« SebelumnyaLanjutkan »
faitb, the trial court properly held that they were en- which he testifies; but that as respects this matter of titled to recover, in addition to the dawages for the time, it is for the court to receive or reject the proloss of their bargain, the amount expended in making posed impeaching testimony, in the exercise of a sound such improvements. The contract itself provides that discretion. Teese v. Huntingdon, 23 How. 2; Sleeper the plaintiffs should build a house upon the lot within v. Van Middlesworth, 4 Denio, 431; Kelly v. State, 61 three months; and his loss in consequence of such ex- Ala. 19; Rathbun v. Ross, 46 Barb. 127; Suowy. Grace, penditure is the natural and legitimate result of the 29 Ark. 131. There may be cases where it would be unauthorized acts of the defendant. Skaaraas v. Fin- held that the trial court abused its discretion, but we negan. Opinion by Vanderburgh, J.
perceive no occasion for so holding in the present in[Decided May 17, 1884.)
stance. Buse v. Page. Opinion by Berry, J. SALE-WHEN CONDITIONAL AND NOT MORTGAGE
[Decided May 22, 1884.) IMPEACHING WITNESS.-Where A. conveys land to B. by absolute deed, and B. at the same time executes to
NEW JERSEY COURT OF CHANCERY ABA. a bond or agreement conditioned to reconvey the
STRACT.* land to A. upon payment of a certain sum of money at a time specified, the transaction between the parties upon this simple stato of facts purports to be, and
MARRIAGE- SETTLEMENT — POWERS OF TRUSTEE primu facie is, what is called a conditional sale and REVOCATION CLAUSE.
.-Where a marriage sttlement not a mortgage. Except in Pennsylvania, where a authorizes and empowers the trustee to sell and invest somewhat peculiar doctrine appears to prevail, an ex- and re-invest the trust property at the direction of amination of the adjudged cases will generally show the wife, and to pay over the income to her, with a that where a deed absolute and a simultaneous bond provision that if she survives her husband the trustee or agreement for reconveyance have been held to con- is to re-convey the property to her, and it contains no stitute a mortgage, other facts have appeared in addi- revocation clause, she cannot, during her husband's tion to the simple facts of a deed and bond or agree- lifetime, require of the trusstee the payment of the ment. Henley v. Hotaling, 41 Cal. 22; Haynie v. proceeds of the sale of the trust property. Buchanan Robertson, 58 Ala. 37; 1 Jones Mortg., § 260 et seq. v. Paterson. Opinion by Runyon, Chancellor. A mortgage is a security for something to be paid or TRUST-COURT WILL FOLLOW FUNDS.-On October performed; hence facts showing that a deed upon its 26, 1881, one Baldwin, who was one of the executors face absolute is really intended as a security, show it
and the general financial manager and custodian of to be a mortgage. Instances of this are where it ap- the securities of an estate, and also the cashier of a pears that there is a loan of money by the grantee to National bank, purchased four bills of exchange for the grantor, whether evidenced by the grantor's notes $6,535 each, dated October 16, 19 21 and 24, 1881, payaor by other express obligation, or even without any ble in six months, which had been accepted by the personal obligation of payment on the part of the drawees, and were made payable to the drawers and grantor, and the purpose of the transaction embodied indorsed by them. Baldwin, to pay for the bills, drew in the deed and bond or agreement for reconveyance from the bank on his check as executor $25,000 from is the repayment of a sum loaned, with or without in
the deposit of the credit of the estate, and placed in terest. Belote v. Morrison, 8 Mion. 87 (Gil. 62); Hill the box containing the papers of the estate, usually v. Edwards, 11 Minn. 22 (Gil, 5); Holton v. Meighen, kept in the cashier's desk in the bank, the four Crafts, 15 Minn. 69 (Gil. 50); Fisk v. Stewart, 24 Minn. 97 ; with this memorandum attached : “Est. W. James, Benton v. Nicoll, id. 221. And see Flagg v. Mann, 14 loan $25,000, October 26, 1881. C. Nugent & Co.” The Pick. 467; Alstin v. Cundiff, 52 Tex. 453., So also if the proceeds of the drafts were applied to the drawer's indeed was given for purposes of indemnity. Archam- debtedness to the bank. The bank failed on October bau v. Green, 21 Minn. 520. In such cases the bond or 31, 1881, and the defendant was appointed receiver on agreement for reconveyance is considered a defeas
November 2, 1881. He gave to the executors the box ance, so that the transaction Is a mortgage, within the and all its contents, except the four drafts, which he definition given by Chief Justice Shaw in Bayley v. kept, claiming that they were the assets of the bank. Bailey, 5 Gray, 505, as a “conveyance of real estate, or He refused to deliver them on demand, and collected some interest therein, defeasible upon the payment of them at maturity, but kept the proceeds separate. Held, money or the performance of some other condition."
