314 DAMAGES. Measure of, in contract to pay in specified bonds: when judgment for face value of bonds not allowable.-By a contract between defendant C., and plaintiff and S., C. was to pay plaintiff and S. $50,000 in cash and $50,000 in Northern Pacific bonds. Plaintiff and S. performed the contract on their part. The cash was paid, but each claimed the entire amount of the bonds, and demanded them of C., and each one forbade him to pay any of the bonds to the other. Plaintiff then brought this action against S. and defendant, asking for an accounting with S., and that plaintiff pay $50,000 in money or deliver the amount in bonds to a receiver to be appointed, and be forbidden from paying any part of them to S. The complaint did not state any value to the bonds, or set up any claim for damages for the non-delivery of the bonds. A reference was had, and it was determined that plaintiff and S. were each entitled to one-half of the bonds. Held, that a judgment in the action against C. for the nominal value of the bonds in money was erroneous. Judgment below reversed. Wintermute v. Cooke. Opinion by Rapallo, J. [Decided March 19, 1878.] FIRE INSURANCE. 1. Conditions in policy: occupation of buildings: sawmill.-In a policy of insurance upon a saw-mill operated by water was a condition that if the premises should become "vacant and unoccupied" the policy should be void. Held, that the meaning of the condition would be affected by the nature of the property insured, and in this case a temporary interruption in the business of the mill caused by breaking of the machinery, low water or lack of custom, would not be in violation of such condition. Accordingly, when, for sixteen days previous to the destruction of the mill by fire, which was in the month of May, there had been no sawing done, but lumber was sold from the yard during that time, and logs were at the mill ready to be sawed, and nothing appeared to show that the owner of the mill intended to discontinue its use, held, that the mill was not vacant or unoccupied within the meaning of the policy. Judgment below affirmed. Whitney v. Black River Ins. Co. Opinion by Andrews, J. [Decided January 15, 1878. Reported below, 9 Hun, 37.] 2. Increase of risk: condition as to, applies only to future acts. The policy contained a condition avoiding it if the insured premises "shall be occupied or used so as to increase the risk," without the consent of the company. Held, that this only prohibited a new and different use of the property from that to which it was applied at the time the policy was issued by which the risk would be increased, and the circumstance that the risk to the mill was greater by the use of a planer, which was in it unknown to the company, would not be a violation of the condition in the absence of fraud and misrepresentation. Ib. [Decided January 15, 1878.] 3. Conditions in policy: use of kerosene: single and general use: use by others than insured. ance policy provided that the company should not be - A fire insur liable for loss occasioned by the use of kerosene oil as a light in any barn or outbuilding. Held, to refer to a single use of kerosene on any occasion, and not an habitual use. Held, also, that the fire causing the loss must be occasioned by kerosene, and if a lamp fed by kerosene should set fire when one fed by another lighting material would have done the same, the condition would not exempt the company from loss. Held, further, that the use of kerosene by any member of the household of insured lawfully in the barus was provided against, and not alone its use by him personally. Judgment below reversed. Matson v. Farm Building Fire Ins. Co. Opinion by Rapallɔ, J. JURISDICTION. 1. General appearance by non-resident defendant gives personal jurisdiction.- Where a non-resident defendant makes a general appearance in an action commenced in a court of this State, by attachment, the court acquires jurisdiction of his person, and this is not affected by the fact that he appears because his right to the attached property is imperiled by the proceedings. Judgment of General Term reversed, and judgment on verdict ordered. Olcott v. McLean. Opinion per Curiam. 2. Alienage not defense to violation of bankrupt law. - Alienage and non-residence do not relieve a defendant from liability, under the provisions of the bankrupt act, to account for property transferred to him by the bankrupt in fraud of that act. When an alien comes here and violates the bankrupt law he subjects himself and his property, if found here, to the remedies given by the law, and alienage gives no immunity. Ib. [Decided April 2, 1878. Reported below, 11 Hun, 394.] SLANDER. Evidence in: circumstances in mitigation must be pleaded. In actions for slander, circumstances in mitigation must be set up in the answer in order to be admissible in evidence. Accordingly, when defendant in such an action was asked, when testifying in her own behalf, if, during the conversations in which it was claimed that the slanderous words were uttered, certain statements were made in respect to improper relations between plaintiff and defendant's husband, held, that if this was offered in mitigation of damages, it should have been pleaded. Judgment below affirmed. Willover v. Hill. Opinion by Rapallo, J. [Decided January 15, 1878.] NOTES OF RECENT DECISIONS. CIVIL DAMAGE LAW: WIFE CANNOT RECOVER UNLESS ACTUALLY DAMAGED: STATUTORY CONSTRUC TION: EXEMPLARY DAMAGES.