circumstance may affect the quartum of damages. Sup. Ct. of Appeals, Virginia, Nov., 1877. Matthews v. Warner's Administrator, Va. L. J. Mistake of fact: cutting and carrying away timber from another's lands: trespasser not entitled to compensation for work done.- Plaintiff by mistake trespassed upon defendant's land, cut wood and piled it by the lake. The wood uncut was worth $1 per cord, when cut and piled $2.87 per cord. Held, that the disparity between the value of the wood uncut and cut and piled was not so great as to entitle plaintiff to compensation for cutting, if defendant should claim and take the wood. Sup. Ct., Michigan, October, 1877. Isle Royal Mining Co. v. Hertin. Municipal corporation: defective sidewalk constructed by land-owner.-Where the duty of putting down and keeping a sidewalk rests not on a city, but ou the owner of adjoining premises, and the owner, without any action on the part of the city, puts down a sidewalk which becomes defective, held, that the city is not liable for personal injury resulting from such defect. Sup. Ct., Michigan, October, 1877. City of Marquette v, Cleary. Statute of frauds: promise to indemnify sheriff.-A promise made by an attorney for himself and his clients to indemnify a deputy sheriff for making a levy and sale of property under execution is not within the statute of frauds and need not be in writing. Ct. Appeals, Texas, Jan. 12, 1878. Heidenheimer v. Johnston, Tex. L. J. RECENT BANKRUPTCY DECISIONS. FIDUCIARY DEBT. What does not amount to, so as to bar discharge.-A. J. the surety of M. who was the guardian of R. paid R. $4,000 of the indebtedness due from M. to R. as guardian. J. dies and his administrators sue M. in assumpsit for the amount so paid, and M. pleads his discharge in bankruptcy in bar to the recovery. The administrators of J. reply that the debt due by M. to their intestate is a fiduciary debt from which he is not discharged.under section 32 of the Bankrupt Act. Held the debt due by M. to the estate of J. is not a fiduciary debt, and his discharge in bankruptcy is a bar to the rocovery of the same. The debt due by M. to J.'s estate was a simple contract debt, provable under the Bankrupt Act and discharged by it. Sup. Ct. Appeals, Virginia, Nov. 1877. Cromer v. Cromer, Va. L. J. PLEADING. Statements in petition: what facts need not be set forth. -Petition in bankruptcy held defective in not setting out the special authority of the president of a bank, who is one of the petitioning creditors, to sign and verify the same on behalf of the bank, his general authority as an officer not being sufficient. The petition alleges that the creditors joining in the petition constitute one-fourth in number of all the creditors whose provable debts amount to two hundred and fifty dollars. In setting out the names and amounts of each, however, it appears that the debts of several of them are less than that sum. Held, on a motion to dismiss the petition, that the same is insufficient and demurrable in this respect, but that the court has jurisdiction to allow an amendment to remedy the 1. Debt partly paid by surety.-The holder of a note or bill may prove it in full against the party primarily liable upon it, notwithstanding he may have received a part or all of it from a surety or quasi surety. U. S. Dist. Ct., Massachusetts. Ex parte Harris v. In re Cochrane, 16 Nat. Bankr. Reg. 432. 2. Composition by surety: credit for amount received. -C., a manufacturer, consigned goods to his factors, who advanced their notes to an amount much beyond what was ultimately realized on the goods. Both parties failed, and the factors, employing the goods then in their possession, made a composition of forty per cent with their creditors, including the holders of the notes who reserved the right to prove in full against all other parties to them. Held, that these creditors, proving against C., need not give credit for the full amount received by them on the composition, but must abate their proof by giving credit for the property of C. so employed by the factors. Ib. 3. Exchanged notes.-Where notes were exchanged, and the holder has received a payment from the maker, he can only prove for the balance against the indorser. Ib. 4. When debts proved.-Debts are to be considered proved when they are duly authenticated and sent to the assignee or register. Ib TITLE. Construction of contract: whom title to goods furnished to be sold, vests in.—Where one party agrees to furnish goods to another at a fixed price, the latter to pay all freight, storage and charges, and to pay at the end of every three months for the goods sold by him within that time, and to pay at the end of the year for all goods remaining unsold, the proceeds of the goods sold by the latter cannot be recovered from his assignee in bankruptcy. Such arrangement does not create the relation of principal and agent or factor, but that of buyer and seller. U. S. Dist. Ct., California. In re Linforth, Kellogg & Co., 16 Nat. Bankr. Reg. 435. HOMESTEAD. 1. Sum allowed by statute for.