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special partner, but who, by reason of failure to comply with the statute requiring the special partner's capital to be paid in in cash, was in fact a general partner. Held, not to be a fraudulent statement, as the other partners then supposed him to be a special partner, and though his claim against the assets as such special partner would be postponed to those of other creditors, it was properly described as a liability as they then understood it. Ib.

3. What liabilities should be set down.-Debtors in preparing their schedules should set down in the schedule of liabilities all the paper that they may be liable on, with proper explanations in regard to them. Ib.

4. Special partner: composition.-A special partner has no right to vote on the resolutions of composition. Ib.


Employee not entitled to, for time he does not work.The claimant had been employed by the bankrupts for the term of one year, but was discharged at the expiration of six months, and for a long time thereafter was unable to procure employment. He was paid for the time he actually worked. The register decided that he was entitled to priority in the payment of the sum claimed as wages for the time he was unemployed. Held, that the decision of the register was erroneous. U. S. Dist. Ct., N. D. New York. In re Pevear & La Croix, 17 Nat. Bankr. Reg. 461.

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May prove debt of his estate in bankruptcy.-A receiver of the property of a creditor of the bankrupt is an assignee of the debt due to such creditor and may prove it in the bankruptcy proceedings; but the proof must be supported by the deposition required by General Order No. 34. The deposition may, in the first instance, be ex parte, as in Form No. 22. U. S. Dist. Ct., S. D. New York. In re Mills, 17 Nat. Bankr. Reg. 472.



1. Liability of owner of vicious dog: on what based. -An action for injury from a vicious dog is based upon the keeping of such a dog, and if injury ensues the owner is liable. If negligence is an element of a cause of action at all, it is not so in the ordinary sense of that term, but consists in the act of keeping the dog with knowledge of his disposition. Judgment below affirmed. Lynch v. McNally. Opinion by Church, C. J.



3. What is a defense.-To constitute a defense in such an action it must be established that the person injured did some act from which it may be affirmed that he brought the injury upon himself. Ib.

1. When principal bound by representations of agent. -B, a note broker, was the agent of plaintiff to sell certain notes made by him. Defendant applied to B to purchase business paper. B sold him at twelve per cent discount the notes made by plaintiff, representing them to be business paper. 11eld, that plaintiff was bound by the representations of his agents and was estopped from claiming that the notes were usurious. Judgment below affirmed. Ahern v. Goodspeed. Opinion by Folger, J.

4. Offering a dog at large candy.-A dog was loose and plaintiff, who was not shown to have known his vicious qualities, offered him some candy, when he 2. Ratification of act done by agent before agency comsprang at her and bit her. Held, that the act of plain-menced.-A representation as to the character of one tiff did not constitute a defense to an action for the injury. Ib.

[Decided April 16, 1878.]

of the notes was made by the broker before the note was in existence. Held, that while plaintiff was not originally bound by such representation, a subsequent ratification with a knowledge of the facts would bind him. Ib.

[Decided January 15, 1878.]

2. Contributory negligence no defense.-Contributory negligence, as that term is generally understood, is not a defense in such an action. Ib.

well-known designation, conveyed as such, and by name would pass, although misdescribed in the statement of the particular boundaries, or as to quantity, because the intent to convey such a tract of land is evident no such intent can be inferred by a general reference in addition to an accurate description by permanent boundaries capable of being ascertained. Therefore when the intent was to confine the grant within a patent named the grantee cannot claim beyond the patent line. Judgment below affirmed. Jones v. Smith. Opinion by Allen, J.

2. Adverse possession: line fence.-A temporary division fence built off from the true line for convenience, through uncultivated land, held, not sufficient to found a claim by either of the adjoining owners of title up to the fence by adverse possession. Ib. [Decided April 2, 1878. Reported below, 3 Hun, 351.]


