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from a failure to perform the contract. In Herrick v. whole of Division III on Jaw-making, particularly at Carter, 56 Barb. 41, the plaintiff sold and delivered to Subdivision II, ou “ Judge-Legislation,'' and the obthe defendant dry goods, which the latter agreed to | jections to it, the three objectious to codification, and pay for in nails at a certain price, to be delivered on or the answers to such objections as thereiu stated, may before a future day specified. The transaction was be useful to lawyers who have not the voluminous held not to be a purchase of pails, nor even an ex- work. You will find it at vol. 13, p. 267, of the quarto; change of dry goods for nails; but that the seller of 21 vol. edition, Little, Brown & Co.. Boston, 1857. the dry goods might recover for their purcbase money Prof. E. Robertson, the author of the law article in with interest from the day it became payable. When the 9th edition, 1882, treats mostly of the analytical any thing remains to be done by either or both par- ideas of the late John Austin and the writings and ties to a contract of sale, before delivery, either to de- criticisms of Sir Henry Maive. It does not contain termine the identity of the thing sold, the quantity or the matter above mentioned. the price, the contract, until such things are done, is January 24, 1885. executory merely, and the title does not rest in the purchaser. Wallingford v. Burr, 18 N. W. Rep. 67 ;
COURT OF APPEALS DECISIONS. Hale v. Huntley, 21 Vt. 147; Hudson v. Wier, 29 Ala. 294; Stone v. Peacock, 35 Me. 385; Cunningbam v.
HE following decisions were handed down TuesAsb brook, 20 Mo. 553. As a general rule the title to day, Jan. 27, 1885 : goods does not pass so long as any thing remains to be Judgment affirmed with costs—Solomon D. MoMildone to identify the goods, or to determine the quan- lan, appellant, v. John B. Arthur, respondent.--Motity or quality, if the price depends upon such deter- tion for reargument denied with costs-Johu Hayes, mination. McClung v. Kelley, 21 Iowa, 508; Lingham respondent, v. Forty-second Street and Grand Street v. Eggleston, 27 Mich. 324; Banchor v. Warren, 33 N. Ferry R. Co., appellant.--Motion for reargument H. 183; Stephens v. Santee, 49 N. Y. 35. This action granted, as per order-Sherburne Shaw, respondent, v. for conversion is in effect the common-law action of New York, Lake Erie and Western R. Co.--Motion trover, and in order to maintain that action the plain- to put cause on calendar granted without costs-Peter tiff must have had the actual custody of or some spe- R. Kelly, respondent, v. Horace F. Burroughs, appelcies of property, either general or special, in the prop- lant: John W. Blauvelt, executor, etc., respondent, v. erty which is the subject of the action (Bertholf v. William B. Slocum, appellant. —Motion to dismiss Quinlan, 68 III. 297; Barton v. Dunning, 6 Blackf. 209; appeal granted witbout costs—Sarah E. Nichols, adKennington v. Williams, 30 Ala. 361; Hickok v. Buck, ministratrix, respondent, v. Charles F. MacLean, ap. 22 Vt. 149), and he must also bave an immediate right pellant. -Motion to advance cause denied without to the possession of the property. Clark v. Draper, 19 costs — Oscar C. Ferris, respondent, v. William R. N. H. 419. It is claimed by the plaintiff in error that Spooner, assignor, etc., appellant; German American the defendant is estopped to set up his right to the Bank of Buffalo v. Georgeanna J. Gunther. -Motion hay under his conditional contract of sale to Howland to file certificate nunc pro tunc denied without costsfor the reason that he did not make it known to the Iu re Hulbert D. Stevens, law student. - Motion as plaiutiff before the purchase by the plaintiff. It would above granted without costs--In re Alfred T. Britton, not be absolutely essential that the information should law student. Motion to discontinue and strike come directly from the defendant, if the plaintiff had cause from calendar. Defendant's motion denied knowledge of his rights before the purchase. As to without costs. On plaintiff's motion ordered that the whether he had that knowledge was a question for the cause be stricken from the calendar and appeal disconjury to determine, there being some evidence from tinued without costs-Richard H. Disosway, appellant, which it might be inferred; but in this case that ques- v. Jedediah K. Hayward, respondent. - Motion to tion becomes unimportant, as it is well settled that put cause on calendar denied without costs-Daniel R. the plaintiff' must recover, if at all, upon the strength Lyidy, appellant, v. Long Island City, respondent. of his own title, and not upon the weakness of that of Order affirmed with costs-James Carney, respondent, the defendant. Davidson v. Waldron, 31 ITL 120; Mul- v. John B. Thompson, appellant; Emily A. Kimball ligan v. Bailey, 28 Ga. 507; Zunkle v. Cunningham, 10 and others, respondents, v. Leonard Mapes and others, Neb. 163. Holmes v. Bailey. Opinion by Reese, J. appellants; Amie Larner, respondent, v. Henry E. [Decided Aug. 20, 1884. ]
Farusworth, appellant; John Statts, appellant, v.
