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defeat the action on the ground of a want of mutuality. Judgment below affirmed. Mason v. Decker. Opinion by Earl, J.

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2. Measure of damages for breach of contract of sale. -In case of a failure of the buyer to perform, the seller, in this State, has his election to consider the property his own, the buyer having forfeited his right under the contract, or as belonging to the buyer. In the former case his remedy is to sue the buyer for damages in not taking the stock, and the measure of damage is the difference between the contract price and the market price. In the latter case he may sell the property as the agent for the purchaser, and apply the proceeds upon the purchase-price, and recover the balance, if any, or he may sue for the purchase-price. Ib. [Decided February 22, 1878.]

they were only ordinary creditors and had no lien on the road or its franchises, or any trust interest therein, and that the purchaser, at a bona fide sale and transfer of the road, took it free from any claim of plaintiffs for the moneys advanced by them. Judgment below affirmed. Thornton v. St. Paul & Chicago Railway Co. Opinion by Earl, J.

2. Joining legal and equitable claim: when complaint should be dismissed.-An equitable action was commenced by plaintiffs against the St. P. & C. Railway Co. and others for equitable relief. Plaintiffs had a legal cause of action against the railroad company. A jury trial was demanded by defendants and refused and the court tried the case at Special Term and found that plaintiffs were not entitled to equitable relief, but refused to pass upon their legal claim, and ordered that the action might thereafter be brought to trial before a jury as to the legal cause of action against the railway company. Held, error. The complaint should have been dismissed as to all the defendants. Ib. [Decided January 15, 1878.]

COVENANT.

MASTER AND SERVANT.

By grantee limiting use of real property: rights of beneficiary: estoppel.-H., the owner of six lots, four on 5th ave. and two on 26th street, which occupied the entire block from 26th to 27th street, excepting a single corner lot, conveyed lots to various persons, successively -A, B, C, and plaintiff. In the deed given to each and signed by each grantee, as well as the grantor, the grantee covenanted that neither he nor his heirs, etc., would "erect upon said lot any other building than a genteel dwelling-house, etc., but not to a greater depth than fifty feet," which covenant was declared to be a continuing covenant for the benefit of the owner of lots, then owned by H., so that the same might have "freedom of air, light and vision." Defendant who took title under the conveyance third in order (from H. to C), notified plaintiff that he intended 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

Duty of master to furnish safe machinery: knowledge of servant: railroad track: presumption of knowledge in locomotive engineer.-A railroad company is bound to furnish a safe road-bed and track for the use of its employees who travel on its trains. But if an employee has knowledge of the fact of the track being defective, or has as good an opportunity to know it as his principal has, and voluntarily continues to use it in the service of the company, he cannot recover for an injury caused by such defect. It cannot be said, however, as a matter of law, that an engineer riding over a track on an engine has as good an opportunity to know of the defects in the track as the company or its employees charged with examining the track, and a

repair will not constitute negligence on his part so as to defeat a recovery for his death caused by a defective rail. Judgment below affirmed. Mehan v. Syracuse & Binghamton Railroad Co. Opinion per Curiam.

[Decided March 19, 1878.]

tiff's house, which was on 26th street, and render it
less desirable as a residence. In an action to restrain
the erection of such building, held, (1) that defendant's
notice that he intended to violate the covenant was
sufficient to authorize a court of equity to interfere
to prevent him; (2) that the fact that the owner of the
lot conveyed to A, had erected an obstruction in vio-
lation of the agreement in his deed, even if plaintiff
acquiesced, would not relieve defendant so long as
the performance of his covenant was of substantial
value to plaintiff; (3) that the fact that plaintiff had ac-
quiesced in the change of some of the buildings on the
lots other than hers, to a hotel, would not deprive her
of a right to relief, and (4) that a permission given by
plaintiff to the grantee, from her, of one of the lots
on 5th ave., which was conveyed to her by H., to erect a
building more than fifty feet deep, would not relieve
defendant unless it was shown that plaintiff thereby
destroyed her easement, and it was upon defendant
to show this. Judgment below modified. Lottimer v.
Livermore. Opinion by Earl, J.
[Decided January 15, 1878.]

EQUITABLE ACTION.

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

PRACTICE.

1. General exception, when not tenable.—A general exception to the refusal of a judge to correct his findings and make them conform to the facts proved, held, too vague to raise any point. Order below affirmed. Krekeler v. Thaule. Opinion by Rapallo, J.

