COURT OF APPEALS ABSTRACT.

ACTION.

Against ex-supervisor for failure to account for town moneys: must be in name of town.-An action against a supervisor who has gone out of office, to recover for moneys belonging to the town which have come into his hands, and for which he has failed to account, must be brought (Laws 1866, chap. 534) in the name of the town, and an action in the name of the succeeding supervisor therefor is not maintainable. Judgment below reversed. Hagadorn v. Raux, appellant. Opinion | by Allen, J.

[Decided February 22, 1878.]

CONTRACT.

1. Construction of: market price.-A clause in a contract wherein defendants agreed to sell blankets for plaintiff, providing that the blankets should not be "sold for less than those made by D. & S.," held, to mean that defendants were authorized to sell plaintiff's goods at the same prices at which the goods of D. & S. were sold or offered in the market. Either actual sales of the blankets of D. & S., or their market value as ascertained by bona fide offers to sell, established the market price. Judgment below reversed. Harrison, appellant, v. Glover. Opinion by Andrews, J.

2. To fix price offer to sell must be in the present.— But the offer to sell must be a present offer not necessarily binding in law but in honor, and a promise to make a sale in the future, the negotiation not being complete, would not establish a price. Accordingly when a purchaser asked an agent of D. & S. if he had better buy plaintiff's blankets at 30 cents, and the agent told him he had better not, that he would see the purchaser in two or three days, and would sell as low as any one, held not to establish a price. Ib. [Decided February 12, 1878. Reported below, 9 Hun, 196.]

CORPORATION.

Action against, to recover dividends: not maintainable by one not holding stock.-S. held certain shares in a Vermont corporation, upon which assessments were made. The assessments not being paid, the shares were declared forfeited, and were sold by the company, and certificates given to new holders. O., who took title under S. claimed that the assessment and sale were invalid, demanded to be treated as a shareholder, and being refused, brought action on trover against the company for a conversion of the shares. Thereafter, dividends were made on the shares and paid to the new shareholders. Held, that O. could not, while the suit in trover was pending, maintain an action against the corporation for the dividends upon the shares claimed by him. Judgment below affirmed. Hughes, appellant, v. Vermont Copper Mining Company. Opinion by Rapallo, J.

[Decided January 29, 1878. Reported below, 7 Hun, 677.]

JUDGE.

Liability of judge for judicial acts: not liable civilly for erroneously sentencing to imprisonment.-Defendant was United States district judge, and plaintiff was tried at a Circuit Court held by him upon an indictment for embezzling mail bags. The jury found plaintiff guilty, and that the value of the mail bags was less than $25. The penalty prescribed in such case was a fine of $200 or imprisonment for one year. Defendant as judge sentenced plaintiff to pay a fine of $200

and be imprisoned for one year. Plaintiff was imprisoned five days and he paid the sum of $200 to the clerk of the court as a fine, and the same was paid by the clerk to the government. Plaintiff procured a writ of habeas corpus which was returned before defendant, who was holding the same term of court at which plaintiff was sentenced. Defendant, upon the return, vacated and set aside the sentence, and as a part of the same judicial act and order, passed judgment anew on plaintiff and re-sentenced him to be imprisoned for the term of one year, and plaintiff was imprisoned. Under proceeding taken by plaintiff for that purpose, to which defendant was not a party, the re-sentence of plaintiff was set aside by the Supreme Court of the United States as being without authority of law. In an action for imprisonment under the re-sentence, brought by plaintiff against defendant, held that the act of defendant was done by him as a judge, and he was protected by his judicial character from the action brought by plaintiff. Judgment of General Term affirmed. Lange, appellant, v. Benedict. Opinion by Folger, J. [Decided March 19, 1878. Reported below, 8 Hun, 362.]

SLANDER.

Accusation of larceny: stealing from town.-Defendant said concerning plaintiff, who was a candidate for supervisor, "he would be a pretty man to be elected supervisor; when he was highway commissioner he stole a thousand dollars from the town, and if he was elected supervisor, where he would have the handling of so much money, he would steal eight thousand." Held, that it was not error to refuse to hold as a matter of law that the words could not have charged larceny or could not have been so understood, and a refusal to grant a nonsuit was proper. Judgment below affirmed. Hayes v. Ball, appellant. Opinion by Church, C. J. Miller, J., dissented. [Decided February 5, 1878.]

