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TENDENT PERFORMING DUTY OF OPERATIVE FELLOW. duced by the trial court is improbable or more unlikely SERVANT. - The liability of a master to his servant for to be true than the opposite one. (3) In an action injuries sustained while in his employ, by the wrongful against the representative of an estate for services renor negligent act of another employee of the same mas- dered testator by plaintiff's wife, after her marriage, it ter, does not depend upon the doctrine of respondeat was claimed by defendant that certain legacies to such superior. If the employee whose negligence causes wife and her daughter, which were for a less amount the injury is a fellow-servant of the one injured, the than the value of the services, were in payment of such doctrine does not apply. Conway v. Belfast, etc., Ry. services under an agreement between the testator and Co., Irish R., 11 C. L. 353. A servant assumes all risk the wife. The legacies were given “after payment of of injuries incident to and occurring in the course of debts.” Defendant offered to show by the scrivener his employment, except such as are the result of the who drew the will, that at the time it was drawn tesact of the master himself or of a breach by the master tator stated that the legacies were given in payment of of some term, either express or implied, of the contract services rendered by the wife, in compliance with a of service, or of the duty of the master to his servants. promise. Held, that the testimony was inadmissible. But for the mere negligence of one employee the mas- The general rule is, that the declarations of a testator ter is not responsible to another engaged in the same before, contemporaneously with, or after the making general service. The liability of the master does not of a will, are inadmissible to affect its construction. 1 depend upon the grade or rank of the employee whose Redf. on Wills, 538. In Mann v. Executors of Mann, 1 negligence causes the injury. A superintendent of a Johns. Ch. 231, Chancellor Kent said that the rule was factory, although having power to employ men or rep- well settled that parol evidence cannot be admitted to resent the master in other respects, is, in the manage- supply or contradict, enlarge or vary the words of a will, ment of the machinery, a fellow-servant of the other nor to explain the intention of a testator, except in operatives. Albro v. Agawam Canal Co., 6 Cush. 75; two cases, viz., where there is a latent ambiguity arisWood's Mast. & Servt., § 438; also SS 431, 436, 437. Oning dehors the will as to the person or subject meant to the samo principle, however low tho grade or rank of be described, or to rebut a resulting trust. A legacy the employee, the master is liable for injuries caused implies a bounty, and not a payment, and to admit exby him to another servant if they result from the trinsic evidence to contradict this would be to contraomission of some duty of the master which he has con- dict by oral evidence the legal effect of a written infided to such inferior employee. Flike case, 53 N. Y. strument and to violate the statute of wills, for then, 549. Tho liability of the master depends upon the as Lord Chancellor Talbot said, in Fowler v. Fowler, 3 character of the act in the performance of which the P. Wms. 353,“ the witness and not the testator would injury arises, without regard to the rank of the em- make the will." See, however, as to presumptions, ployee performing it. If it is one pertaining to the Chancy's case, 1 P. Wms. 408; Hooley v. Hutton, 1 duty the master owes to his servants, he is responsible Bro, C. C. 390; Hurst v. Beach, 5 Madd. 351; Trimmer to them for the manner of its performance. The con- v. Bayne, ñ Ves. 508; Osborne v. Duke of Leeds, 5 id. verse of this necessarily follows. If the act is one 369; Hall v. Hill, 1 Dr. & War. 94; 1 Redf. on Wills, which pertains only to the duty of an operative, the 646. In this case no presumption arose that the legaemployee performing it is a mereservaut, and the mas- cies to tho wifo and daughter were intended as a satister, although liable to strangers, is not liable to a faction of the debt owing by testator to the plaintiff, fellow-servant for its improper performance. The for several reasons: first, the legacies were given “after doctrine in Mullan v. Phila. & S. M. S. Co. 21 Am. Rep. payment of debts" (Boughton v. Flint, 74 N. Y. 476); 2, sustains this proposition. Accordingly, where B. who second, they were of less amount than the debt (Cranrepresented the employer as financial agent or superin- mer's case, 2 Salk. 508; Graham v. Graham, 1 Ves. tendent, overseer or manager, and stood in his place, Sen. 263; Atkinson v. Webb, 2 Vern. 478); third, the held, that he did so only in respect to these duties, debt was unliquidated (Williams v. Crary, 5 Cow. 368; which the employer had confided to him; as to other S. C., 4 Wend. 449); and fourth, the legacies were not acts about the employer's place, he was a mere em- given to the creditor, but to a third person (Clark v. ployee. And where he turned on steam he performed Bogardus, 12 Wend. 67). See, also, Eaton v. Benton, 2 the act of a mere operative, and the employer would Hill, 576; Phillips v. McCombs, 53 N. Y. 494. Judgnot be liable to a fellow-employee for an injury caused ment affirmed. Reynolds v. Robinson et al., appellants. by that act. Judgment reversed. Crispin v. Babbitt, Opinion by Andrews, J. appellant. Opinion by Rapallo, J.; Folger, C. J., An- [Decided Sept. 21, 1880.] drews and Miller, JJ., concurred; Earl, Danforth and Finch, JJ., dissented. [Decided Sept. 21, 1880.]