-Where a certain sum is allowed by statute to be invested in a homestead, each sum may be put into an undivided part interest in the homestead and into premises to which others hold a legal title. U. S. Cir. Ct., Vt. Johnson, assignee, v. May, 16 Nat. Bankr. Reg. 425. 2. Money fraudulently put into homestead.-An insolvent, more than four months before the commencement of proceedings in bankruptcy against him, furnished from his own property, toward building a homestead upon premises which his wife had contracted to purchase, and which were subsequently conveyed to her, the sum of fourteen hundred dollars. Held, that such transaction was a fraud upon his creditors, and that the assignee was entitled to a conveyance of the husband's interest in such homestead, less the amount he was authorized by law to invest in a homestead, and also to a conveyance of the balance of his interest for the benefit of creditors existing at the time of the investment. Ib. IN APPEALS TO THE COURT OF APPEALS. the case of Samuels v. The Eveniny Mail Association, presented to the Court of Appeals on Friday last, the unsuccessful party, on a trial by jury, moved for a new trial upon a case on the judge's minutes, upon the ground that the verdict was contrary to, or against the weight of the evidence. The motion was denied and an appeal taken to the General Term from the order, and also from the judgment. The General Term reversed the judgment and ordered a new trial, the order of reversal expressly stating that it was reversed upon questions of law only, and not showing any decision of the appeal from the order. An appeal was taken to the Court of Appeals, from the order of the General Term, directing a new trial. case, The Court of Appeals dismissed the appeal, orally holding that no appeal would lie in such a for the reason that the party appealing to the General Term had a right, if the judgment had not been there reversed upon questions of law, to a review of the facts by the General Term and to its determination thereon; that if an appeal were allowed from the reversal on questions of law, without a review of the facts, the appellant to the General Term would lose the benefit of his appeal from the order and his right to a review of the facts thereby. The court, therefore, dismissed the appeal. The rule would have been otherwise, had there been no appeal to the General Term from the order of the Special Term on the motion for a new trial, on the ground that the verdict was against the weight of evidence; for in such case the party appealing to the General Term would have had no right to call upon the General Term to pass upon the weight of evidence. So the rule would have been otherwise if the General Term had expressly affirmed the order at Special Term, denying a new trial on the ground that the verdict was against the weight of evidence, for in such case the appellant to the General Term would have had the benefit of his appeal from the order and would then lose no right by an appeal to the Court of Appeals. The court were understood to say that the rule would have been different in the case of Samuels v. The Evening Mail Association, had the trial been by the court or a referee. It is apparent that this must be so, for in such case the appeal is from the judgment only, and there cannot on such a trial be an appeal from an order ou a motion similar to that made on a trial by jury. See upon this subject, Potter v. Carpenter, abstracted, 16 Alb. L. J. 333. R INDEX YOUR CASES. OULE 5 of the Court of Appeals and rule 5 of the Supreme Court requires cases to be indexed. The Court of Appeals last week announced to counsel, that in view of the almost general disregard of this requirement of the rules, the court would soon be compelled to insist upon an observance of its provisions or refuse to hear the case. The rule is just and its provisions should be observed by counsel. The labors of the Court of Appeals are onerous enough, let the profession lighten them as much as they may. Counsel who furnish a carefully prepared index do much to facilitate an easy understanding of the case. They owe it to the court and to their clients to observe the rule. CORRESPONDENCE. PINKNEY AND WEBSTER. To the Editor of the Albany Law Journal: SIR-Your issue of Dec. 22 has added to the circulation of a canard taken from "Harvey's Reminiscences of Webster," concerning the latter gentleman and Mr. Pinkney. The story is disagreable, and to us of this latitude, incredible. It has a measure of littleness for Daniel Webster into which he could not have contracted himself. Was he not a man of chivalric honor? not so, if he gave rumor to such a story after William Pinkney was dead. Was he not infinitely above small and spiteful things? not so, had he preserved and transmitted such a reminiscence to be published after his death. Was not his courage above suspicion? had he thus played the bully toward a man twenty years his senior, he would have been a braggart and a coward. He was absolutely fearless and defiant