equities existing between the maker and payee which inhere in or grow out of the note. Now, do the same equities exist in favor of the true owner? that is, can he recover it from the holder as he could a horse or other personal property? In 1 Daniel, Neg. Inst., § 782, it is said that "in the fourth place the holder, in order to acquire a better right and title to the paper. than his transferrer, must become possessed of it before it is due. ** * And if it were not paid at maturity it is then considered as dishonored, and although still transferable in like manner and form as before, yet the fact of its dishonor, which is apparent from its face, is equivalent to notice to the holder, and he takes it subject to its infirmities, and can acquire no better title than his transferrer." The late case of Greenwell v. Haydon, 78 Ky. 333, is like the case at bar, and it was there held that the holder did not acquire title to the note as against the owner. The opinion is well considered, and the authorities cited commented on and explained. To the same effect are the cases of Texas v. White, 7 Wall. 700; Vermilye v. Adams Express Co., 21 id. 138; and Hinckley v. Union Pacific R., 129 Mass. 52. In the last case, it is said, "It is an elementary principle of commercial law that negotiable paper overdue carries with it on its very face notice of defective title sufficient to put the transferee on inquiry. In Earhart v. Gant, 32 Iowa 481, it was held that an assignment of a note by the sheriff, under the statute, has the same effect as if made by the payee, and the holder acquires the same rights as if the note had been indorsed and transferred to him, in due course of business, in accordance with the law merchant. The note in that case, as we understand, was transferred before maturity, and it was held the plaintiff was entitled to recover unless the defendant established that the plaintiff had notice of the defense pleaded of mistake and fraud. In the subsequent case of McCormick v. Williams, 54 Iowa, 50; S. C., 6 N. W. Rep. 138, the note was transferred by the officer after maturity, and it was held that his transferee acquired no title or interest in the note. The authorities cited establish, we think, that a person who acquires a promissory note after maturity acquires no better right or title than the party had from whom he obtained it. And on principle we think this must be so. The purchase of paper by the indorsee must be in the usual course of business. By this is meant according to the customs and usages of commercial transactions. If the paper is purchased before maturity it is such a transaction. Kellogg v. Curtis, 69 Me. 212. If paper is purchased after maturity it is not in accordance with commercial transactions. It is dishonored and regarded with suspicion; and if the maker can avail himself of equities and defenses he could not have done if the paper had been acquired before maturity, we are unable to see why the owner may not do so; that is, he may pursue it and recover it from any one in the same manner and to the same extent as he can other personal property. Sup. Ct. of Iowa, June 6, 1884. Wood v. McKean. Seevers, J. (19 N. W. Rep.) THE Opinion by COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, Oct. 28, 1884: Judgment reversed, new trial granted, costs to abide the event-John J. Landers, respondent, v. Frank Street Methodist Church, appellant; John Cassidy and another, respondents, v. Bolton Hall and others, appellants. Judgment affirmed-The People, respondents, v. Elsie Ryland, appellant.-Order of General Term reversed; that of Special Term affirmed, with costs-First National Bank of Oswego, appellant, v. John Dunn and another, respondents; Second National Bank of Oswego, respondent, v. John Dunn, appellant.-Judgment affirmed, with costs-Peter D. Platz, respondent, v. City of Cohoes, appellant; Hugh Dillon, appellant, v. Sixth Avenue Railroad Company, respondent; William Green, appellaut, v. John Banta, impleaded with Edward Clark, respondent.—Motion to open default granted on payment of $20-Samuel F. Edwards, appellant, v. New York and Harlam Railroad Company, respondent.-Motion to open default granted, without costs to either party; printed cases to be served within five days after entry of this order-George Jackson and another, respondents, v. Horace D. Tupper and another, appellants.—Motion to correct remittitur denied without costs-Herman Veeder v. Norman H. Galusha and others. -Motion to amend return granted without costs-Patrick H. Whelan, respondent, v. Ansonia Clock Company, appellant.-Motion denied without prejudice to application for additional time upon the argument on appeal from the order-In re Application of Union Ferry Company of Brooklyn, to acquire title. NOTES. A LEGAL LAMENT. Ye litigants of Ireland Who doze at home in ease, Ah, little do you think upon The smallness of the fees Which, after all our wit and wile, Our dash and splash and "go," We take from the cake Where the legal currants show, While the mighty judge bethunders "fudge," And the grand old bigwigs blow. Ye litigants of Ireland! Oh, did you know what lies We're apt to tell on your behalf. You could not then despise From the talons of the foe Ye litigants of Ireland, We make no false pretence. When we're named and defamed, And then-why then, cut and run. -By the late John Rea, from the Irish Law Times. The American Law Review for September-October contains the following leading articles: Corporate Taxation, by Edward C. Moore, Jr.: Sunday and Sunday Laws, by J. G. Woerner; Law Reforms in Germany, by