MASSACHUSETTS SUPREME JUDICIAL
SEPTEMBER, 1880. DENCE — PAROL, NOT ADMISSIBLE TO SHOW TESTATOR'S INTENTION AS TO LEGACY - PRESUMPTIONS AS TO BANK RIGHT TO APPROPRIATE SECURITIES LEGACIES.- (1) The doctrine in Reynolds v. Robinson, THIRD PERSON DEPOSITED BY DEBTOR AS HIS OWN.64 N. Y. 589, that where an agreement is made be- Plaintiff placed a promissory note, owned by him, made tween two parties that compensation for services ren- and indorsed by third persons, in the hands of J. for dered by one of them to the other shall be made by a collection. J. deposited the same with the defendant provision in the will of the latter, and a provision is bank where he did business, for collection, giving the made sufficient only to compensate in part for the ser- bank no notice as to his relation to the note. The vices, the party rendering them has, after the death of bank collected the note and applied the proceeds to the the other, a cause of action against his representa- account of J., against whom it held an unrecovered tives for the balance remaining duo over and above indebteduess. Thereafter J. became bankrupt aud the testamentary provision, reaffirmed. (2) This court, the defendant settled with his assignee in bankruptcy. in reviewing the determination of a trial court upon As soon as plaintiff learned of the collection of the the facts, is confined to the inquiry whether there is note and the disposition of its proceeds, about a year any evidence to sustain it. It does not pass upon the after such settlement he demanded such proceeds weight or preponderance of evidence, nor in a case from defendant. Held, that plaintiff was not entitled where opposing inferences may be drawn can it review to such proceeds. It has long been settled that a a finding, because in its judgment the inference de- banker who has advanced money to another has a gen
eral lien on all securities of the latter which are in his plaintiff and occupying the same position with referhauds for the amount of his general balance, unless ence to other parts of the device. Held, under a such securities were delivered to him under a particu- statute protecting a person who uses any peculiar lar agreement limiting their application. Bank of name, letters, marks, device or figures upon an article Metropolis v. New England Bank, 1 How. 234, and 6 manufactured or sold by him, to designate it as an id. 212; Sweeney v. Easter, 1 Wall. 166. One who article manufactured by him, that defendant's stamp takes a negotiable promissory note before maturity as a violation of plaintiff's trade-mark entitling security for a pre-existing debt is, by the law of this plaintiff to protection. Lawrence Hosiery ManufacState, a holder for value. Culver v. Benedict, 13 Gray, turing Co. v. Lowell Hosiery Mills. Opinion by Colt, J. 11. Such being the law, the defendant received the note, undertook its collection and applied the pro
WISCONSIN SUPREME COURT ABSTRACT. ceeds; and the unknown owner of it, who gave it to J. with all the appearance of title, cannot be permitted
OCTOBER, 1880. to defeat the right of the defendant, who, long before
CONSTITUTIONAL LAW – SALARY OF JUDICIAL OFFIit had knowledge of the claim, had applied the same to
CER- RIGHT OF LEGISLATURE TO CHANGE TERM AND the payment of J.'s debt and settled with his assignee
COMPENSATION.- An act of the Legislature creating a in bankruptcy. See Locke v. Lewis, 124 Mass. 1.
