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against a bank receiver, or assignee in bankruptcy, who represents creditors. Ib.

4. Rule of equity as to thing not done.-Equity will not regard a thing as done, which is not done, when it would injure third parties who have sustained detriment and acquired rights by the things that have been done. Ib.

5. Deposit of bills and notes by bank with president to secure third party: law of Louisiana.- Where it was agreed that a bank should deposit bills and notes with its president and his partner by way of pledge to secure a loan made by a third party; and the president delivers them back to the bank officers for collection, with power to substitute other securities therefor, it is not such a delivery and possession as is necessary to create a privilege by the law of Louisiana. Ib.


1. Lex rei siti governs transfer of real estate and mortgage. The laws of the State in which land is situated control exclusively its descent, alienation, and transfer from one person to another, and the effect and construction of instruments intended to convey it. All such laws in existence when a contract in regard to real estate is made, including the contract of mortgage, enter into and become a part of such contract. Decree of U. S. Circuit Court, N. D. Illinois, modified and in part reversed. Brine, appellant, v. Hartford Fire Insurance Co. Opinion by Miller, J.

2. State statute as to redemption part of mortgage contract and obligatory on Federal courts.-A State statute, therefore, which allows to the mortgagor twelve months to redeem after a sale under a decree of foreclosure, and to a judgment creditor of his three months after that, governs to that extent the mode of transferring the title and confers a substantial right, and thereby becomes a rule of property. This right of redemption after sale is, therefore, obligatory on the Federal courts, sitting in equity, as on the State courts, and the rules of practice of such courts must be made to conform to the law of the State, so far as may be neccessary to give substantial effect to the right. Ib.



1. What does not constitute: preserving one's own property when in danger.-Plaintiff, the owner of a tug which was alongside of a boat on which he was, seeing defendant's tug approaching his own and apprehending a collision, immediately ran upon his boat to protect it. The collision took place and plaintiff was thrown down and injured. In an action to recover for the injury done to plaintiff and his tug boat, held, that plaintiff was not guilty of contributory negligence. It is the duty of a person whose property is endangered by the negligence of another to do what he reasonably can to protect it. Judgment below affirmed. Rexter v. Starin. Opinion by Earl, J.

2. Exercising reasonable prudence: not negligence.The court at trial charged: "A man contributes to an injury himself when the injury is one which a prudent man might well anticipate as resulting from the circumstances to which he has exposed himself. No speculation should be entered into as to whether it might result in the bruising of his finger or the smashing of his leg. When any thing of that character is anticipated, he is guilty of contributory negligence, if he exposes himself in such a way as a careful and

prudent man would not. Held, correct, and to cover a request to charge that if plaintiff knowingly and voluntarily placed himself in a position where he was liable to receive the injury complained of, he was negligent.

[Decided April 2, 1878.]


1. Premiums paid for life insurance upon fraudulent representations: representations must have been known to plaintiff to authorize recovery back.-In an action to recover back premiums paid by plaintiff upon a life insurance policy, on the ground that plaintiff was induced to take the policy on certain false and fraudulent representations made by the company, held, that only such false representations as came to the plaintiff and induced her to take the policy, would be ground for sustaining the action. False statements made to the general public and not shown to have been made to or to have influenced her, would not be sufficient. Judgment below affirmed. Rohrschneider v. Knickerbocker Life Insurance Co. Opinion by Earl, J. 2. A promise not a fraud.-Plaintiff testified that at the time she took the policy the insurance company's agent told her that she would at the end of four years receive over $570. Held, that this was at most a mere promise to be performed in the future, and fraud could not be predicated on such a promise. Ib. [Decided May 21, 1878.]


Surrender by husband whose life is insured in favor of wife not valid without consent of wife.-A husband took a policy of insurance on his life in favor of his wife, paying the premium out of his own means. Subsequently while out of health, he was persuaded by an agent of the insurance company that a failure by him to make known in his application the existence of a bodily malformation would invalidate the policy. He, therefore, surrendered the policy and took back the premium. Held, that the husband took the policy as agent for his wife, that he had no power to surrender it without her authority and that the failure by the wife to notify the company of her dissent from the husband's act until after his death, a month after the surrender, was not a ratification, and that she was entitled to a restoration of the policy. Held, also, that she could not be required to return the premium as a condition of relief. Judgment below affirmed. Stilwell v. Mutual Life Insurance Co. of New York. Opiniou by Church, C. J.