without costs-Josiah H. Burton, appellant, v. AdCORRESPONDENCE.
toinette W. Sherman, impleaded, etc. respondent. CODIFICATION.
NOTES. Editor of the Albany Law Journal:
It is to the interest of the whole community, espec- HAT is all this about “the police and the sparially of every lawyer and law student not having easy
to , dling with
to advocate the adoption of the Civil Code as proposed by Leonard A. Jones, the learved commentator on
David Dudley Field.
mortgages, has become one of the editors of the AmeriOne of the best things I have read within a twelve- can Law Review. The current number of the Review month is “ An Answer to Mr. James C. Carter's pam- contains the following leading articles: The French phlet on the proposed Codification of our Common Law of Marriage, by Edmund Kelly; The New BritLaw," by Mr. Field, published in your journal, vol. 29, ish-American Extradition Treaty, by Edwin F. p. 127. It is multum in parvo, terse, and to the issue. Conely; The Rights and Duties of Corporations in
The profession and the whole country owe Mr. Dealing with Stock held in a Fiduciary Capacity, by Field a debt of gratitude for his labor, for his energy Francis B. Patten; Popular Errors in the Law of Conand his persistence in and his unyielding devotion to
veyancing, by C. G. Tiedeman; Liability of Municipal law reform and codification.
Corporations for Negligence, by H. E. Young.-We But I took up my pen to call your attention to the greatly regret to learn that Mr. Skinker, the reporter prticle on “Law" as it stands in the Encyclopædia of the Missouri Supreme Court, has resigned his office. Britannica," 8th edtion, written by Johu Ferguson His labors commenced with volume 65, and have been McLennan, advocate. A republication of part or marked by fidelity and intelligence.
The Albany Law Journal.
ALBANY, FEBRUARY 7, 1885.
work. It was felt on the continent that he not only added no element to the metal which he obtained from the inexhaustible ruins of ancient jurisprudence, but (except in the treatise On Civil Liberty) had not given to the mould a distinctive form.
CHE failure in New York city of the private
An injunction has at length issued to restrain the banking house of John J. Cisco & Son shows the publication of Lord Lytton's ridiculous love-letters, necessity of some reform in the laws relative to
but inasmuch as the whole world has for several banking, or else in the methods of private bankers.
