dially agree that "

The

any other matter" does not mean the connection formed in the business. The custom of the business is a matter connected with the carrying of it on. It is the formation of that connection which has made the value of the thing which they sold, and they really had nothing else to sell in the shape of goodwill. Then the other case cited was the case of Cruttwell v. Lye, which was a very peculiar case; it was not like the sale by a man himself, because it was the sale of a thing by the assignee of a bankrupt. I agree that for some purposes there is no distinction, but for other purposes there is a distinction. assignees can only sell property, but a man can sell not only the property, but if I may so express myself, a negative right as against himself. He can stipulate that he will not carry on the business, but the assignee of a bankrupt cannot do that. They were called assignees then; they are now called trustees. They can only sell the property. The selling a trade or business by the assignees and the selling of a trade or business by the man himself are not quite the same things. This distinction does not apply, however, to the present case, because the decision in the present case will be independent of the peculiarities existing in Cruttwell v. Lye. Lord Eldon says (17 Ves. 341a): "The question is whether upon a fair understanding or representation agreeable to the fact this person is carrying on the plaintiff's trade;" that is the substance. Is he carrying on the business which he has sold? Now there were some curious points raised in that case. The bankrupt did not carry on the carrying trade (being the trade in that case) by the same road. He used the same termini, but he went by a different road. It was the case of a waggon carrier, and the question was about the goodwill which had been sold with the trade by auction in lots, the bankrupt having carried on the trade in two different places; and the point was whether it meant the trade itself or only the goodwill attached to the property sold. Now, as I have often said, I have nothing to do with facts in considering the value of an authority. I have only to deal with the facts as decided by the court to be the facts on which the judgment was founded. Whatever view may be taken of the wording of those particulars which are to be found in the case of Cruttwell v. Lye, Lord Eldon has told us, at page 346, what he considered they meant; "The goodwill which has been the subject of sale is nothing more than the probability that the old customers will resort to the old place." He did not consider that there was any conneetion except the chance of customers who wanted to go by wagon going to the old wagon yard. That was the sort of business there. He said that that was all that was to be considered as being sold or understood to be sold or intended to be sold. Of course in such a business as that there was really nothing more. Lord Eldon continues: "Fraud would form a different consideration, but if that effect is prevented by no other means than those which belong to the fair course of improving a trade in which it was lawful to engage, I should by interposing carry the effect of injunction to a much greater length than any decision has authorized or imagination ever suggested." Then he says: "What further was done? The bankrupt advertises that he is reinstated in the carrying business, and though that expression may have a tendency to misconception, yet he is in a fair sense reinstated, if being at liberty, he has availed himself of that situation to set up again that carrying business. It amounts to no more than that he asserts a right to set up this trade, and has set it up as the like, but not the same trade with that sold, taking only those means which he had a right to take to improve it, and there is no fact amounting to fraud upon the contract made with the plaintiff." That is the distinction. This, in my opinion, is a fraud on the contract. He goes on to say: "The question whether

under the circumstances the plaintiff is to carry the agreement into execution if the assignees have taken from him actively the benefit of that contract is very different, but whatever opinion may be held on this transaction in that view of it, I do not see the fraud upon which, as a judge in equity, I can lay my hand, and I dare not from this place so deal with it." So that he came to the conclusion that what the bankrupt was doing was not to interfere with that which was sold, and which was simply the chance of customers resorting to the old place, and that he had not committed a fraud on any contract entered into by him or the assignees, and therefore he decided that he could not interfere. How that case bears out the proposition that a man may the next day set up in the same business, that is, he may solicit the same customers and do the same trade, buy at the same place and sell at the same place, and in all respects carry on the identical business which he had sold, I myself do not understand. It is only one illustration of many which have come before me, of what was said by an eminent lord chancellor, that counsel sometimes have sought for an authority for lack of argument. Indeed, if Cruttwell v. Lye is to be rightly considered, it appears to me to show that if Lord Eldon had thought that what the bankrupt was doing was a fraud on the contract, he certainly would have granted the injunction. That, as I have said, is my opinion here, and I have no hesitation in granting the injunction asked for.