[Decided February 5, 1878.]


Must keep public places safe for unmanageable as well as docile animals.-The complaint stated that the horse of deponent, which was 'attached to a cart and engaged in carting brick on a dock near the river, suddenly became unmanageable and by reason of the neglect of defendant, a municipal corporation, to provide a proper string piece on the dock, backed off the dock and was lost; that plaintiff did all in his power to prevent the accident, etc. Held, that it was the duty of the city, in the matter of erecting the string piece or barrier, to protect animals that, at the time of the loss, were temporarily out of the control of the owner and unmanageable, as well as those that were docile and obedient, and that the facts stated in the complaint were sufficient to constitute a cause of ac

tion. Judgment below reversed. Kennedy v. Mayor
of New York. Opinion by Andrews, J.
[Decided April 16, 1878.]

court, and has died in the performance of the duties
of his high office. We cannot on this occasion enter
into a proper consideration of the judicial character
and labors of the distinguished Judge who but a few
days since sat with us on the bench, and whose loss
will be felt and deplored not by the bench and bar of
this State alone, but by the whole country. The first
thirty-nine volumes of Barbour's Reports contain the
published opinions of Judge Allen, pronounced by him
while a judge of the Supreme Court. They attest his
eminent ability, the fullness of his learning, a firm,
intelligent and comprehensive grasp of the most diffi-
cult questions in the law, and the wisdom which he
brought to bear in adjusting a new system of practice
and procedure to the solution of legal controversies.
The same qualities which distinguished him in the Su-
preme Court marked his judicial labors in the Court
of Appeals. He was fertile in resource, patient and
laborious in the investigation of causes, and unswerv-
ing in his adherence to his convictions. His knowl-
edge of constitutional and commercial law, and his
clear apprehension of their principles were especially
conspicuous. Some of us have been intimately asso-
ciated with him on the bench of this court since its
organization, eight years ago, and others for lesser
periods, and we unite in bearing testimony to his great
qualities as a judge, to the facility with which he could
comprehend and formulate the principles applicable to
the most difficult and complicated cases, to his untir-
ing industry and conscientious performance of his
duty, and, above all, to his independence of judicial


T the session of the Court of Appeals, held on the judgment and the fearlessness with which he adhered

A 4th inst., Chief Judge Church paid the following

tribute to the late Judge Allen:

to and enforced his conviction of right. We never knew him to be influenced in the slightest degree by any attempt to bring popular prejudice or flattery to bear upon the judgment of the court. He was not only independent, but upright and just. Such is a skeleton of his public life. How slenderly it exhibits the many years of mental labor, the firm, intelligent, conscientious and courageous administration of public trusts which distinguished him!

The judges of the present Court of Appeals are again called to lament the death of one of their members, the Hon. William F. Allen, the third of those who made up its original members, the fourth of those who have sat upon the bench during the present organization, who has been taken from them. It is appropriate for this court to make some record of the public loss thereby, and its remaining members will not forego an expression of their private sorrow. He has filled a large space in the annals of the State. In the years 1843 and 1844 he was a member of Assembly from Oswego county, and was accorded prominent and influential positions upon important committees and in the house. He was the attorney for the United States for the Northern District of New York for some years, and in that office showed the ardor and energy of his character and the strength of his intellect. After the adoption of the Constitution of 1846, upon the first organization of the judiciary under it, he was elected a justice of the Supreme Court for the Fifth District, and, having been re-elected, served continuously for sixteen years. His second election was without opposition, though the political majority in the district was adverse. This is a weighty and unmistakable proof of the high public and private estimate of his judicial and personal competency and character. He was elected State comptroller in the year 1867, and re-elected in 1869, and displayed in that office his characteristics of honesty of purpose, industrious attention to official duty, adherence to convictions of right, and also showed complete capacity for the needs of the position.