months been laughing at them and has now become This house seems to have invested all its depositors' tired of them, we see no use in the injunction exmoney in several pet schemes which it thought well cept the matter of principle. It is very annoying of, but which unfortunately went to the bad. The
to the surviving relatives of great men to have their result is that the depositors' money is jeopardized,
letters published exhibiting their weaknesses and
Great men can prevent this and probably lost in whole or in part. Now bank prejudices and vices. ers have no moral right to use deposits for their
annoyance by not putting themselves on paper. We private enterprises. What would be thought of
are not certain that it does any harm for the world
to learn the real character of such men as Carlyle, Coutts in England if they were to put all their customers' money in some crazy railway enterprise,
Hawthorne and Lytton. Hawthorne stands the test which were to break down? This habit of the New
of his own letters very well. Our respect for Carlyle
is diminished, and for Lytton it is utterly destroyed. York private bankers is open to criticism at the hands of the authorities. Within a few days a Cali
But after all we suppose that it is well enough to fornian has brought suit against another firm of prohibit the unauthorized publication of such letbankers to compel them to take back certain securi
ters. It is only the putting the prohibition on the ties, which it is claimed they knew too much about ground of sentiment that we object to. There is
truth in letters as in wine, and it will never hurt before the sale. This charge is a corollary of the
the world to learn the real characteristics of those one we think Cisco's failure entitles us to make on
who have posed through life as its gods. the latter's methods.
In a lucid and attractive treatise of fifty pages, We hasten to put ourselves on record as abhorMr. F. W. Holls prints a paper, entitled “Franz ring the late dynamite outrages in London. AssasLieber,” read by him in 1882 before the German sination is never justifiable in national differences. Social Science Association. The text is a faithful The assassination of innocent men, women, and reproduction of the excellent engraving which is children is peculiarly abominable. In fact, the prefixed. The opening sentences certainly strike methods of the Irish assassins are almost as abomtoo high a key. But the eulogy is moderated by niable as the employment by the English governfacts honestly stated, and indulgence may well be ment of Indians against the American colonists in claimed under the circumstances for a disposition the war of independence. Having thus briefly, but to give to Dr. Lieber, the compiler and translator, we trust sufficiently, recorded our opinion on the credit which was in fact due to taste and skill immorality of such warfare, we feel at liberty to rather than profound or original thought. Order add that the English have and will have no reason No. 100 was an admirable piece of work; but Sew- to find fault with the United States for not supard, Stanton and Lincoln knew little and cared less pressing such outrages. It is utterly impracticable for Grotius and Puffendorf, except as they could to do so—as impracticable as it was for Great Britavert European complications by the pen (not the ain to suppress Confederate privateering against advice) of the German-American jurist. When it our commerce in our late civil war. There is this translation of the Conversations-Lexicon could be difference however: while the dynamite outrages termed an Encyclopedia Americana, it is not sur- are regarded with universal horror and destestation prising to learn that it was seriously proposed to in America, there was a great ard influential party control Bismark at Frankfort by a German com- in Great Britain who regarded our misfortunes in pendium from Cushing's Manual. Political Ethics the civil war with delight and did all they could to and the noble thoughts “On Civil Liberty and Self assist and succor our enemies—as for example, savGovernment ” however have exercised a wide and | ing the crew of the Alabama. Our British cousins enduring influence in literary as well as political may depend upon it that we shall exhibit a great circles. But when the author of this vivid and in- deal better spirit and act in a more decent practiteresting sketch concedes that Lieber's admirers in cal manner than they ever did in our times of trial. Germany were few in number, and that no German This is particularly addressed to the threatening bouse could be found to undertake the risk of pub- English newspapers which would fain embroil the lishing a second book, it is evident that while two countries. Laboulaye termed him“ une des figures les plus originales parmi les jurisconsultes de notre temps,” his
We have received a Memorial of the late Charles personality consisted rather in himself than in his | O'Conor, from the New York Law Institute, con
Vol. 31 No. 6.
