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defeat the action on the ground of a want of mutual- they were only ordinary creditors and had no lien on ity. Judgment below affirmed. Mason V. Decker. the road or its franchises, or any trust interest therein, Opinion by Earl, J.

and that the purchaser, at a bona fide sale and transfer 2. Measure of damages for breach of contract of sale. of the road, took it free from any claim of plaintiffs -In case of a failure of the buyer to perform, the for the moneys advanced by them. Judgment below seller, in this State, has his election to consider the affirmed. Thornton v. St. Paul & Chicago Railway Co. property his own, the buyer having forfeited his right Opinion by Earl, J. under the contract, or as belonging to the buyer. In 2. Joining legal and equitable claim: when complaint the former case bis remedy is to sue the buyer for should be dismissed.-An equitable action was comdamages in not taking the stock, and the measure of menced by plaintiffs agaiust tho St. P. & C. Railway damage is the difference between the contract price Co. and others for equitable relief. Plaintiffs had a and the market price. In the latter case he may sell legal cause of action against the railroad company. the property as the agent for the purchaser, and apply A jury trial was demanded by defendants and refused the proceeds upon the purchase-price, and recover the and the court tried the case at Special Term and found balance, if any, or he may sue for the purchase-price. that plaintiffs were not entitled to equitable relief, Ib.

but refused to pass upon their legal claim, and ordered (Decided February 22, 1878.]

that the action might thereafter be brought to trial

before a jury as to the legal cause of action against the COVENANT.

railway company. Held, error. The complaiut should By grantee limiting use of real property: rights of ben

have been dismissed as to all the defendants. Ib. eficiary: estoppel.-H., the owner of six lots, four on 5th

[Decided January 15, 1878.] ave, and two on 26th street, which occupied the entire

MASTER AND SERVANT. block from 26th to 27th street, excepting a single cor

Duty of master to furnish safe machinery: knowledge ner lot, conveyed lots to various persons, successively of servant: railroad track : presumption of knowledge in -A, B, C, and plaintiff. In the deed given to each

locomotive engineer.-A railroad company is bound to and signed by each grantee, as well as the grantor, the

furnish a safe road-bed and track for the use of its grantee covenanted that neither he nor his heirs, etc.,

employees who travel on its trains. But if an emwould "erect upon said lot any other building than a genteel dwelling-house, eto., but not to a greater defective, or has as good au opportunity to know it as

ployee has knowledge of the fact of the track being depth than fifty feet,” which covenant was declared

his principal has, and voluntarily continues to use it in to be a continuing covenant for the benefit of the

the service of the company, he cannot recover for owner of lots, then owned by H., so that the same

an injury caused by such defect. It cannot be said, might have “ freedom of air, light and vision." De

however, as a matter of law, that an engineer riding fendant who took title under the conveyance third

over a track on an engine has as good an opportunity to in order (from H. to C), notified plaintiff that he in

know of the defects in the track as the company or its tended to erect a building more than fifty feet in depth, which building would interrupt the view from plain general knowledge that the track is somewhat out of

employees charged with examining the track, and a tiff's house, which was on 20th street, and render it

repair will not constitute negligence ou his part so as less desirable as a residence. In an action to restrain the erection of such building, held, (1) that defendant's

to defeat a recovery for his death caused by a defect. notice that he intended to violate the covenant was

ive rail. Judgment below affirmed. Mehan v. Syra

cuse & Binghamton Railroad Co. Opinion per sufficient to authorize a court of equity to interfere

Curiam. to prevent him; (2) that the fact that the owner of the lot conveyed to A, had erected an obstruction in vio

[Decided March 19, 1878.] lation of the agreement in his deed, even if plaintiff acquiesced, would not relieve defendant so long as

1. General exception, when not tenable.- A general exthe performance of his covenant was of substantial

ception to the refusal of a judge to correct his fiudings value to plaintiff; (3) that the fact that plaintiff had ac

and make them conform to the facts proved, held, quiesced in the change of some of the buildings on the lots other than hers, to a hotel, would not deprive her

too vague to raise any point. Order below affirmed.