county court of limited civil and criminal jurisdiction, Wood v. Boylston National Bank. Opinion by Colt, J.
and fixing the salary of the judge, payable out of tbe NEGLIGENCE — DANGEROUS ARTICLE - GAS ---CON- county treasury, may be amended so as to change the TRIBUTORY NEGLIGENCE-AFFIRMATIVE PROOF salary of a judge of such court during tho term for WANT OF.-In an action for injury to plaintiff, a child which he has been elected; and the constitutional proof five years, from the inhalation of gas escaping from vision which forbids the “compensation of any public defendants' pipes, it appeared that plaintiff and his officer” to be “increased or diminished during his mother slept in a room adjoining a court in which term of office." Constitution, art. 4, § 26, is inapplithe pipes from a crack in which the gas escaped were cable to such a case. It is well settled that, in the ablaid ; that the mother was found dead and plaintiff in- sence of any constitutional prohibitions or affirmative sensible; that the accident took place in the night; provisions fixing the term of office of any officer, or that there were no gas fixtures in the room occupied his compensation, the Legislature may change such by plaintiff, and there was no evidence that the mother term or compensation, and such change of term or had notice of the escaping gas or was conscious of its compensation will apply as well to the officers then in presence in time to take precautions against its dele- office as to those to be thereafter elected. The authoriterious effect; that on the day before the accident ties fully establish this point. Butler v. Pennsylvania, there was no smell of gas in the court; that the mother 10 How. (U. S.) 402; Co. Com’rs v. Jones, 18 Mim. 199; was a sober and prudent woman. Held, that there Taft v. Adams, 3 Gray, 126; Connor v. New York, 5 was evidence sufficient to sustain a verdict in favor of N. Y. 285; People v. Barnard, 27 Cal. 470; Iu re Bulger, plaintiff for injury by the escaping gas. The burden 45 id. 553; Cooley on Coust. Lim. 276 and note; was upon the plaintiff to show that he and his mother Supervisors v. Hackett, 21 Wis. 613; State v. Douglass, were in the exercise of due care in respect to the occur- 26 id. 4:28; Hall v. State, 38 id. 89. Slate ex rel. Martin rence from which the injury arose. But this, as was v. Kalb. Opinion by Taylor, J. said in Mayo v. Boston & Maine Railroad, 104 Mass.
CONTRACT - DURESS ILLEGAL CONSIDERATION140, although in form a proposition to be established
COMPOUNDING FELONY -RESCINDING OF CONTRACT.affirmatively, need not be proved by affirmative testi
By duress of imprisonment on a criminal charge, with mony addressed directly to its support. It may be threats of future prosecution if a certain sum of money shown by evidence which excludes fault. And in the
be not paid him, and promise to dismiss the prosecu. case at bar, there was nothing which excluded the in
tion on such paymeut being made, A. induces B. to ference that both mother and child on that night went
procure for him negotiable promissory notes for said to bed and to sleep in the usual manner with nothing sum from X., a friend of B., and then causes the to indicate that there was unusual exposure to injury,
prosecution to be dismissed and B. discharged. B. and that they were suffocated in their sleep by the gas
thereupon gives X. his (B.'s) own notes, secured by which escaped from the defendant's pipes. If this
mortgage, for the same amount, and X. pays his notes were so, they were clearly in the exercise of such care
to A, when due. B. is not guilty of said offense. The as prudent people ordinarily use under circumstances
complaint against him fails to charge him with any of similar exposure to injury from hidden and unsus
offense, the warrant on which he was arrested is void pected causes. ('raig v. New York, etc., Railroad, 118
on its face, and both complaint and warrant are colorMass. 437; Commonwealth v. Boston & Lowell Rail
able only. IIeld, (1) that even if a felony had been road, 126 id. 61; Hinckley v. Cape Cod Railroad, 120
charged and committed, the act of X., in giving such id. 257. And there was sufficient evidence of defend
notes, would not have rendered him particeps criminis ant's negligence to make it responsible. Smith v. in the attempt to compound the felony ; (2) that even if Boston Gas-Light Co. Opinion by Colt, J.