taining an acknowledgment of his gift to them of His newspaper is being well advertised; in fact, its twenty thousand dollars and the bound volumes of circulation is daily increasing in consequence of his his Opinions and Cases, and certain silver testi- incarceration. He will be out in four months, ready monials presented to him by lawyers and ladies in and encouraged to publish and sell more libels of connection with the Forrest case. The paper does society. We think it would be fairer to make him full justice to the admirable trials of Mr. O'Conor's and Becky exchange places — give Becky four character. At the annual meeting of the New months, and lock Edmund up until he should promYork City Bar Association, Mr. F. R. Coudert read
ise not to do so any more. a memorial of Mr. O'Conor, prepared by him at the request of the Association-an exhaustive and eu- We have seen several very severe articles in the logistic treatment of the subject, perhaps not exag- newspapers on the abuse of cross-examination. gerating the great lawyer's good and grand quali- | There is a great deal of public cant on this subject. ties, but certainly conveying the impression that he The privilege is rarely abused except that lawyers was a nearly faultless and almost angelic person- are generally tedious in its exercise. Witnesses which he certainly was not. Mr. O'Conor was cer- very frequently have the best of the encounter. We tainly guilty of one glaring public fault and mistake; must say that so far from believing that there is any we mean his treatment of the Court of Appeals in considerable warrant for these strictures, we have the Tweed cases, and although we believe he sub- been repeatedly astonished at the good nature, pasequently invited the judges to dine with him, we tience and magnaminity of cross-examining counsel, never saw or heard of any public retraction of or when dealing with obstinate, uncandid, prejudiced, apology for the accusation. If the lives of such stupid, evasive and tricky witnesses. As a general men are to be studied as lessons, such things should thing there is no witness so uncandid and tricky as not be glossed over. The admirable series of an artless woman, and yet it is in respect to the “American Statesmen," now in course of publica- cross-examination of women that counsel are most tion, treats such matters very differently.
blamed. There are two sides of this question, as of every other, and it is well to hear the other
side. Miss Becky Jones has now been in prison nine months for contempt, and it is high time that she should be delivered. Her contempt consisted in
The speaker of the Assembly of this State has an
nounced as the special committee on the Civil Code refusing to testify in the Hammersly will case, and
and Revision of the Statutes, Messrs. Scott, of Livreveal what she regarded as secrets of the family ingston; Raines, of Ontario; Kruse, of Cattaraugus; imparted to her as a servant. Any woman who can hold her tongue nine month ought to be applauded Westchester; Connolly, of Brooklyn.
Cole, of Schuyler; Ives, of New York; McClelland, of rather than punished, especially when she is keeping a secret. Becky seems to be a harmless sort of “crank.” She is not being punished, either, for
NOTES OF CASES. she is living in luxury and enjoying herself. Really, we should say the public dignity has been sufficiently
N connection with Crocker V. McGregor, 76 Me. vindicated by her imprisonment. There is danger of
282, ante, 23, read Lewis v. Eastern Railroad, her being forgotten, and left to die in prison. Per
60 N. H. 187, holding that on the question whether petual imprisonment for contempt would be an ex
a locomotive engine emitting steam and standing cessive punishment. The majority of murderers do
near a highway crossing is an object dangerous to not get so much as that.
the public travel, as likely to frighten horses of or