Or

Judgment affirmed with costs-Lange v. Benedict; Booth v. Boston and Albany Railroad Company; Mehan v. Syracuse, etc., Railroad Company; Bowman v. Keenan; Upham v. Ireland; Douglass v. Ireland; Lawrence v. Merrifield; Sparrowhawk v. Sparrowhawk; New v. Nicall. Judgment affirmed. Polinsky v. The People; Blake v. The People; Lesser v. The People. Judgment reversed and new trial granted, costs to abide event - Field v. Field; Winterunte v. Cooke. Order granting new trial reversed, and judgment at Circuit affirmed with costs Walsh v. Hartford Fire Insurance Company. der granting new trial reversed, and judgment on report of referee affirmed with costs- - Birdsall v. Clark. Order affirmed with costs-Barton v. Speir. — Order dismissing appeal vacated — Mackey v. Lewis. -Judgment affirmed as to title, and judgment on the accounting reversed, and proceedings remitted for further accounting on principles stated in the opinion, without costs to either party in this court - Madison Avenue Baptist Church v. Baptist Church in Oliver street. - Judgment reversed, and judgment for plaintiff on demurrer, with leave to defendants to answer within twenty days after notice of the filing of the remittance, costs to abide the event of the action. - Townsend v. City of Brooklyn (two cases).

AMENDMENT TO RULES REGULATING THE ADMISSION OF ATTORNEYS.

THE

HE Court of Appeals on the 19th inst. made the following order:

Ordered, That Rule 3 of the rules for the admission of attorneys, etc., which went into effect October 1st, 1877, be and the same is hereby amended so as to read as follows:

RULE 3. No person shall be admitted to an examinatiou as an attorney unless he shall have served a regular clerkship of three years in the office of a practicing attorney of the Supreme Court, after the age of eighteen years. An allowance of one year shall be made to applicants who are graduates of any college or university. Any portion of time not exceeding one year for graduates receiving the foregoing allowance, and two years for other applicants, actually spent in regular attendance upon the law lectures, or the law school connected with any college or university of this State, having a department organized with competent professors and teachers, in which instruction is regularly given, shall be allowed in lieu of an equal period of clerkship in the office of a practicing attorney of the Supreme Court, and any person who holds a degree in law from any law school out of this 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, shall be allowed the time spent in such law school, in lieu of an equal period of clerkship in the office of a practicing attorney of the Supreme Court; but in no case shall an applicant be entitled to an examination as an attorney without having served a clerkship in the office of a practicing attorney of the Supreme Court for the period of at least one year.

NEW BOOKS AND NEW EDITIONS.

STEWART'S NEW JERSEY DIGEST.

A digest of the decisions of the Courts of Law and Equity of the State of New Jersey from 1790 to 1876; embracing all the cases reported in the regular reports of the State, and also in the reports for the District and Circuit Courts of the United States for the District of New Jersey; in two volumes. By John H. Stewart, Counselor at Law. Trenton, N. J., 1877.

THIS is an excellent work. The compiler was, under

a statute of the State of New Jersey passed in 1876, appointed by the Supreme Court to prepare a digest of the decisions of the courts of that State. The latest New Jersey digest in existence at that time was one made in 1844, so that the vast bulk of the case law of the State was in a chaotic mass scattered through numerous volumes of reports, and only accessible after considerable research. Mr. Stewart, however, with a commendable diligence set about his task, and before the close of the year in which he was appointed completed the first volume, and by the end of the year 1877 had concluded his entire work. In it he has embraced, in addition to the cases appearing in the regular reports of the State, those in the Supreme Court of the United States arising in or affecting New Jersey, together with those in the regular reports of the District and Circuit Courts of the United States for New Jersey and of the adjoining districts of New York, Pennsylvania and Delaware, and also those reported in the National Bankrupt Register and the Legal Intelligencer. It will be seen, therefore, that every