the original transactions were illegal as to all the parties TRADE-MARK - ARABIC NUMERALS MAY BE.-Plaint- yet after it has been fully performed, and A. has reiff used as a trade-mark for many years upon hosiery ceived the avails of it, he might be compelled by B. to the figure of an eagle surmounting a wreath formed of account, on the ground of its illegal character; (3) that the branches of the cotton plant. The wreath in- it is immaterial that X. paid his notes after the duress closed the words“ Lawrence Manufacturing Company' had ceased, such payment not having been induced by printed in a circle, having underneath it the word any act of B. after the duress had ceased; (4) that if "trade-mark," and, below all, the figures
B., after his release from duress, might by suit haro printed in large hollow block numerals. Before this, restrained payment of the money by X, to A., and rethe plaintiff had used an eagle and scroll in combina- scinded the whole contract, yet his failure to do so is tion with other numerals as a trade-mark upon the no defense to his action against A. for the amount. same grade of hosiery. Defendant stamped hosiery Kiewert v. Rindskopf, 46 Wis. 481; Armstrong v. Toler, made by it with a device consisting of an eagle sur- 11 Wheat. 258; McBlair v. Gibbes, 17 How. 236; mounting a double circle or garter, on which were Brooks v. Martin, 2 Wall. 70; Planters Bank v. Union printed the words extra finish iron frame" and Bank, 16 id. 483; Buehr v. Wolf, 59 Ill. 470; Deanville beneath the figures “5:23," printed in large hollow v. Merrick, 25 Wis. 688. Ileckman v. Swartz, Opinion block numerals of the size and description used by the by Orton, J.
SALE- OR RETURN - EVIDENCE OF SALE.
.- Where 659. In Young Stone Dressing Co. v. Wardens St. A takes to his own house a horse of B, intending James Church, 61 Barb. 489, the assignment and lien to purchase it if satisfactory, with an understand- were sustained, but not on account of any claim for a ing that he is to use it by way of trial until a specified lien filed by the assignee, for the statement of the case time, and then, if not satisfied, bring it back to B, or shows that the assignee, upon the trial, discovered tho if too busy for that, to let it stand unused until B lien by him filed, as a ground of claim in the action. comes for it, and A continues to use the horse after In Iaege v. Bossieux, 15 Gratt. 83, the contractor the time so fixed, and then refuses to buy and offers to assigned his contract before the completion of the work, returu it, this is evidence for the jury on the question and it was held this assignment entitled the assignee whether A, at the time so fixed, had determined to to the contractor's lien. No case has been found where retain the horse, and is therefore liable for the price, it is held that the assignment of an installment due but is not conclusive evidence. In any view of the case before the completion of the work carried with it the evidence proved what is denominated “sale on to the assignee the right to file a claim for and to trial” or “approval,” or a “sale or return." In such enforco a lien. “The statute does not contemplate that cases the sale is not consummated, and the title re- a contractor or sub-contractor may, from time to time, mains in the vendor after the delivery and until the as the work progresses, file successive liens for work approval is signified by the vendee, or until he so con- and materials performed aud furnished under an entire ducts himself with regard to the property that the law contract, but he is entitled to acquire only one lien, will presume that he has approved of the property and and for this purpose his claim must be filed within tho is satisfied to keep it as his on the terms agreed upon. time specified in the statute after the completion of See Benjamin on Sales, $ 595; Mowbray v. Cady, 40 the work." Cox v. W. P. R. Co. 44 Cal. 18. See, also, Iowa, 604; Hunt v. Wyman, 100 Mass. 198. Kahn v. Phillips Mech. Liens, § 324. Merchant v. Ottumwa Klabunde. Opinion by Taylor, J.
Water Power Co. Opinion by Day, J.