While holding the office of comptroller he was elected, under the provision of the constitutional judiciary article adopted in 1870, an associate judge of this


1. Objection not founded on defect in complaint: when not available: right of action.-When a complaint in an action for negligently destroying a boat by setting it on fire, stated that the boat belonged to plaintiff at the time of the fire, an objection to proof that plaintiff had acquired title by an assignment subsequent to the fire, not based upon the ground of any defect in the complaint, held, not sufficient. Judgment below affirmed. Riddell v. N. Y. C. & H. R. R. R. Co. Opinion by Earl, J.

2. When case not re-examined as to extent of damages. -Plaintiff did have some interest in the boat which would enable him to recover some damages. Held, that when the question was raised by motion to nonsuit only, the extent to which he was entitled to recover would not be examined if he sustained his case in other respects. Ib.

3. Negligence: proximate and remote cause.-Straw piled in and upon a boat was negligently set on fire by defendant, and the burning straw set fire to the boat. Held, that defendant's negligence was the proximate cause of the loss of the boat. Ib.

[Decided April 26, 1878.]

For a fuller history of them resort must be had to the public annals of the State, to the records of the courts, the reports of their decisions, and to the memories of our judges and lawyers and of the citizens of the Commonwealth. He was truly a man of distinction among his contemporaries; a distinction of the sort to be coveted, for it was reached by the qualities which exalt the character, and it took no advantage by false pretensions. Through an extended life he was an honor to his race, to his profession of the law, and to his judicial office, and just as men are lamenting that the arbitrary provision of the Constitution would soon take him from the bench in the ripeness of his character, his talents and his powers, the Almighty Hand, in its wisdom, has removed him from earth. Even "beyond the circle of those private affections which cannot but shrink from the inroads of death," there is a "grief for the departure of the eminently good and wise."

His personal character was of the highest order. He took no step outside the path of a wise sobriety and exemplary rectitude. His judgments and his life were in accord. He was simple and modest. He was kind in nature, affable in intercourse, of warm social impulses, sensible of the claims of his fellows and prompt in rendering all the dues of neighborhood. His warm and impulsive nature was held under restraint of reason and of the religion he professed and practiced.


THE following decisions were handed down Tuesday,

June 4, 1878:

McMahon v. Walsh, Wilson v. The Knickerbocker Life Ins. Co., Quinlan v. The City of Utica, Stewart v. Bramhall, Litchult v. Treadwell, judgment affirmed, with costs.Gelpcke v. Quentell, Burnham v. Brennan, Presbyterian Society of Knoxboro v. Beach, judgment reversed and new trial granted, costs to abide the event.- Parkinson v. Sherman, In the matter of Sackett street, Brooklyn, order affirmed, with costs. Woolsey v. Brown, order affirmed and judgment absolute for plaintiff on stipulation, with costs.- - Ulster County Savings Institution v. Decker, motion to correct remittitur granted, as far as that costs abide event, without costs of this motion. Elwell v. Johnson, appeal dismissed, with costs. Chief Judge Church read a eulogy on the late Judge Allen, and announced that in token of respect for his memory of the deceased, and to enable the remaining members of the court and the bar to attend his funeral, the court would adjourn to Thursday morning, June 6.

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A digest of all the reported decisions of the Supreme Court of
of in the
man, Tyler, Brayton, D. Chipman, Aikens, and in forty-
eight volumes of Vermont Reports: also of all the decisions
of the courts of the United States for the district of
Vermont, which are found in the Vermont Reports. By
Daniel Roberts, Burlington, Vt., 1878.

with the work of Fearne is indispensable, and as a

means of comprehending that work, and fastening the

principles it enunciates on the memory, the little book before us will serve an important purpose. It contains first an analysis of the principal work in which the leading ideas are briefly stated, followed by an epitome in which all the principles of that work are separately and distinctly set forth. Under each principle is given a single, simple case by way of example in illustration. Then the writer has endeavored to add such explanation as will give the student a clear and distinct view of the particular principle under consideration. The book will prove of use not only to students, but to lawyers engaged in active practice, who wish to refresh their memories in respect to the sometimes intricate and technical doctrines of the common law, on the subject discussed.