C. W. Ernst; Suing the State, by George M. Davie; Are Persons Born within the United States ipso facto Citizens thereof, by George D. Collins.It seems to us that our digest-makers do not put half enough law under the head of "Poor Law." The Albany Law Journal. A ALBANY, NOVEMBER 8, 1884. CURRENT TOPICS. N interesting question of constitutional construction is under discussion in this State. Our constitution retires judges at the age of seventy, but provides that "the compensation of every judge of the Court of Appeals, and of every justice of the Supreme Court, whose term of office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected." Being asked his opinion by the comptroller, Attorney-General O'Brien expresses the opinion that the service of ten years must have been wholly in the term abridged, and that the pension can in no case extend beyond four years. He says: "The reference throughout this entire provision is evidently to the single official term which is shortened by the limitation of age, and the ten years or more of judicial service, required in order to entitle the retiring judge to claim compensation for the remainder of his term, cannot be made up by resort to previous official terms during which he may have served. There is nothing in this section of the constitution to indicate that either the legisla tors who proposed it or the people who adopted it had in mind cases where ten years or more of service might occur through the re-election of the incumbent. The word 'term' is used both at the beginning and the close of the sentence, and references in each case is made to the term abridged.' And when it declares that the compensation of the judge shall continue during the 'remainder of the term for which he was elected,' the natural and obvious meaning of the word 'remainder,' is what is left of the term after deducting therefrom the ten years or more of service. *** Any other construction would lead to results clearly not contemplated by the people when they adopted this provision. If the applicant for constitutional bounty under it is permitted to avail himself of years of service during previous terms, there is no limit to the time when such service shall have been rendered. If at any period during his lifetime, no matter how remote, he may have served as judge a number of years sufficient, with the fragment of the term of service abridged by the constitution, to make up ten years, he would be entitled to full compensation for the remainder of the term for which he was elected, which might in some cases still have thirteen years to run. An interpretation yielding such unreasonable and illogical results ought not to be adopted unless imperatively required by the plainest language in the constitutional enactment." 6 that if any judge shall have served ten years at any time he is entitled to the retiring pension on the abridgment of his final term. The pension is a reward for judicial service, no matter when rendered, and if the people do not want to bestow it, the remedy is easy- they need not elect a judge who cannot serve out his term. The attorney-general's construction might operate very unequally, for a judge who had served only ten years might get the pension, and a judge who had served much longer might not get it. We have never seen the subject of the overcrowded state of the legal profession so sensibly commented on as in the following from the Philadelphia Times, under the heading "Too Many Lawyers: "Out of the fifteen hundred lawyers in this city it is perfectly safe to say that not more than five clear $30,000 and upward a year, not more than thirty $10,000 and upward, not more than one hundred $5,000 and upward, and that more than one thousand of the whole number do not average $500 a year each from legitimate fees. When it is remembered that the majority of the latter class do not earn even that small amount, that all of them must defray office expenses, that many of them have no other means of subsistence, and that some of them must unavoidably be forced by extreme necessity to steal or starve, it is not to be wondered at that clients are so frequently found complaining of extortion, or that the pitiful spectacle is occasionally seen of a lawyer sitting with bowed head, hopelessly dishonored, inside the criminal dock. The wonder is that so few unsuccessful lawyers, admonished by these examples, and by years of personal experience, amounting almost to practical starvation, ever seem to think of leaving the bar for some equally honorable pursuit, in which at least a decent living can be honestly and easily earned. But the greatest wonder is that when the universal voice of the profession bears testimony to the extreme difficulty of earning even a bare livelihood by the practice of the law, lawyers will go on multiplying in numbers as though the bar, like an omnibus, can never be so crowded as not to afford a precarious standing room for one more innocent. When any good printer on the Times can earn $1,000 a year by eight hours daily labor; when any competent and industrious carpenter or brick-layer or machinist can easily earn a larger income than is earned by one-half of those already at the bar, it is high time for young men who contemplate studying law to halt and consider well before attempting to elbow a way into the ranks of an already greatly overcrowded profession, in which so few fortunate ones can ever earn more than a decent living, after possibly a quarter of a century of incalculable toil and hardships, and in which, for the great majority, there