A claim against the estate of a deceased person was referred under the statute. 2 R. S. 89, 90. The referee reported in favor of the plaintiff and judgment was entered upon his report. The General Term, upon appeal, reversed this judgment and ordered a new trial, which was had before another referee, appointed at Special Term. This referee reported in favor of plaintiff, and upon appeal from the judgment on his report, the General Term reversed the judgment and ordered a new trial. From this decision plaintiff appealed to the Court of Appeals, giving the usual stipulation. Held, that the appeal could not be allowed. The proceeding in respect to claims against deceased persons, under the statute, is not an action but a special proceeding. An action is commenced by the service of a summons in some one of the modes prescribed by law, and it is plain that no proceeding can be an action, unless it be such that it can be commenced by the service of summons on the opposite party and pleadings. The proceeding named cannot be commenced by summons, but only by the consent of parties and approval of the surrogate, and can be tried in no other way than before a referee; there are no pleadings and the representatives of the estate can prove any defense they have without pleading it in any form. It is not made an action because it results in a judgment. See Robert v. Ditmas, 7 Wend. 522; Boyd v. Bigelow, 14 How. Pr. 511; Godding v. Porter, 17 Abb. Pr. 374; Coe v. Coe, 37 Barb. 232; Somerville v. Crook, 9 Hun, 664. Under sections 190, 191 of the Code, where authority must be found for appeals to the Court of Appeals, no appeal to this court in special proceedings is authorized, except from final orders in such proceedings. An order granting a new trial is not a final order, and if made in a special proceeding it is not appealable. Appeal dismissed. Roe, appellant, v. Boyle et al. Opinion by Earl, J. All concur; Miller, J., in result.

wherein it was provided that the representations made should be considered warranties avoiding the policy if untrue, in answer to a question as to the amount of incumbrances upon the property to be insured, applicant stated that there was a mortgage for $2,500. There was, in addition to said sum, accrued interest for a short period, not yet due. Held, not a misrepresentation. (2) At the time of the making of tho policy there was a small judgment, which was a lien on the property insured. This was not mentioned in the application. It was paid shortly after the policy was issued. Thereafter the policy was renewed upon the payment of a further premium. The certificate of renewal contained this condition: "Provided, always, that the original policy is in full force." Held, that even if the existence of the judgment would have invalidated the policy, the insurance effected by the renewal was not invalidated. (3) The policy was issued to M., loss payable to plaintiff as mortgagee. It contained a condition avoiding it "if the assured now has or shall hereafter make any other insurance upon the property hereby insured" without consent, etc. Plaintiff, without the knowledge of M., procured other insurance. Held, that the policy was not avoided thereby. Plaintiff, even though there was a clause in the mortgage from M. to him authorizing him to procure insurance in case of the default of M. in doing so, would not, in procuring insurance, act as the agent of M. (4) The policy provided that the insured should, "if required, submit to an examination and crossexamination under oath, by any person appointed by the company." Held, that the insured was bound to answer only such questions as had a material bearing upon the insurance and the loss. (5) Where proofs of loss are received by the company insuring without objection, they cannot afterward object that they are defective. (6) The policy contained a provision rendering it void in case foreclosure proceedings should be commenced against the insured property. Held, that foreclosure proceedings by plaintiff would avoid the policy and the fact that by the policy the loss was made payable to plaintiff as mortgagee did not constitute a consent by the insurance company, that he might enforce payment of his mortgage by foreclosure without invalidating the policy. Pratt v. N. Y. Cent. Ins. Co., 55 N. Y. 505. Plaintiff commenced proceedings of foreclosure during the pendency of which the insured property was destroyed by fire. Thereafter, the company, knowing of the foreclosure, under a provision in the policy allowing them to do so, subjected the insured to a very rigorous examination. Held, that by this action the company recognized the continuing validity of the policy and could not thereafter assert its invalidity by reason of the foreclosure proceedings. If an insurance company, in any negotiations or transactions with the insured, after knowledge of the forfeiture of his policy, recognize the continued validity of the policy, or do acts based thereon, or require the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived, and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or on an estoppel. Allen v. Vermont Fire Ins. Co., 12 Vt. 366; Webster v. Phoenix Ins. Co., 36 Wis. 67; Gans v. St. Paul Ins. Co., 43 id. 109; Insurance Co. v. Norton, 96 U. S. 234; Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480, 493; Prentice v. Knickerbocker Life Ins. Co., 77 id. 483. Forfeitures are not favored in law and the doctrine of waiver is not peculiar to insurance policies. Taylor on Land. and Ten., §§ 287, 497; 1 Smith's Lead. Cas. 20a; Lloyd v. Crispe, 5 Taunt. 249; Doe v. Miller, 2 C. & P. 348. Judgment affirmed. Titus v. Glen's Falls Ins. Co., appellant. Opinion by Earl, J.