COLEMAN'S EPITOME OF FEARNE ON REMAINDERS. An epitome of Fearne on contingent remainders, and executory devises, intended principally for the use of students. By William M. Coleman, Esq. Philadelphia: T. & J. W. Johnson & Co., 1878.

To the student desiring to become thoroughly familiar with the law of real property, an acquaintance



peals of this State, died at his home in Oswego on the 3d William F. Allen, Associate Judge of the Court of Apinst. He was born in Windham county, Connecticut, July 28, 1808. He came with his father to this State when eight years of age. He was graduated at Union College in 1825, and commenced the study of law in the office of John C. Wright of Schenectady, but completed it in that of Charles M. Lee of Rochester, and was admitted to the bar in 1829. He commenced the practice of his profession in partnership with George Fisher at Oswego, but soon after formed a partnership with A. P. Grant, which continued until the time of his election as Judge of the Supreme Court. In 1842 he was elected Member of Assembly, and again elected in 1844. In 1845 he was appointed United States District Attorney for the Northern District of New York. In 1848 he was elected Justice of the Supreme Court, and in 1856 re-elected to the same office. At the close of his second term in 1863 he went to New York and practiced law there for several years. In 1867 he was elected Comptroller of the State and was re-elected in 1869. In 1870 was chosen to the position he held at the time of his death. In the various positions, judicial and otherwise, held by him he was distinguished among other qualities by his fidelity to duty and by his industry. strumental in very largely reducing the State debt, and While administering the office of Comptroller he was inin organizing a movement in favor of reforms in the management of the State prisons and canals that are now being carried out. His judicial career, which embraced nearly twenty-four years, is well known to the profession throughout the State. The decisions made by him and which appear in numerous volumes of the State reports since 1848, show that he possessed great mental powers and superior culture. The eulogy pronounced by Judge Church at the session of the Court of Appeals held on Tuesday last and appearing elsewhere, is an eloquent and faithful portraiture of the character and qualities of the deceased.

THIS HIS digest, the preparation of which has occupied some years, appears to be carefully and thoroughly done, and it can be depended upon as showing in brief the existing case law of the State of Vermont. The arrangement is excellent, and the plan of the editor in bringing together or in connection the cases which confirm, qualify, distinguish, or in some way illustrate each other, and in referring in the abstract of each case which has been relied on as authority to the subsequent decisions wherein it is cited will render the digest valuable as a judicial history of the various important decisions noticed in it. By the plan mentioned, the value of each case as an authority in the courts of Vermont can be at once determined, and one referring to it will be able to find other cases bearing upon the subject which he is investigating. A few decisions in the earlier reports, which by change of statute or otherwise have become obsolete, are omitted. We do not find any statement giving the names of the omitted cases, which is to be regretted. They cannot number many, and a brief reference to them, showing the points passed upon, would render the digest exhaustive. The work of the editor is so well done, however, that we cannot find fault with him for this omission. The book contains a list of the judges of the Supreme Court of Vermont from 1778 to 1878, and also a very carefully prepared table of the cases digest-curring through his criminal negligence as bailee.-A case involving a novel point of law was decided by the County Court of San Joaquin county on the 4th ult. A jury in a civil case while out deliberating was taken by the sheriff to a restaurant to eat. As the county had refused to pay for feeding juries in civil cases, the sheriff told the restaurant keeper to collect from the jurors. Of this, however, the jurors had no knowledge. One of the jurors refused to pay for his meal, and was sued by the restaurant keeper. No express promise to pay was proved. The court held that, under the circumstances of the case, the law would not imply a promise on the part of the defendant to pay for what he ate, and gave judgment in his favor.


N the Southwark England County Court on the 28th . Jacob, it was held that a London carman is not a common carrier, but is liable to loss or injury of property transported by him, caused by the criminal act of a stranger, oc

ed. It will be found of great value, not only to the profession in Vermout, but also to lawyers residing in other States, as a very large proportion of the decisions are upon questions of general interest.

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, JUNE 15, 1878.