in an intellectual contest; was he the one to cower beneath the sarcasm or insolence of any man, waiting for revenge by violence? Such things may be possible with some men (so at least "Harvey" thinks), but how unlike Daniel Webster to publish a man as a coward after his hands were folded in the grave. These two great names are the pride of the American Bar. Webster's fame is as colossal as his intellect was and adorns the Union which cherishes it. Of William Pinkney, Ch. Justice Marshall said he was the greatest lawyer he had ever seen. Each had his weaknesses, well known during his life. But these weaknesses are hidden by the clods only to be discovered by jackals, while the joint fame of Pinkney and Webster shoots up to heaven and spreads its twin branches over the republic in the sight of all the people. Imagine if you can the blistering rebuke with which Daniel Webster would smite the author of the reminiscence. "You must die, said some one in warning, knowing you are at the mercy of whoever can hold a pen." HAGERSTOWN, MD., Jan. 10. H. K. D. COTHRAN'S REVISED STATUTES." To the Editor of the Albany Law Journal: SIR-The first part of chapter 611 of the Laws of 1875, being "An act to provide for the organization and regulation of certain business corporations," reads as follows: "Every such corporation shall annually, within twenty days after the first day of January, make a report, which shall state the amount of capital, and the proportion actually paid in, the amount, and in general terms the nature of its existing assets and debts, and the names of its then stockholders, and the dividends, if any, declared since the last report, which report," etc., etc. In the sixth edition of the Revised Statutes, edited by Mr. Cothran, and published by Messrs. Banks & Brother, this section is erroneously quoted, the words "and the names of its then stockholders" being wholly omitted. (See vol. 2, p. 793.) I do not write this for the purpose of detracting from the value of Mr. Cothran's important and valuable work, but simply to warn others against being seriously misled, as I was a few days since, by this Very truly, etc., error. BUFFALO, N. Y. VICTIM. - Judgment affirmed - Phelps v. People (two cases larceny); Phelps v. People (forgery); Casey v. People. Judgment affirmed with costs - Moore v. Hegeman; Stillwell v. Mutual Life Insurance Co.; Merwin v. Star Fire Insurance Co.; Van Allen v. Farmers' Joint Stock Insurance Co.; Jaquiss v. Hagner: Hayes v. Ball; Southard v. Pinckney; People ex rel. Munday v. Fire Commissioners. Judgment affirmed without costs to either party - Brewer t. Noyes; Brewer v. Penniman (one case.) - Order affirmed with costs People ex rel. Miller v. Cumming; Griffin v. Helmbold. Judgment affirmed with costs of all parties payable out of estate Shakspeare v. Markham. Appeal dismissed with costs - Monson v. Littell; National Bank of Fort Edward v. Washington County National Bank; Spears v. The Mayor, etc. Appeal dismissed without costs Latham v. Richards. -Judgment reversed and new trial granted, costs to abide event - Young v. Hunt. Motion for reargument denied, with $10 costs- Madge v. Ping; Sheridan v. Jackson. Remittitur amended by reversing so much of the judg the Sheldonian Theatre. The Honour men' do not shine as brightly as they ought to do in the real battle of life. But Sir Henry Maine affords a remarkable instance of persistent success. As an under graduate he won the Cravan Scholarship, and he graduated as Senior Classic and Chancellor's Medallist. He was Regius Professor of Law at Cambridge for some years, and after that he was Reader in Jurisprudence and Civil Law at the Middle Temple; while he won acquaintance with the practical part of a lawyer's learning as an equity draughtsman and conveyancer, and even as a revising barrister. For seven years he served on the Council of the Governor-General of India, and for seven years he has sat at the council board at the India Office. He has also held the appointment of Corpus Professor of Jurisprudence at Oxford, with a fellowship at Corpus College. His works on Ancient Law' and 'Village Communities' are perhaps the most notable, and certainly the most readable of modern law books. The decree of Doctor of Laws, and the dignity of a Knight Commander of the Order of the Star of India, are rightly borne by this distinguished man. Trinity Hall has for many years maintained its reputation as the cradle of lawyers, and under Sir Henry Maine it ought to flourish with renewed vigour. His appointment reflects the highest credit on the Fellows of the College, and we doubt not that results will justify their selection. ment as gives plaintiff the costs of the General Term THES of the Supreme Court, and reducing the extra allowance to $250, without costs to either party upon this motion-Lattimer v. Livermore. - Judgment modified by declaring that Alice L. Harmony is entitled to share in the portions of A. T. and E. T. Law, if they die without issue, and as modified affirmed, with costs of all parties