[Decided June 15, 1880.]

NEGOTIABLE INSTRUMENT-HOLDER FOR VALUE — CREDITOR SURRENDERING NOTE OF DEBTOR IS-BUT NOT IF SURRENDERING DISHONORED CHECK-CONFLICT OF LAW. (1) The firm of B., P. & Co. gave to F., in settlement of an account, a check upon a bank where such firm had no funds. The check was presented and payment refused. The firm never had funds at the bank to pay the check. Subsequently the firm, in settlement of the claim against them, gave F. a noto which had been wrongfully diverted from the purpose for which it was put in the hands of the payee, and F., upon receiving it, surrendered the check. Held, that F. was not a holder for value so as to deprive the maker of the note from setting up against him the equities in respect to the wrongful diversion of such note. It is the settled law of this State that prior equities of antecedent parties to negotiable paper transferred in fraud of their rights will prevail against an indorsee who received it merely in nominal payment of a precedent debt, there being no evidence of an intention to receive the paper in absolute discharge and satisfaction beyond what may be inferred from the ordinary transaction of accepting or receipting it on account. The law regards the payment under such circumstances as conditional only, and the right of the creditor to proceed upon the original indebtedness after the maturity of the paper is unimpaired. Rosa v. Brotherson, 10 Wend. 85; Payne v. Cutler, 13 id. 605; Stalker v. McDonald, 6 Hill, 93; Lawrence v. Clark, 36 N. Y. 128; Weaver v. Barden, 49 id. 286; Moore v. Ryder, 65 id. 438; Potts v. Maer, 74 id. 594. Since the case of Coddington v. Bay, 20 Johns. 637, it has been the established rule of law in this State that to constitute an indorsee of negotiable paper a holder for value, so as to exclude the equities of antecedent parties, it is not sufficient that the transfer should be valid as between the indorser and indorsee; but in addition the latter must have relinquished some right, incurred some responsibility, or parted with value upon the credit of the paper at the time of the transfer. In accordance with this principle, and upon grounds which are obvious and satisfactory, it has been frequently held that when a creditor takes from his debtor the note of a third person before maturity in good faith in payment of or as collateral security for the debt, and in consideration thereof gives up collateral securities held therefor, he thereby to the extent of the collaterals surrendered becomes a holder for value of the paper and takes free from the defenses of antecedent parties. Bank of Salina v, Babcock, 21 Wend. 499; Essex County Bank v. Russell, 29 N. Y. 673; Park Bank v. Watson, 42 id. 490; Chrysler v. Renois, 43 id. 209. And it must be regarded as the settled doctrine in this State that the surrender by a creditor of the past due note of a debtor upon receiving from him in good faith before maturity the note of a third person in place of the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold or money loaned, or under any circumstances which would leave the original debt represented by the note in existence enforceable against the creditor, or whether, by surrendering the note, the creditor parted with his entire right of action. Youngs v. Lee, 12 N. Y. 551; Day v. Saunders, 1 Abb. Ct. Ap. Dec. 495; Brown v. Leavitt, 31 N. Y. 113; Pratt v. Coman, 37 id. 440; Paddon v. Taylor, 44 id. 371; Clothier v. Adriance, 51 id. 322; Mech. & Trad. Bank v. Crow, 60 id. 85. See, also, Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Sandusky v. Scoville, 24 id. 115. The rule established in these cases rests upon reasons rather technical than substantial, so that while the court will not disturb, they will not

