this he refers to the incorporation therein of the civil damage act, and a change made in that act so as to give a person suffering damages from a breach of contract, resulting from intoxication, a right of action against the vendor of the liquor causing such intoxication, and to the abrogation of chapter 33 of

the laws of the present session, authorizing an arrest upon a judgment for wages of females employed in the city of New York. The changes as to costs and allowances and as to fees of referees are animadverted

upon, as are also the verbal alterations where no change of meaning is intended. In conclusion, the governor recommends the repeal of the thirteen chapters already in force.

Mr. Throop has published a review of the objections raised by the governor, wherein he takes issue with him upon the ground of the constitutionality of the passage of the bill. He claims that constitutional provisions as to legislation not in the form of a condition, and not accompanied by a declaration that a failure to observe them shall make the attempted legislation void, are merely directory, and supports his claim by reference to the cases of Miller v. State, 3 Ohio (N. S.), 483; Pim v. Nicholson, 6 id. 178, and People v. Supervisors of Chenango, 8 N. Y. 317, 328. The various specific objections of the governor are well met, and the insertion of the civil damage law with the alleged change justified. The abrogation of the "working woman's act " is shown not to be effected as alleged, inasmuch as by section 3317 of the proposed Code it is provided that "for the purpose of determining the effect of this act upon other acts," etc., the act is deemed to have been enacted on the second day of June, 1876. The abolition of limitations upon allowances and referees' fees he does

the act of the defendant was willful and without authority. A demurrer was interposed on the

not consider a sufficient reason why the bill should be vetoed. The points made by Mr. Throop are very strong ones. The new Code has been sub-ground that the complaint did not state facts suffimitted to the people and the profession for many months, and the result is that an overwhelming majority of the legislature has approved of it, and to judge from the petitions presented, a very large proportion of the profession is of the same way of thinking. That there are defects in the provisions of the proposed act, and infelicities of expression, no one denies, but these do not seem to be sufficient to warrant the legislature in changing its settled purpose to bring into a harmonious condition the statute law of the State.

In the legislature during the past week the following bills of interest to the profession were introduced One providing that railroad receivers shall be subject in the conduct of their roads to the same liabilities as the corporation itself would have been, the liabilities to be paid out of the earnings, and one providing for the repeal of the thirteen chapters of the Code of Civil Procedure now in force. A resolution was introduced in the assembly, proposing an amendment to the Constitution, abolishing

the New York Court of Common Pleas and the New York Superior Court, and transferring the jurisdiction of such courts to the Supreme Court. A bill providing for the taking of testimony of convict witnesses was vetoed by the governor.

The case of Lange v. Benedict, decided by the Court of Appeals on the 19th inst., an abstract of which appears in another part of the present number, finally determines a question of very great importance to judicial officers and litigants. The plaintiff in this case, a gentleman of respectable standing, was indicted for embezzling mail bags, a somewhat venal offense, and tried at a court at which defendant presided. He was convicted, the jury assessing the value of the bags embezzled at less than $25. The penalty prescribed by statute in such case was $200 fine or one year imprisonment. Defendant, however, sentenced him to both the fine and imprisonment. He paid his fine and applied by writ of habeas corpus for his release from imprisonment. The writ was returnable before defendant, who was yet holding the term of the court at which the conviction was had. Upon the return defendant set aside the former sentence and re-sentenced plaintiff to one year's imprisonment. This act was declared by the United States Supreme Court to have been without authority of law (Ex Parte Lange, 18 Wall. 163), and plaintiff was released. Thereafter he brought this action against defendant for damages by reason of his false imprisonment, setting up the facts of the case, and that

cient to constitute a cause of action, it being claimed that defendant was not liable for the consequences of any act done by him as a judge of a court of general jurisdiction. The demurrer was overruled at Special Term (11 Alb. L. J. 22), but was sustained at General Term (14 Alb. L. J. 313). The Court of Appeals have affirmed the judgment of the General Term, and have thereby asserted the principle that a judge is irresponsible civilly for almost every act he may do while on the bench. Perhaps such a rule is necessary to secure independence to the judiciary, but it would seem that a person injured by a gross abuse of judicial power, such as the act committed by defendant was, should not be remediless.

A law has been passed in California adopting the cumulative plan of voting in elections in private corporations. A stockholder for each share of stock may cast one vote for each director or manager to be elected, or may give as many votes as there are directors for one person or may distribute the votes among several. The object of this law is to prevent the entire control of a corporation passing into the hands of a few men who may temporarily hold the stock or proxies to vote thereon. As a means of securing minority representation, and thus protecting the interests of small shareholders, it seems to be well fitted, and we trust that a similar measure may some time be tried here. It is also applicable to corporations having no capital stock.

IN

NOTES OF CASES.

́N Hill v. City of Boston, 122 Mass. 344, plaintiff brought action to recover for a personal injury sustained by him from a defective staircase in a public school-house belonging to the defendant, at which he was attending as a pupil. The duty of providing the school-house properly furnished was imposed upon defendant by a general law. The court held that plaintiff could not recover upon the ground that no private action, unless authorized by express statute, can be maintained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage. The question has most commonly arisen in actions for defects in highways and bridges by reason of which persons passing over them have received injuries. And, in the absence of statute, no private action lies against a public or municipal corporation for a neglect to repair whereby injury results. See Williams' case, 5 Rep. 72 b, 73 a;

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