-Threats and vulgarity directed by the husband to the wife, unaccompanied by physical injury, will not entitle her to recover either actual or exemplary damages under the Iowa statute authorizing the wife to recover for injury to her person caused by the sale of intoxicating liquor to her husband. The words "in person," as used in that statute, mean in body, and hence threatening language or vulgar conduct not resulting in the impairment of her health does not constitute a ground for the recovery of actual damages. There can be no exemplary damages when there are no actual damages. Sup. Ct., Iowa, December, 1877. Calloway v. Layton (West. Jurist). CRIMINAL LAW: ENTERING NOLLE PROSEQUI DOES NOT BAR SECOND INDICTMENT.- A prisoner, under indictment for murder, pleaded in bar a former arrest and indictment for the same offense and discharge under the statute after remaining untried for two terms of court. The record showed that soon after the second term of court, held subsequent to the prisoner's commitment, had expired, a nolle prosequi was entered in his case and on motion he was discharged. Held (affirming the judgment of the court below), that the record did not show a discharge under the two term provision of the statute, and the entry of the nolle prosequi was not a bar to the second indictment. Per Woodward, J. At common law a nolle prosequi may at any time be retracted, and it not only is no bar to a subsequent prosecution on another indictment, but may be so far canceled as to permit a revival of proceedings on the original bill. Sup. Ct., Pennsylvania, October 2, 1877. Hester v. Commonwealth (W. Not. Cas.). DAMAGES: WHAT ARE NOT TOO REMOTE. In a suit against a railroad company for loss by fire, alleged to have been occasioned by sparks from its engine, the damages are not too remote to authorize the plaintiff to recover where the fire that did the injury originated in an adjoining field and spread from that to plaintiff's. Ct. of App., Texas, January 19, 1878. Houston & T. C. R. R. Co. v. McDonough (Texas L. J.). PROMISSORY NOTES: INDORSEMENT: NOTICE OF PROTEST.- Where a banker makes use of the public mail in forwarding a note for collection, and, through its interference or neglect, the letter containing the note is not delivered to the receiving bank, it does not excuse the indorser, even though the interference was caused by the postmaster's knowledge that the receiving bank had failed, and the postmaster believed he was doing the forwarding bank a favor by returning the letter. Although a bank fails pending the forwarding of a letter containing a note, it is fair to presume that its business, in the way of presenting notes for payment, will continue, and the failure of such bank, although causing some fifteen days' delay in the presenting of a note, does not release the indorser. Sup. Ct., Missouri, October, 1877. Pier v. Heinrichshofen (Cent. L. J.). REMOVAL OF CAUSE TO FEDERAL COURT.- Under the act of Congress of 1875, a cause in equity, brought by a complainant, who is a citizen of Virginia, against defendants, all of whom reside in Georgia except one, who was a member of a Georgia firm but now lives in New York, will be removed from the Superior Court of Georgia to the Circuit Court of the United States for the Southern District of Georgia, on petition and affidavit in due form, although the defendants may set up certain equities among themselves by cross bill or other proceedings, the application for removal having been made at the first term of the Superior Court to which the bill was returnable. Sup. Ct., Georgia, March 5, 1878. Tarver v. Ficklin. SCHOOLS: RIGHT OF PUPIL TO SELECT STUDIES AT PUBLIC SCHOOL-A pupil in a public school has a right to elect which studies he will take, and when passed into a higher grade he may take up such branches as he has carried satisfactorily in the lower grade, although he may have failed in others; but he cannot take up studies in which he failed to pass. Sup. Ct., Illinois, January 22, 1877. People v. Van Allen (West. Jur.). STATUTE OF LIMITATIONS: PROMISE BY PARTNER OF DISSOLVED FIRM DOES NOT BIND FIRM.