extend it so as to include a check of the debtor which is not intended to represent the debt or taken as security for the debt, but was merely in this case a false token taken in place of money. (2) The fact that the note was transferred in Massachusetts would not alter the rule though the law may be different there, it not being shown at trial that it is different. The court cannot take judicial notice that the law of another State differs from our own. McBride v. Farmers' Bank, 26 N. Y. 450; Leavenworth v. Brockway, 2 Hill, 201. Order reversed. Phenix Insurance Co. v. Church, appellant. Opinion by Andrews, J.

[Decided June 1, 1880.]

Held,

USURY-MUST BE PROVED.-B. and O. were lawyers occupying the same office. Defendant negotiated a loan on mortgage to him from B., O. acting in the transaction as the attorney for B. Defendant paid O. a bonus for the loan, no part of which was shown to have gone to B., and B. denied that he received any part, and O. and another witness testified that B. knew nothing of the payment of the bonus which O. stated that he retained it entirely for his own benefit. not to establish the taking of usury on the part of B. Usury must be established like any other defense by proof of a satisfactory character, and a party cannot be made liable for the act of an agent intrusted with money to invest, who exacted a bonus for himself as a condition of making the loan, without the knowledge or assent of his principal. Guardian Mut. Ins. Co. v. Kashaw, 66 N. Y. 544; Condit v. Baldwin, 21 id. 219. Judgment affirmed. Van Wyck et al. v. Walters et al., appellants. Opinion by Miller, J. [Decided June 8, 1880.]

MAINE SUPREME JUDICIAL COURT AB

STRACT.

JANUARY, 1880.

EASEMENT -HOW ACQUIRED — USE HAVING ORIGIN IN PAROL. An easement may be acquired by a use of land, the use being continued long enough, having its origin and continuance in a parol gift or grant. Any occupation or enjoyment of the land of another under a claim of ownership is in a legal sense an usurpation of the right of the true owner, constituting an adverse possession. The principle is concisely and clearly stated and illustrated in Sumner v. Stevens, 6 Metc. 337, where it was held, that if a son enters upon land under a parol gift thereof from his father, who owned the land, and has the sole and exclusive possession for twenty years, he acquires title thereby. Shaw, C. J., says: "Had the tenant simply shown an adverse and exclusive possession for twenty years, he would have shown that the owner had no right of entry, and that would have been a good defense to this action. Is it less so that the tenant entered under color of title? A grant, sale, or gift of land by parol is void by the statute. But when accompanied by an actual entry and possession, it manifests the intent of the donor to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor, that the possession is so taken. Such a possession is adverse. The doctrine that a parol demise and exclusive occupation under it by the grantee may amount to an adverse possession that would transfer the title to land, was approved and applied in the case of Webster v. Holland, 58 Me. 168. So a person may, by gift or sale, dispose of an easement by parol, and the donee or vendee obtain a prescription thereby after the lapse of sufficient time. It must appear that the privilege was not used under a letting, or license, or in any way in subordination to the title of the legal owner. In Arbuckle v. Ward, 29 Vt. 43, it was held that the use of *To appear in 70 Maine Reports.

66

land originating in permission will not prevent it becoming a right by prescription, if continued long enough, if the permission was of a perpetual or unlimited character." See, also, Ashley v. Ashley, 4 Gray, 197; Ripley v. Bates, 110 Mass. 161; Washb. on Eas., § 4. Jewett v. Hussey. Opinion by Peters, J.