dinary gentleness, evidence of other horses than the On the other hand, we have no sympathy with plaintiff's being frightened by locomotives and cars Edmund Yates, the editor convicted of a society passing near the same crossing is not admissible. libel. His appeal has been dismissed, and he has been the court said: “Evidence that other horses, consigued to Holloway prison, to undergo his sen. driven by other persons at other times, had been tence of four months' imprisonment. A telegram frightened by the same or a similar object, or by from London says: “Orders to the governor of a sound produced in the same or a similar manner, Holloway prison took effect to-day in regard to was admissible to show that the object or sound Edmund Yates, the celebrated society editor. He was dangerous to the public travel, as being more is put on an allowance of half a pint of wine or one likely than otherwise to produce the result comof malt liquor a day. Visits from friends must be plained of. Darling v. Westmoreland, 52 N. H. 401; arranged by the visiting magistrates, and he can Gordon v. B. & M. Railroad, 58 id. 396. The case receive only one newspaper daily. His letters will does not show that the evidence excepted to was be regulated by the governor's orders. He is to that of other horses being frightened by the escape take exercise by himself in the first-class misdemean- of steam from a locomotive, but by locomotives and ants' ground, to rise at half-past six and retire at a cars passing upon the railroad near the place of the quarter past nine. Rules may be relaxed by the injury. In Darling v. Westmoreland, the plaintiff medical authorities if his health suffers from the was permitted to show that other horses were frightprison treatment.” He is evidently not suffering. ened at the same pile of lumber which produced the
particular fright occasioning the injury. In Gor- to him. It is clear from all the authorities that
tained against him for the act. The position is
that the action does not lie against the mortgagor, In Roberts v. Noyes, 76 Me. 590, it is held that and therefore not against one licensed by the mortalthough a bailee is not permitted to dispute the gagor to enter the premises. We think the action title of his bailor, he may show that the bailor lies against the defendant, and would lie against has assigned his title to another, since the property the mortgagor had he done the same act. There is was intrusted to him. If legally assigned, and the
no intimation that the assignee of the mortgagee bailee bas notice of the fact, the bailee must account was not entitled to an immediate possession, though to the assignee. The rule that a bailee should not he was for a time postponed in getting possession attorn to a stranger does not apply; the assignee is by legal process. The action (quare clausum fregit) not a stranger. The court said: “The defendant lies by mortgagee against mortgagor for strip and invokes the rule of law, that an agent in possession waste. The mortgagor is not liable in the action of his principal's property is not permitted to dis- for using the premises, the possession of which is pute the principal's title thereto; that he cannot be not taken by the mortgagee, but may be sued in converted into a trustee for a third person by a quare clausum for abusing them in certain ways. A mere notice of his claim; that he cannot affect the mortgagor in possession, before entry by the mortprincipal's rights by an attornment to a stranger; gagee, may lawfully cut and remove grass growing and that an action of money had and received can- upon the land. Hewes v. Bickford, 49 Me. 71. He not lie in such case by a third party. All of which may take the rents and profits. He may cut fireis true but misapplied. The plaintiff does not set wood for use upon the premises. Hapgood v. Blood, up an independent and hostile claim as a stranger 11 Gray, 400. He cannot cut and remove trees fit or third party. He claims under Mrs. Rounds, and for timber in the market. Page v. Robinson, 10 not adversely to her original right. He claims that Cush. 99. He cannot remove a building. Cole v. her right has become his; that thereby her trustee Stewart, 11 id. 181. Nor remove fixtures from a has become his trustee; and that the privity be- building. Smith v. Goodwin, 2 Me. 173. He is liatween her and her agent has been transferred to ble in quare clausum for any act causing substantial him. The plaintiff could not dispute Mrs. Rounds and permanent injury. Removing the manure in original title, but he can show that it was assigned this case was of the same kind of injury and waste
EMOLUMENTS: valge Ayme e mire Country pre Crano
as removing trees or buildings or house-fixtures. called the 'ass '—the jackass being the male of this Manure, situated as this was, is itself a fixture." species. But it is urged that this construction will See Chase v. Wingate, 68 Me. 204; S. C., 28 Am. not do unless it appears that the animal is used as a Rep. 36.
horse; that is, used for riding, ploughing, and
other such useful and necessary purposes for COMMON WORDS AND PHRASES.
