other claim. Judgment below affirmed. Wright v. Wright, appellant. Opinion by Miller, J. [Decided January 15, 1878.] REPLEVIN. Property taken under warrant for tax cannot be replevied. Where the property of plaintiff was taken by the defendant by virtue of a warrant for the collection of a tax, it cannot be replevied (2 R. S. 522, § 4; Code, § 207, subd. 4), though the warrant may have issued erroneously or irregularly, if on its face it gave authority to the officer to collect the tax or assessment. Judgment below affirmed. Troy & Lansingburgh R. R. Co., appellant, v. Kane. Opinion per Curiam. [Decided February 19, 1878. Reported below, 9 Hun, 506.] SALE. Delivery to carrier when sufficient: what constitutes acceptance.-Defendant, with others, who were directors of a fair association, assembled in defendant's banking-house in Jackson, Mississippi, verbally ordered of defendant's agent, who was there, certain goods of the value of over $800, which were to the knowledge of the agent to be used as prizes for distribution by the fair association. Defendant directed the goods to be sent by the Adams express to Jackson. The goods were directed to defendant at Jackson and delivered to the Adams Express Company for transportation there. There was evidence that defendant directed the goods to be charged to him, which was contradicted, and it was shown that when the goods reached Jackson they were delivered to a director of the fair association, who was in the room with defendant when the goods were ordered, and assisted in selecting them, and defendant knew of this and made no objection thereto. Held, (1) that delivery to the express company constituted delivery to defendant, but not acceptance, but that (2) the evidence was sufficient to justify a jury in finding an acceptauce by defendant. Judgment below affirmed. Wilcox Silver Plate Co. v. Green, appellant. Opinion by Rapallo, J. [Decided January 15, 1878. Reported below, 9 Hun, 347.] STATUTE OF LIMITATION. Does not run against claim against bankrupts.-The assignee of a bankrupt stands in a position of trustee for his creditors, and the statute of limitation does not run against their claims against the estate of the bankrupt not barred at the time of the adjudication in bankruptcy. Judgment below affirmed. Van Sachs, appellant, v. Kretz. Opinion by Andrews, J. [Decided February 19, 1878. Reported below, 10 Hun, 95.] TRUST. When assignee of mortgage held in trust takes subject to trust.-Land was devised to B. in confidence that the income should be expended for the support of H., a lunatic, during her life, and after her death the land was to belong to B. B. conveyed the land to J., taking back a bond and mortgage to secure the consideration, which were conditioned for the payment of the sum secured after the death of H., with annual interest during her life. The interest was paid for twenty years and applied to the support of H. Thereafter B. assigned the bond and mortgage to S. as collateral security for a debt. In an action against S. and others by H. to compel the application of the interest on the bond and mortgage to her support, held that S. had no greater rights than B., and the bond and mortgage having been given for the benefit of H. as cestui que trust, she had a claim for protection, and S. could not interfere with her right. The interest belonged to her during her life, and after her death S. would be entitled to the principal. Judgment below affirmed. Reid v. Sprague, appellant. Opinion by Miller, J. [Decided February 12, 1878. Reported below, 9 Hun, 30.] WILL. Construction of: suspension of power of alienation.— By a provision in a will testator's estate was to be divided in three equal shares, one to be held in trust for each of his three children during life, and upon the decease of the child who should first die, the share was to go in fee to the lawful issue, or if none, then to be divided into two equal sub-shares, one of which should be held in trust for each of the surviving children during life, and at the death of the child who should next die, such sub-share should go in fee to his issue, and if none, to such persons as would be heirs at law if the surviving child were dead. A provision of the same character was made as to the child who should next die, and one of his shares was to go to the lawful issue of the child first dying, if any, and if none, to testator's heirs at law; the other share to go to the surviving child, and upon his death to vest absolutely as provided. Held, that the provisions were not in conflict with the statute forbidding the suspension of the power of alienation beyond two lives (1 R. S. 723, § 15; 773, § 1), and were valid. Judgment below affirmed. Moore, appellant, v. Hegeman. Opinion by Miller, J. [Decided February 5, 1878.] Judgment affirmed with costs - Faber v. Hovey; Hastings v. Westchester Fire Insurance Company; National Bank of Chittenango v. Morgan; Weston v. New York Elevated Railroad Company; Hazeltine v. Weld; Hevner v. Bliss; Fairfax v. New York Central and Hudson River Railroad; May v. National Bank of Malone.- Order affirmed with costs In re North Thirteenth street, of Brooklyn; People ex rel. Riley v. Watson; Hooley v. Gieve.-Order granting new trial affirmed, and judgment absolute for defendants on stipulation with costs-Royce v. Watrous. Appeal dismissed with costs-Lawrence v. Farley.Judgment reversed and new trial granted, costs to abide event-Ferris v. Van Vechten. Order reversed, and proceedings remitted for rehearing, with costs to appellant - Ulster County Savings Institution v. Decker.