Gambar halaman

case of such default a court having equity powers coupon is nothing but an acknowledgment of interest might appoint a receiver. In Shaw v. Norfolk County due, and is but an incident of the principal. It is R. Co., 5 Gray, 162, a railroad corporation conveyed all attached to the bond and may be detached from it for its property and franchises to three trustees, by deed, the convenience of the holder. The possession by the conditioned to be void on payment of certain bonds corporation is evidence of its payment. The bankingissued by the corporation, and stipulating that the house at which it was made payable were the agents directors might, upon any breach of conditions, take of tho corporation, and the holder could not lose in possession and apply the net proceeds to the purpose any event by its insolvency. Pennsylvania Supreme of the trust; and it was held that it was competent for Court, June 14, 1880. Williamsport Gas Co. v. Pinkera court of equity to appoint a receiver. In Shipley v. ton. Opinion per curiam. Atlantic & St. Lawrence R. Co., 55 Me. 395, a mortgage USURY COMPOUND INTEREST - CONDITION FOR was executed by the railroad company to trustees,and it ATTORNEY'S FEE. — - (1) In the absence of evidence to was stipulated therein if the company should at any the contrary, the law will not presume that a contract time fail to pay the interest or principal of the bonds is usurious. Mills V. Johnson, 23 Tex. 329. (2) Com. according to their tenor, the mortgagees might take tho pound interest is not, of itself, usurious. Mills v. mortgaged property into their actual possession, man

Johnson, 23 Tex. 329; Louis v. Paschal, 37 id. 318; age and control the same, and apply the net income and Miller v. Boles, 11 Conn. 495; Turuer v. Miller, 1 Eng. proceeds thereof to the payment of such interest and (Ark.) 468; Wilcox v. Hawland, 3 Pick. 169; Brown v. principal. The court held that it had jurisdiction to Brent, 1 Hen. & M. (Va.) 4. It is the usual practice decree a specific performance of the stipulation in the

with us to render judgment for the principal and inmortgaged property for the non-payment of the bonds.

terest then due, and this new principal to bear interest; *In American Bridge Co. v. Heidelbach, 94 U. S. 798, a

this has been expressly decided not to be unlawful. company, to secure the payment of its bonds, mort- Frazier v. Campbell, 5 Tex. 275; Coles v. Kelsey, 13 id. gaged its property and the rents, issues, and profits 78. (3) If a contract is lawful in other respects a conarising therefrom, with the provision that if there was

ditional stipulation to pay the usual attorneys fees, in default in paying the interest, the mortgagees might the event suit has to be instituted to enforce it, would take possession of the property, manage the same, and

be legal and founded upon a valuable consideration. receive and collect all rents and claims due and to be- Such fees, though not an element of damages in an come due to the company. The court said: “In this ordinary suit for the collection of money, can be made case, upon the default which occurred, the mortgagees such by express contract. Roberts v. Palmore, 41 Ter. had the option to take personal possession of the mort- 617. Texas Supreme Court, September, 1880. Miner gaged premises, or to file a bill, have a receiver ap

v. Paris Exchange Bank. Opinion by Bonner, J. pointed, and possession delivered to him. In either case the income would thereafter have been theirs.' To the same effect are the text-books: “A court of

INSURANCE LAW. equity has jurisdiction to order a specific performance of a stipulation in a railroad 'mortgage authorizing the

LIFE POLICY - VESTED INTEREST OF BENEFICIARY trustees to take possession of the mortgaged property

IN. -S. took a life policy upon his life, by the terms of for the non-payment of the bonds secured, and a bill which the amount of insurance was made payable upon in equity is the proper form of proceeding to compel the death of S. to his wife F., and in case of her death the company and its agents to deliver possession to the before his decease, the same was to be paid to his chiltrustees." Jones on Railroad Sec., $ 401. Sacramento dren. The wife E. died intestate, during the life of S., & Placerville Railroad Co. v. Superior Court of San leaving two children, the fruit of her marriage. BeFrancisco. Opinion by Morrison, C. J.

fore her death, S. had paid and performed all that was stipulated to be done on his part in the contract of

insurance. S. remar as a second wife L., by whom FINANCIAL LAW.

he had one child. He, after such marriage, surren.

dered the policy and took in its place a policy made COUPON BONDS — HOLDER NOT BOUND TO PRESENT payable to L. to her sole and separate use and benefit. COUPON WITHIN A REASONABLE TIME AFTER DUE.