the benefit of the family. That if he is used merely for breeding purposes he is not within the spirit of
the law, and is not exempt. We cannot so interford, Pennsylvania Supreme Court, February, pret our statute. It is not required by the terms of 1884, it was held that the compensation allowed to the statute, as it is in Alabama, for instance, that the sheriff for boarding prisoners is one of the the horse exempt must be a work horse. Allman v. "emoluments” of his office, which may not be in- Gann, 29 Ala. 240. Nor are the horses exempt uncreased or diminished during his term. The court der our statute exempted for specific uses, as in the said: “The boarding of the prisoners was certainly California statute. Robert v. Adams, 38 Cal. 383. one of his official duties imposed upon him by law. Our exemption is general, unrestricted and unconFor the performance of this duty he was entitled to ditional and unlimited as to the value of the anireceive a compensation, which was definitely fixed
mals. It extends to all classes of of our citizens. It by law at the time of his election. While this com- includes the valuable trotter or racer worth thoupensation could hardly be called a salary, it seems to sands of dollars, as well the comparatively valueless us that it is included within the larger and broader Mexican pony; the magnificent span of horses term 'emolument.' In Webster's Unabridged Dic-driven by the wealthy man as well as the brokentionary the word "emolument' is thus defined: down hacks of the poor laborer. Such is the law of * The profit arising from office or employment; this State. Whether it be just, equal and wise, or that which is received as a compensation for ser- unfair and inequitable, is not for us to determine. vices, or which is annexed to the possession of of- It is very true that under the construction of the law fice, as salary, fees and perquisites; advantage; a debtor may invest a large sum of money in two valgain, public or private.' We think the word imports uable stallions or jackasses, and in this way defraud more than the word 'salary or fees,' and because his creditors. He may do the same thing, on a it is contained in the Constitution in addition to much larger scale, with his homestead. He may the word salary, we ought to give it the meaning invest an unlimited amount. in a homestead, and which it bears in ordinary acceptation. By the defi- from a hundred thousand dollar palace bid denition above given it imports any perquisite, advan- fiance to his hard-working, poverty-stricken credtage, profit or gain arising from the possession of itors. So it is no argument against our construcoffice."
tion of the law to say that it is not right because it HORSE.-A jackass is a“ horse ” within a statute will allow a debtor to invest all his means in a of exemption. Robinson v. Robertson, Texas Su-couple of fine-blooded jackasses and live in luxury, preme Court, June, 1884. The court said: “This not from the proceeds of their services as agriculrule of liberal construction of exemption laws has tural animals, but from their services as foal-getters, prevailed in our State from the earliest decisions while his creditors are perhaps suffering for the pitdown to the present time. Thus in Cobbs v. Cole- tance which he honestly owes them.” man, 14 Tex. 594, under the exemption of a “horse,' ROADWAY, ROADBED.-Steamers used by & rail. it was held that a bridle, saddle, stake-rope and road company in transporting freight cars across martingales were exempt. In Rodgers v. Ferguson, water intervening between the termini of the tracks, 32 Tex. 533, it was held that the word 'wagon’ in are not taxable as part of the “ roadway the exemption statute included ail four-wheeled ve- bed.” City and County of San Francisco v. Central hicles for whatever use employed. In Anderson v. Pac. R. Co., 63 Cal. 467. The court said: “It is McKay, 30 Tex. 186, it was held that lumber which equally as clear that they are not rails or rolling was destined for the erection of a house upon land stock. These words are to be construed according claimed as a homestead might, under certain cir- to their ordinary and popular meaning, and we do cumstances, be regarded as a part of the homestead, not think that it would be contended that rails or and therefore exempt. In Allison v. Brookshire, 38 rolling stock in their ordinary and popular signifiTex, 199, it was held that a 'mule' was included cation include the steamers above mentioned. Are in the exemption of a 'horse.' In Alexander v.Holt, they then embraced within the words roadway or 59 Tex. 205, growing crops upon a homestead are roadbed in the ordinary and popular acceptation of held to be exempt as a part of the homestead. such words as applied to railroads?
These two In Tennessee, Richardson v. Duncan, % words, as applied to common roads, ordinarily mean Heisk. 220, it has been held that a jackass is a horse the same thing, but as applied to railroads their within the meaning of the exemption statute of that meaning is not the same. The roadbed referred to State; which statute as to the question here in in section 10, in our judgment, is the bed or foundvolved is similar to our own.
We are of ation on which the superstructure of the railroad the opinion that a fair and liberal construction of rests. Such is the definition given by both Worcesour exemption statute includes within the meaning ter and Webster, and we think it correct. The of the word “horse' the animal of the same genus roadway has a more extended signification as ap