Krekeler v. Thaule. Opinion by Rapallo, J. of a right to relief, and (4) that a permission given by

2. Evidence: statements of one claimed to be agent plaintiff to the grantee, from her, of one of the lots on 5th ave., which was conveyed to her by H., to erect a

of party not in presence of party.-Conversation be

tween a witness and plaintiff's husband in plaintiff's building more than fifty feet deep, would not relieve defendant unless it was shown that plaintiff thereby

absence, held not admissible against plaintiff, even

though the husband was claimed to be plaintiff's destroyed her easement, and it was upon defendant to show this. Judgment below modified, Lottimer v.

agent, it not being shown that such conversation Livermore. Opinion by Earl, J.

accompanied any act he was doing as such agent. Ib. [Decided January 15, 1878.]

[Decided April 16, 1878.]




When debtor does not hold property in trust for creditor.–Plaintiffs agreed to construct a railroad for a company upon terms mentioned, and in case they did not comply with their agreement, to forfeit the rights and franchises secured to them therein. They did nothing under the agreement but advanced £14,000 which was used in constructing the road. Held, that

What party may not testify to, under $ 399, old Code: remarks by deceased to third person in presence of witness.-In an action to foreclose a mortgage given by defendant to plaintiff's testator, defendant testified that he, testator, and one y, had an interview in which there was a transaction about the mortgage between them, and that all three of them participated in the conversation. Held, that defeudant could not, under old Code, $ 399, testify to remarks the goods so soon after the burglary, and his inability made by testator to V. in relation to the mortgage. In

to account for the same, was sufficient to prove the such a case a party may testify to an independent cou- charge, and that it being in the winter season between versation between the deceased and a third party.

the hours of 5 P. M. and 7 A. M., sunset and sunrise, But if he participated in the conversation and it re- was sufficient to prove that the burglary occurred in lated to a transaction between him and the deceased, the night. Sup. Ct., Georgia, 1878. Brown v. State. he could not testify. Judgment below affirmed.

LARCENY: JOINDER OF SEPARATE LARCENIES IN Kranshaar v. Meyer. Opinion by Earl, J.

INDICTMENT.- An iudictment against J. for larceny [Decided January 29, 1878.]

contained two counts, one for stealing two steers, the property of W., and the other for stealing two oxen, the property of A. A demurrer was sustained on the

ground that the indictment charged more than one CORRESPONDENCE.

offense with leave to the State to elect on which count

to prosecute. The State refused to elect, and the CONVEYANCE OF LAND TO HUSBAND AND WIFE SINCE

cause was dismissed, whereupon the State appealed. ACTS OF 1848 AND 1849.

Held, separate larcenies cannot be joined in same in

dictment. If so, on demurrer, the State must elect. To the Editor of the Albany Law Journal:

Apparently two larcenies are charged. If the State SIR - Your correspondent, B. (in your issue of 4th meant to charge but one offense, her attorney should inst.), seems to be hard to please, or over-skeptical. It have stated to the court, and made it appear of record. is true that in neither Wright v. Sadler, nor in any In a second count there was no use to meet uncertainty other reported case (that I am aware of), has the Court of proof as to ownership. Judgment affirmed. Sup. of Appeals passed directly upon the effect of the Acts Ct., Arkansas. State v. Jourdon. of 1848-9 upon a conveyance to husband and wife

TRIAL: FORMER JEOPARDY,- C was indicted for jointly, made since the passage of those acts; but it can scarcely be claimed as an open question (to say the stealing a number of articles together, and the jury

found him guilty of stealing some of them specified least) if the following authorities are to be considered,

in the verdict. On defendant's motion a new trial was viz. ; 31 Barb. 314, Goelet v. Gori ; 49 id. 155, Farmers', etc., Bank v. Gregory; 3 N. Y. Sup. Ct. (T. & C., 574, granted. The grand jury the next term found a new Freman v. Barber; 5 id. 568, Beach v. Hollister; 11

bill for the same offeuse, charging the same articles as Han. 519, Baker v. Lamb.

in the first. Because of the finding of the second indictPerhaps B. will favor us with a General Term decis

ment the court quashed the first. To the second inion or two to the contrary. 47 N. Y. 467, and 54 id.