-A promise by a member of a late copartnership, made after dissolution and before a suit is barred by the statute of limitations, to pay a partnership debt, will not prevent the running of the statute so as to estop the other partner from availing himself of the defense of the statute as against the original cause of action; and this, whether the creditor was aware of the dissolution or not. Nor does an admission by one partner, after dissolution, that a debt is due, bind the other late partner so as to take the case out of the statute as to the latter. A member of a copartnership, after the dissolution, has no agency growing out of the former partnership relation to create or to perpetuate a liability of his late copartners for partnership indebtedness, as against the operation of the statute of limitations. Sup. Ct., Florida, January Term, 1878. Tate v. Clements. STATUTE OF FRAUDS: ASSUMPTION IN PURSUANCE OF AN ACT OF ASSEMBLY OF A STATUTORY LIABILITY OF ANOTHER, NOT WITHIN: CONTRACT: CONSIDERATION.-The O. and P. Railroad Co. entered into an agreement to pay the plaintiff an annuity of $160, in composition for the loss of her husband's life, caused by an accident on the said railroad. The O. and P. Railroad Co. was afterward merged in the P. Railroad Co. By a special act of Assembly, approved March 31st, 1860, it was provided that in case the P. Railroad should be sold under certain mortgages, the purchasers should become a body corporate, with power to assume the debts of the P. Railroad, and issue stock for the payment of the same. The P. Railroad was sold under certain mortgages, and was afterward transferred to the P. Railway Co., a corporation formed in pursuance of the act of 31st March, 1860. In an action by the plaintiff against this latter company for the payment of her annuity, held (reversing the judgment of the court below), that the question whether the P. Railway Co. assumed the liability of the O. and P. Railroad, under its agreement to pay the plaintiff an annuity, was one of fact, and ought to have been submitted to the jury. Held, further, that the Statute of Frauds did not apply to this case. Held, further, that there was a sufficient consideration to support an assumption of this debt by the new company; in fact, that this was a statutory liability of the O. and P. Railroad. Sup. Ct., Pennsylvania, November 12, 1877. Pittsburgh, F. W. & C. Ry. Co. v. Stokes (W. Not. Cas.). WAREHOUSE RECEIPT: ON SAME FOOTING AS BILL OF LADING. The possession of a warehouse receipt, even though indorsed in blank, is presumptive evidence of ownership of property named therein; hence it is negotiable and passes title by indorsement same as a bill of lading. But notice given by owner that the holder of receipt was only agent for sale of the property, would retain ownership. Sup. Ct., California, March 21, 1878. Davis v. Russell (California Leg. Rec.). Judgment affirmed with costs-Meyer v. Lathrop; The Trustees of St. Jacob's Lutheran church v. Bly; Madan v. Sherrard; White's Bank of Buffalo v. Myles; Eleventh Ward Savings Bank v. Koehler; Odell v. Hoyt; Lynch v. McNally; Griffith v. Mangam. Order affirmed with costs- Roberts v. White.Order granting new trial affirmed, and judgment absolute for plaintiff on stipulation with costs - Krekeler v. Thaule. Appeal dismissed with costs - Kennedy v. Kennedy; Cochran's executor v. Ingersoll-Motion denied with $10 costs - Davis v. Toulmin.Judgment reversed and new trial granted, costs to abide event-Black River Insurance Company v. New York State Loan and Trust Company; Beers v. Shannon; Matson v. Farm Building Insurance Company; Gildersleeve v. Landon; Hill v. Syracuse, etc., Railroad Co.; Jenkins v. Fahey; Kennedy v. The Mayor, etc.—Order granting new trial reversed and judgment on report of referee affirmed, with costs-Comstock v. Hier. Judgment reversed, and judgment for plaintiff on demurrer, with leave to defendants to answer, costs to abide event of the action-Guest v. City of Brooklyn and Whitney.-Order of General Term modified, and judgment ordered for plaintiff upon the verdict, with costs, unless the defendant, within thirty days after notice of filing the remittitur, cancels and returns the notes in suit to the plaintiff and pays the plaintiff's costs, in which case the complaint is dismissed-Thayer v. Manley. NEW BOOKS AND NEW EDITIONS. NEVADA REPORTS, VOLUME XII. Reports of cases determined in the Supreme Court of the State of Nevada, during the year 1877. Reported by Chas. F. Bicknell, clerk of the Supreme Court, and Hon. Thomas P. Hawley, Chief Justice. Volume XII. San Francisco: A. L. Bancroft & Co., 1878. THE present volume of these reports has a number of cases of general value, among which we notice the following: State v. Thompson, p. 140. Temporary insanity produced by intoxication does not destroy responsibility so as to excuse a party who has committed homicide, if he, when sane, made himself voluntarily intoxicated. Ex parte Robinson, p. 263. An act of the State legislature taxing commercial travelers held to be constitutional. State v. Crozier, p. 300. When any part of a statute is declared unconstitutional such part is regarded as having never at any