that Baldwin, in the purchase of the drafts, acted as In considering whether a transaction by absolute deed,
the agent of the drawers and as executor and not as and simultaneous bond or agreement for reconvey- cashier, and though the drafts were paid for by law auce, is a mortgage or a conditional sale, the import
with funds which the estate had on deposit in the ant question is, what was the intention of the parties ? bank, and though Baldwin knew at the time that the Did they intend security or sale? This intention is to
bank was insolvent, yet the transaction being a bona be ascertained by looking at the written memorials of fide purchase, and not a plan to secure preference of the trausaction, and its attendant facts and circum
the estate over other depositors, the transaction was stances. Cornell v. Hali, 22 Mich. 377; Aistiv v. Cud- not in violation of section 5242 of the Revised Statutes liff, supra; Smith v. Crosby, 47 Wis. 160; S. C., 2 N.
of the United States, which forbids the transfer of any W. Rep. 104; Henley v. Hotaling, 41 Cal. 22; Edrington bills of exchange, etc., owing to any National bank v. Harper, 3 J. J. Marsh. 353; Hill v. Edwards, supra;
* * * * after the commission of any act of insolvHolton v. Meighen, supra. (2) There are authorities
ency, or in contemplation thereof; and further, that holding that impeaching witnesses must speak from
this court bas jurisdiction to follow the proceeds of the their kuowledge of the reputation, at the time of the
drafts as trust property so long as they are identifiatrial, of the witnesses sought to be impeached. Chance
ble, and to decree their payment to the estate. Tutv. Indianapolis, etc., Co., 32 Ind. 472; Rawles v. State,
tle v. Frelinghuysen. Opinion by Runyon, Chancel56 id. 433; Mitchell v. Com., 78 Ky. 219. But the better lor. doctrine, and that supported by the weight of authority, and in our opinion by considerations of practical
MORTGAGE-PURCHASE-MONEY-SECOND LIEN. – A good sense, is that there is no inflexible rule confining purchase-money mortgage may be made a second lien the reputation (for truth and veracity) which may
by an agreement made after the sale between the venproperly be given in evidence to impeach a witness, to
dor and another mortgagee of the premises, where the his reputation at or very near the time of the trial at
*Appearing in 58 N. J. Eq. Reports.
agreement has been consummated by recording the feated by the death of the child in testator's life-time. other mortgage before the vendor's, and by the ven- In Clayton v. Lowe, 5 B. & Ald. 636, a testator, after dor's knowingly acquiescing therein for several years. bequeathing a specific legacy, devised all and every Mutual Loan, Savings and Building Association v. El other part of his real and personal estate to be equally well. Opinion by Runyon, Chancellor.