dictment, a plea of former jeopardy was sustained, and 437, are not to the point.

the State appealed. Ileld, that in legal effect the conJ. C. L.

viotion of stealing some of the articles named in the NEW YORK, May 6, 1878.

first indictment was an acquittal of stealing the other articles named; that the quashing of the first indictment, upon the finding of the second, would not

deprive defendant of this bar. The new trial was SUMMARY PROCEEDINGS.

granted only as to articles of which he had been conTo the Editor of the Albany Law Journal :

victed of stealing, and the first indictment being SIR—Will you inform the inquirer whether under quashed, he may be tried on the second only on those the statute (2 R. S. 513, $ 28, sub. 2,) a tenant can be articles. Sup. Ct., Arkansas. State v.Clark. dispossessed for non-payment of rent where the agreement under which he holds contemplates the use of various articles of chattel property, the use of which

NEW BOOKS AND NEW EDITIONS. is worth much more than that of the premises, together with the premises, and does not discriminate

RHODE ISLAND REPORTS, VOLUME XI. or sever the rent from the consideration for the use Reports of cases argued and determined in the Supreme Court

of Rhode Island. Volume XI. Arnold Green, Reporter. of the chattels, but binds the tenant to pay “for the Boston : Houghton, Osgood & Company. 1878. use of said premises and said chattel property $400 per NHE Rhode Island Reports are among the most valu

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can the landlord have summary proceedings to dispos- is fully equal in every respect to any of its predecesssess the tenant, and if so, what amount should he state It has an unusually large number of cases of genas due for rent ?

INQ. eral interest and value, among which we can only make

selections. Daniels v. Town of Woonsocket, p. 4: Pro

posals made in negotiations for a compromise are NOTES OF RECENT CRIMINAL DECISIONS. privileged communications. Manuf. and Merch. Bank

v. Follett, p. 93: A note payable to the order of W. and BT LARY: AT NIGHT.—A store was broken into on a signed by G. was, before issue, indorsed by F. At tho Friday night, and on Sunday morning B. was found in request of W. the signature was changed to "G. agent,” possession of the goods. He was indicted for burglary Held, immaterial and not to discharge F. Francis v at night and was tried and convicted. On his trial he

Baker, p. 103: statute requiring actions involving 20 was unable to show how the goods came into his posses- counts to be referred to an auditor and making the audision. A witness for the State was only absent from


's report prima facie evidence at the trial of the matthe store between the hours of 5 P. M. and 7 A. M ., and

ters contained therein, held unconstitutional as impairduring his absence the burglary was committed. ing the right of trial by jury. Aldrich v. Tripp, p. 141: Held, that the fact of defendant having possession of

Water commissioners of water-works, where the city


receives the rents for the water and owns the water


for their negligence. Allen v. Woonsocket Co.

, p. 288 : THE

CHE Southern Law Review for April-May, 1878, is

full of good things. The opening article by Orlando F. Bump, Esq., contains a very thorough examination of the effect of exemption laws upon fraudulent conveyances, and compares the conclusions reached in the various cases where that question is touched upon.

“Receivers on Railways" is a practical treatise by Leonard A. Jones, Esq., upon subject of great present importance. Mr. Joel Prentiss Bishop contributes a very readable and useful article about law books, entitled “ The tools of the legal trade and how to choose them." Mr. Justice Miller, of the United States Supreme Court, furnishes an able essay which he styles "Introductory to Constitutional Law." The Theory of Estates by the Eutirety," by Harrington Putnam, Esq., is the closing article, and in it the subject mentioned is discussed in a learned and logical manner. The editorial matter as usual is interesting and the digests are of great practical value.