time been pos useful, in fact almost indispensable to guard him against mistake as to the authority of reported decisions. The value of such a work entirely depends upon the thoroughness and accuracy with which it is prepared. This book, so far as we are able to judge, is carefully done. The labor of preparation must have been considerable, the editor having examined more than seven thousand three hundred cases and noted whether the case under examination was overruled, doubted, explained or limited. To Connecticut lawyers the volume will be a necessity, and to those of other States having occasion to examine Connecticut law it will prove a great assistance. GIFFARD ON THE JURISDICTION OF MAGISTRATES. Summary and Tutelary Jurisdiction of Magistrates under 11 and 12 Vict., c. 43. and appeal from the decisions of justices. By H. Stanley Giffard, of The Inner Temple, Barrister at Law, London: Reeves & Turner, 1878. This work is a carefully prepared treatise on the summary jurisdiction of magistrates in England. While it must be a very convenient book for the English practitioner it will be found of but little use to most of the profession on this side of the water. The practice as well as the law administered is very largely statutory, and the statutes are so many of them unlike those in force here that the remarks made thereon and explanations given can be of but little help to us. A criminal lawyer with an extensive business might, however, find the book sometimes useful, and to such we would recommend it. OBITUARY. E. DELAFIELD SMITH. E. Delafield Smith, a well-known member of the New York bar, died on the 12th inst., at Shrewsbury, N. J., aged 52 years. He was for some years district attorney of New York, and afterward corporation counsel. He edited the well-known Reports of the New York Court of Common Pleas, in four volumes bearing his name. GEORGE TYLER BIGELOW. George Tyler Bigelow, formerly Chief Justice of the Supreme Court of Massachusetts, and a jurist of eminence, died on the 12th inst., at his residence in Boston, at the age of 68. Mr. Bigelow was born in 1810, at Watertown, Mass., and was educated at the Boston Latin School and subsequently at Harvard College. sessed of any legal force. State v. Cowell, p. 337. In M order to constitute the crime of burglary it is just as essential to prove the intent as to prove the entry. Courtney v. Turner, p. 345. An alien will be protected in the possession of the public lands, the same as a citizen, against mere naked trespassers who do not connect themselves with the government title. The reporting is carefully done and the book is well printed and bound. SHARSWOOD'S TABLE OF CONNECTICUT CASES. A table of cases in the reports of the State of Connecticut which have been cited, explained, limited, doubted or overruled in subsequent decisions. By George Sharswood, Jr., of the bar of New London county. Philadelphia: T. & J. W. Johnson & Co., 1878. This is one of those works which every one who has occasion to examine case law finds exceedingly NOTES. ESSRS. Little, Brown & Co. have issued a Catalogue of Law Books, published or for sale by them, which is in some respects a model catalogue, and is in every respect worthy of a place on every lawyer's table. It contains an Index of Subjects, the full titles of law books with dates and places of publication, list of American Reports, abbreviations used in referring to Americau law reports, lists of English, Scotch, Irish and Colonial reports and explanations of abbreviations used in reference to them. Judge Peck of the Court of Claims has resigned. The prominent candidates for the place are ex-Congressman Paine of Wisconsin, Kenneth Raynor, solicitor of the treasury, and Judge Hunt, of Louisiana, candidate for Attorney-General on the Packard ticket. It is said that Judge Hunt will probably receive the appointment. 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 Law Journal. ALBANY, APRIL 27, 1878. CURRENT TOPICS. THE HE case of Commonwealth v. Hawes, decided by the Kentucky Court of Appeals on the 17th inst., and reported in our present issue, is a very important one upon the question of the right of the courts of this country to try a person who has been surrendered under the extradition treaty with Great Britain, for an offense different from the one for which he was surrendered, and not included in the list of offenses for which a surrender is to be made. One Hawes was indicted in one of the Kentucky courts for embezzlement and also for forgery. At the time he resided in the Dominion of Canada and his surrender was demanded upon the charge of forgery, and he was given up and brought to trial. He was acquitted on the charge of forgery, and the prosecuting attorney then moved his trial for embezzlement, but the trial court held that this could not be done without first allowing the defendant an opportunity to return to Canada. The 10th article of