is only the certainty of disappointed ambition and semi-respectable penury." But the trouble is that so-called "labor" We cannot agree with the attorney-general. We is not deemed respectable by the crowd of young think the Constitution means just what it says, and men pushing into the legal profession. Why do VOL. 30- No. 19. not more of them go into the clerical profession? It is not nearly so crowded as ours, and indeed we hear constant complaint of a scarcity of ministers. We fear it is the chimerical idea of making money, or the unworthy idea of getting political preferment that determines so many toward the bar. We have lately learned that a revolver may be a necessary for an infant, and now we are informed that a bicycle may be. Such was the finding of the jury in St. George's Foundry Co. v. Duncan, the defendant being a professional bicyclist. This is much like holding a race horse a necessary for an infant horse-racer. But we have always supposed that stock in trade was not embraced in the description of necessaries. We have received a very handsome pamphlet, containing the "Constitution, By-laws and Proceedings of the Grafton and Coos County Bar Association, at its annual meetings held at Lancaster, December 29, 1882, and January 28, 1884." This comes from New Hampshire. It contains several interesting papers and addresses, some poetry, and some very irreverent criticism of the 58th New Hampshire - not altogether undeserved, we should say. It will be seen from Mr. Theodore Bacon's letter in another column that he disclaims the implication of the Century that he had delivered a recent dis course on "Lawyers' Morals." We had not forgotten that he had once read a paper on that subject before the Social Science Association, and one before our State Bar Association, and we supposed that be had been reading another quite recently, and that was the reason why we spoke of him as having apparently taken the morals of lawyers in charge. Certainly we have never spoken evil of Mr. Bacon, and certainly we did read his paper two years ago, but we shall read it again with respect and pleasure, for he is a man always to be listened to with respect and pleasure, if not always with agreement. A NOTES OF CASES. PRACTICE question of a good deal of interest to the profession was decided by Judge Westbrook at Special Term in September, in Bord v. New York Cent., etc., R. Co. The plaintiff had a verdict of $2,000 for the death of his son. The plaintiff moved for an extra allowance under section 3253, and asked that it be computed upon the sum awarded by the jury, with the interest thereon added from the date of the decedent's death (January 19, 1877), which interest the clerk is required by section 1904 to "add to the sum awarded" by the jury, "and include it in the judgment." The court said: "The question which this motion presents therefore is upon what shall the al lowance be computed, upon the amount of the verdict only, or upon such amount with interest added from the date of the death? The language of the section (3253) giving the allowance, and which is applicable to this case, requires it to be computed ' upon the sum recovered.' The claim of the plaintiff was that the sum recovered' is the amount of the damages which he recovers by the action; while the claim of the defendant is that the expression only refers to the amount awarded by the verdict. The point involved has not been directly decided to my knowledge, and must therefore be treated as an original question. In an action of this character when the plaintiff recovers, the jury, the court, or the referee, to whom the question is submitted, may award 'such a sum not exceeding $5,000,' as they or he deem or 'deems to be a fair resulting from the decedent's death, to the person and just compensation for the pecuniary injuries or persons for whose benefit the action is brought.' The same section of the Code (1904), from which the quotation has just been made, further provides: 'When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded interest it in the judgment. The inquisition, verdict, rethereupon from the decedent's death, and include port or decision may specify the day from which the interest is to be computed; if it omits so to do, the day may be determined by the clerk upon affito it seems reasonably clear that 'the sum recovdavits.' From the section of the Code just referred verdict, which represented the judgment of the ered' in this action is not only the amount of the jury as to what would be a fair and just compenresulting from the decedent's death,' but also the sation for the pecuniary injuries' to the plaintiff interest upon such amount from the date of the death. That such interest is required by express statutory enactment to be added does not make such addition any thing other or different than a thorized the jury to make the interest a part of the part of the sum recovered.' If the Code had auverdict, and that in fact had been done, the point that the allowance should be confined to the jury's estimate of the 'pecuniary injuries' resulting from the death would not probably have been made. That the Code has by plain words made the interest a part of the sum recovered,' and has not left its allowance or non-allowance to the discretion of the jury, cannot alter or change the words of section 3253. That section does not provide that the allowance shall be based upon the amount of a verdict, a decision of a court, or the report of a referee, but 'upon the sum recovered.' In other words the allowance shall be made upon the damages