This was done without consent of the children of 8. Plaintiff below held a coupon bond issued by defend- | Held, that the surrender by S. was without authority ant below, the Williamsport Gas Co. One of the and the children were not thereby deprived of their coupons read thus: “The Williamsport Gas Company rights under the original policy. Held, also, that his will pay the bearer, at the banking-house of Kirk, children included the issue by both marriages. The MacVeagh & Co., West Chester, Penn., on the first day general rule upon the subject, is this: “That a policy of December, 1875, twenty dollars, being six months' of life insurance, and the money to become due under interest on bond No. 18. $20. T. Coryell, Treasurer.” | it, belong, the moment it is issued, to the person The firm of Kirk, MacVeagh & Co. was dissolved and named in it as beneficiary, and that there is no power succeeded by the Brandywine Bank, which occupied in the person procuring the insurance, by any act of the same place of business as the firm and retained his, by deed or by will, to transfer to any other person. many of its accounts, among others that of the inter- Tho person designated in the policy is the proper perest on the bond of plaintiff. On the 29th of November, son to receipt for and to sue for the money. The prin. 1875, the defendant remitted to the bank sufficient to ciple is that the rights under the policy become vested pay all of the coupons on its bonds, due on December 1, immediately upon its being issued, so that no person 1875. The bank paid all the coupons presented up to other than those designated in it can assign or surrenDecember 22, 1875, when it became insolvent. Plaintiff der it, and that in such assignment or surrender all the did not present his coupon above mentioned anywhere persons must concur, or the interest of those not confor payment until March 3, 1877, when ho presented it curring is not affected.” Bliss on Life Ins. (24 ed.), to defendant. Held, that defendant was liable for the $8 317, 337. This is held to be the rule in Succession of amount of the coupon. The corporation which issues Kegler, 23 Lon. 550. The transaction on the part of $. a coupon bond is in the position of the maker of a was in the nature of an irrevocable and executed volpromissory note, not of the drawer of a check or bill untary settlement upon his wife and children of the of exchange. There is no obligation on the holder to sum secured to be paid by the policy at his death, conpresent and demand it within a reasonable time. The ditioned that the same should be to her for her benefit same rule applies to the coupons just as long as he can should she survive him; but if not, then the same hold on to the bond without requiring payment. The should be paid to his children, or, if minors, to their


guardian, for their sole use and benefit. Nothing re- testament, is in the nature of a testament; and in mained to be done on his part to make the intended construing it, the courts should treat it, so far as posgift of the policy to the beneficiaries therein named sible, as a will; as, in so doing, they will more nearly complete and effectual as against himself and all mere approximate the intention of the person, the destinavolunteers claiming under him. In paying for the tion of whose bounty is involved in such cases. It is insurance and procuring the policy to be issued, pay- manifest, from the charter, a member of the company able, in express terms, upon his death, to his wife E., has no personal interest in his membership, and that il then living, and if not, to his children, for their sole his personal representative, as such, can never take use and benefit, without any condition or stipulation any interest in it after his death. This is shown by reserving a right to change or alter any of the terms the provision that if the member has no widow or of the agreement, he did all that could well be done, child surviving, and no will, the fund shall vest in the under the circumstances, in the execution of an inten- company; and the further provision that the proceeds tion to vest in his said appointees the entire interest of the membership shall not be liable for the debts of in the policy, and all rights thereunder. Adams v. the member. The charter gives a mere power of apBrackett's Ex'r, 5 Metc. 280; Landrum v. Knowles, 22 pointment in case he has neither wife nor child, and N. J. Eq. 594. What he did was a clear and distinct he has no interest whatever in the fund, and it did not, act, wholly divesting himself of all ownership or con- therefore, pass under a will merely disposing of all trol over the money paid for the insurance, disclaiming estate, but in which no mention is made of the fund any interest in the policy, or intention to take or hold to arise from his membership. 4 Kent, 327. (2) A stipit for himself or his legal representatives, at the same ulation in the certificate of membership was, “to pay time putting it beyond his power so to do by the stipu- to said Crofoot's daughters, Anna and Lou. Crofoot, lation obligating the company to pay the sum insured, or his assigns, or as he may direct by will,” etc. Held whenever it should become due, to such of the persons invalid. It is not in the power of the company, or of named in the policy as might then be entitled thereto the member, or of both, to alter the rights of those by its terms. Taking the delivery of the policy from who by the charter are declared to be the beneficiaries, the company, under these circumstances, can only be except in the mode and to the extent therein indicated. construed as an act of acceptance for the designated Masonic Insurance Company v. Miller's Adm'r, 13 beneficiaries, and his subsequent holding of the same Bush, 494. Kentucky Court of Appeals, October 4, as that of a naked depositary, without any interest, 1880. Duvall v. Goodson. Opinion by Cofer, C. J. for those entitled thereto. Minnesota Supreme Court, September 24, 1880. Ricker v. Charter Oak Life Insur