divided between his three grandchildren, share and WILI- -LEGACIES - ADEMPTION.- A testator by share alike, forever, and provided that if either of them his will made in 1863 gave to his wife for life the use
should happen to die without child or children lawfully of his homestead farm, together with the furniture, begotten, then such part or share of the one so dying eto., excepting the house then occupied by his son
should be equally divided among the survivors; but if Abraham, with oertain appurtenances. He gave to his any of them should die and leave child or children lawson David the land whereon David then lived, and for fully begotten, such child or children should have their which he had given David a deed in 1858, and also $800 parent's share equally divided amongst them, share which he bad given David in 1863 as David's full share. and share alike. It was held that under that devise the He gave his daughter Dorothy for life, after his wife's grandchildren took an estate in fee simple as tenants death, if Dorothy should survive his wife, the use of
in common. Iu Gee v. Corporation of Manchester, 17 the house, garden, etc., and also $3,000, to be invested by Ad. & E. (N. S.) 737, where a testator devised and behis executors, the interest to be paid to her annually, queathed his real and personal estate to be divided and if insufficient for her support then a specified part equally amongst his children in manner followof the principal yearly, and if Dorothy should die ing viz. : "I will and bequeath to my eldest son “without heirs,” her share was to be equally divided
A. one-seventh share of my property to A.'s heirs, exbetween David and Abraham. He then gave Abra
ecutors and administrators." And in like terms be ham his homestead farm after the death of his (testa- gave a like share to each of his six other children, and tor's wife, excepting Dorothy's right therein. He also added : “And in case any of my sons or daughters die gave to his three grandchildren $1,000 each when they without issue that their share returns to my sons and should arrive at the age of twenty-five years. Testator daughters equally amongst them; and in case any of died in 1881, and his wife predeceased him. He had my sons and daughters die and leaving issue, that they uo real estate other than that devised, and his personal take their deceased parent's share, share and share estate is not sufficient to pay the debts and legacies. alike." All the children survived the testator. It was Held, that the legacies are not charged on the land, and
held that the word “die" in the provision just quoted must abate proportionally, and that testator did not
must be construed to mean death in the testator's lifedie intestate as to the amount of the legacy given to time, and consequently that each of the testator's chilone of the grandchildren, which was adeemed during dren took a fee simple in one-seventh of the real estestator's life-time. Brands v. Hartung. Opinion by tate, and an absolute interest in oue-seventh of the Runyon, Chancellor.
personal. So too in Lifford v. Sparrow, 13 East, 359;
Edwards v. Edwards, 15 Beav. 357; Slaney v. Slaney, BANK- RECEIVER — SET-OFF BY DEPOSITOR.—The 33 id. 631; Home v. Pillaus, 2 Myl. & K. 15; Da Costa capital stock of the bank is the trust fund for the se
v. Keir, 3 Russ. 360; and Ware v. Watson, 7 De G. M. curity and payment of the creditors, and it is the duty & G. 248; and in this State in Pennington v. Van Houand legal obligation of the stockholders to pay it in
ten, Halst. Ch. 272; S. C., on appeal, id. 745; Wilaccording to their agreement, in order that it may be liamson v. Chamberlain, 2 Stockt. 373; Wurts v. Page, applied to the payment of the debts. A stockholder 4 C. E. Gr. 365; and Baldwin v. Taylor, 10 Stew. Eq. is not relieved from that duty and obligation by the 78. In the last named case the provision was as folfact that he is a creditor. To permit him to set-off the lows: “In relation to the several gifts and devises to debt due him would, where the corporation is insol- my children in this, my last will and testament, it is vent, manifestly give him a preference as a creditor.
my will, and I do direct that if any of them shall die To this he is not entitled. It is the right of the other leaving heirs their portion shall go to such heirs; if creditors to have him pay in the money due from him for stock as part of the fund for the payment of the children." It was held that the contingency of death
not it shall be divided equally among my surviving debts. The principle has frequently been enunciated, and is established. Stockton v. Mechanics and Lab. Opinion by Runyon, Chancellor.
was that of death before vesting. Barrell v. Barrell. Sav. Bank, 5 Stew. Eq. 163; Vanatta v. N. J. Mut. L. Ins. Co., 4 id. 15; Sawyer v. Hoag, 17 Wall. 610; Lawrence, Receiver, v. Nelson, 21 N. Y. 158; Wood v. Dum. mer, 3 Mason, 308; Hillier v. Allegheny Ins. Co., 3 MICHIGAN SUPREME COURT ABSTRACT. Penn. St. 470; Grissell's case, L. R. (1 Ch. App.) 528; Black & Co.'s case, L. R. (8 Ch. App.) 254. Williams v.