FIXTURES- -ERECTED BY ONE IN POSSESSION UNDER CONTRACT OF PURCHASE-REAL ESTATE.-Where a person entered into possession of a tract of land without the payment of rent therefor, and to use and occupy it as his own in accordance with the terms of a contract for its purchase, and erected large and substantial buildings thereon with engines and machinery for the manufacture of an extract of bark for tanning purposes, and then failed to perform the conditions of the contract on his part and thereby acquire the title, the erections, engines and machinery are a part of the realty and cannot be sold as personal property as against the owner of the land. Fixtures attached to premises by one in possession under a contract of purchase, where he fails to perform on his part and thereby to acquire a title, become a part of the realty, like fixtures annexed by a vendor or mortgagor, and may not be removed by him. See McRea v. Bank, 66 N. Y. 490; Symonds v. Harris, 51 Me. 20; Strickland v. Parker, 54 id. 266; Elwell on Fixt. 22, 273; Cooley on Torts, 429; 1 Washb. on Real Prop. 6. The rule holds in Massachusetts. Eastman v. Foster, 8 Metc. 19, 26; McLaughlin v. Nash, 14 Allen, 138; Oakman v. Ins. Co., 98 Mass. 57; Poor v. Oakman, 104 id. 309, 318; Madigan v. McCarthy, 108 id. 376. In Richtmyer v. Morss, 3 Keyes, 350, it was held, that except in cases where the relation of landlord and tenant exists one claiming the building as personal property must prove that it was erected upon an agreement between the builder and the owner of the fee of the land that it was to be considered strictly a personal chattel; which is in effect the Massachusetts rule. See, also, Smith v. Benson, 1 Hill, 176. The same point was expressly decided in Ogden v. Stock, 34 Ill. 526, and the court says, "if the party making the improvement, as between himself and the owner of the soil, has no right to erect the same as property separate and distinct from the freehold, an intention so to do, no matter how clearly manifested, is of no avail." Perkins v. Swank, 43 Miss. 349, and Leland v. Gassett, 17 Vt. 403, are to the same effect, and Christian v. Dripps, 28 Penn. St. 271, indicates that the same would be held in that State. See, also, Yates v. Mullen, 24 Ind. 278; Rines v. Bachelder, 62 Me. 95; Osgood v. Howard, 6 id. 453; Fuller v. Faber, 39 id, 519; The cases Russell v. Richards, 10 id. 429; S. C., 11 id. 371; Pullen v. Bell, 40 id. 314, distinguished. Hinkley & Egery Iron Co. v. Black. Opinion by Symonds, J.

VIRGINIA SUPREME COURT OF APPEALS

ABSTRACT.

FEBRUARY, 1880.*

FIXTURES WHEN MACHINERY IN FACTORY FIXTURE AS BETWEEN VENDOR AND VENDEE.- - Where the machinery in a factory is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty, and passes with the building; and whatever is essential to the purposes for which the building is used will be considered as a fixture, although the connection between them may be such that it may be severed without physical or lasting injury to either. See Green v. Phillips, 6 Gratt. 752. B., to secure a debt of $3,000 for money lent to him by S., conveyed to C., in trust, a lot of land in the town of F., described as containing one acre of land on which B. has erected a planing mill and spoke fac*To appear in 32 Grattan's Reports.

tory; and by the same deed he conveyed and assigned to C. a policy of insurance he had taken out on the said planing mill, spoke factory and machinery, and covenanted to keep the policy in full force until the debt was paid. The lot and building independent of the machinery was not worth more than $1,000. Held, that the machinery in the building passed under the deed. Shelton v. Ficklin. Opinion by Christian, J.; Burks and Staples, JJ., dissented.