CORRESPONDENCE. ance Co. Opinion by Cornell, J.


Editor of the Albany Law Journal:

Messrs. Banks & Brothers have published a sixth TRAVENING CHARTER OF COMPANY - LIFE POLICY edition of the Revised Statutes of the State of New CONSTRUED LIKE A WILL. — (1) The charter of a Ma- | York, edited by George W. Cothran, for which I, along sonic life insurance company provided for the raising with other members of the profession, pay twenty dolof a fund which should " be paid for the benefit of lars. The first volume is prefaced with the Constituthe widow and children” of deceased members, and tion of the United States. What purports to be the that “the fund created for the benefit of the widow thirteenth amendment to that instrument may be and children of deceased members shall be paid to

found at page 32 of Vol. I, and it is given in the folthem by said company as soon as it can be collected, or

lowing words: to their trustee, in the discretion of the company;

“ ARTICLE XIII. subject, however, to be appropriated for their benefit, “SECTION 1. Slavery, being incompatible with a free equally, according to the will of the deceased member; government, is forever prohibited in the United States, or if he should leave no widow or child, then to be and involuntary servitude shall be permitted only as a appropriated according to his will; or if he makes no punishment for crime. will, or leaves no widow or child, it shall rest and re

“SEC. 2. Congress shall have power to enforce the main in the company, and be added to its capital stock, foregoing section of this article by appropriate legis

lation." or be appropriated as they may deem expedient.” C.,

The real thirteenth amendment to the Constitution at the time of his death, held a certificate of member

of the United States reads as follows: (R. S. U. 8., 2d ship in the company. When he procured it he was a

ed., p. 30.) widower and had only two children. Both died during his life; one without issue and the other leaving except as a punishment for crime, whereof the party

“Sec. 1. Neither slavery nor involuntary servitude, one child. C. left a will devising his residuary estate

shall have been duly convicted, shall exist within the to his executor in trust, to be invested during the life United States, or any place subject to their jurisdicof one of his children for her benefit, and after her tion. death to be disposed of as directed in the will. No “SEC. 2. Congress shall have power to enforce this mention was made of the insurance fund. Held, that article by appropriate legislation.” D., the grandchild of C., was entitled to the fund, and Is it possible that Mr. Cothran, or the publishers, or not the executor. To the general rule that the word whoever else may be responsible, have taken the same "child” does not embrace a grandchild, there are two liberties with the statute laws of New York as he or exceptions. First, where a will or writing would they have taken with the Constitution of the United otherwise be inoperative, or the manifest intention States? or have they confined their attentions of this would be defeated; or second, when a will or writing character to the former instrument? shows by other words, that the word was not used in


Wu, L. ROYALL. its ordinary and proper sense, but in a more extended NEW YORK CITY, Dec. 1, 1880. sense. This case falls within the first exception. If it was held that it did not, then, when a member dies