1. When deed governs and when not: fixed line.While an island or any other parcel of land having a


By attorney: what is not: order in supplementary proceedings: ownership of property.-In 1872 H., who was entitled to a fund in the possession of the New York Chamberlain, assigned his interest and right in the same to A., in trust for certain purposes. A. subsequently transferred his trust to D., who accepted it. Subsequently, upon a judgment against H., M. obtained an order in supplementary proceedings against H., and also an order in the same proceedings forbidding the Chamberlain to transfer or interfere with any property belonging to H. in his hands "until further order in the premises." Subsequently a receiver of the property of H. was appointed in the proceedings, and in the order appointing him, H. and his servants, agents and attorneys, were restrained from interfering with any property belonging to H. In the proceedings one R. appeared in form as attorney for H., but in reality to protect the rights of D., the trustee, and all these orders were known to all the parties named. Thereafter R. obtained an ex parte order of the court directing the Chamberlain to pay the fund assigned by H. to D., the trustee. In this he did not bring to the knowledge of the court the supplementary and other proceedings against H. The Chamberlain paid the fund to the trustee. Held, (1) that the Chamberlain was not liable for the payment to the trustee; and (2) that R. was not guilty of contempt of court in procuring the order; and (3) that the receiver of H. had no interest in or right to the fund assigned to the trustee by H. Orders below reversed. People ex rel. Morris v. Randall. Opinion by Earl, J. [Decided April 23, 1878.]


1. Parol proof to fix meaning of writing admissible.— A contract of sale was expressed to be on the "usual terms." Held, that parol proof was competent to show what the usual terms were in such sales, and defendants were bound by them whether they knew what they were or not. Judgment below affirmed. Lawrence v. Gallagher. Opinion by Earl, J.

2. Sale of article to arrive: what contract not unlawful.-By the terms of a contract of sale to defendants by plaintiffs of an article then on the ocean and to arrive, plaintiffs were to sell it for defendant and pay defendants the balance due after such sale, after deducting the purchase-price. If there was a loss defendants were to pay that. Held, not an unlawful contract. Ib.

[Decided April 23, 1878.]


1. Parties to: statutory construction: 2 R. S. 191, § 152, etc. The provision of 2 R. S. 191, § 154, providing that any other person than the mortgagor, who shall have executed an obligation or other evidence of debt, may be made a party to the bill, has reference to the bill named in § 152. Sections 152, 153 and 154 are in purpose and effect parts of the same enactment. The purpose is to confine all proceedings to recover a mortgage debt to one court. Judgment below affirmed. Scofield v. Doscher. Opinion by Folger, J.

2. Authority from the court to sue must be proved.— Where authority from the court to sue is necessary it should be proved by plaintiff. There is no right to sue until the court gives one, and defendant need not set it up as is the case with usury and statutes of limitation. Ib.

[Decided February 12, 1878. Reported below, 10 Hun, 582.]


1. When question for jury: icy railroad station platform. In an action against a railroad company for injury received by a passenger by slipping on an icy platform, held, that evidence that the surface of the platform was in a lumpy and uneven condition from the unequal packing of the snow thereupon, which condition was open to the observation of the company's servants, was sufficient evidence of defendant's negligence to go to the jury. Held, also, that the fact that defendant provided servants, whose duty it was to clean the platform from snow, and that they neglected their duty, would not excuse defendant. Judgment below affirmed. Weston v. N. Y. Elevated R. R. Co. Opinion by Andrews, J.

2. What is not contributory negligence. — Held, also, that it was not contributory negligence for plaintiff to assume that defendant had done its duty and rendered the platform safe, and go upon the platform and walk cautiously along after he had found that it was slippery. Ib.

3. Duty of railroad companies as to keeping ice from station platforms.-The court below charged that "the defendant was bound to be on the alert during cold weather and see whether there was ice on the platform and remove it or make it safe by sanding it," etc.; and also that "the defendant was not bound to keep its platform in such a condition that it would have been impossible for any passenger to slip, but in such a condition that persons using the ordinary care which people use when not apprised of danger, would not slip." Held correct. Ib.

[Decided March 26, 1878.]