MORTGAGE.- CHANGE OF FORM OF INDEBTEDNESS
DOES NOT DISCHARGE.-A corporation purchased real 10WA SUPREME COURT ABSTRACT. estate and as a part of the purchase money executed its
promissory notes which were secured by a mortgage OCTOBER, 1880.
on such real estate. Thereafter the holder of the notes
surrendered them and took other evidences of indebtCONFLICT OF LAW – UTAH DIVORCE WITHOUT JURIS- edness in their place, the surrendered notes being DICTION INVALID - PAROL EVIDENCE SHOWING WANT marked paid. The mortgage was not discharged. Held, OF JURISDICTION.- .-In an indictment for adultery the that the mortgage remained a valid security as defendant set up in bar a Utah divorce. The prosecu- between the debtor and creditor and as against a tion offered to prove by parol facts showing that the subsequent mortgage given to one who had been, while Utah court had no jurisdiction. The decree of the the change of evidences of indebtedness took place, a Utah court did not on its face show that it had juris-director in the corporation, and who had sufficient diction. Held, that the evidence was competent and knowledge of the facts to put him upon inquiry. if the facts were proved the divorce was no defense.
Chauncey, 8 Coun. 389; Funk v. Branch, 16 It has been held, in an action on a judgment or decree id. 259; Brinkerhoff v. Lansing, 4 Johns, 65; Tobey v. rendered in another State, that it was competent to Barber, 5 id. 68; Watkins v. Hill, 8 Pick, 522; Pomeestablish by parol that the court had no jurisdiction. roy v. Rice, 16 id. 22; Cole v. Sackett, 1 Hill, 516; PutLowe v. Lowe, 40 lowa, 220; Webster v. Hunter, 50 id. nam v. Lewis, 8 Johns. 389; Johnson v. Weed, 9 id. 310; 215. As the evidence offered to be introduced by the Flower v. Ellwood, 66 Ill. 438; 2 Am. Lead. Cas. 245; State would have tended to show the Utah court did Paine v. Voorhis, 25 Wis. 5:26; 2 Jones Mortg. $ 924; not have jurisdiction, the district court erred in reject- Sloan v. Rice, 41 Iowa, 46; Farwell v. Grier, 38 Iowa, ing it. If there was no jurisdiction, the decree was 83; Port v. Robbins, 35 id. 208; Farwell v. Salspaugh, absolutely void and the defendant guilty, if the allega. 32 id. 582; Packard v. Kingman, 11 id. 219. Heivly v. tions in the indictment were established to the satis. Mattison. Opinion by Day, J. faction of the jury. Whitcomb v. Whitcomb, 46 id. 437; State v. 'Whitcomb, 2 N. W. Rep. 970. It was held iv People v. Smith, 13 Hum. 414; Hood v. State, MINNESOTA SUPREME COURT ABSTRACT. 56 Ind. 263; and Letowich v. Letowich, 19 Kan. 451, that a Utah divorce, obtained without jurisdiction, or
OCTOBER, 1880. where neither party was a resident of the territory, was absolutely void. State of Iowa v. Fleuk. Opinion
Со LICT OF LAW – FEDERAL PROVISION AS TO by Seevers, J.
STANDING OF STATE JUDGMENTS-WANT OF JURISMECHANICS' LIEN - INCHOATE RIGHT TO, NOT AS- DICTION — DIVORCE. — The requirement of the Federal SIGNABLE -- ASSIGNMENT OF INSTALLMENT DUE ON Constitution, that “full faith and credit shall be given CONTRACT.-One who performs work on a contract, for in each State to tho records and judicial proceedings which he is entitled to a mechanics' lien, cannot before of every other State," has no application to decrees and he has completed his work assign an installment due judgments in actions wherein the court has acquired for such work so as to transfer the right to file such no jurisdiction over the parties to be thereby affected. lien to his assignee, even when by statuto the lien is Bissell v. Briggs, 9 Mass. 462. If, therefore, upon an assignable and transferable. As to the assignability inspection of the record from another State, want of of a mechanics' lien, independently of a statute espe- jurisdiction is disclosed as to a necessary party, the cially authorizing it, there is a conflict of authority. judgment or decree will be held void and of no effect The following authorities hold that the lien of a as to such party, even in a collateral proceediug. Hahu mechanic or materialman is a personal right and can- v. Kelly, 34 Cal. 391. In determining the question of not be assigned. Caldwell v. Lawrence, 10 Wis. 33; jurisdiction from such inspection in a case, when the Pearson v. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. record itself shows a particular mode or manner in Y. 706. The following authorities hold that where the which jurisdiction over the person of the defendant contractor has completed his contract and filed his was acquired, it will not be presumed to have been claim for a lien, he may assign both the debt and the obtained in any other way, in the absence of any averlien. Tuttle v. Howe, 14 Minn. 145; Skryme v. Occi- ment or recital to that effect. Settlemeir v. Sullivan, dental Mill Co., 8 Nev. 219; Davis v. Bilsland, 18 Wall. | 97 U. S. 447; Falken v. Gould, 10 Wis. 506. Where a statute provides for constructive service of process by