SAADE TREES IN VILLAGE STREETS. intestate, and without wife or child, the proceeds of Editor of the Albany Law Journal: his membership are forfeited to the company, even The charter of an incorporated village gives the though he may leave lineal descendants surviving. directors (trustees) power to lay out, alter, repair and No construction should be adopted which would lead improve the streets, highways, lanes and alleys within to such consequences. A life policy for the benefit of the bounds of said village, and to cause the same to be the family of the person procuring it. though not a guttered and curbed. A street in the village with the


paved way for teams and sidewalks for footmen, gut- The following order was made in the Court of Aptered and curbed between the two, has shade trees of peals December 8, 1880: twenty years' growth, or more or less, standing in the It is Ordered, That this court adjourn on Thursday, sidewalk near the gutter. Have the adjoining pro- Dec. 23, instant, at 1:30 P. M; that it convene on Monprietors any right to the shade trees standing on the day, the 17th day of January, 1881, at 10 o'clock, A. M., sidewalks, which the village authorities are bound to

at the court room in the oid Capitol, at Albany; that a respect? Can the village directors, under the power clerk will place only causes in which notices of argu.

new calendar be made for that term, upon which the given them by statute, cut the shade trees down, for ment, with proof of service for that term, are filed the sake widening the wagon track, and contracting with him on or before the 3d ay of January, 1881; the sidewalk, or to straighten a bend in the gutter? that on and after Monday, the 20th day of December, Will you, or some of your keen thinkers, who are more

instant, for the rest of the term now running, no day

calendar will be made up, but causes will be called, familiar with village rights, answer?

beginning on that day with the first one in order of EGBERT WHITAKER.

general calendar number, not before that disposed of, SAUGERTIES, N. Y., Dec. 1, 1880.

and the last paragraph of Rule XXI will be applied

and enforced. JUSTICES' Costs.

The paragraph referred to reads as follows: "When Editor of the Albuny Law Journal :

any cause shall be regularly called for argument, and The specific fees of justices of the peace for issuing

no other disposition shall be made thereof, the appeal summonses, granting adjournments, entering judg- shall be dismissed without costs, and an order shall be ments, etc., are reasonable and should not be changed; entered accordingly," etc. but the law of costs, as applicat to these officers, need amendment in two respects:

NOTES. First. The limitation of costs should be removed. As Mr. Throop rightly says in his Justices' Manual (p. THE current number of the Law Magazine and Re96): “The justice of the limitations of the amount of

view is exceedingly interesting. It has leading the costs is questionable. As costs in a justice's court articles on Jurisprudence and the Amendment of the consists of actual and necessary expenses only, there Law, by Lord Advocate McLaren; Private Bill Legisseems to be no sound reason why the successful party lation; Professor Holland's “ Jurisprudence" and should not always recover the full amount thereof.” Codification - - a very acute review by Arthur Tilley;

Second. A reasonable per diem trial compensation Foreign judgments - assumed jurisdiction over nonshould be established. The fee of 75 cents for the trial resident aliens, by F. T. Piggott. Our countrymen of an issue of fact is grossly inadequate; nor does the fare very well in this number; there is a very complifee for swearing witnesses compensate for this inade- mentary review of Mr. Thompson's Liability of Stockquacy. The latter fee in one day may amount to but holders in Corporations, and the editor, in speaking of 20 cents; it often does not exceed 50. For trying an the prima facie right of a fugitive to undisturbed and issue of fact where the defendant appears, the justice protected asylum, says, “the true doctrine, we hold, is should receive $2 a day — the same compensation as that laid down by Dr. Spear in his able and lucid work that which town clerks, assessors, commissioners of