2. Evidence: statements of one claimed to be agent of party not in presence of party.-Conversation between a witness and plaintiff's husband in plaintiff's absence, held not admissible against plaintiff, even though the husband was claimed to be plaintiff's agent, it not being shown that such conversation accompanied any act he was doing as such agent. Ib. [Decided April 16, 1878.]

WITNESS.

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 V. 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 defendant

could not, under old Code, § 399, testify to remarks
made by testator to V. in relation to the mortgage. In
such a case a party may testify to an independent con-
versation between the deceased and a third party.
But if he participated in the conversation and it re-
lated to a transaction between him and the deceased,
he could not testify. Judgment below affirmed.
Kranshaar v. Meyer. Opinion by Earl, J.
[Decided January 29, 1878.]

CORRESPONDENCE.

CONVEYANCE OF LAND TO HUSBAND AND WIFE SINCE
ACTS OF 1848 AND 1849.

To the Editor of the Albany Law Journal:

SIR-Your correspondent, B. (in your issue of 4th inst.), seems to be hard to please, or over-skeptical. It is true that in neither Wright v. Sadler, nor in any other reported case (that I am aware of), has the Court of Appeals passed directly upon the effect of the Acts of 1848-9 upon a conveyance to husband and wife jointly, made since the passage of those acts; but it can scarcely be claimed as an open question (to say the least) if the following authorities are to be considered, viz.: 31 Barb. 314, Goelet v. Gori; 49 id. 155, Farmers', etc., Bank v. Gregory; 3 N. Y. Sup. Ct. (T. & C.) 574, Freman v. Barber; 5 id. 568, Beach v. Hollister; 11 Hun. 519, Baker v. Lamb.

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NOTES OF RECENT CRIMINAL DECISIONS.

BURGLARY: AT NIGHT.-A store was broken into on a Friday night, and on Sunday morning B. was found in possession of the goods. He was indicted for burglary at night and was tried and convicted. On his trial he was unable to show how the goods came into his possession. A witness for the State was only absent from the store between the hours of 5 P. M. and 7 A. M., and during his absence the burglary was committed. Held, that the fact of defendant having possession of

the goods so soon after the burglary, and his inability to account for the same, was sufficient to prove the charge, and that it being in the winter season between the hours of 5 P. M. and 7 A. M., sunset and sunrise, was sufficient to prove that the burglary occurred in the night. Sup. Ct., Georgia, 1878. Brown v. State.

LARCENY: JOINDER OF SEPARATE LARCENIES IN INDICTMENT.- An indictment against J. for larceny 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 offense with leave to the State to elect on which count to prosecute. The State refused to elect, and the cause was dismissed, whereupon the State appealed. Held, separate larcenies cannot be joined in same indictment. If so, on demurrer, the State must elect. Apparently two larcenies are charged. If the State meant to charge but one offense, her attorney should have stated to the court, and made it appear of record. In a second count there was no use to meet uncertainty of proof as to ownership. Judgment affirmed. Sup. Ct., Arkansas. State v. Jourdon.

TRIAL: FORMER JEOPARDY.-C was indicted for stealing a number of articles together, and the jury found him guilty of stealing some of them specified in the verdict. On defendant's motion a new trial was

granted. The grand jury the next term found a new bill for the same offense, charging the same articles as in the first. Because of the finding of the second indictment the court quashed the first. To the second indictment, a plea of former jeopardy was sustained, and the State appealed. Held, that in legal effect the conviction of stealing some of the articles named in the 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 granted only as to articles of which he had been convicted of stealing, and the first indictment being quashed, he may be tried on the second only on those articles. Sup. Ct., Arkansas. State v. Clark.

SUMMARY PROCEEDINGS.

To the Editor of the Albany Law Journal:

NEW BOOKS AND NEW EDITIONS.

RHODE ISLAND REPORTS, VOLUME XI.

SIR-Will you inform the inquirer whether under the statute (2 R. S. 513, § 28, sub. 2,) a tenant can be 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 is worth much more than that of the premises, together with the premises, and does not discriminate or sever the rent from the consideration for the use of the chattels, but binds the tenant to pay "for the use of said premises and said chattel property $400 per year." Now, if a part of this sum ($240) has been paid, 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 as due for rent? INQ.