legal decision in the State, and in which its citizens are liable to have had an interest, is noticed in these volumes. The work of digesting is thoroughly well done, the statements of principle being clear, concise and accurate, and the arrangement being the best that could be devised. A table of cases overruled, etc., is given, in which is included references to the decisions of other States approving or criticising those of New Jersey, and it speaks well for the judiciary of that State that very few decisions made by them have received unfavorable criticism in other jurisdictions. The work contains an excellent index, which facilitates a reference to its contents, and a table of cases wherein every case is given under the name of the defendant, as well as under that of the plaintiff. Various matters of interest to the profession are included in the digest, for instance the rules of the higher courts, lists of the judiciary, etc. The bench and bar of New Jersey are fortunate in having so excellent a compilation of the case law of their State.

SAYLER'S AMERICAN FORM BOOK.

Sayler's American Form Book, containing the most improved legal forms and instruments for the use of professional and business men; also a statement of the law of deeds, mortgages, chattel mortgages, exemptions from executions, interests, mechanics' liens, wills; with forms for every State and Territory. By J. R. Sayler, Counselor at Law. Cincinnati, Robert Clarke & Co., 1878.

The object of this work, as announced by the publishers, is to provide a comprehensive, clear and reliable form book for professional and business men in the several States of the Union. Forms for all the more important classes of transactions, and especially such as require to be performed with legal precision, are given, with such instructions and directions as the practice and laws of the respective States relating to the same seem to demand. The forms cover all the subjects usually included in form books, and so far as we have been able to examine them, appear to be reliable. The synopsis of the laws of the several States relating to deeds, mortgages, etc., have been carefully prepared and accurately state the statutes as they now exist. The work will be found useful in every lawyer's library.

CORRESPONDENCE.

RETROSPECTIVE CONSTRUCTION OF STATUTES OF LIM

ITATION.

To the Editor of the Albany Law Journal:

SIR: By way of note to the interesting article in the JOURNAL of the 9th March, commenting on the case of The People v. Lord, 12 Hun, 282, and ably reviewing numerous authorities on the question, I would call the attention of "F. P. M." to the case of Mayor and Council of Hagerstown v. Schner, 37 Md. 180, in which the whole subject was elaborately discussed. The action was instituted by Schner against the town to recover damages for the destruction of his hardware store by a mob on the night of the 25th May, 1862, during the war. The suit was brought under the provisions of the Code, giving a remedy against cities or counties in such cases. It was instituted on the 4th May, 1867, not quite five years after the injury. Under the Statute of Limitations of the State, in force at the time of the destruction, this action would have been barred after three years, to wit, on the 26th May, 1865. In the winter of 1866 the Legislature passed an act

amending the article of the Code giving the remedy in this particular case, so as to provide "that any cause of action that may have heretofore arisen under this Article shall be prosecuted within the period of five years from the time of such cause accruing and not after; and all causes hereafter accruing shall be prosecuted within the period of three years from the time of the accrual of the same." The suit having been brought more than three years and less than five after the cause of action accrued, the only question was the power of the Legislature to extend the time of limitations in such cases.

On the part of the city it was contended that where the statute has become a flat bar, under pre-existing laws, it is beyond the constitutional power of the Legislature to pass an act extending the time: the right to plead the statute becomes a vested right. A large number of authorities were cited, among them, Cooley on Const. Lim. 357, 365, et seq.; Girdner v. Stephens, 1 Heiskell, 280; Gospel v. Wheeler, 2 Gallison, 105; Baugher v. Nelson, 9 Gill. 299; Sedgwick on Stat. & Const. Law, 659, and very many others.

The plaintiff contended that there is no constitutional prohibition against the enlargement or suspension of the term of limitations in actions of tort, relying on 9 Gill. 309; Foster v. Bank, 16 Mass. 245; Welch v. Wadsworth, 30 Conn. 149, and many others. Also that the principle, at any rate, has no application to this class of cases, because the statutory liability is a liability of counties and towns, public political corporations created by the Legislature and subject to its control and jurisdiction. The authorities in support of this position are numerous. State v. B. & O. R. R., 12 Gill. and Johns. 436; Regents v. Williams, 9 id. 400; Dartmouth College case, 4 Wheat. 518; People v. Morris, 13 Wend. 331; Davidson v. Mayor, etc., 27 How. Pr. 342, et als.