NEW YORK STATE BAR ASSOCIATION. publication, as a substitute for personal service, it must be strictly followed in order to bring the party served within the jurisdiction of the court. Where
ORDER OF BUSINESS OF THE FOURTH ANNUAL MEETa statute required that a defendant served by publica
ING OF THE N. Y. STATE BAR ASSOCIATION, TO BE
HELD AT THE SENATE CHAMBER, IN THE tion should be given three months in which to appear
NEW CAPITOL IN THE CITY OF ALBANY, and plead, and an order made and published in a case gavo defendant only two months, held, that a judg
TUESDAY, NOVEMBER 16, 1880. ment entered therein was a nullity. Gray v. Larrimore, 2 Abb. C. C. 542; Settlemeir v. Sullivan, 97 U. S.
Morning Session. 444; Brownfield v. Dyer, 7 Bush (Ky.), 505. Morey v. The meeting, which will be held in the Senate ChamMorey. Opinion by Cornell, J.
ber in the New Capitol, will be called to order by the
Hon. Samuel Hand, President, at 10 o'clock in the MUNICIPAL CORPORATION - CANNOT BE GUILTY OF
forenoon. The morning session will be devoted to CONTEMPT. – A municipal corporation cannot be guilty
the transaction of business in the following order: of a contempt in disobeying an injunction; such contempt, if any, in disobeying a writ directed to the city
1. Appointment of committee to nominate officers for
the ensuing year. must be the contempt of individual persons; as, for instance, of officers of the city. Davis v. Mayor, etc.,
2. Reading minutes of last meeting.
3. Nominations for membership. of New York, 1 Duer, 484, 509-10; London v. Lynn, 1 H. Bl. 206. Bass v. City of Shakopee. Opinion by
4. Report of Executive Committee. Mr. Albert MaBerry, J.
thews, Chairman. 5. Report of the Treasurer. Mr. Martin W. Cooke.
6. Report of Committee on Admissions. Mr. Peter PENNSYLVANIA SUPREME COURT AB
S. Danforth, Chairman.
7. Report of Committee on Law Reform. Mr. MatSTRACT.
thew Hale, Chairman.
8. Report of Committee on Grievances. Mr. John F. MAY, 1880.
9. Report of Committee on Legal Biography. Mr. CONSIDERATION
John F. Baker, Chairman.
10. Election of Members. not bound to pay, will prove a sufficient consideration 11. Election of Officers. to support an obligation under seal, by a third person,
12. Reports of Special Committees. to pay it. It is true, as a general rule, the contract of
13. Miscellaneous Business. a married woman is void, so that no action will lie | 14. Special Orders. against her for its breach. To this, however, there are
Afternoon Session. - some exceptions. Although no recovery may be had against her, it by no means follows that the equity of
The Association will reconvene at 3 o'clock P. M., the claim may not be sufficient consideration to sup
when the following will be the order: port the express promise of a third person to pay it. Annual Address, by Hon. George W. Biddle, of It has been held to be a sufficient consideration to sup- | Philadelphia, Penn. Subject: “Retrospective Legis. port the promise of the wife herself, made after her lation." coverture had cease and she had become sui juris.
Report of the Committee on Prizes. Mr. John I. Brown v. Bennett, 25 P. F. Smith, 420; Trout v. Mc
Gilbert, Chairman. Donald, 2 Norris, 144. The tendency of the authorities is to treat the disabilities of a married woman as
Essays will be read by members of the Association,
as follows: Hon. Matthew Hale, of Albany; Edward a personal privilege, which does not extend to any per
E. Sprague, of Flushing; James D. Teller, of Auburn; son who unites with her in a contract. Thus, if she
Joshua Gaskill, of Lockport, and others, upon subexecute a note jointly with her husband she may not be bound, yet he shall be bound for the whole. Unangst jects to be announced. v. Fitler, 3 Norris, 135. Leonard v. Duffin. Opinion
All members of the Bar are invited to attend the by Mercur, J.