Reports of cases argued and determined in the Supreme Court
of Rhode Island. Volume XI. Arnold Green, Reporter.
Boston: Houghton, Osgood & Company. 1878.
ПHE Rhode Island Reports are among the most valu-
able law reports published, and the present volume

THE

ors. It has an unusually large number of cases of general interest and value, among which we can only make selections. Daniels v. Town of Woonsocket, p. 4: Proposals made in negotiations for a compromise are privileged communications. Manuf. and Merch. Bank v. Follett, p. 93: A note payable to the order of W. and signed by G. was, before issue, indorsed by F. At the request of W. the signature was changed to "G. agent," Held, immaterial and not to discharge F. Francis v Baker, p. 103: A statute requiring actions involving ac counts to be referred to an auditor and making the auditor's report prima facie evidence at the trial of the matters contained therein, held unconstitutional as impairing the right of trial by jury. Aldrich v. Tripp, p. 141: Water commissioners of water-works, where the city

receives the rents for the water and owns the waterworks, are servants of the city and the city is liable

for their negligence. Allen v. Woonsocket Co., p. 288: THE

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, held a bar to an action in Rhode Island involving the same subject-matters. Heeny 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 defendant 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 defendant 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 on fine paper and bound in the best manner.

OBITUARY.

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 he 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." 66 'Ecclesiastical Law."

NOTES.

HE 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 a 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 Entirety," 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.

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 number of terms.

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.

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 from that date, and that the defendant had infringed this covenant.

PUBLISHERS' NOTICE.

WE would call attention to the advertisement of the

Fearless Threshing Machine, which appears in another column. We have not space to give a full description of this valuable machine, and would simply state that its mechanical execution is superior to that of any other, and that it is confidently believed to be the best in the world. Parties desiring a Threshing Machine would do well to communicate with Mr. Minard Harder, before purchasing elsewhere.

SUPPLEMENTS containing the General Statutes of the State of New York are sent only to those subscribers to the LAW JOURNAL who forward one dollar, in addition to

the regular annual subscription price of the LAW JOURNAL.

The Supplements will be sent to non-subscribers to the
Law JOURNAL on receipt of $2.50.

The constitutional amendments which were prepared by a commission appointed by Governor Tilden, and which had been passed at a former session of the Legislature, failed to receive the sanction of the Legislature which has just adjourned. This will be regretted by all who favor reform in municipal legislation. The regret, however, will be modified

The Albany Law Journal. by the circumstance that so strong an opposition had

been made to one of the amendments, that its adoption by the people was extremely improbable. We presume that no further attempt will be made to change the Constitution in respect to the government of cities.

ALBANY, MAY 18, 1878.

CURRENT TOPICS.

Α'
MONG the items in the supply bill vetoed by
the governor, are those appropriating various
sums of money for the support of law libraries in
different parts of the State. The reason given by
the governor for his action is the same advanced by
him a year ago when vetoing similar appropriations,
namely, that there is no more reason for supplying
lawyers with their books than in supplying doctors
and clergymen with theirs, or farmers and mechanics
with their implements and tools." The reason is a
good one, but it does not apply. These appropria-
tions are made for the support of public and not
private libraries. The law library of a judicial
district is as necessary for the use of the courts sit-
ting therein as is a court-room, and it would be as
much to the point to say that appropriations should
not be made for the building of court-houses, be-
cause there is no more reason for supplying lawyers
with a place to do business in than there is for sup-
plying clergymen with a place to preach in. The
libraries are for the use of the judges, and are
chiefly used by them, and the use by the bar
is only incidental and occasional. The governor
suggests that the courts may be supplied with the
law books needed by them by voluntary associations,
which must of course be made up from the legal
profession. We have no doubt that the bar will do
its best in that direction, but it is not right for the
State to ask it to do so.

The Senate on the 10th inst. passed the bill to repeal the bankrupt law, amended so as to make the act go into effect on the 1st of September next. This amendment was a concession to the friends of the existing law who have gained considerable strength in the Senate. We trust the House will concur in the amendment, as a refusal to do so might imperil the success of the movement for repeal. While an immediate, unconditional repeal of the existing statute is what is demanded by the great majority of the people, there is an influential and active body who oppose such a course. The only danger to the movement for repeal is in a disagreement of the two houses, which the friends of the law will do their utmost to bring about. VOL. 17.- No. 20.