MASTER AND SERVANT-SCOPE OF EMPLOYMENTTraphagen. Opinion by Runyon, Chaucellor.
PARTNERSHIP-DAMAGES-DOCTOR S BILL.- (1) In an WILL~"DIE LEAVING LAWFUL ISSUE" --CONSTRUC-action against a master for an injury done by his serTION.-A testator gave his residuary estate to his four vant while driving a wagon,evidence that the master's children, George, Mary, Henry and Charles, to be name was upon the wagon used at the time of the acequally divided among them, and “in case of the death cident is admissible to show the relationship of master of any one or more of my children without leaving and servant. (2) Evidence of the continued and notolawful issue, it is my will, and I direct that the share rious habits of a servant in doing bis master's business or shares of the one or more so dying shall go to the tends to show the master's knowledge of the acts and survivor or survivors of my children; but if any of my permission to do them, and is competent to show that children shall die leaving lawful issue living, such issue the servant was acting within the scope of his employto take the share his, her or their parent would have ment. (3) Matters of belief are admissible in evidence taken, share and share alike.” The will was dated to show the existence of a partnership, that question May 10, 1869, and testator died February 11, 1870. At being material. (4) A married woman may recover the his death he had the four children mentioned, and they amount of a doctor's bill and the expenses of her sickare still living. George and Heury have children; ness in an action against a master for an injury done Mary and Charles are unmarried. Held, that the in- by his servant. Schulte v. Holliday. Opinion by tention of the testator was to give each of his children Sherwood, J. an absolute estate in the residue, subject only to be de- [Decided June 11, 1884.)
NEGLIGENCE-SEARCHER OF TITLE-PLEADING-AL- ance thereunder, must be definite and unequivocal, in LEGATIONS OF NEGLIGENCE AND FRAUD.-If one enters order to take the case out of the statute of frauds. into a contract with another to examine the records to Wood v. Farmare, 10 Watts, 195; Christy v. Barnhart, see if title to certain property is free and uuincum- 2 Har. 260; Brawdy v. Brawdy, 7 Barr. 157; see also bered, the law presumes an undertaking on his part Moore v. Small, 7 Har. 461; Postlethwait v. Frease, 7. that he possesses the requisite knowledge and skill, Cas. 472. Lund v. Brown. Opinion by Gordon, J. and that he will use due and ordinary care in the performance of his duty, and if he fail so to do, and such
WILL-CAPACITY-UNDUE INFLUENCE - CONFIDENfailure result in damages to tbe plaintiff, she is enti
TIAL ADVISER - TESTATRIX'S DECLARATIONS. – The tled to recover. Chase v. Heaney, 70 III. 268; Clark v.
fact that a testatrix, a married woman, at and immeMarshall, 34 Mo. 429; Bank v. Ward, 100 U. S. 195;
diately before the signing of her will (which had been Shear. & R. Neg., $ 288; Warvelle, Abst. 7. The use in
previously written), was in a state of intense nervous the complaint of words imputing fraud, in connection
excitement and apprehension of death, caused by her with others imputing negligence, the latter being the
being about to submit to a dangerous surgical operagraramen of the complaint, does not make it essential
tion, and nggravated by a quarrel with a member of for the plaintiff to prove fraud in order to recover. In
her family, is not sufficient to warrant the court in arriving at what the grievance complained of is, and
awarding an issue devisavit vel non, on the allegations the manner in which the wrong was inflicted, the
of testamentary incapacity, and that the testatrix was whole count must be taken and construed together.
unduly influenced by prejudice and passion; especThe facts and circumstances alleged show that there
ially where, as in this case, the testatrix recovered was no intent to do a wrongful act, or to omit the per
from the surgical operation and afterward made no formance of a duty, but the absence of the proper at
change in her will. The fact that by said will the tention, care or skill. It alleges strictly non-feasance
testatrix's confidential legal adviser, who wrote it, was and not a misfeasance, which marks the distinction
made one of the executors thereof (but not a deviseo between negligence and fraud. Gardner v. Heartt, 3
or legatee thereunder), is not sufficient, under the Den. 232, 236. Smith v. Holmes. Opinion by Cham
above stated circumstances, and upon his propoundplin, J.