LIMITATIONS-STATUTE OF ACKNOWLEDGMENT OF DEBT-TO PERSON OTHER THAN CREDITOR. - A deposition of the maker of a note given and signed by him, in a case in which the obligee was not a party, for the purpose of obtaining a credit for the note as to be paid by him, and for which he was allowed such a credit in that case, is such an acknowledgment of the debt by him as will defeat the plea of the statute of limitations in an action on the note by the obligee against him. The creditor is bound to prove a promise, but he is not required to prove an express promise. It is sufficient for him, under the statute, to establish an acknowledgment in writing, from which a promise of payment might be implied. Such acknowledgment, to be effectual, must not consist of equivocal, vague and indeterminate expressions; but ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable for and willing to pay. Bell v. Morrison, 1 Pet. 351, 362. The same rule is laid down, with some variety of expression, in other cases. A distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay. Linsell v. Bonsor, 2 Bingh. N. Cas. 241 (29 Eng. C. L. 319). If an acknowledgment is relied on it ought to be a direct and unqualified admission of a present subsisting debt, from which a promise to pay would naturally and irresistibly be implied. Sutton v. Burruss, 9 Leigh, 381. If there be an unequivocal admission that the debt is still due and unpaid, unaccompanied by an expression, declaration or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise is then present, and the party is bound by it. Young v. Monpoey, 2 Bailey (S. C.), 278. See, also, Bangs v. Hall, 2 Pick. 368; Bailey v. Crane, 21 id. 323; Russell v. Copp, 5 N. H, 154; Head v. Manners, 5 J. J. Marshall, 255; Peebles v. Mason, 2 Dev. 367; Aylett v. Robinson, 9 Leigh, 45; Sutton v. Burruss, id. 381; Butcher v. Hixton, 4 id. 519; Bell v. Crawford, 8 Gratt. 110. Dinguid v. Schoolfield. Opinion by Burks, J.

CRIMINAL LAW.

INTENT WHEN NOT NECESSARY TO PROVE IT. When an act, in general terms, is made indictable, a criminal intent need not be shown, unless, from the language or effects of the laws, a purpose to require the existence of such intent can be discovered. It has been many times decided, and indeed is the admitted general rule, that ignorance of the law is no defense against a criminal charge. Mr. Wharton, in 19 Alb. L. J. 34, says "that ignorance of law is no defense is generally admitted." In State v. Goodenow, 65 Me. 30, it was decided, on an indictment for adultery, that the defendant could not defend on the plea that she believed that she had been legally divorced. And in like manner, it is easy to cite cases establishing the doctrine beyond dispute or cavil, that in many cases an honest mistake in regard to a state of facts will not exculpate when the prohibition of a statute has been violated. In Reg. v. Woodrow, 15 M. & W. 404, which was an information against a retailer of tobacco, for having in his possession adulterated tobacco, it was held that he was punishable, although it was shown

that he had purchased it as genuine, and had no knowledge or cause to suspect that it was not so. In Commonwealth v. Mash, 7 Metc. 472, which was the case of a woman marrying after her husband had been absent for several years, in the honest belief that he was dead; such defense was disallowed. The question appertains to the department of statutory construction, and to introduce into the act the requisite of a guilty mind, it must appear that such was the intent of the lawmaker. In this case the duty prescribed being a simple one and easily performed, held, that there was no ground on which the court could import into the act a requirement that to constitute guilt an intentional violation of the law must be shown. New Jersey Court of Errors. Halsted v. State. Opinion by Beasley, C. J. (Appearing in 12 Vroom's Reports.)