Removal from police force: conduct unbecoming an officer, what is not.-Relator was removed from the office of policeman of the city of New York, by the board of police, under the charge of "conduct unbecoming an officer," this being one of the offenses for which, under Laws 1873, chap. 335, a policeman can be removed. The specifications were that he was appointed policeman contrary to law when he was more than 30 years of age, and that he had been appointed after having resigned from the force without a vote by yeas and nays contrary to the requirements of law. Held, that these specifications had only reference to relator's title to the office and not to his conduct while an officer, and did not authorize the removal. Judgment below reversed. People ex rel. Clapp v. Board of Police. Opinion by Andrews, J. [Decided February 5, 1878. Reported below, 5 Hun, 457.]


1. Proof of service of summons by plaintiff.-While the statute (old Code, §§ 133, 138) declares that the summons shall be served by some person other than the plaintiff, it does not in terms make him incompetent to prove admission of service. Order below affirmed. White v. Bogart. Opinion by Allen, J.

2. Offer of judgment: irregularity.-When an offer of judgment is not accepted formally but a judgment is entered, the failure to file an acceptance is an irregularity not affecting the validity of the judgment, and the acceptance may be filed at any time thereafter nunc pro tunc. [Decided April 9, 1878.]


1. When purchaser of, protected.-The purchaser for value of stolen negotiable bonds will be protected unless the circumstances are such that an inference could be fairly and legitimately drawn that the pur chase was made with a notice of a defective title ir the seller, or in bad faith. It is not sufficient that prudent man would be put upon inquiry nor that the purchaser was negligent. Judgment below reversed Dutchess Co. Mut. Ins. Co. v. Hatchfield. Opinion by Church, C. J.

2. Evidence to show intent admissible. It wa shown in an action to recover stolen negotiable bonds purchased by defendant that he had before purchased of the person from whom he purchased these bonds a bond stolen at the same time. After stating as a witness the circumstances of the purchase of that bond and the explanation made by the seller, he was asked this: "Were you satisfied with the explanation given by Mr. Kendrick of this other stolen bond transaction?" Held, that the question was proper. Ib.

[Decided April 9, 1878.]

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A treatise on the law of judicial and executive sales. By David
Second Edition. Chicago:


ment affirmed; opinion by Miller, J.- Grover v.
Morris, No. 143, judgment affirmed; opinion by An-
drews, J.
Rorer, of the Iowa Bar.
Smith v. Bodine, No. 200, judgment
Callaghan & Co., 1878.
affirmed; opinion by Miller, J. - Boyd v. De La
This is the second edition of a work which was
Montagnie, No. 150, judgment affirmed; opinion by
Church, C. J. Agate v. Sands, No. 173, judgment
affirmed; opinion by Miller, J.- White v. Hoyt, No.
193, judgment affirmed; opinion by Allen, J.
Meyer v. Knickerbocker L. Ins. Co., No. 171, judg-
ment affirmed; opinion by Folger, J.- Bliss v. John-
son, No. 182, judgment reversed and new trial granted;
opinion by Andrews, J.- People ex rel. Gilchrist v.
Murray, No. 398, order of General Term reversed and
judgment on verdict affirmed; opinion by Earl, J.-
Mott v. Consumers' Ice Co., No. 177, judgment re-
versed and new trial granted; opinion by Allen, J.—
Sayles v. Sims, No. 196, judgment affirmed; opinion
by Church, C. J.-Wood v. Mayor, etc., of New York,
No. 156, judgment affirmed; opinion by Andrews, J.
In re application of Department of Public Works
of city of New York, No. 403, orders of General and
Special Terms reversed and report of referee con-
firmed, and an order entered directing the payment of
the money to Grinnell, with costs to be paid by the
city of New York; opinion by Earl, J.
- Haden v.
Coleman, No. 199, judgment reversed and new trial
granted; opinion by Church, C. J. Whittlesey v.
De Laney, No. 131, judgment affirmed; opinion by
Allen, J. Ousby. Jones, No. 142, judgment
affirmed; opinion by Folger, J. Murdock v. Pros-
pect Park and Coney Island R. R. Co., No. 187, judg-
ment affirmed; opinion by Andrews, J. - Thomson
v. Sweet, No. 156, judgment affirmed; opinion by
Miller, J. Rohrschneider . Knickerbocker Life
Ins. Co., No. 184, judgment affirmed; opinion by Earl,
J. - Merrill v. Calkins, No. 202, judgment affirmed;
opinion by Church, C. J.-Higgins v. Phoenix Mutual
Life Ins. Co., No. 208, judgment affirmed; opinion by
Allen, J. Diossy v. Morgan, No. 212, judgment
affirmed; opinion by Rapallo, J.-Booth v. Cleveland
Rolling Mill Co., No. 213, judgment affirmed; opinion
by Allen, J.- Nichols v. Voorhis, No. 138, appeal
dismissed; opinion per Curiam.