In their opinion the court say they "have encountered great difficulty in arriving at a satisfactory determination of this question, and it was in consequence of it that a reargument was ordered." "The annulling of this act must assume that it is not within the scope of legislative power to pass a law which will have the effect to revive as between private individuals a cause of action which was completely barred by limitations before its passage. It must be conceded that the weight of authority elsewhere sustains this proposition. But it is not clear the Maryland decisions would allow its adoption here. Upon this point we express no opinion." The learned judge then enters into a discussion of the general question involved, defining vested rights to be those rights to which a party may adhere, and upon which he may insist without violating any principle of sound morality. There can be no vested right to do wrong." But, say the court, "between public bodies and private citizens there is a wide and substantial distinction with respect to vested rights protected from legislative power. Public corporations are created by the Legislature for political purposes, with political powers to be exercised for purposes connected with the public good, subject at all times to the control of the Legislature with respect to their duration, powers and rights." 10 How. 534. "It would be difficult to conceive how such corporations could have or acquire any vested rights not subject to legislative control." The result was that the court sustained the act and the judgment for the plaintiff was affirmed. HAGERSTOWN, March 12, 1878.

H. K. D.

OBITUARY.

GRENVILLE TREMAIN.

Grenville Tremain, one of the ablest and most brilliant of the younger members of the New York State Bar, died at his residence, in this city, on the 14th instant, after a brief illness. He was the son of the wellknown lawyer, Lyman Tremain, and was born at Durham, Greene Co., N. Y., on the 19th of April, 1845. He was graduated at Union College, pursued his professional studies in the office of Peckham & Tremain, of this city, and at the Albany Law School, from which institution he was graduated in 1867. He subsequently became a partner of the firm of Peckham & Tremain and at once took an active and leading part in the business of his profession. He was corporation counsel of the city of Albany for several years, and in 1877 was the Republican candidate for Attorney-General of the State. No man in the profession had a higher promise of success than he a week before his death. Possessed of all the qualifications that go to make an eminent lawyer, enjoying the entire confidence of the bench and the bar, and having a large and lucrative practice, nothing seemed to be wanting to render his position the best that could be desired. His early death is, therefore, particularly to be regretted, not only by his relatives and friends, but by the profession to which he belonged and the community in which he had spent the greater portion of his life.

HENRY A. TAILER.

Henry A. Tailer, a prominent member of the New York City Bar, died on the 15th inst., at his residence in that city. He was born in New York in 1833, and received his education at Columbia College. Having been graduated from that institution at the head of the class of 1852, he passed the next two years in Europe, studying civil law at the universities of Bonn and Heidelberg. He also acquired an excellent knowledge of German and French, and was thoroughly acquainted with the best literature in both languages. Upon returning to New York, Mr. Tailer studied law in the office of Kent, Eaton & Kent. After having been admitted to the bar, he became a partner of the firm at the death of Mr. Kent. The firm then was Eaton, Davis & Tailer, and since the retirement of J. C. Bancroft Davis, has been Eaton & Tailer.

NOTES.

the case of Leer. Kaufman, just decided in the N United States Circuit Court, for the Eastern District of Virginia, the court sustains a demurrer of plaintiff to a plea of a want of jurisdiction interposed by the United States Attorney-General, the plea being that the United States was indirectly the defendant, and could not be sued. The ruling is that, if the sovereign power intervenes in a suit in which it is not a defendant on the record, with an objection that it cannot be sued, the court will look into the grounds of its right to intervene, and that accordingly the government in this suit must stand upon the strength of its title and not upon its exemption from suit.

A bill reported from the House committee on expenditures of the Department of Justice provides that in cases involving large amounts in which the United States may be a party in interest, and in cases of the United States against individuals for high crimes and misdemeanors, a district attorney may employ assistant counsel, but not more than one attorney or firm of attorneys in one case. Another bill reduces the compensation of clerks of District and Circuit Courts when one person holds both offices from $7,000 to $3,500 after the payment of necessary expenses.