At 6.30 o'clock P. M. the annual dinner will be had at HUSBAND AND WIFE - CONTRACT BY WIFE BEFORE the Kenmore Hotel. MARRIAGE. — A woman hired a dwelling-house and
Tickets may be procured at the Kenmore Hotel, and took possession, agreeing to pay a specified rent. from the members of the Committee. Thereafter she married, continued to occupy the house,
By order of the Committee of Arrangements. her husband not living with her but visiting her frequently, and occasionally remaining with her over
TOMPKINS WESTERVELT, night. Held, that the husband was not liable for
Chairman. the rent of the house accruing after the marriage. The
WILLIAM M. IVINS, duty of a man to support and maintain his wife is well
Secretary. settled, and may be enforced by legal process in case
CLIFFORD A. Hand, of his refusal or neglect to do so. But he was a stran
PEYTON F. MILLER, ger to this contract. The lessee was in possession of
CHARLES J. BUCHANAN, the premises under a lease when he married her. The
S. W. ROSENDALE, contract and liability were hers. He no more assumed
Committee. the payment of her liability under the lease than he did of her other debts, if any existed. It is true she NEW BOOKS AND NEW EDITIONS. lived in and enjoyed the use of the house for some months after her marriage. In like manner her cloth
XX AMERICAN DECISIONS. ing purchased before was worn and used after marriage-if unpaid for, the husband could not be held THIS volume extracts cases from 2, 3 Stewart, 8 Conresponsible for it. Biery v. Ziegler. Opinion by necticut, 2 Blackford, 3, 4, 5 J. J. Marshall, 8 Mar. Paxson, J.
tin, U. S., 1, 2 Louisiana, 6, 7 Greenleaf, 2 Bland's
Chancery, 2, 3 Gill & Johnson, 9, 10 Pickering, 5 New he was appointed Attorney-General to the Prince of Hampshire, 6 Halstead, 2, 3 Wendell; and important Wales, and two months afterward was appointed a notes on nuncupative wills; whether jury bound by Lord Justice of Appeal, and was sworn a member of erroneous instructions; nature and scope of bills of the Privy Council. As he was then ouly thirty-nine review; action of land officers, when conclusive; cus- years old, the appointment was severely criticised, but tody of child on habeas corpus; mandatory injunction, he soon justified Lord Cairns' selection. His judgjurisdiction to grant; insurable interest; contribution ments were carefully prepared and well reasoned, and between joint principals, one being insolvent; validity his courteous manner rendered him a general favorite of mortgage for future advances; action for possession with the bar. The Law Times says: “A brilliant of chattels levied on under execution.
career, which those who knew the Lord Justice well anticipated would be crowned with the highest honors
attainable by a lawyer, has been abruptly terminated; LANDRETH ON SALE.
but not until abundant evidence has been furnished A Brief Analysis of Sale. An Essay. By Lucius S. Lan
that he possessed all the qualifications of a judge. At dreth, of the Philadelphia Bar. Philadelphia: Rees,
the bar Mr. Alfred Thesiger was distinguished for his Welsh & Co., 1880. Pp. x, 65.
grasp of detail, his lucidity of statement and the per
fect fairness with which he stated his case. He appreThis monograph combats the almost universal idea
ciated with rapidity and accuracy points of law when that on a contract of sale of goods, where nothing re
they were presented to him, and without difficulty ho mains to be done by the vendor, as between him and laid before tho court the whole of his case in logical the vendee, the property vests in the vendee, the
order. As Lord Justice the powers which he possessed vendor retaining only a right of possession until pay- shone conspicuously. He was peculiarly fitted for tho ment. The author advocates his theory ingeniously,
high order of judicial work provided by a court of aud fortifies it by some eminent authorities, but the
appeal. His judgments are models of clearness, free contrary rule is so firmly fixed that nothing short of
from verbosity — which too frequently covers confusion legislation can modify it. And for ourselves, we see of ideas - and couched in language singularly apt and “no need of a change."