ing the will for probate after retaining it for four [Decided June 11, 1884.]
years after the testatrix's death, to cast upon him the
burden of proving testamentary capacity and the abREPLEVIN-WHEN DEMAND NECESSARY.
sence of undue influence. Boyd v. Boyd, 16 P. F. moval into shelter of an article apparently abandoned Smith, 283; Cuthbertson's Appeal, 1 Out. 163; Wilson's to the weather, the custody of it for some months, and
Appeal, 3 id. 545, distinguished. The seventh section then the loan of it to another party, does not establish
of the act of April 11, 1848, requiring that a will by a in the party last named such a wrongful possession as married woman shall " be executed in the presence of entitles the rightful owner to sue in replevin without
two witnesses, neither of whom shall be her husband," first making demand. Becker v. Vanderkook. Opin- must be read in connection with the general act of iou by Campbell, J.
1833. The word "executed," in the act of 1848, refers [Decided June 11, 1884.]
to the formality of making a will required by the act of 1833, with the additional requisite that it shall be
done in the presence of the two witnesses. Hence all PENNSYLVANIA SUPREME COURT that is necessary to the execution of a valid married ABSTRACT.
woman's will is that two witnesses, neither of whom
shall be her husband, shall be present when the testaMASTER AND SERVANT-RISKS-DUTY OF MASTER
mentary paper is signed by her, and either see her NEGLIGENCE.-(1) A servant, who voluntarily accepts a
sign it, or receive the acknowledgment of the genuinedangerous employment, assumes all the patent risks
ness of her signature thereto. It is not necessary that incident thereto, and his master is not liable for dam
the subscribing witnesses should be able to testify afages in case of an accident, occurring from such risk, in firmatively that the testatrix knew that the instruthe course of such dangerous employment. (2) It is
ment which she signed was her will, or that she fornot negligence in a master to fail to provide against a
mally published or declared it to be her will in any patent risk unless he has been requested to do so by
other way than by siguing it, and requesting them to his servant, or has induced his servant to believe that
attest her signature. Lenton's Appeal. Opinion by he would do so. (3) Unless there is evidence of a re.
Sterrett, J. quest by a servant to provide against a patent risk, the
[Decided Jan. 7, 1884.] jury cannot consider the question whether it was the
PARTNERSHIP-WHEN PROPERTY OF IS PERSONAL ESduty of his master to remedy it or not. (4) A master
TATE-STIPULATIONS AS TO DISSOLUTION.- The curis not liable for injuries to his servants, if they have
rent profits of a partnership business are personal been guilty of contributory negligence. Marsden v.
property and descend as such, whether the property of Haigh. Opinion per Curiam.
the firm be real or personal. During the continuance [Decided Feb. 25, 1884.]
of a partnership agreement all the property of the ADVERSE POSSESSION-PAYMENT OF TAXES-STAT- firm, including real estate acquired with partnership UTE OF FRAUDS-PAROL CONTRACT AS TO LANÓ. funds and used for partnership purposes, must be re
An entry upon laud is not adverse which garded as personal estate. Stipulations in articles of is made under a license to lay water pipes to copartnership for the continuance of the partnership springs thereon, and to change the effect of this entry after the death of a member are valid and binding, and make the holding adverse it is not enough to drive and prevent a dissolution. Under such stipulations, stakes around the springs to keep cattle off, but the the interest of a deceased partner, and the profits aristenant must keep up the fences and prevent the land ing therefrom, are personal property, and descend as from being turned into common. Stephens v. Leach, such under the intestate laws. The decision in Fos7 Har. 262. Payment of taxes assessed upon real es- ter's Appeal, 2A P. F. Smith, 391, much relied upon for tate without the requisite possession cannot make the appellants, is predicated of a dissolved firm with all title under the statute. Sorber v. Willing, 10 Watts, its debts paid and a residuum of unconverted land re141. Where title is claimed under a parol contract of maining in specie for mere purposes of distribution. sale, the evidence of such contract, and of perform- | But there are no such facts here. It cannot now be known that the real estate will not be required for the compelled discovery and performance of the promise, payment of debts. The firm still continues its busi. treating it as a trust binding the conscience of the doness under a lawful agreement to that effect. When- nee, on the ground that otherwise a fraud would be ever a dissolution shall be established and a final set- committed ; because it is to be presumed that if it bad tlement of accounts shall take place, the positions con- not beeu for such promise the testator would not have 'tended for, and the reasoning by which they are en- made or would have revoked the gift. The princiforced, will become entirely applicable, and will ex- ple of these decisions is precisely the same as in the ercise a very potent and porsibly a controlling influ- case of an beir who has induced a testator not to make ence upon the questions which will then arise between a will devising the estate away from him by a promise the present litigants or those who may succeed them. that if the estate were allowed to descend he would But upon the present state of the record, we think the make a certain provision out of it for a named person. appellee is clearly entitled to the dividend in question, Stickland V. Aldridge, 9 Ves. 516; Wallgrave v. as the successor to his deceased wife's title. Leaf's Tebbs; and McCormick v. Grogan. But no case has Appeal. Opinion by Green, J.