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.

Communications on business matters should be addressed to the publishers.

The Albany
Albany Law
Law Journal.

A

ALBANY, MARCH 30, 1878.

CURRENT TOPICS.

POINT of very great importance was passed upon in the Circuit Court of the United States for the Eastern District of Virginia on the 15th inst., in the case of Lee v. Kaufman. The plaintiff brought action of ejectment to recover the wellknown Arlington estate, near Alexandria, Virginia, which was, by the will of its owner, who died in possession in 1857, devised to the wife of General Robert E. Lee, with remainder to the plaintiff. In 1864, under acts passed by Congress for the collection of direct taxes in the insurrectionary States, the land was sold for the payment of a tax assessed upon it, and bid in for a sum largely in excess of the amount of the tax, by the United States, which at once took possession. At the time of the commencement of this action the land was occupied by defendant Kaufman, and about two hundred others. No part of the sum in excess of the tax for which the estate was bid in was ever paid to plaintiff or any one interested in the estate. After the commencement of the action the United States, which had not been made a party, intervened, claiming to be the owner of the land, and to occupy it in the exercise of its sovereign and constitutional powers, and suggested that the court had no jurisdiction of the subject in controversy, and moved that the declaration in the suit be set aside and all proceedings stayed and dismissed. The plaintiff demurred to the suggestion of the government. Judge Hughes, before whom the motion for a stay was made and argued, has delivered an elaborate opinion in which the whole subject presented by the motion is learnedly discussed. The court says that although an intervention of the government in this manner in a cause pending between other parties is unusual in this country, it is sanctioned by authority (Florida v. Georgia, 17 How. 478; Maxwell's Lessee v. Levy, 2 Dall. 381; The Exchange, 7 Cranch, 117) and is the settled practice in England. Legh v. Rose, 8 Mees. & Welsby, 579. Upon the questions of law presented by the suggestion and demurrer, namely: (1) Whether the suggestion was of itself sufficient to defeat the jurisdiction of the court over the VOL. 17.- No. 13.

cause, and (2) whether, supposing it had not that effect ipso facto, the court might look into the grounds on which the intervention was made, the first question was answered in the negative, the court holding that the executive cannot on mere prerogative forbid the hearing of a citizen's plea. As to the second question Judge Hughes says that he is not at liberty, sitting as an inferior court, to hold that the fact of the Federal government being claimant by record title of the property which is made the subject of an indirect suit against it, in possession of it and in the actual use of it for public purposes, defeats the jurisdiction of the court to look into the grounds of the government's title and decide the action upon the merits. To so hold, he says, would be to overrule the Supreme Court in the cases of Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Gresar v. McDowell, 6 Wall. 263; and Cooley v. O'Connor, 12 id. 391. This ruling of the Supreme Court has been sustained by decisions of other courts: Elliot v. Van Voorst, 3 Wall. Jr. 301; Dreux v. Kennedy, 12 Lou. 489; French v. Bankhead, 13 Gratt. 183; Polack v. Mansfield, 44 Cal. 36.

Mr. Stephens of Georgia introduced in the House on Monday a bill for the reorganization of the Supreme Court of the United States. The main features of the bill are those providing for the division of the United States into fifteen judicial circuits and the appointment of six additional Supreme Court judges. The Chief Justice is to divide the Supreme Court into five sections of three judges each, one of whom is to be a presiding justice, and the business of the court is to be parceled out among those sections. The success of this bill would be a deplorable matter. While it might expedite business, it would dissipate the authority and the influence of the court.

It is announced that the law in reference to divorce in Connecticut has been so amended that the marriage contract can hereafter be dissolved only in cases of adultery, fraudulent contract, willful desertion for three years, seven years' absence unheard from, habitual intemperance, intolerable cruelty and imprisonment for an infamous crime in the State prison. These reasons seem to be sufficiently numerous, but the law of Connecticut is much more rigid than it has heretofore been.