in this court to be paid out of the estate Law v. Law. -Judgment of Supreme Court, and conviction and dismissal of relator by the Board of Police Commissioners of the city of New York reversed People ex rel. Clapp v. Mayor, etc. BENCH AND BAR. NOTES. HE Solicitors' Journal says that some curious reasons seem to have been given for rejecting the proposal, which has been recently revived at Washington, that measures should be taken for the recovery by the United States from the Bank of England of balances remaining to the credit of the Southern Confederacy at the time of its collapse. The grounds of objection are stated to be, first, that the United States Minister is not willing to ask any favor of the British Government, such as the right to sue in the English courts, and next, that when inquiries were made into the matter during the administration of General Grant the representatives of the British Government" expressed themselves as perfectly willing to recognize the United States as the successor of the defunct Con ALEXANDER S. JOHNSON, U. S. Circuit federacy, and to turn over to it all balances formerly be Second Judicial District, compris ing the States of New York, Vermont and Connecticut, died on January 26, at Nassau, Bahama Islands, of water on the chest. He was born in Utica, N. Y., July 30, 1817. He went through a course of study at Yale College, and was admitted to the bar when just 21 years of age. He practiced first in Utica and then in New York. He was elected Justice of the Supreme Court, at the first election under the Constitution of 1846. In 1851 he was elected to the Court of Appeals. This position he held for nine years. In 1860 he returned to his old home in Utica, and resumed there the practice of law. President Lincoln, in July, 1864, appointed him United States Commissioner for the settlement, under the treaty with Great Britain, of the Hudson Bay and Puget Sound Companies' claims. The duties of this position employed Judge Johnson for about three years. In January, 1873, he was appointed to the bench of the Commission of Appeals, and in December of the same year, he was appointed Judge of the Court of Appeals. Subsequently, he was appointed commissioner to revise the statutes of this State, which position he resigned when he was appointed to the judicial office he held at the time of his death. He was also one of the Regents of the University of this State. His rank as a jurist and a man of learning was high. The opinions delivered by him are esteemed among the ablest appearing in the reports. In speaking of the election of Sir Henry Maine, to the office of Master of Trinity Hall, Cambridge, the London Law Journal says: In the present day, the career in the world of great mathematicians and classical scholars does not, as a rule, correspond with the expectatious formed in the Senate House or longing to the Confederacy held in Great Britian, provided the United States would assume its liabilities to British subjects. The first objection seems absurd. No" favour" of the British Government is needed to enable the United States to sue in our courts. As a matter of fact, the United States itself has been more than once admitted to sue as a matter of right; and in numerous cases, such as The King of the Two Sicilies v. Wilcox, 1 Sim. (N. S.) 301, where the plaintiff recovered ships bought by a revolutionary government out of his own despoiled treasury; and Emperor of Austria v. Day, 9 W. R. 712, where the plaintiff prevented the issue of bank notes by M. Kossuth, foreign states have had justice done them in our courts without fear or favor. As to the second objection we do not see what our Government has to do with the matter; and we imagine the reference intended must be not to any declaration of the " representatives of the British Government," but to the doctrine laid down in the case of United States of America v. McRae, 17 W. R. 764, L. R., 8 Eq. 69, in which Lord Justice James, then Vice-Chancellor, expressly distinguished between property coming to the restored Goverument of the United States as successor of the Confederacy, and property coming to it by virtue of its right as a restored Government. It was there held, dismissing a bill for an account against an agent for the Confederate Government, that money voluntarily contributed to the Confederate Government could only be recovered from an agent of that Government to the same extent, and subject to the same rights and obligations, as if the Confederate Government had not been displaced, and was itself proceeding against the agent. 