which are awarded to the party by the action. These damages may be such only as a jury, a court or a referee may compute, or may be given solely by statute, or may depend, as in this case, partly on both; but whether given in either of the ways mentioned, so long as they represent 'the sum re covered,' that sum, and no other, is the one upon assignor and the assignee only, and the transfer or which the allowance is to be computed." renewal to a third person of a policy, is illustrated in the case of fire insurance. That is strictly a he or his assignors in his name can recover only an personal contract of indemnity to the assured, and indemnity for actual loss to him. It follows that the benefit of an unexpired term, it must be by a where a purchaser of insured property would have new contract with the insurer. The value and permanency of the interest is material only as bearing on the question of whether the policy is taken out in good faith, and not as a gambling transaction. If valid in its inception it will not be avoided by a cessation of the interest. The mere fact that the avoid or annul the policy. The second ruling was correct, and the fact that the assignee had no insurable interest in the life does not avoid the assignment. It is one circumstance to be regarded in determining the character of the transaction, but is not conclusive of its illegality." In Atchison, etc., R. Co. v. Thul, 32 Kans. 255, it was held that it is error to charge that expert testi In Mutual Life Ins. Co. of New York v. Allen, Massachusetts Supreme Court, October, 1884, Boston Law Record, October 28, it was held that a wife, for whom her husband has insured his life, may make a valid assignment of the policy to a creditor of the husband, who accepted the assignment in satisfaction, and had no insurable interest in the life of the insured. The court said: "The defendant Allen had no insurable interest in the life of Mr. Fellows, except as his creditor, and that interest ceased when he ceased to be a creditor byssured himself has no interest in the life does not accepting the assignment in satisfaction of his debt, so that he is in the position of a bona fide assignee of the policy for a valuable consideration without interest in the life insured, and the question is between him and the assignor, which has the equitable interest in the policy? The policy is a common form of what is called life insurance, and is a contract by which the insurer, in consideration of an annual payment to be made by the assured, promises to pay to her a certain sum on the death of the person whose life is insured. To pre-mony "should be received and weighed with cauvent this from being void as a mere wager upon the continuance of a life in which the parties have no interest, except that created by the wager itself, it is necessary that the assured should have some pecuniary interest in the life insured. It is not a contract of indemnity for actual loss, but a promise to pay a certain sum on the happening of a future event from which loss or detriment may ensue, and if made in good faith for the purpose of providing against a possible loss, and not as a cloak for a wager, is sustained by any interest existing at the time the contract is made. 15 Gray, 249. Mrs. Fellows had an insurable interest in the life of her husband, and the policy was a valid contract to pay the sum insured to her upon the event of his death. 6 Cush. 282. This contract was a chose in action assignable by her. The policy was not negotiable, and her assignment could not in this State pass the legal but only the equitable interest in the contract. The assignment was a contract between her and her assignee, to which the insurer was not a party. It purported to give to the assignee only the equitable interest of the assignor in that contract, the right to recover in the name of the assignor the sum which should become due to her under it. The direction in the policy, that notice of an assignment of it should be given to the insurers, had no effect upon the character of the assignment, however its operation might have been limited had notice not been given. The assent of the insurer to the assignment would not make a new contract of insurance. The only effect would be to enable the assignee to enforce in his own name, instead of the name of the assignor, the rights she had under the contract. This distinction between the assignment of the interest of the insured in a policy which is a contract between the tion." The court said, by Valentine, J.: "We * * language first quoted from Mr. Roger's work on Expert Testimony is correct. The opinions of eminent and learned physicians and surgeons and oculists are entitled to great consideration, at least where they have made a personal examination of the subject, as in the present case. While many courts speak disparagingly of some kinds of expert testimony - that with regard to handwriting, for instance-yet we think that all courts hold that the testimony of competent medical experts is entitled to great respect and consideration. Pannell v. Commonwealth, 86 Penn. St. 260; Eggers v. Eggers, 57 Ind. 461; Cuneo v. Bessoni, 63 id. 524; Jarrett v. Jarrett, 11 W. Va. 584, 626; Thomas v. State, 40 Tex. 65; Pitts v. State, 43 Miss. 472, 480; Templeton v. People, 10 Hun, 357; Choice v. State, 31 Ga. 424, 481; Flynt v. Bodenhamer, 80 N. C. 205; Getchell v. Hill, 21 Minn. 471; Wood v. Barker, 49 Mich. 295, 298; Rogers on Expert Testimony, 268, 269. * * * In the present case we think the expert testimony of the physicians and surgeons who