ever yet decided that a testator can, by imposing a [Decided April 28, 1884.]
trust upon his devisee or legatee, the objects of which he does not communicate to him, enable himself to
evade the statute of wills by declaring those objects in RECENT ENGLISH DECISIONS.
an unattested paper found after his death. The esCORPORATION-SECRETARY -- FORGED
sence of all those decisions is that the devisee or legaCERTIFICATE
tee accepts a particular trust, which thereupon beOF STOCK-ESTOPPEL- LIABLE TO TRANSFEREE.-The plaintiff, having purchased for value shares in the de
comes binding upon him, and which it would be a
fraud in him not to carry into effect. If the trust was fendant's company, discovered, upon application for registration, that his vendor's name was not registered
not declared when the will was made, in order to make
it binding, it is essential that it should be communifor the shares, and his transfer and certificate had
cated to the devisee or legatee in the testator's lifeboth been forged by the company's secretary. It was
time, and that he should accept that particular trust. part of the secretary's duty to receive and examine transfers and certificates, to have trans
It may possibly be that he would be bound if the trust fers registered, to procure the preparation, exe
had been put in writing, and placed in his hands in &
sealed envelope, and he had engaged that he would cution and siguature of certificates with all requisite and prescribed formalities, and thereupon to issue
hold the property given to him by the will upon the
trusts so declared, although he did not know the actthem to the persons entitled to receive them. One of
ual terms of the trust. McCormick v. Grogay. But the prescribed formalities was the signature of a direc
the reason is that it must be assumed that if he had tor as well as tbat of the secretary. Held, that the
not so accepted the will would be revoked-suppose the company had authorized their secretary to warrant
case of an engagement to hold the property, not upon the genuineness of certificates, and were estopped from
the terms of any paper communicated to the legatee, disputing their liability upon a certificate issued by
or put into his hands, but of any paper that might be him, notwithstanding his forgery of the document. Q. B. Div. May 19, 1884. Shaw v. Port Philip Co.,
found after the testator's death. The evidence in this
case does not amount to that, but if it did, the rule of Limited. Opinions by Stephen and Matthews, JJ. (50 L. T. Rep. [N. S.] 685.)