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. A The Albany Law Journal. ALBANY, FEBRUARY 16, 1878. CURRENT TOPICS. themselves of public sympathy. To an innocent person of previous good character, accused of crime, it is a very great advantage and undoubtedly reduces to almost nothing the chances of conviction in such cases. That the guilty are much more frequently convicted than in former times is also very certain. A bill embodying a like provision in relation to persons charged with crimes, in the United States courts, has been passed by the House of Representatives, and we suppose will also pass the Senate and receive the executive approval; and if it does, all or most of the States which have not done so, will doubtless adopt a similar law. The case of Johnson, receiver, v. Laflin, decided on the 8th inst., in the United States Circuit Court for the Eastern District of Missouri, involves a question of considerable importance to those interested in banks or bank stock. The suit was brought by the receiver of the National Bank of the State of Missouri to recover from defendant the value of eighty-five shares of stock in the bank, sold by defendant to the president of the bank a short time previous to its suspension. The sale was made through a broker, who sold the same without defendant's knowledge, at the time, to the president individually, and took his individual check therefor. Subsequently the president, under the power of attorney which had been indorsed by defendant on the certificates of stock sold, caused the stock to be transferred to him as trustee, and he also direct SHORT time ago a bill was introduced in the English Parliament, the object of which is to permit the questioning, on oath, of persons accused of crime, and the motion for its second reading gave rise to an extended discussion. The arguments advanced for and against the bill were exceedingly able, and show that those members who took part in the debate have made themselves familiar with the subject. The advocates of the measure contended that the result following its adoption would be the surer conviction of the guilty and the greater chance of escape of the innocent. That an innocent prisoner of intelligence would be benefited was admitted, but it was claimed that the proposed law would change the onus of proof from the prosecution, where it now is, to the defense. The bill provides that a refusal of the accused to testify shall not create a presumption against him, but as the inference to be drawn from the prisoner's action must be drawn by a jury, it was alleged that this provision would amounted the sum he paid therefor to be credited to his to nothing. The opinion of the chief judge of the New York Court of Appeals that "the change has not given very great satisfaction" here, and that of the chief justice of New Jersey, that, while the "system, with respect to the elucidation of truth, has worked well," it has led to a great amount of perjury, were quoted in opposition to the measure. The prospects of the success of the bill seem remarkably good, as it was passed to a second reading by a majority of 109. The result of an experiment of similar character, made here, has proved | satisfactory, and we are confident that very few would wish to have the old rule restored. The law may, indeed, sometimes work harshly in this way. When a prisoner is put upon the stand to testify, the prosecution is able, under the pretense of impeaching him as a witness, to introduce testimony in relation to his character. Thus it is dangerous for a person whose reputation has been bad to testify in his own behalf. But if he does not testify, the jury, in a doubtful case, are inclined to infer guilt, though the statute contains a provision that refusal to testify shall raise no presumption. This, however, is considered a minor evil, as it affects only those who have by their course of life deprived VOL. 17.- No. 7. individual account on the books of the bank. The court held that though the bank or its officers were prohibited under section 5201 of the Revised Statutes from purchasing its own shares, yet that, defendant having sold without notice of the illegal purpose of the president in buying the stock, or his intended misappropriation of the funds of the bank in paying therefor, was not liable to pay back to the receiver the money received in payment for the shares. The opinion, which was delivered by Judge Dillon, contains a clear and able exposition of the rights of shareholders in national banks, in respect to the sale and transfer of their shares, and establishes the general principle that a shareholder has the right to make an actual and bona fide sale and transfer of his shares to any person capable in law of taking and holding the same, and of assuming the transferor's liabilities in respect thereto, and in the absence of fraud this right is not subject to a veto by the directors or the other shareholders. The opinion will appear in full in our next issue. A question has arisen as to whether the provision of section 13 of the judiciary article of the State Constitution, that "no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age," reaches the New York Court of Sessions, so as to disqualify a judicial officer from acting in that court after he has passed the age mentioned. Judge Sutherland, who sits in that court, was over seventy on the 31st of December last, and as he gives such general satisfaction many are anxious to have him retain the