the treaty mentioned provides for the delivery up for trial of persons who may be charged with any one of certain enumerated offenses, among which is forgery but not embezzlement. The Court of Appeals sustains the decision of the trial court, saying that the right of one government to demand and receive from another the custody of an offender, who has sought an asylum upon its soil, depends upon the existence of treaty stipulations between such governments, and in all cases is derived from and is measured and restricted by the provisions, express and implied, of the treaty. That the view taken by the court as to the meaning of the extradition treaty was the one which prevailed when such treaty was entered into is indicated by the legislative enactments in both England and the United States, made for the purpose of effectively carrying out that and other like treaties. An act of Parliament passed in 1843, referring to this treaty, directed that persons should be delivered up thereunder to be conveyed "to the United States to be tried for the crime of which such person shall be accused;" and an act of Congress passed in 1848, provides for the surrender of persons demanded under the extradition treaties with various countries, and declares the purpose of the surrender to be that the alleged offender may "be tried for the crime of which such person may be VOL. 17.- No. 17. accused." The conclusion of the court is in accordance with the views so ably maintained in this Journal by Dr. Spear, and establishes the only safe rule, and one which we believe was accepted by most persons, until doubt was thrown thereon by the decisions in Caldwell's Case, 8 Blatchf. 131; United States v. Lawrence, 13 id. 295; and Adriance v. Lagrave, 59 N. Y. 110. The question whether a municipal corporation, having authority from the State in which it is situ ated to impose taxes upon real and personal property within its limits, may tax a debt owed by it as property and deduct the amount of the tax from the interest it has agreed to pay, has just been setUnited States in Murray v. City Council of Charlestled in the negative by the Supreme Court of the ton and another case, appearing in our present number. The court in its opinion says that the provision of the Federal Constitution forbidding States to limitation upon the power of taxation, as well as pass laws impairing the obligations of a contract is a upon other legislation. "A change of the expressed stipulations of a contract, or a relief of a debtor from strict and literal compliance with its requirements, can no more be effected by the exertion of the taxing power than it can be by the exertion of any other power of a State legislature." A disposition to change the expressed stipulations of contracts by means of an exercise of the taxing power bodies, notably in a bill now pending in the legislais very frequently manifested by State legislative ture of this State designed to shift the burden of taxation from mortgaged real estate to the holders of mortgages thereon. In reference to this kind of legislation, the Supreme Court says: "It may then safely be affirmed that no State, by virtue of its taxing power, can say to a debtor 'You need not pay to your creditor all of what you have promised him, you may satisfy your duty to him by retaining a part for yourself, or for some municipality or for the State treasury.'" In the imposition of taxes the State must deal with the owner of the property and collect its taxes from him and it cannot permit or require a debtor to assume the duty of paying the taxes of his creditor out of the money he has agreed to pay such creditor. The court does not enter into the of its citizens to a non-resident creditor, but it exquestion whether a State can tax a debt due by one presses itself emphatically against all legislation which under the guise of an exercise of the taxing power attempts to relieve debtors from their contract obligations. A bill designed to render possible the collection of debts due from defaulting States to citizens of this State has been introduced in the Senate. As a State cannot be sued in the Federal courts by a private person, and many of the States make no provision for the enforcement of claims against . them in their own courts, when one of these organizations sees fit to repudiate its obligations, those to whom it is bound can do nothing but submit to the wrong. Usually where a State is guilty of this dishonesty, its creditors are for the most part non-resident there, and very generally residents of our own State. A State, however, can maintain an action against another State in the Federal Supreme Court, and the object of the bill mentioned is to authorize the transfer to this State of debts due to its citizens from other States, and the institution of suits thereon in the Supreme Court in the name of the State against the debtor. The plan proposed is certainly