published in 1873, and which has become familiar to
very many members of the bar. It is upon a subject
of great practical interest, and one upon which every
The present
lawyer frequently needs assistance.
edition is greatly enlarged and is re-arranged so as to
afford a more ready reference to its contents. Of
course there has been a very great advance in this de-
partment of the law since 1873, and many decisions of
importance made. The author seems to have thor-
oughly examined all these and to have incorporated
the principles and rules established in them into his
work. The work, as enlarged, probably furnishes the
most full and comprehensive treatise extant upon the
various kinds and methods of transferring real and
personal property under judgments and decrees of
courts, and it ought to be in the hands of every law-
yer in active practice. It has an excellent index and
is well printed and bound.

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Landlords and Tenants: A summary view of their legal rights and duties, with special reference to the law of the State of New York. To which is added an appendix of forms. By Charles W. Sloane, of the New York Bar. New York: Haven Bros., 1878.


IIS handy little volume will prove of great practical use to those interested in the law governing the relations of landlord and tenant, as it states in a clear and concise manner all the details of that law as it exists in this State. Exclusive of the index, tables of contents, etc., and forms, it contains but 97 small pages, but within that compass is included all the valuable results of larger volumes. The statements of principle appear to be accurate, and they are so expressed that even one unfamiliar with the technical terms of the law can readily understand them. For real estate owners or occupiers we know of nothing as useful as this treatise, and members of the profession will find it convenient to carry with them into court to refresh their recollection of the law in the trial of cases involving the subjects to which it relates.



HE London Law Journal introduces a lengthy review of one of Dr. Spear's recent articles on "Ex

tradition," with the following remarks:

"At a time when there is a prospect of this country being involved in war with Russia, it is very satisfactory that our relations with the United States are of a thoroughly friendly character. The good will of the United States toward the mother country has of late been manifested in various ways; and amongst the evidences we may cite the fair and temperate discussion of the extradition question. We think that in the recent contention Lord Derby was on the whole right, and Mr. Fish was wrong; but there is much to be said on both sides, and we are impressed by the judicial impartiality with which the matter has been debated in America. Dr. Spear is contributing a series of learned and exhaustive articles to the ALBANY LAW JOURNAL, and we are glad that the matter is being so fully investigated. The questions that arise as to the construction and application of the treaties and the law of extradition are complex, and should be definitely settled, because differences on such points are always fraught with the peril of international bickering."

At a meeting of the International Code Committee. of America, held on the evening of the 16th inst., at the residence of Judge Charles A. Peabody in New York city, the following delegates were elected to the next annual conference of the Association for the Reform and Codification of the Laws of Nations, to be held at Frankfort, August 20, 1878, with power to add to their number: Hon. John Welsh, Minister to England; Hon. Bayard Taylor, Minister to Germany; David Dudley Field, A. P. Sprague, Charles A. Peabody, F. A. P. Barnard, Lieutenant-Governor William Dorsheimer, Judge George F. Comstock, F. R. Coudert, Edward R. Bacon, Dr. J. P. Thompson, Dr. S. I. Prime, Dr. Samuel Osgood, Dr. Henry C. Potter, Dr. Charles Howard Malcolm, Dr. E. A. Washburn and Howard Payson Wilds.

This is the way an English law newspaper describes the sittings of one of the superior courts of its country: "For the last month the sitting chamber judge at the Bear Garden has been Mr. Justice Fd, who really knocked off the work before him in a most expeditious manner. Since, Mr. Justice Slow-pace sits there, and monotony drags on its slow and weary length."

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 ad- advantage from repeal. dressed to the publishers.

The Albany Law Journal.