A corporation whose business was not specified and nothing in its name designated is held capable of entering into partnership with an individual. Beals v. Providence Rubber Co., p. 381 : A covenant on the part of a lessee to pay all taxes of every name and nature" held not to include an assessment for benefits from street improvements. Paine v. Schenectady Insurance Co., p. 411: A judgment in New York, though appealed from, heta a bar to an action in Rhode Island involving the same subject-matters. lleeny v. Sprague, p. 457: Defendant, in violation of a city ordinance, permitted snow to remain on the sidewalk in front of her premises. Held, that she was not liable to one injured by slipping down on the sidewalk. Smith v. Rollins, p. 465: A livery-stable keeper, in violation of the Sunday law, let a horse and carriage to defendant to go for pleasure to a particular place. Defendant went to a different place and returned the horse injured. Held, that an action of trover for the injury would not lie against defendant. Williams v. Briggs, p. 476: A mortgage of personal property to be thereafter acquired is not valid as to that property at law. Cook v. Corthell, p. 482 · Such a mortgage is valid in equity. Thornton v. Kelly, p. 498: Plaintiff made a memorandum wherein he agreed to sell defendant a horse at a certain price. Defendant as well as plaintiff signed this memorandum. Held, that deferrdant was bound. Inman v. Tripp, p. 520 : A city is liable for damage done by water gathered by its street gutters and thrown on plaintiff's land. Durfee v. Jones, p. 588: Plaintiff left with defendapt an old safe he had bought, with instructions to sell. Defendant found in the safe money belonging to an unknown person.

Held, that as against plaintiff defendant was entitled to retain the money. The work of the reporter is well done, the volume is excellently printed ou fine paper and bound in the best manner.

In the case of Hagg v. Darley, decided by ViceChancellor Bacon, it appeared that by a deed dated February 3, 1877, the plaintiff purchased from the defendant the interest and good will in a business (carried on under the name of the “Government Sanitary Company" at Dunstable and Hackney Downs) of making and selling the “Government Carbolic Disinfectants,” the process of making which was a secret in the possession of the defendant, and communicated by him to the plaintiff; and the defendant thereby covenanted not to carry on the like business for fourteen years, and not to disclose the secret for the same period. The plaintiff claimed that the defendant was violating this agreement and for an injunction. The defendant demurred to the complaint on the ground, among others, that the covenant was in restraint of trade and too general. The court held the covenant valid and overruled the demurrer.


MURRAY HOFFMAN. Murray Hoffman died at his home in Flushing, N. Y., on the 7th inst. He was born in the city of New York September 29, 1791, and was graduated from Columbia College in 1809. A few years thereafter ho was admitted to the bar, and from 1839 to 1843 was Assistant Vice-Chancellor. In November, 1853, he was appointed Judge of the Superior Court, a position in which he remained until the close of 1861. Among the legal works which he published are the following: “Offices and Duties of Masters in Chancery” “Treatise on the Practice of the Court of Chancery," " Treatise on the Corporation of New York as Owners of Property,” and “Compilation of the Laws relating to the City of New York," and " Chancery Reports,” (1839-40.) “Provisional Remedies,” “Treatise on the Law of the Protestant Episcopal Church in the United States." · Ecclesiastical Law."

FRANKLIN W. TOBEY. Franklin W. Tobey died during a passage from Savannah to New York on the 5th inst. He was born at Jay, Essex Co., N. Y., Feb. 7, 1844. He was admitted to the bar in 1868, and practiced at Port Henry, N. Y., up to the time of his death. He was a member of the Assembly for two terms and of the State Senate for a like vumber of terms.

In the case of Hagg v. Darley, decided in the Chancery Division of the English High Court of Justice on the 25th of March last, it was held that a covenant in restraint of trade, although it is unrestricted in respect of space, is reasonable and therefore good in law, if it relates to the use of a trade secret. In this case the purchaser of the business of certain manufacturers and sellers of well-known disinfectants by his statement of claim alleged, that the mode by which those disinfectants were manufactured was a secret, that the vendors of the business (of whom the defendant was one) had at the time of the sale entered into a several covenant not to carry on the business of manufacturers or sellers of such disinfectants, or other articles of a similar kind, within fourteen years froin that date, and that the defendant had infringed this covenant.

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The Albany Law Journal.