INTOXICATION-MAY BE SHOWN IN ORDER TO DETERMINE DEGREE OF CRIME. - Whilst voluntary intoxication is no defense to the fact of guilt, yet where the question of intent or premeditation is involved, evidence of it is admissible for the purpose of determining the precise degree of the crime. And in all cases where the question is between murder in the first and second degree, the fact of the prisoner's drunkenness may be proved to shed light on mental status, and thereby enable the jury to determine whether the killing was from a premeditated purpose, or from passion excited from inadequate provocation. But caution is necessary in the application of the doctrine, as there may be many cases of premeditated murder, in which the prisoner previously nerves himself for the deed by liquor. In such cases as these, drunkenness is entitled to no consideration in favor of the prisoner in determining the degree of his crime, but on the contrary, tends to elevate the offense to murder in the first degree. Commonwealth v. Jones, 1 Leigh, 598; Pirtle v. State, 9 Humph. 663; Swan v. State, 4 id. 136; Boswell v. Commonwealth, 20 Gratt. 860. Virginia Supreme Court of Appeals. Willis v. Commonwealth. Opinion by Anderson, J. (To appear in 32 Grattan's Reports.)

PROCEEDINGS OF THE AMERICAN BAR ASSOCIATION.

THE

IE principal proceedings of the American Bar Association at its convention at Saratogo last week were the following: President Bristow read his annual report, communicating the most noteworthy changes in statutory law on points of general interest made in the several States and by Congress during the year. The fact that twenty-five States have only biennial sessions, and the past year having been the off year in twenty of these, has not left so much to report as last year. The Chinese have been attacked vigorously, but laws against them have been declared unconstitutional in the United States courts, as fast as taken there. Railroads have been attacked by laws in California and Georgia. In Georgia a commission is named to fix rates. Maine has a law to prevent railroad employees from striking and stopping trains. Connecticut has a law to examine men for color-blindness and prevent their employment on railroads. Severe laws against robbing graves have been enacted in Iowa, Ohio, and Maine. New York has a law against sending annoying letters, predicated on those sent to the Rev. Dr. Dix, which might be construed to reach many business letters. California and Georgia have laws which provide for appointing judges pro tem.. by consent of parties. California legalizes warrants of arrest sent by telegraph. Connecticut exempts property to the value of $1,000, belonging to pensioners, from taxation. The laws of inheritance have been changed in Massachusetts, giving husband

Some

or wife a greater proportion of property than heretofore, where the husband or wife dies intestate. States have attempted to rectify and improve their insolvent laws. It is to be hoped that out of the various laws proposed in Congress some equitable National bankrupt law may be evolved. The New York Civil Code of Procedure, recently passed, made many radical changes, and was strenuously opposed by many, but is now generally conceded to be an improvement on the old Code. Regarding the attempts to regulate railroad rates, the problem is one needing solution. He thought that railroads, unhampered by competition, can do much better for the country, if they choose, than where there is a brisk competition, and he mentioned the north-eastern part of England, where several unprofitable roads had been united and become profitable under one management, affording greatly reduced rates. The New York law to authorize States to take assigument of claims against other States is an important one, and the constitutionality of it remains to be tested. The Census Bureau says that $100,000,000 in State debts have been repudiated. Massachusetts has made life insurance policies, on which two premiums have been paid, non-forfeitable. South Carolina has enacted a law similar to that of New York, removing liens on real estate after twenty years from last payment. Anti-tramp laws have been passed in several States, semingly much alike, except as to the length of time of imprisonment. New Jersey has forbidden the payment of employees in store orders. Laws forbidding the intermarriage of blacks and whites have been passed in South Carolina and other States. The law heretofore passed to the same effect in Virginia has been declared constitutional by the United States court. Massachusetts has appointed a commission to examine persons arrested for the first time, to see if they cannot be reformed without imprisonment. Georgia and Iowa have appointed emigrant commissions to present facts to induce immigration. Georgia has passed a stringent usury law. Only twelve States and Territories have no laws against usury. New Hampshire has offered a bounty for the manufacture of beet sugar. Louisiana requires every person carrying on a business or profession, except agriculture and a few others, to pay special license fees.