ALBANY, JUNE 1, 1878.

islature, with the wishes of the majority. It was

at one time doubtful whether the present Congress

would not follow the example of its predecessors, and fail to pass the bill, notwithstanding a very large majority in each house were in favor of it. But the friends of the bill have been active, and it has not failed. The postponement of the time when the act is to go into effect was a concession to a claim which was made by the friends of the existing law, that if it was repealed without notice, a very great number of unfortunate individuals, who were intending to take the benefit of the law, would be disappointed and ruined. Three months' time will enable all who can have any claim to favor in this matter to take such action as they desire, and we anticipate that the bankrupt courts will do more business during that period than they have ever done in the same time.

the fees and expenses of bankruptcy proceedings were paid out of funds which, under the pre-existing laws, would have very generally been spent in litigation. But the profession will not alone receive Vigilant creditors will derive advantage from their vigilance, and distinction can be made by the insolvent between debts of different degrees of merit. In fact we think every one, debtor and creditor alike, will be benefited by the repeal.


The Court of Appeals of this State, in the case of Sherwood v. Agricultural Insurance Co., decided on the 21st ult., an abstract of which appears in our present issue, passes upon the question whether, under a condition in a fire insurance policy, rendering

HE House on Tuesday last concurred in the Senate amendment to the bill for the repeal of the bankrupt law, and unless a veto should be in-it void in case of a transfer of title, either by the act of the insured, or by operation of law, the terposed, which is very improbable, the law will go out of existence on the 1st of September next. This death of the insured creates such a change in title as to avoid the policy. The court holds that it does is a result which the greater portion of the people of the country have been anxious for for the past Co., 58 Barb. 325, adopts the same doctrine. The case of Lappin v. Charter Oak F. Ins. The eight years, but the friends of the law, though weak numerically, have wielded a sufficient influ- principal case is distinguished by the court from those of Wyman v. Wyman, 26 N. Y. 253, and Burence to prevent a compliance, by the National Leg- | bank v. Rockingham Ins. Co., 24 N. H. 550. In the

do so.

We imagine that the repeal of this law will be of considerable benefit to those of the profession engaged in general practice. The incoming of the bankrupt law nearly destroyed the collection business; a debtor that could be made to pay only by means of legal process being as a rule on the verge of bankruptcy, and a suit against him liable to be defeated by bankrupt proceedings. Then the law made certain acts, such as the non-payment of negotiable paper, acts of bankruptcy, and debtors were compelled to pay in cases where they would have resisted under other circumstances. In these two ways the statute discouraged litigation, and it was also injurious to the profession for the reason that VOL. 17.- No. 22.

if the property insured should be alienated by sale latter case the policy provided that it should be void

or otherwise, and the court held the death of the insured did not alienate the property, the decision turning upon the meaning of the word "alienation.” See, for an interesting article upon the subject, 4 Alb. L. J. 37, in which the decision in Lappin v. Charter Oak Insurance Co. is criticised.

The bill amending the Code of Civil Procedure has not yet been signed by the Governor. In the Supplement issued with this number are given, among others, acts relating to assessments for local improvements in New York, coroners in New York, accidents on railroads, reduction of stock of corporations, payment of counsel employed by the State, trust companies, and certain other moneyed corporations, the supply bill, and the Military Code amendments. Up to the time of going to press, 372 bills have been signed.

The discussion in the United States Senate upon the subject of admitting women to practice as attorneys in the Federal courts showed that there was a strong feeling in that body in favor of abolishing all sex distinctions in this matter. The report of the committee to which the bill for relieving certain legal disabilities of women had been referred, reported that no legislation was required in the matter, as no law existed forbidding women to practice. This is thought by the friends of the measure to be simply

an evasion of the direct issue as, though there is no statute directly forbidding the admission of females, the courts do not admit them, and the United States Supreme Court has refused to entertain any application for admission in behalf of a woman. The sitvation is this: There is no law to prevent a woman from coming into the bar, so permissive legislation is not required. But the courts, notwithstanding this, will not let her practice. So she is as badly off as if the law expressly excluded her. There are probably not half a dozen women in the whole country who would avail themselves of the privilege to practice if it was given them, and it is probable that they would be of very little advantage to the bar, so that perhaps the course recommended by the committee is the best one that could be taken. We understand that women are allowed to practice in the States of Illinois, Michigan, Minnesota, Missouri, and North Carolina, in the Territories of Wyoming and Utah, and in the District of Columbia. The probabilities are that other States will accord her the same privilege, and the Federal courts cannot remain long

closed against her.