on Extradition.” The Criminal Law Magazine and highways, and overseers of the poor receive for their the Southern Law Journal and Reporter are comservices. In the trial of a case, justices work as hard | mended, and the editor also has a good word for ouras these officers, and frequently more hours in a day; selves. and there is no good reason why they should not be as well paid. The specific fees are generally for services The New York Tribune's London correspondent, rendered on days other than that on which the trial speaking of the late Chief Justice Cockburn, says: takes place and therefore do not pay for the trial ser- “Nobody disputes the brilliancy and variety of Cockvices. Nor would this proposed change greatly in- | burn's talents, but the bar never recognized him as a crease the cost of litigation in justices' courts. Most great lawyer, and a powerful sect of society always contested cases are finished in one day. To the cost of denied him admission. Right Hon. Sir George Jesthese it would add but $1.25; and in those cases that sel, Master of the Rolls, perhaps the ablest lawyer of should continue more than one day litigants would not this generation, in pronouncing the formal panegyric object to allowing the justice $2 for each day's extra in court, conspicuously omitted to praise his judicial service. When sitting as a court of special sessions qualifications. Several judges during the week comthe justice receives $1 for each day necessarily spent plained severely of the indiscriminate laudation of the in the performance of his duty, and in civil cases, when

press, criticising Cockburn's absence of sound learntrying an issue of fact where the defendant appears, | ing, his excessive love of display and eagerness to prehe should likewise be allowed a reasonable per diem side at sensational cases. Society remembers against compensation,

Cockburn some early scandals and the life-long irreguI hope that our lawyers who are honored with seats

larity of his domestic relations; nevertheless, it is true in the Legislature will bring about the needed changes that he was exceedingly welcome in many influential herein indicated.


circles, and will be long remembered for his shining SHERBURNE, N. Y., Nov. 26, 1880.

conversational gifts."'. -The English trial calendars

must be in a bad way. The Daily Telegraph says they NEW YORK COURT OF APPEALS DECISIONS. are “abnormally conjested." The Telegraph must

have a medical student reporting for it.

THE.collowing decisions were handed down Tuesday,

Dec. 7, 1880:
Judgment affirmed with costs - Woodruffs v. Impe-

A convention of the judges for the revision of the rial Fire Insurance Company of London; Lockwood v.

Supreme Court rules will be held in this city on tbe Quackenbush; Long v. Bussell; Hand' v. Kennedy; 15th inst. It is important to have a thorough revision Burt v. Smith. Judgment reversed and new trial of the rules, and the judges would be glad to receive granted, costs to abide event — Palmer v. Brady.- suggestions for amendments, which may be sent to Order affirmed with costs – Bedford v. Fields.Orders of General Term and Special Term reversed

Hon. Wm. L. Learned, of this city, any time before and motion granted with costs of appeal to General

the 15th inst. In this way defects in the present rules Term and this court - Veeder v. Baker.- -Motion to might be pointed out which otherwise might escape set aside judgment denied with $10 costs - Veeder y. attention, and thus the judges may be materially Baker.

aided in their labor.

The Albany Law

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which he now and then eyed a passer-by - singuJournal. larly insignificant in appearance, might have been

met wending his way along Waterloo-place and ALBANY, DECEMBER 18, 1880. Piccadilly. Those who, an hour before, had seen

the lord chief justice of England in his court, ar

rayed in wig and ermine, and listened to him, as, CURRENT TOPICS.

in a soft musical voice, he rendered some knotty

point of law as clear as crystal, would hardly have UR highly-esteemed contemporary, the Kentucky

recognized him as the same man." We can scarcely Law Reporter, advocates a change in the jury sys- accept Truth's estimate that in lim “the bench has tem, which has at least the merit of originality. It lost its brightest ornament,” and it is evident that says: “We would suggest that twelve jurors be the bar and the bench do not think so. appointed by the governor for each Circuit, and paid a reasonable salary for a fixed and definite term. This jury would travel about the Circuit in the same

The late lord chief justice was unquestionably a manner as the Circuit judge; they would generally

man of great versatility of talents, acuteness, elobe totally disinterested, and holding office by ap

quence, and social charms. But these very accompointment would never decide for political purposes.