HE President has signed the bill for the repeal that statute will go out of existence on the 1st of September next. To say nothing of the benefits which will accrue to honest tradesmen and vigilant creditors from a restoration of the old order of things, the increase in general law business which will probably result there from, must render the repeal gratifying to the great bulk of the profession. We do not go as far as some of the friends of repeal have done and charge the present depressed condition of business upon the bankrupt law, but we believe it has contributed toward making trade unsettled and uncertain. Its direct effect has frequently been to destroy solvent business houses temporarily embarrassed, while the easy means of escape from legal liability it offered, has tempted men to be careless about incurring debts and extravagant in their expenditures. Where an obligation can be discharged only by payment, most men are cautious about entering into it, but it is otherwise when an easy proceeding at law will discharge it. However, the bankrupt law will soon pass away, and we believe very few will mourn its departure.

By the appointment of Mr. Samuel Hand to the place on the bench of the Court of Appeals, made vacant by the death of Judge Allen, the court secures a gentleman eminent for learning and ability, and who, though yet young, stands among the foremost of his profession in this State. Although without previous judicial experience, Mr. Hand has for some years had an extensive practice before the court of which he now becomes a member, and at one time occupied the position of reporter of its decisions. The qualities which he has displayed as an advocate are an assurance that he will fill with credit the place to which he has been appointed, and the profession and litigants who are interested in causes pending before our highest court have every reason to be satisfied with the choice of the


The precedent which has been set in the English courts of assaulting judges, has been followed in VOL. 17.- No. 24.

the New York Court of Common Pleas, a lunatic, by the name of Chalmers, having, on the 7th inst., made an assault in open court on Mr. Justice Daly, who was presiding at a trial there. The assailant, who had an hallucination that the police commissioners of New York were annoying him in various ways, had prepared a petition asking for their arrest, and had presented it to numerous judges and courts, the usual result being his ejection from the court rooms into which he had intruded. On the day mentioned he began to read the petition to Justice Daly, who at first kindly attended to his reading, but discovering the nature of the document requested him to desist, and upon his refusal to do so, directed his removal from the court. Thereupon,

the petitioner, folding up the papers he s

hand, forcibly hurled them at the head of Judge Daly, saying, as he did so, "You are like all the other judges, a liar and a trickster." Of course the belligerent suitor was immediately arrested, and he was subsequently committed by a police magistrate as a lunatic. The petition itself, parts of which were published in the daily press, indicates clearly that the assailant was insane.

In the case of Mix v. Andes Insurance Co., just decided by the Court of Appeals of this State, and appearing in our abstract of the decisions of that court, the right of a corporation to take the benefit of the act of Congress, of March 2, 1867, providing for the removal of causes from the State to the

Federal courts, is maintained, and it is also held that the verification of the affidavit required by the president of a corporation is a compliance with the provision of the statute requiring the affidavit of a citizen. This reverses the decision of the Fourth Department General Term, 9 Hun, 397, which affirmed the decision of the Special Term. The General Term based its decision upon Cooke v. State National Bank of Boston, 52 N. Y. 96, but this was a mere pro forma decision made to enable the question to reach the Federal Supreme Court, and the Court of Appeals did not hold it to be authority.

Mr. Justice Markby, of the Supreme Court of Calcutta, in an article appearing in the current number of the Law Magazine and Review, considers at length the causes which are at work in England tending to secure or prevent the adoption of a code, and also to secure an improvement in the system of legal education. The writer thinks that the demand for codification as well as for improved

legal education comes from the masses of the peo

ple, and that both the bench and the bar, as a rule, Gov-change in the existing condition of matters, and as well as the universities, are opposed to any that what help has been so far given by the inns o court and the universities to the inauguration reform measures has been given because

not help it. The solicitors have looked with more favor upon the changes which have been made and are yet demanded, and one of their public bodies, the Law Institution, for a long time was the only one which showed a hearty interest in the teaching of law otherwise than by a mere apprenticeship. The opposition of the bench and bar to change is attributed by him to prejudice, indolence and a want of confidence in the probable result of the efforts about to made. We think, however, that a still more powerful influence than either of the ones named, at least so far as the bar is concerned, is self-interest. The position of the bar is high and secure under the existing system, and a change in the form of the law and an improvement in the method of teaching it cannot raise that position, while it may and probably will result in lowering it. The writer criticises the views of those who are anxious for the early codification or digesting of the laws and thinks that the standaad of legal learning should be raised before an attempt is made to construct a code. He says, "The laws of a country, whether they be codified or not, reflect the intellect of the lawyers who create them. A code is but an embodiment of the legal learning of the age. Are we not proposing to construct our code at the very moment when learning is at its lowest ebb?"