in Weed v. Mutual Benefit Life Ins. Co., 16 Alb. L. J. 414, that under a condition in a policy making it void if the assured should die by his own hand, that the policy is avoided by suicide unless the mind of the insured at the time was so impaired that he did not understand the consequences of his action, and that death would ensue. See, also, Van Zandt v. Mut. Benefit Life Ins. Co., 55 N. Y. 169; McClure v. Mut. Benefit Life Ins. Co., id. 651. A similar doctrine was held by the Federal Supreme Court in Charter Oak Life Ins. Co. v. Rodel, 16 Alb. L. J. 415, it being said that it is not every kind or degree of insanity that will excuse the party taking his own life so as to render the company liable. If the deceased in the exercise of his reasoning faculties formed a determination to take his life because he preferred death to life, the company would be relieved.

the recent case of Taintor v. City of Worcester, holds The Supreme Judicial Court of Massachusetts, in that a city by accepting a statute which authorizes

it to provide and maintain fire engines, reservoir and hydrants for the extinguishment of fires and building works under it, does not enter into a contract with or assume any liability to owners of property


N Connecticut Mut. Life Ins. Co. v. Groom, decided to furnish means or water for the extinguishment of

upon an action can be it

Pennsylvania, a policy of insurance contained the provision that if the insured should die by suicide it should be null and void. The court held that the word "suicide" could not properly be applied to the voluntary death of the insured while insane. The opinion states that the preponderance of decisions in England and this country supports the theory that the word "suicide" is synonymous with the expression "death by one's own hand," but that the better and safer rule is the one adopted in the class of cases to which Mutual Life Ins. Co. v. Terry, 15 Wall. 580, belongs. The provision mentioned not being a covenant for the performance of a duty under a mutual contract and hardly a condition, but a provision for the absolute forfeiture of the rights of the insured upon the happening of a certain event, it was requisite that the fact upon which the forfeiture depended should be clearly, strictly, and technically made out, and the party against whom it was sought to be enforced was entitled to have a construction put upon it in his favor, because the words were not his, but those of the other party. Mayer v. Isaac, 6 M. & W. 612. Where there is any ambiguity in an instrument of this character it must be taken most strongly against the company which prepared it. Notman v. Anchor Ass. Co., 4 C. B. (N. S.) 481. The decision is in harmony with the rule adopted by the Court of Appeals of this State, and by the United States Supreme Court. But it is held by the former court

will not be liable for a loss by fire occurring by reason of the absence of water which it is able to furnish. In Atkinson v. Newcastle Water Works, L. R., 6 Ex. 404, an action was maintained against a water company for not keeping pipes, in which fire plugs were fixed, charged with water at a certain pressure as required by its act of incorporation, whereby the plaintiff's property was destroyed, but the decision was reversed on appeal. See L. R., 2 Ex. D. 441. In Fisher v. City of Boston, 104 Mass. 87; 6 Am. Rep. 196, it is held that in the absence of express statute municipal corporations are not liable for personal injuries occasioned by reason of the negligence of the fire department in using or keeping in repair their fire apparatus. In Wheeler v. City of Cincinnati, 19 Ohio St. 19; 2 Am. Rep. 368, it is held that a city authorized by statute to establish a fire department and procure engines, etc., necessary to extinguish fires, is not liable to an individual whose house has been burned for any defect in the execution of such power, nor for a neglect of duty on the part of the fire department, or any of its officers. The court in that case says that "the power of the city over the subject is that of a delegated quasi-sovereignty, which excludes responsibility to individuals for the neglect or non-feasance of an officer or agent charged with the performance of duties. The case differs from that where a corporation is charged by law with the performance of a duty purely ministerial in its character." See,

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