an ingenious one, but the idea of the State going into the business of collecting bad debts will, we think, hardly meet with general approval. It is said that there is a possibility that the repeal of the bankrupt law may be defeated in the House. The judiciary committee of the House to which the Senate bill was referred, was understood to be in favor of reporting that bill without amendment, but it is now stated that this course will not be taken. There is a very great pressure for the passage of the Senate bill from the mercantile and other inter ests of the country, one petition alone from the city of New York containing more than a thousand names of merchants and prominent business men. It remains to be seen whether the small but active and persistent body of individuals who make profit by the continuance of the bankrupt law can perpetuate its existence in defiance of the wishes of a great majority of the people of the country. 48, to concur in the Senate's resolution for the appointment of a Joint Committee to consider the question of Code Revision. A motion to reconsider was tabled and it is not unlikely the matter may come up again; but whether or not a different result be reached, the vote shows very clearly that the Governor's veto of the nine chapters will be sustained by the Assembly. We are to repeat the folly of 1849 and have but a fragmentary Code. A numerously signed petition has been prepared, asking that a committee be appointed to revise the Codes reported by the former Code and Practice Commissions and that such Codes, as so amended, be adopted. The petition contains the names of some ten or eleven judges. N NOTES OF CASES. interesting question, under the law of set-off, of New Amst. Sav. Bank v. Tartter, 54 How. 385, dewas passed upon in the case of Matter of Receiver cided by Mr. Justice Westbrook. On the 5th of July, 1875, Tartter borrowed of the New Amsterdam Savings Bank five thousand dollars, for which he executed his bond and mortgage. On the 20th of September, 1876, the bank became insolvent, and a receiver was appointed. At that time Tartter had on deposit in the bank $1,748. 01. The court held that he was entitled to set off his deposit against the amount of the bond and mortgage. The court distinguished the case from those of Holbrook v. Receiver of Am. Fire Ins. Co., 6 Paige, 620, and Lawrence v. Nelson, 21 N. Y. 158. In the first of the cases cited a debt due from two persons jointly to an insolvent corporation was held not subject to the set-off of a claim due from the corporation to one of them alone. In the last cited case, the debtor, a member of a mutual insurance company, asked to set off the amount due on adjusted loss due him on a policy of the company, against premiums owed by him to the company. This was not allowed, the court holding that in this way the debtor would have an advantage over other mem The London Lancet is publishing some interesting contributions upon surgical evidence in courts of law, written by a certain Mr. Erichsen. The writer reaches the not very satisfactory conclusion that juries cannot be made to understand the meaning of medical witnesses. The use of medical terms is necessary to convey the exact truth, but these are intelligible to medical men only and incomprehensible to courts and juries. He suggests that what he names accident cases be tried before juries composed of surgeons. We are confident the writer underesti-bers of the company who must pay their premiums mates the comprehension of the average jury. There may indeed be cases where the exact idea of a witness who uses without explanation technical terms may be lost, but in most instances physicians intersperse enough English through their testimony to enable a man of ordinary intelligence to understand what they mean. Then most of the terms used are capable of translation and can be explained; indeed, in very many instances there is no need of using them at all, and they would not be used if witnesses did not wish to impress the jury and court with a high notion of their learning and skill. On Wednesday, after a protracted and heated debate, the Assembly refused, by a vote of 52 to in full. The decision in the principal case is in direct conflict with that in Osborn v. Byrne, 43 Conn. 151; 21 Am. Rep. 641, where it is held that, upon the insolvency of a savings bank, a depositor cannot set off his deposit against a debt due from him to the bank. The ground taken in the latter case is that a savings bank is the agent for the depositor, and, if it loses his money by unfortunate business transactions, he must bear the loss, and not the bank. Set-off against banks other than savings banks has been allowed in numerous cases, but not on all demands. The proceeds of a discounted note on deposit in the bank which discounted it have been allowed against the note, but not a check drawn by another depositor. Butterworth v. Peck, |