SUPPLEMENTS containing the General Statutes of the The constitutional amendments which were preState of New York are sent only to those subscribers to pared by a commission appointed by Governor Tilthe LAW JOURNAL Wbo forward one dollar, in addition to the regular annual subscription price of the LAW JOURNAL. den, and which had been passed at a former session The Supplements be sent to non-subscribers to the

of the Legislature, failed to receive the sanction of Law JOURNAL on receipt of $2.50.

the Legislature which has just adjourned. This will be regretted by all who favor reform in municipal legislation. The regret, however, will be modified by the circumstance that so strong an opposition had been made to one of the amendments, that its adop

tion by the people was extremely improbable. We ALBANY, MAY 18, 1878.

presume that no further attempt will be made to change the Constitution in respect to the govern

ment of cities. CURRENT TOPICS.

An amendment to article 6 of the Constitution MONG the items in the supply bill vetoed by providing for the election of an additional Justice the governor, are those appropriating various

of the Supreme Court, in the second Judicial Dissums of money for the support of law libraries in trict, was passed. This had received the approval different parts of the State. The reason given by of a former Legislature. It will of course be adopted the governor for his action is the same advanced by

by the people. him a year ago when vetoing similar appropriations, namely, that “there is no more reason for supplying The Legislature adjourned sine die on Wednesday lawyers with their books than in supplying doctors last. It left undisposed of a number of important and clergymen with the farmers and mechanics measures. The uncompleted work of most interest with their implements and tools.” The reason is a to the profession is of course that relating to the good one, but it does not apply. These appropria- Code of Civil Procedure. The veto by the governor tions are made for the support of public and not of the bill enacting the last nine chapters of the Code private libraries. The law library of a judicial was effectual to accomplish its purpose, but nothing district is as necessary for the use of the courts sit- further was done, and our practice is left in subting therein as is a court-room, and it would be as stantially the same condition as before. The promuch to the point to say that appropriations should posed joint resolution providing for a commission not be made for the building of court-houses, be- to codify the existing statutes and report to the cause there is no more reason for supplying lawyers next Legislature failed to receive the sanction of the with a place to do business in than there is for sup- Assembly, but the Senate passed a resolution proplying clergymen with a place to preach in. The viding for a committee of three senators to consider libraries are for the use of the judges, and are the Code and report the result of their deliberations chiefly used by them, and the use by the bar to the next Legislature. is only incidental and occasional. The governor suggests that the courts may be supplied with the It is to be regretted that the matter of codificalaw books needed by them by voluntary associations, tion was not finally disposed of by the late Legislawhich must of course be made up from the legal | ture. That our statute law requires revision is adprofession. We have no doubt that the bar will do mitted by every one, and hardly a year has passed its best in that direction, but it is not right for the since the adoption of the Constitution of 1846 withState to ask it to do so.

out an attempt to secure the assent of the Legislature

to some scheme of revision. As a result of all this The Senate on the 10th inst. passed the bill to we have obtained only the statute known as the repeal the bankrupt law, amended so as to make the code of Procedure and that known as the Code of act go into effect on the 1st of September next. Civil Procedure. The first named was prepared to This amendment was a concession to the friends of serve a temporary purpose, and the last is but part the existing law who have gained considerable of a complete work. The subject will of course strength in the Senate. We trust the House will come up before the next Legislature, and before concur in the amendment, as a refusal to do so every succeeding one until provision is made for a might imperil the success of the movement for comprehensive revision of our entire statute law. repeal. While an immediate, unconditional repeal of the existing statute is what is demanded by the In the case of Ex parte Clarke, appearing elsegreat majority of the people, there is an influential | where in our present issue, the Supreme Court of and active body who oppose such a course. The Appeals of Virginia in decided terms pronounces only danger to the movement for repeal is in a against the attempts which are being made in that disagreement of the two houses, which the friends State to break faith with the public creditors. The of the law will do their utmost to bring about. obligation resting upon the legislative authorities of

VOL. 17. - No. 20.

the State to provide for the payment of interest upon set the defendant has or might have used” against the public debt the court considers to be binding as the payee, did not give to the maker of the note a any other obligation or duty. We suppose that the right to set off a debt due to him from the payee. views of the court are not popular in Virginia at the The court says, laws of set-off relate to the remedy present time, but they are correct.