judicial. His demeanor to the bar was that of a cour
teous gentleman who knew that the business of a SAXTON'S Tax LAWS, AND EXCISE LAW, ETC., OF
judge is to hear arguments, not to interrogate or interNEW YORK.
rupt counsel. That he felt his position - judge of
appeal when not yet forty -to be delicate and difficult, Laws of the State of New York relating to the Assessment and wo believe; aud in the present year, when congratuCollection of Tarts, including the Statutes of 1880. Con
lating a county court judge on his appointment, he taining tho Laws relating to Treasurers, Supervisors,
expressed a doubt whether the office of the latter was Assessors, Collectors, and all officers under the General Tax Laws. With Notes of Judicial Decisions and an
not more to be envied than that of a Lord Justice. Appendix of Forms. By William W. Saxton. New After three years of conscientious and valuable labor York: S. A. Wilder & Co., 1880. Pp. 269.
ho has been cut off. The country, the law and the
legal profession thereby sustain a loss which it is diffiErcise Law of the State of New York, with Civil Damage Act, and all Statutes, including 1880.
cult to exaggerate. Judicial intellects are rare. Lord
With Notes of Decisions of the Courts and Forms. By William W.
Justice Thesiger promised in the progress of years to Saxton. Second Edition. New York: S. A. Wilder & develop a judicial intellect of the highest order.” The Co., 1880. Pp. 76.
Law Journal says: He was not one of those of whom
there have been many examples in English legal hisThese are convenient manuals, but the former will
tory - men who made their way, in spite of adverse hardly supersede Mr. Thompson's Supervisor's Man
circumstances, by force of genius and perseverance ual and Assessor's, Collector's and Town Clerk's
alone. He was rather one who, being placed in the Manual. Neither of the present works professes to be
best situation for success, was quite equal to the situain any sense a treatise, and the references to decisions
tion, and succeeded. He would not have succeeded had are the barest. The latter manual we should judge
he not possessed great industry and conscientiousness. likely to be the more useful, and quite useful, although
Those who sent their briefs to Mr. Thesiger knew that under the civil damage act the references to decisions
the law and facts would be mastered by him. He was ought to be much more ample. Mr. Lawson's manual
not a man of great quickness of parts; but he knew his on this subject is a model. In one point of view, how
defects. He acquired by labor what others had by ever, these manuals have a superiority - they propose
intuition, and was able to equal and sometimes beat to come down to the present year in statutory citations them in the race. He had not the faculty of picking and adjudications.
up facts as the case proceeded, and perceiving the law
as if by intuition ; but by hard work he made himself OBITUARY.
practically almost as effectivo a forensic ally as if he had been gifted by nature with these qualities. The
process he pursued was in the highest degree creditable LORD JUSTICE THESIGER.
to his powers of application and self-constraint; but it
required great bodily and mental exertion. Without IE Right Hon. Alfred Henry Thesiger, one of the
any wild theorizing, it may well be supposed that judges of the English Court of Appeal, died Octo- under this strain the machine wore out. The rest ber 20th, suddenly and unexpectedly, at the age of which the bench supplied - coming, although it did, forty-two. He was the third surviving son of the much earlier than any one born under inferior auspices first Lord Chelmsford. He was educated at Eton and could have expected was not sufficient to restore the at Christ Church, Oxford, and was called to the bar in balance. He was not long enough on the bench to 1862. In 1873 he received a silk gown from Lord Sel- make a judgment of his judicial capacity possible. borne. At first his leading business was mainly con- The moral qualities which had served him so well at fined to parliamentary committees and to compensa- the bar asserted themselves in the higher position. He tion cases, but he soon acquired a leading business at was patient, dignified and painstaking. It fell to his Nisi Prius, and was extensively employed in the House lot to prepare several of the judgments of the Court of of Lords, and he acquired a practice worth £10,000 Appeal in the cases in which he took part, and they annually. He served upon the Extradition Commis- are examples of close reasoning and clear expression. sion and the Fugitive Slave Law Commission. In 1877 He also exhibited great independence of judgment."