law would intervene, which prevents a testator from
decluring trusts in such a manner by a paper which WILL-UNEXPRESSED TRUST-LETTER FOUND AFTER was not executed as a will or codicil. The legatee TESTATOR'S DEATH.-If a trust of property given by a might be a trustee, but the trust declared by such an will is not declared when the will is made, in order to unattested paper would not be good. For this pur. make it binding it is necessary that it should be com- pose there is no difference whether the devisee or legamunicated to the devisee or legatee in the testator's tee is declared to be a trustee on the face of the will, life-time, and that he should accept that particular or by an engagement with the testator not appearing trust, or possibly it might be sufficient that the trust
on the will; the devisee or legatee cannot, by acceptshould be put in writing, and placed in his hands in a
ing an indefinite trust, enable the testator to make an sealed packet, and that he should undertake to hold
unattested codicil. I cannot help regretting that the the property upon the trusts so declared, though he
testator's intention of bounty should fail by reason of did not know what they were. A testator cannot, by an informality of this kind; but in my opinion it imposing an indefinite trust upon a devisee or legatee, would be a serious innovation upon the law relating to the objects of which he does not communicate to him, testamentary instruments if this were to be estabmake a valid declaration of trust of the property given lished as a trust in the favor of Mrs. Brown. The deby a letter, not executed as a testamentary instrument, fendant however having admitted that he is only a found amongst his papers after his death, and not
trustee, I must hold, on the authority of Mucklestone placed by him in the hands of the devisee or legatee. v. Brown, 6 Ves. 52; Briggs v. Penny, and Johnson v. In such a case the deviseo or legates, admitting him- Ball, that he is a trustee of this property for the next self to be a trustee, will be held to be a trustee for the
of kin of the testator. Chy. Div. March 29, 1884. testator's next of kin. Kay, J., said: “If it had been
Matter of Boyes. (50 L. T. Rop. [N. 8.] 582.) expressed on the face of the will that the defendant was a trustee, but the trusts were not thereby declared, it is quite clear that no trusts afterward de
CORRESPONDENCE. clared by a paper, not executed as a will, could be binding. Johnson v. Ball; Briggs v. Penny, 3 Mao. &
MR. BACON SAYS HE IS NOT CATO. G. 546; Singleton v. Tomlinson, 38 L. T. Rep. (N. S.) Editor of the Albany Law Journal : 653; 3 App. Cas. 404. In such a case the legatee would Do not imagine that I undervalue the honor of being be trustee for the next of kin. There is another well- | mentioned in your pages. Even to be evil spoken of known class of cases where no trust appears on the by you is not witavut advantage, for you will surely face of the will, but the testator bas been induced to speak of me again when you are called upon to set mo make the will, or having made it, has been induced right. not to revoke it by a promise on the part of the devi. Permit me then to say that I have not, as you imply, see or legatee to deal with the property, or some part arrogated to myself the functions of a permanent cenof it, in a special manner. In these cases the court has sor of my fellow lawyers' morals. Under invitation
from the Americau Social Science Association, I read discrimination to classify and arrange it properly. The to that body, more than two years ago, a short paper volumes are fairly printed. upon the ethics of our profession. It was printed in the transactions of the association, and you com
CHURCH ON HABEAS CORPUS. mented upon it no doubt more favorably than it deserved. 27 Alb. L. J. 361. But it seems to have im
A Treatise on the Writ of Habeas Corpus, including jurisdicpressed your soul no more profoundly than is usual
tion, false imprisonment, writ of error, extradition, man
damus, certiorari, judgments, etc., with practice and with sermons; for when the Century, to no one's as
forms. By William S. Church, San Francisco, A. L. tonishment more than mine, exhumed it from the
Bancroft & Co., 1884. Pp. Ix, 702. sepulchre of oblivion, you forgot that you had ever heard of it before, and deduced from the Centuriau's
This seems to be a judicious treatise on a subject abstract certain inferences as to my opinions which I fully deserving special treatment. The subordinate think the paper hardly warrants. Accept the new
subjects specified on the title page are of course only copy I send herewith; and when, after another two subordinately treated. But on the principal topic the years, you are ready to review it again, please read
practitioner will find all the law, very well arranged first. You will theu discover that I have not said
and expressed, with references to all the decisions of what you sadly judged I must have said.
importance. The recent case of Farmer v. Lewis, in Yours with sincere respect,
Indiana, was probably too recent to be inoluded, and THEODORE BACON.
80 of the decision of the Federal Supreme Court, in the ROCHESTER, N. Y., November 1, 1884.
Robb case, which is adverse to the author's opinion expressed on page 625. The book is well printed, and is
likely to prove an important addition to every practicNEW BOOKS AND NEW EDITIONS.
ing lawyer's library.
HAMILTON ON FRACTURES.