The bill introduced in the English Parliament for the abolition of the action for breach of promise of marriage has led to a considerable discussion of the subject in the press of that country. The opponents of the bill have presented many cogent reasons against a change in the law, among which, is the

very general existence of such a right of action in different countries and ages, and under different systems of jurisprudence. It was recognized in the Roman law. Under the title de sponsalibus, in the Pandects of Justinian, it is stated that the action existed in Latium, and Servius Sulpicius in a work entitled de Dotibus says the action was maintainable when the Lex Julia conferred upon all the people of Latium the rights of citizenship. The canon law treated of promises of marriage with great seriousness, even admitting that in foro conscientia spiritual compulsion might be employed to enforce performance; but in later times the rule was relaxed by the Popes, and damages adjudged in lieu (ex litteris de Sponsalibus). In Sweden the power to decree performance of a promise to marry was retained so late as the year 1810, when it was abrogated. The Oriental Church, following the Israelitish doctrine, viewed a breach of promise in the light of a breach of marriage (Concil. Trullana 692, can. 98). An action of this kind will lie, according to French law, provided special damage be proved (Code Nap. and decisions thereon). By the law of Italy, this right of action arises whenever the formalities specified in Article 54 of the Code are complied with. The Prussian Code renders the breach of a legally constituted agreement to marry actionable, and, under certain circumstances, a penal offense. In one respect, the French, German, and Italian law, differs from that prevailing here, and in England, in that it does not admit injury to the feelings as an item of damage. And the rule permitting such an element of damage is, perhaps, the cause of most of the injustice that arises under the operation of our law. If the plaintiff could recover only such pecuniary damage as she has actually suffered, there would be no objection to the law as it now exists here.

The New Code, or that part of it that the governor vetoed, has not yet been voted upon in the Senate, to which it was returned. The opponents of the measure in both houses are preparing for a vigorous contest, and its friends will need all the strength they can muster, to overcome the veto. And work is being done very vigorously outside the legislature in the way of obtaining petitions against the proposed law, and in publishing editorial and other articles in those newspapers which are supposed to have an influence on legislation. It is impossible, at this time, to say what will be the result of all this, but both sides appear to be confident

of success.

It is announced from New York that the next annual conference of the Association for the reform and codification of the Law of Nations will be held at Frankfort, Germany, on the 20th of August, 1878. Numerous matters of interest will be brought before

the conference and it is to be hoped that the United States will be well represented.

The Senate committee on judiciary have reported, without recommendation, a bill to repeal the bankrupt law. The views of the members of the committee were not at all harmonious, but a majority directed the report made, and several who did not favor repeal consented that the bill should be reported without recommendation. If the feeling of the committee is an index of that of the Senate the passage of the bill by that body seems certain. The House is sure to take like action on the matter and the only hope of those interested in a perpetuation of the law is in delaying action in one or the other of the two houses. We sincerely hope they may not be able to do so, for the great majority of the people, both business men and lawyers, have become convinced that the bankrupt law is productive of more harm than good, not only to business interests but to those of the legal profession. In one or two instances the courts have severely animadverted on the opportunities for fraud it affords. Matter of Allen, 17 Alb. L. J. 170. In various ways it operates to injure the community, and even its friends admit that essential amendments are needed if it should remain in force. No two persons agree as to what amendments should be made, and the only solution of the difficulty is that proposed by the Senate committee, namely, unconditional repeal.

The State of Iowa, after an experience of several years under legislation not permitting capital punishment for murder, has restored the death penalty. This State is very favorably situated for testing whether it is better for the community to inflict death as a penalty for murder, having an agricultural community with fertile lands, and with no large centers of population so as to develop what is known in our great cities as the criminal class. If an experiment of this kind ought to succeed anywhere it is in Iowa, but we judge that it has not from the circumstance that the change mentioned has been made.

The Vanderbilt will case, which has for some months occupied most of the spare time of the surrogate of New York, has been productive at length of an opinion from that official, wherein the question whether the declarations or admissions of a legatee under the will tending to show undue influence, or the absence of testamentary capacity are admissible in evidence in behalf of the contestants, is elaborately and learnedly discussed. Numerous authorities, American and English, are examined, and the conclusion reached that the declarations and admissions should be excluded.