An amendment to article 6 of the Constitution

providing for the election of an additional Justice

of the Supreme Court, in the second Judicial District, was passed. This had received the approval of a former Legislature. It will of course be adopted by the people.

The Legislature adjourned sine die on Wednesday last. It left undisposed of a number of important measures. The uncompleted work of most interest to the profession is of course that relating to the Code of Civil Procedure. The veto by the governor of the bill enacting the last nine chapters of the Code was effectual to accomplish its purpose, but nothing further was done, and our practice is left in substantially the same condition as before. The proposed joint resolution providing for a commission to codify the existing statutes and report to the next Legislature failed to receive the sanction of the Assembly, but the Senate passed a resolution providing for a committee of three senators to consider the Code and report the result of their deliberations to the next Legislature.

It is to be regretted that the matter of codification was not finally disposed of by the late Legislature. That our statute law requires revision is admitted by every one, and hardly a year has passed since the adoption of the Constitution of 1846 without an attempt to secure the assent of the Legislature to some scheme of revision. As a result of all this we have obtained only the statute known as the Code of Procedure and that known as the Code of Civil Procedure. The first named was prepared to serve a temporary purpose, and the last is but part of a complete work. The subject will of course come up before the next Legislature, and before every succeeding one until provision is made for a comprehensive revision of our entire statute law.

In the case of Ex parte Clarke, appearing elsewhere in our present issue, the Supreme Court of Appeals of Virginia in decided terms pronounces against the attempts which are being made in that State to break faith with the public creditors. The obligation resting upon the legislative authorities of

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 payec, 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 payeeviews 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 govern in such cases. The object of laws of set-off is to prevent multiplicity of actions. No such thing was allowed at common law. See, to the same effect, Davis v. Morton, 5 Bush, 160. This was an action brought in Kentucky by the indorsee of a

The prospect of war between England and Russia, and the probability that one of the belligerents will seek material assistance in the way of vessels and arms in our own country has led to considerable discussion in the newspapers here and in England 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 and Lord Derby in the matter of the Winslow case. This article will be followed, at intervals, by two others on International Extradition, namely, the Constitutionality of Extradition Treaties and Extradition Procedure, and by two or three articles on Interstate Extradition. When completed, this series of articles will constitute the most philosophical discussion of the principles, and the most exhaustive presentation of the law of Extradition that has ever been published.

The Supplement issued with this number of the LAW JOURNAL contains, among other statutes, two acts relating to public instruction, an act for the protection of graves, an act relating to exemption from taxation, and the act to provide for the incorporation of Pipe Line Companies.

A statute of Pennsylvania, passed in 1867, provides that " any railroad corporation that shall exclude from their passenger cars any person or persons on account of color or race," etc., "shall be liable in an action of debt to the person thereby injured in the sum of five hundred dollars, the same to be recovered in an action of debt as like amounts are now by law recoverable." In the case of Central

Railroad Co. of New Jersey v. Green, 5 W. Not. Cas. 300, decided by the Supreme Court of Pennsylvania,

on the 16th of March last, it was held that the damages recoverable are in the nature of a penalty against the railroad company, and not compensation to the person aggrieved, and a recovery by one person thus excluded, in contravention of the provisions of the act, is a bar to a future recovery by another person excluded at the same time. In this 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 held that the exclusion of the two constituted a

NOTES OF CASES.

N the case of Second National Bank v. Hemingway, single offense, and that a recovery in an action by

right set and wife, in the right of the wife, was

off in an action is governed by the law of the place where the action is brought. In this case an action was brought in Ohio by the indorsee against the maker of a promissory note payable to order, executed in Kentucky, and indorsed before due. The court held that a Kentucky statute which declares such notes "assignable so as to vest the right of action in the assignee," but provides that such assignment shall not "impair the right to any off

a bar to a recovery in a subsequent action by the
husband in his own right. The inclination of
courts against multiplying penalties of this nature
is very strong, and the laws imposing them are very
strictly construed. See Hill v. Williams, 14 S. &
R. 287; Commonwealth v. Borden, 11 P. F. Smith,
272; Hardyman v. Whittaker, 2 East, 573; The King
v. Bleasdall, 4 Term, 809; Pike v. Madbury, 12 N.
H. 262. In Fisher v. N. Y. Central & Hud. Riv. R. ·

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