were in fact appointed by the court, and who made a personal and professional examination of the plaintiff's eyes, is entitled to great consideration, and that the court below erred when it instructed the jury that such testimony should be received and weighed with caution.'” Contracts for speculations in stocks upon margins, when the broker and the customer do not contemplate or intend that the stock purchased or sold shall become or be treated as the stock of the customer, but the real transaction is a mere dealing in the differences between prices-that is, in the payment of future profits or losses, as the event may be, are contracts of wager, dependent on a chance or casualty. Such contracts, if made in this State, are unlawful, and securities given therefor are void by force of the provisions of "the act to prevent gaming." Rev., p. 458. Such contracts, though made in another State, where they are to be presumed to be lawful and enforceable, will not be enforced here-at least against residents and citizens of this State-because their enforcement would violate the plain public policy of this State on the subject of gambling and betting evinced by the statute above mentioned. In this respect such contracts are excepted from the rule of comity which requires the enforcement by the courts of one State of contracts made in another, if valid by the lex loci contractus. ON appeal from a decree of the chancellor, whose opinion is reported in Baldwin v. Flagg, 36 N. J. Eq. 48. Opinion states the case. A. Q. Keasbey, for appellants. MAGIE, J. The bill in this case was filed for the foreclosure of a mortgage made by Jennie M. Flagg and William L. Flagg, her husband (who are the appellants), to Abram F. Baldwin (who is the respondent) upon lands in this State, to secure the payment *S. C., 38 N. J. Eq. 219. of appellant's bond. The bond and mortgage were dated August 26, 1880. The bond was in the ordinary form of a money obligation, and was conditioned for the payment to respondent of $11,563.44, with interest, on demand. The mortgage recited that it was intended to secure the money which appellants had so bound themselves to pay, and that the amount of $11,563.44 was made up of $7,563.44, which was therein declared to be due from appellants to respondent, and of $4,000 to be security for future advances. From the proofs it appears that the sum of $7,563.44, so admitted to be due from appellants to respondent, was made up of different sums. One sum represented the loss which had been incurred by Mr. Flagg in a stock speculation which had been carried on by him and one Ripley with respondent, a stock broker in New York. Another sum represented losses incurred by Mr. Flagg in a like speculation carried on by him and respondent in joint account. Another sum represented losses incurred in a like speculation originally carried on by Mr. Flagg with respondent, and afterward transferred to and carried on by Mrs. Flagg, under the control and management of her husband, with respondent. The losses thus incurred were the result of stock dealings for these respective parties upon a margin sometimes put up in cash, and in Mrs. Flagg's case in her own note, which represented her margin. The $4,000 of future advances were designed and intended as a margin for a continuance of the stock speculation of Mrs. Flagg to be carried on in her name under the management of her husband with respondent, and the advances contemplated by both parties were such as would cover and make good their losses therein, if any. Respondent's books show that the bond and mortgage were credited to Mrs. Flagg's account for the sum of $11,563.44, and that account had been charged with the previous losses. It appears further that the speculative stocks carried in that account have all been closed out with the result of leaving a balance in Mrs. Flagg's favor of $653.93. Since the mortgage entered into the account, the effect is that there is due thereon the sum of $10,909.51, with interest, and its foreclosure and the sale of the mortgaged premises must be conceded unless some of the defenses are sustained. The main defense goes to the validity of the bond and mortgage, and contests them on the ground that the contracts out of which they arose were wagering contracts, and illegal and void, and that the bond and mortgage securing an indebtedness arising solely from such cause are tainted with the same illegality, and cannot be enforced. In coming to the consideration of the question thus raised, it is obvious that it is important to determine at what place the contracts contested were made. For if they are New Jersey contracts, and subject to our law, the sole question is whether they are such contracts as are declared unlawful by the "act to prevent gaming." Rev., p. 458. While if they are contracts of another place it must be preliminarily determined whether they are objectionable by the law of the place of contract; or if not, whether they will still be enforced by our courts. The evidence seems to leave no room for doubt that the contracts in question are contracts made and to be performed in the State of New York. The transactions anterior to the execution of the bond and mortgage took place wholly within that State. By the bond and mortgage the parties averred they resided in that State. The mortgagee did in fact reside there. The mortgage was acknowledged there. Delivery of the papers was made, and the remaining transactions took place there. Although the mortgage affected lauds in this State, the above stated facts establish, according |