plishments unfitted him for lis high office, and he By experience such a jury could learn to sift the

had not the profound knowledge of law which his true from the false testimony in almost every in

post demanded. We need seek no further than our stance; by practice they would become expert in

last English legal exchanges for proof that he was weighing testimony and judging of the credibility

that very dangerous character, an advocate on the

bench. of witnesses. Their verdicts would be sooner ren

The Law Journal says: "His charges to dered, and more often in the right, for their judg

juries were masterpieces of popular oratory; and

there was little chance for the most skillful counsel ments would be the result of the deliberations of twelve men, whose every day business and study

if the lord chief justice became convinced of the was such as to make their judgment peculiarly

duty to sum up against him." And the Law Times quick and accurate in such matters.” This seems

says: “It is equally certain that, whilst he carried to us the most impolitic change ever suggested. It

on to the bench this high code of honor, the very seems to demand unanimity, and yet relies upon ex

loftiest sentiments which could animate a judge, pertnesz. This being so, one man would do just as

the deepest regard for his oflice, and the keenest well as twelve, and better, because he would never

sense of its responsibilities, he never thoroughly disagree; therefore, the judge would be the better

shook off the passion of the advocate. If there is arbiter of fact than the standing jury. Deliver us

one fault which can be laid to his charge as a judge, from all professional jurymen, and all professional

it is that with too rapid a judgment he formed his arbiters of fact ! Give us the system of verdicts in

opinion, basing it frequently upon the evidence and civil cases pronounced by nine of twelve jurors, and

bearing of particular witnesses. The opinion formed, a selection of jurors like that obtained by a struck

it was put forward in the summing up with the art jury, and we will ask nothing better.

We simply

of the advocate, repressed more or less, but still need greater intelligence in jurors, and a less arbi- perceptible, and occasioning sometimes the imprestrary demand for unanimity.

sion that the scales of justice had not been held with that absolute impartiality which is essential to

the strict administration of the law. No one who It is to be hoped that the mental likeness of the has attempted the perusal of the summing up in late Lord Chief Justice Cockburn drawn by the the Tichborne case — an effort which the lord chief London Truth is not a faithful portraiture. Accord- justice subsequently published separately, and which ing to this representation he had not a profound in itself forms a volume - can fail to perceive with knowledge of the law; but “he possessed a univer- what dexterous skill the case for the defense was sality of genius;" "he never hesitated to bring home broken down. And again, no one who followed to a jury his opinion;" “he let no one forget he was the course of that trial, with its frequent conflicts chief justice of England; " "he talked often of the between the bench and the bar, could honestly say cases lie was trying or likely to try;" he defended that the outrageous conduct of the prisoner's counduelling. In short, he was a man of the world, sel was altogether unprovoked. If

any doubt had “equally at home on the deck of a yacht, at the ever existed in the minds of the jury, the demeanor dinner table of artists, in the drawing-room of and the summing up of the chief justice told them fashionable beauties.” An opinionated, garrulous, very plainly that they must convict.” This same. fighting, sailing, flirting, dilettanti chief justice is passion for advocacy led him into unsecmly pamhardly to our taste. A “universal genius” on the phlet or newspaper controversies with Mr. Taylor on bench is generally extremely objectionable. His the law of the res gestæ, arising upon his lordship's physical portraiture by the same journal is more ruling in the Bedingfield case, and with Lord Penengaging: “At about half-past four or five o'clock zance, on the law of the jurisdiction of the courts on most afternoons when the courts were sitting in in respect to ecclesiastical questions, in which the Westminster, a little old man, shabbily dressed, ultimate court overthrew the judgment which his and — except for the bright piercing glance with l lordship had delivered and defended.

l'or. 22.- No. 25.