The annual address was delivered by Cortlandt Parker, of New Jersey, on Alexander Hamilton and William Patterson, whom he pronounced the architects of the Federal Constitution. In recalling from the past the great works of great lawyers, we uphold, he said, the reputation of our profession. These two were of different schools in politics, but they worked together, each contending for his own ideas, and thus completed a structure which combined the best of both. The Constitution was more a growth from colonial times than an edifice built up. Necessity had bound the colonies together during the war; but at the close of the Revolution jealousies arose, which compelled a new organization. Hamilton, while in camp during the war, had foreseen and sketched in a letter the failure of the confederation, and prepared a plan for a Federal government. The convention to form the Constitution was mainly called through the exertions of Hamilton. After its organization he presented his plan of a Constitution for the country, embodying what came to be known as the Federal one. Afterward Judge Patterson presented his plan, embodying prominently the ideas of State sovereignty. Mainly through his efforts the Senate was prevented from being organized on the basis of population. Hamilton and Patterson were alike eminent as lawyers. Hamilton was no theorist, but was eminently a practical statesman, standing at the head of the New York Bar. His specialty was constitutional law. He early foresaw, after the Constitution went into effect, what

troubles were to arise under it. Patterson had a more essentially legal mind. In March, 1793, President Washington appointed Patterson one of the justices of the Supreme Court, and he died in office in 1806, having refused to be appointed chief justice, thereby allowing John Marshall to be appointed. The speaker closed with an eloquent tribute to Malesherbes, the defender of Louis XVI.

Henry E. Young, of Charleston, S. C., read a paper on Sunday laws. He gave a historical review of these laws. The first of which we have record was in the year 321, under Emperor Constantine. Among other things he forbade on that day was arbitration in suits, even by bishops. Theodosius, in 386, forbade shows and spectacles in circus and arena. From the Roman Empire the reader came to England, where the King of the Saxons, in 692, ordered that slaves made to work on Sunday by their lord's command were set free. Ethelstane, in 925, forbade to buy or sell on the Lord's Day. After the Conquest there was a tendency to strengthen the laws for the observance of Sunday; yet in the time of Edward III., the courts sat on Sunday. In about 1564 the laws were made more stringent, and the word "Sabbath" began to be used. Under King James Puritanism was in the ascendant, and the lord mayor of London stopped the king's carriage in the streets of London on Sunday. Under Charles II and succeeding kings, the Sunday laws were constantly amended, but were not made stringent enough to suit the Puritans. When Massachusetts was settled, among the first laws enacted were some for the observance of Sunday. Mr. Young proceeded with a rapid review of the Sunday laws of many of the States, and concluded with remarks on the same, suggesting their modification, particularly in reference to allowing reasonable recreation, if not offensive.

George Tucker Bispham, of Philadelphia, read a paper on the "Rights of Materialmen, and Employees of Railroads as against Mortgages." When it was considered, he said, that over 10,000 miles of railroads were now being operated under receivers appointed by courts, the magnitude of this subject could be estimated and the attention it had attracted in legal literature could be understood. Much discussion had taken place during the past fifteen years before and by courts. In some cases courts had gone very far in interfering with rights of bondholders. Courts had put the priority which had been allowed to wages and supply claims on three grounds - public policy, which required courts to protect the claims of those whose labor or material went to maintain works of great public convenience, such as railroads are; the general principle of equity that he who sought equity should do equity; and because in some cases income which would otherwise have been used to pay current expenses for supplies and labor had been used to furnish permanent improvements to the road; and it was just, in such cases, that funds which had been diverted from labor and supply claimants should be restored to them out of the net income in the hands of the receiver. These grounds of the decision of the courts were examined, as they were applicable to three classes of property, viz.: The corpus of mortgaged property, the income, and the personalty acquired after the creation of the mortgage, but supposed to be embraced in its terms. As to all of these classes of property the conclusions reached were that neither on the ground of public policy nor of general equity were wages and supply claimants entitled to priority, and that even the test of diversion and restoration, as laid down by the Supreme Court of the United States in Fosdick against Schell, reported 9 Otto, was to be very cautiously applied, and should not be extended. This case was commented on, and reference was also particularly made to the recent order of the Circuit Court of the United States in the Philadelphia & Reading Railroad