private road adjoining his ground a hurdle with a cheveaux de frise on the top in order to prevent the public from looking over the barrier at athletic sports on his ground. Some one not known removed the hurdle to another spot without the defendant's authority, and the plaintiff, passing of right along the road soon afterward in the dark, and knowing the original position of the hurdle, but not that it was moved, ran his eye against the chereaux de frise and lost his sight. The jury, in an action against defendant for the injury, found that the original erection of the hurdle was unauthorized and wrongful; that the cheveaux de frise was dangerous to the safety of persons using the road, and that there was no contributory negligence, and gave plaintiff a substantial verdict. The court held that plaintiff's injury was not an improbable consequence of defendant's act; that it was the defendant's duty to take all necessary precautions under the circumstances to protect persons exercising their right of way, and that the action was maintainable. The case is one of that class represented by the well-known squib case of Scott v. Shepherd, 3 Wils. 403; 2 W. Bl. 892, where defendant threw a lighted squib into a market house where several persons were assembled. It fell upon a standing, the owner of which, in selfdefense, took it up and threw it across the market house. It fell upon another standing, the owner of which, also in self-defense, threw it off, when it struck plaintiff and exploded and put out his eye, and defendant was held liable. In Dixon v. Bell, 5 M. & S. 198, the defendant, having left a loaded gun with another, sent a girl to get it, with directions to the other to draw the priming, which the latter attempted to do, and, as he thought, did. The girl, supposing the priming was drawn, pointed the gun at plaintiff's son, a child, and pulled the trigger. The gun went off and injured the child, and defendant was held liable for the injury. See, also, Ilott v. Wilkes, 3 B. & A. 304; Jordan v. Crump, 8 M. & W. 782; Illedge v. Goodwin, 5 C. & P. 190. In the latter case the defendant's horse and cart were left standing in the street without any one to attend them. A person passing along whipped the horse causing it to back the cart against plaintiff's window. Also, Lynch v. Nurdin, L. R., 1 Q. B. 29; Daniels v. Potter, 4 C. & P. 262; Hughes v. Macfie, 2 H. & C.

Bird v. Holbrook, 4 Bing. 628; Harrison v. Gt. North Ry. Co., 3 H. & C. 231. See, also, Mc Cahill v. Kipp, 2 E. D. Smith, 413; Powell v. Deveny, 3 Cush. 300; Peck v. McNeal, 3 McLean, 22.

The Society of Comparative Legislation at Paris takes advantage of the international exhibition held in that city this year to endeavor, in an informal way, to bring together lawyers from various countries, who may be visiting the exhibition, by throwing open its meetings to all foreign jurists who desire to attend. The society is made up of the leading members of the bench and bar of France, and those interested in international law who attend its meetings are certain to be entertained and instructed. The topics of discussion for these meetings, as announced by the society, are: (1) Bills of exchange; (2) Maritime insurance; (3) What authority should a judgment delivered in one State be allowed in another, and under what conditions; (4) The conditions and effects of extradition; (5) To what extent ought foreigners to be admitted to share in the private law of the State in which they are commorant; (6) In what cases should crimes or delicts which have been committed be cogniza-744; ble by the courts of the State of which the authors are subjects. The rooms of the society are in the "Hotel de la Société d'Encouragement," 44 Rue

de Rennes.


N the case of Clark v. Chambers, 38 L. T. Rep. (N. S.) 454, decided by the Queen's Bench Dion of the English High Court of Justice, on the last, the defendant had placed in a

Maddox v. Lond. Chat. & Dov. Railway Co., 38 L. T. Rep. (N. S.), decided by the Common Pleas Division on the 1st of February, was a case similar to that of Jackson v. Metropolitan Railway Co., 37 L. T. Rep. (N. S.) 679, some months since decided by the House of Lords, and noticed by us on page 21 of the current volume. In the

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