TAYLOR ON CORPORATIONS. A Practical Treatise on Fractures and Dislocations. By A Treatise on the Law of Private Corporations having capital
Frank Hastings Hamilton. Seventh American edition, re- stock By Henry 0. Taylor. Philadelphia, Kay & Bro., vised and improved. Illustrated with 379 wood cuts. 1884. Pp. vii, 714. Philadelphia, Henry C. Lea's Son & Co., 1884.
We have delayed speaking of this book in order to This work, for so many years' recognized as the have an opportunity of giving it the careful examinastandard, and carefully revised and enlarged by its tion wbich the importance of the subject warrants,and author, who stands in the foremost rank of his profes- now we shall be forced to content ourselves with a sion, will recommend itself to all medical meu, and to mere notice when a review would be well deserved, all lawyers needing information on this subject. The especially in cousideration of the fact that the subject publisher's part has been well done.
has recently been treated by Mr. Morawetz in an ex
cellent manner. The present treatise is remarkably DESTY ON TAXATION.
compact and logically constructed, although in these The American Law of Taxation, as determined in the
points we do not think it superior to Mr. Morawetz.' courts of last resort in the United States. By Robert L.
Its superiority, if any, is in the fact of its more numDesty. St. Paul, West Publishing Co., 1884. 2 vols.
erous citations, including some of importance which lvii, 610, Ixxvi, 611-1477.
Mr.Morawetz missed. It can be recommended as a use
ful manual. This is an exhaustive and well arranged work by an
The publisher's work has been handeditor of practical views and experience. Mr. Desty
somely done. will hardly expect his work to supplant or even rival Judge Cooley's as an authority, but it will prove of
HOWELL'S MICHIGAN NISI PRIUS CASES. practical use, and has some advantages over its cele- Michigan Nisi Prius Cases, decided by the State and Federal brated predecessor. The arrangement is in one re- courts in Michigan. To which are added brief biographispect novel and commendable. Each section has its cal sketches of the judges of Michigan, past and present, authorities appended to it in the body of the page, so
law anecdotes and reminiscences. Also law miscellathat they do not in any instance form a feuilleton run- nies. Edited and compiled by Charles B. Howell. Dening along the bottom of several pages. The indexes,
troit, Richmond, Backus & Co., 1884. Pp. xxv, 384. which are copious, are separately paged in each volume,
The author says in his preface, “For lack of space I but we do not perceive any advantage in that. The
have left out of the book at least double the amount of text is classified in the form of italicised propositions,
matter found in the book.” His main error was concise and clear, and the commentary is in larger type in not leaving out half as much more. The book is utunder each proposition. We regard this as the model terly worthless, made up of memorandums of useless way of writing a law book, and on the whole we think cases, reports of “highfalutin" arguments, meager biMr. Desty has produced an admirable work. It is wellographies, and stupid anecdotes, couched in a ridiouprinted.
lous style. We are glad we do not live among lawyers
such as one described, who was apt, “like an anRORER ON RAILWAYS.
gry lion, to lacerate bimself and his auditors by his A Treatise on the Law of Railways. By David Rorer. Cal.
own violence of language. It is no pleasure to us to laghan & Co., Chicago, 1884. 2 vols. cxix, 739-1618.
be called on to notice such books as this, and we someThe death of the author of this work is to be regret
times say nothing rather than condemn, but if we do ted, especially because we believe he could and would
speak we will tell the truth, although Mr. Bishop have improved it if he had lived. As it stands it is
thinks that is what no editor can do. We had omitted not well classified or arranged, and its style is very
to say that the book is coarsely printed and abominabad. “Onto" is more than we can bear. And yet,
bly padded. as the school boy wrote about the horse, the work is “very full of use," and as the student said of Chitty
PREBLE'S PATENT CASE INDEX. on Pleading, “there is a great deal of close law in it.” Patent Case Index, containing lists of all the cases involving The treatment of the topics is tolerably good. It is vex. Patents for Inventions as reported in the United States atious however to see that an author of industry enough Supreme and Circuit Court Reports, Robb & Fisher's Patto collect all the law on a topic, has not enough ent Cases, the Federal Reporter, and the Patent Ofice Ga.