and not to the right, and therefore the law of the

forum and not the law of the place of contract must The prospect of war between England and Russia, govern in such cases. The object of laws of set-off and the probability that one of the belligerents will is to prevent multiplicity of actions. No such seek material assistance in the way of vessels and thing was allowed at common law. See, to the arms in our own country has led to considerable

same effect, Davis v. Morton, 5 Bush, 160. This was discussion in the newspapers here and in England an action brought in Kentucky by the indorsee of a upon the subject of the rights and obligations of neu-negotiable promissory note made in Tennessee, where trals. As long as no war actually exists there can such notes are negotiable as commercial paper, and be no difficulty, as either nation may buy arms and indorsed before due. The defendant pleaded a setequip vessels to any extent, but when hostilities ac

off of a claim against the maker of the note. The tually commence the case will be different. The court held that, under the statute in question, the doctrines which were insisted upon by the United set-off was allowable, the law of Kentucky governStates in the negotiations in relation to the Alabama ing. The court there says: “A set-off is but a part treaty, and assented to by England, cannot, now of the remedy,” and persons “ seeking our forums that we occupy the position of a neutral, be repu- should be satisfied with the administration of remediated, and we believe that our government will do dies according to our laws.” See, also, Ory v. all that we claimed England should have done dur- Winter, 16 Martin, 277; Peck v. Hibbard, 26 Vt. 702; ing the rebellion, to prevent the fitting out here of Aymer v. Sheldon, 12 Wend. 439. See, however, war vessels for the use of either belligerent. Gibbs v. Howard, 2 N. H. 297; Holland v. Makepeace,

8 Mass. 422; Fuller v. Steigletz, 27 Ohio St. 355. Dr. Spear gives this week a critical review of the “ English Extradition Act" so far as it relates to the issue that existed between Mr. Secretary Fish

A statute of Pennsylvania, passed in 1867, proand Lord Derby in the matter of the Winslow case.

vides that “any railroad corporation that shall ex

clude from their passenger cars any person or persons This article will be followed, at intervals, by two others on International Extradition, namely, the

on account of color or race," etc., “shall be liable Constitutionality of Extradition Treaties and Ex- in an action of debt to the person thereby injured

in the sum of five hundred dollars, the same to be tradition Procedure, and by two or three articles on

recovered in an action of debt as like amounts are Interstate Extradition, When completed, this series of articles will constitute the most philo- Railroad Co. of New Jersey v. Green, 5 W. Not. Cas.

now by law recoverable.” In the case of Central sophical discussion of the principles, and the most exhaustive presentation of the law of Extradition 300, decided by the Supreme Court of Pennsylvania, that has ever been published.

on the 16th of March last, it was held that the

damages recoverable are in the nature of a penalty The Supplement issued with this number of the against the railroad company, and not compensaLaw JOURNAL contains, among other statutes, two tion to the person aggrieved, and a recovery by one acts relating to public instruction, an act for the person thus excluded, in contravention of the provisprotection of graves, an act relating to exemption ions of the act, is a bar to a future recovery by from taxation, and the act to provide for the incor- another person excluded at the same time. In this poration of Pipe Line Companies.

case a husband and wife were refused access to a particular car on a railroad train at the same time

by the same employee of the company, and it was NOTES OF CASES.

held that the exclusion of the two constituted a N the case of Second National Bank v. Hemingway, single offense, and that a recovery in an action hy

off in an action is governed by the law of the place a bar to a recovery in a subsequent action by the where the action is brought. In this case an action husband in his own right. The inclination of was brought in Ohio by the indorsee against the courts against multiplying penalties of this nature maker of a promissory note payable to order, exe- is very strong, and the laws imposing them are very cuted in Kentucky, and indorsed before due. The strictly construed. See Hill v. Williams, 14 S. & court held that a Kentucky statute which declares R. 287; Commonwealth v. Borden, 11 P. F. Smith, such notes “ assignable so as to vest the right of 272; Hardyman v. Whittaker, 2 East, 573; The King action in the assignee," but provides that such v. Bleasdal, 4 Term, 809; Pike v. Madbury, 12 N. assignment shall not "impair the right to any off- | H. 262. In Fisher v. N. Y. Central & Hud. Riv. R.

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