place, and claim that, as the Court of Sessions is not named in the section mentioned, or in the one immediately preceding it, the provision of section 12 of article 14 of the Constitution applies to and regulates the time of the office. That section mentions the various courts, including the Sessions, and prescribes that they shall remain until otherwise directed by the legislature, with their present powers and jurisdictions. In section 12 of the amendment several of the courts named in section 12 of article 14 are mentioned, but the Sessions is omitted. As it seems to us, the provision limiting the age of judicial officers applies to all officers of that kind, and not merely to such as may be described in article 6. The words are as general and comprehensive as could well be selected, and the provision, if a proper one, is as much needed in one case as in another. There are many who condemn the provision, and point to instances where the public have been deprived of the services of able and experienced judges by its operation. Yet, it is probable that the rule is a salutary one, and while we may in some cases, such as that of Judge Sutherland, regret its application, we would not have it changed. A bill is now pending in the legislature designed to aid a very worthy institution, but which will, if passed, do much to nullify the effect of the efforts recently made to elevate the standard of legal education by requiring a three years' course of study and clerkship as a condition for admission to the Bar. The bill mentioned provides for the appointment by the General Term of the Supreme Court of a special board of examiners to examine for admission to the Bar students of the Albany Law School who are about to graduate. The examinations are to be" on the same subjects and in the same manner as required in the case of examinations for admission as attorneys and counselors of the Supreme Court." The examiners are to take proof of moral character, etc., and if they find any candidate qualified for admission to practice law, they are to indorse upon the diploma of the law school issued to such person a certificate to that effect. This indorsed diploma will entitle the person to whom it is granted to admission to practice as attorner and counselor. The law as regards admission to the Bar will if this bill passes stand thus. Students at the Albany Law School can be admitted to the degree of attorney and counselor by simply passing the prescribed examination. All other candidates must serve or study five years and pass two examinations to reach the same point. We trust the legislature will not make such a discrimination. The time spent in a law school should be allowed in the same manner as that spent in an office, but there should be no favoritism to the students of the law schools. Three years is none too long a time to devote to preparation for the Bar, and that term of preparation should be required of every one. A bill prohibiting the use of incendiary language at public meetings was introduced in the legislature during the past week. The purpose of this bill is commendable, but we question whether such a law as is proposed would not do more harm than good. Laws trenching upon liberty of speech are unpopular, and unpopular laws are as a rule unenforceable in this country; and a statute that cannot be put in force ought not to exist. The Federal statute permitting the transfer of causes from State to Federal courts, where the parties reside in different States, has been much made use and defeat just claims against them. of by non-resident insurance companies to delay In some therein has been made dependent upon a non-exerStates liberty to such companies to do business cise of the right of removal. A bill designed to accomplish the same result here has just been introduced. By its provisions foreign companies are, as a condition of doing business, to be compelled to file with the insurance department a stipulation not to transfer actions commenced in the State courts, and in case of a violation of such stipulation their license to do business here is to be revoked. The measure is a proper one, and we trust it will be passed. NOTES OF CASES. N Hunt v. Gardner, 39 N. J. Law, 530, it is held a plea up a assigned his lease, and that the lessor accepted the assignee as his tenant, does not show a bar to an action of covenant for rent on the lease against the original tenant. The rule is probably well established that a surrender by act of law destroys the privity of contract between the lessor and lessee, as well as the privity of estate. In Smith v. Niver, 2 Barb. 180, a lessor consented to a change of tenancy and permitted a change of occupation, and received rent from the new tenant as an original, and not as a sub-tenant, and it was held that the landlord could not afterward charge the first tenant for rent accruing during the occupation of the second one. See, also, Mines Royal Societies v. Magnay, 18 Jur. 1028. But there must be an assent of the landlord to the as |