It is apparent that this extraordinary man must were only 418 during the four years above referred be ranked with Erskine and Brougham rather than to above £500; whilst the number involving £500 with Holt and Mansfield. And yet he sinks below and under was 4,366; and, of this last number, the level of the first-named great men, because his 3,764 were cases in which no more than £200 was life was never perfumed and dignified by devotion recovered. These statistics will assist in forming to reform in his chosen profession. His name is not a conclusion as to the comparative amount of law imperishably connected with the championship of a business in England and New York. broader liberty and the advocacy of a humaner justice. Ile even was strenuously opposed to the re- Mr. Banks, the late publisher of our Court of forms in procedure which have recently taken place Appeals Reports, has been executing a swan song in England. The Solicitors' Journal remarks: “We upon the expiration of his contract. His contract may be permitted to regret that the failings inci-expired at noon of the 14th inst., and anticipating dent to such a temperament and genitis as his, to a loud call for volumes at the contract price of 43 the long possession of a great •and dignified office, cents, he cleverly shut up his store for a day and a and to advancing age, did not suffer him to unite half beforehand, and thus laughed at the crowds of his name with the promotion of a reform the prin- applicants. But as his contract obliged him to ciples of which he had long advocated.”

keep the reports always on sale at a book-store in

this city, under a penalty of $100 for every failure, In short, while we recognize in this brilliant man recoverable by the persons aggrieved, and as about many of the attributes of genius, and do not regard fifty persons vainly called for the books, it is appahim as altogether out of place on the bench, yet it rent that the laugh will soon be on the other side of must be confessed that he was not of the material his mouth. This conduct is of a piece with the deout of which chief justices ought to be made. The fiant, disobliging, and lawless manner in which Mr. Law Times justly observes: “A vast deal of first- Banks has always carried himself in respect to this rate work is done in our courts of first instance contract, and shows the wisdom of the State officers without much recourse to profound legal knowl- in awarding the new contract to other persons. It edge. The complicated interests of modern society would hardly seem that Mr. Banks can have his genconstantly call for the exercise of such talents as eral business interests much at heart, or can have those of the late lord chief justice, and a judge any desire to retain the respect of his legal customwho possesses such talents, whilst he cannot justly ers and the public. be called great in the recognized acceptation of that term, attains to a position upon the bench unique and brilliant.” And we unhesitatingly subscribe to

NOTES OF CASES. the same journal's opinion that although the late lord chief justice emulated the great men who had

N Foose v. Whitmore, ante, 475, our Court of Apoccupied his seat, he never attained to the standard

peals construed the following provision in a

will: “I do give and bequeath all my property, of Holt and Mansfield.

both real and personal, to my beloved wife, Mary, A correspondent of the London Law Journal has

only requesting her at the close of her life to make made up the following instructive table showing the

such disposition of the same among my children

and grandchildren as shall seem to her good.” They number of actions for trial in the common-law di

held that the wife took the testator's estate in fee visions; and the state of the business of the courts

and that the qualifying sentence would not be conin the years ending respectively October 31, 1876,

strued to create a trust. A similar question was 1877, 1878, and 1879:

passed upon in Williams v. Worthington, 49 Md. 572. The testator provided as follows: “It is my will

and desire, and I hereby devise and bequeath all my Number of remanets from previous

property, real, personal, and mixed, to my dear Number of actions entered for trial.. 2, 276 2,318 2,140 2, 301 wife, E. A., and her heirs and assigns forever, and

it is my request and desire that my said wife, E. A., Total

2,812 3,074 3,274 2, 975 should by last will and testament devise and be

queath all of said property at her death, remaining Number of actions tried....

... 1,037

953 1,372 1, 100 Number of remanets by order.

in her possession, to my friend, B. W., and to E. Number of remanets for want of time

W., their heirs and assigns forever, share and share to try.. Number of actions withdrawn.

alike.” Held, that this did not create any trust, • Number of actions struck out..

but that E. A.'s estate was absolute. This was put Standing over for further consideration of judgment.

on the ground that the subject of the supposed

trust was uncertain, as it was only of property “reThe foregoing, we infer, were at Westminster maining” at the wife's death. The court said: “If alone. During the same period the number of ac- the precatory words had related to the whole of the tions tried or otherwise disposed of at Assizes was property devised to her, there are many decided as follows: 1876, 1,285 ; 1877, 1,413; 1878, 1,330; cases which hold that the words indicating the ulti1879, 1,243. During the same period, of 4,784 ac- mate disposition which the testator desired her to tions tried at Westminster and on Circuit, there make would charge the property with a trust in







756 1,128






926 389
859 1,017
191 203



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