- - Motion for reargument denied with $10 costs. In re Ryers to vacate assessment.-Motion denied without costs, unless appellant consent to a dismissal of the appeal - Harris v. Burdett. Motion to dismiss appeal granted with costs of appeal up to time of motion and $10 costs of motion-Sleight v. City of Kingston--Order modified so as to direct a writ of mandamus to issue that the defendants reconsider the resolution passed by them, and amend the same so as not to allow to the county treasurer the sum of $668.57, retained by him for fees ou receiving and paying over the State tax for the year in question, without costs to either as against the other in this court - The People ex rel. Lawrence v. The Supervisors of Westchester county. NEW BOOKS AND NEW EDITIONS. is presumed from a loss. Brennan v. Tracy, p. 540. A corporation may be the subject of a criminal libel. MISSOURI APPEAL REPORTS. Cases argued and determined in the St. Louis Court of Appeals of the State of Missouri, from January 10, 1876, to April 10, 1876. Reported by A. Moore Berry, official Reporter. Vol. I. St. Louis: Soule, Thomas & Wentworth, 1877. Cases argued and determined in the St. Louis Court of Appeals of the State of Missouri, from April 10, 1876, to July 3, 1876. Reported by A. Moore Berry, official Reporter. Vol. II. St. Louis: Soule, Thomas & Went worth, 1878. THE In THE St. Louis Court of Appeals, though it has been in existence only a little over two years, has already taken a high position among the tribunals of the country, and its decisions are referred to with the respect which is seldom given to any court other than one of last resort. The public and profession had, however, until the appearance of these volumes, known those decisions only through the abstracts and occasional cases published in the Central Law Journal. That they are now presented to them in the usual form is a matter of congratulation, and especially so as the work of the reporter and the publisher is done in a particularly excellent manner. The cases of value in the two volumes before us are quite numerous, but we will notice only these: In volume I, State v. Randolph, p. 15. A State law prohibiting the keeping of specified game on one's premises during a certain portion of the year is valid, even when applied to game imported from another State. State v. Boyle, p. 18. No appeal or writ of error lies on behalf of the State when one charged with crime has been acquitted. Guthrie v. Weaver, p. 136. Replevin will not lie for a coffin and its contents when those contents are a corpse. Armentrout v. S. L. K. C. & N. Ry. Co., p. 158. case of injury to goods the act of God cannot be set up as a defense by the carrier, if guilty of previous misconduct or neglect by which the exposure resulting in the loss was occasioned. Probasco v. Bouyon, p. 241. Where a man named Oakes sold the exclusive right to manufacture and sell "Oakes' candies," he was restrained from selling candies made by him as "Oakes' candies." Mead v. Mead, p. 247. A statute requiring divorce cases to be tried by the court held not unconstitutional as impairing the right of trial by jury. Baldwin v. Merrick. p. 281. A furnace not fastened down, but set upon brick work which can be removed without disturbing the ceiling, walls or floor, held not a fixture within the meaning of the mechanics' lieu law. In volume II. Stilwell v. Commercial Ins. Co., p. 22. Freight is insurable and recoverable, while goods are so situated as to create a well-grounded expectation of freight. Fine v. Hornsby, p. 61. Shares of stock in a corporation are goods, wares and merchandise within the meaning of the statute of frauds so as to require a note or memorandum in writing to validate a sale. Lowenstein v. Knopf, p. 159. No instrument in writing, except a bill of exchange, not having the words "value received," is a negotiable instrument in Missouri. Brunswig v. Taylor, p. 351. A commission merchant occupies a fiduciary relation to his principal, so that a discharge in bankruptcy will not, under § 33 of the Bankrupt Act, release him. Kirby v. Adams Express Co., p. 369. A provision in a receipt given for goods to be taken by a carrier, limiting liability to $50, unless value of goods is declared, held not to limit in case of loss from carrier's negligence, and negligence JONES ON MORTGAGES. A treatise on the law of Mortgages of Real Property. By Leonard A. Jones of the Boston Bar. In two volumes. Boston: Houghton, Osgood & Company, 1878. This appears to be a carefully written treatise. It is, so far as we are able to judge, correct in its statements of principle, and it is certainly as full as could be desired both in text and citation. The author has given not only the common law with the modifications generally existing, but has stated in detail the law of each State upon the more important divisions of the subject in which there is a want of harmony. As to the citations of authority he thinks that upwards of fourteen thousand citations of about eight thousand different cases may be more than there is need of, especially in support of propositions upon which there is a general accord of opinion, but he concludes that it is better to have too many than too few cases, in which we fully agree with him. While in the presentation of an argument to the court one or two authorities in point may be enough to sustain a doctrine advanced, in a text-book upon a special subject, every thing of value in case law ought to be referred to, and in our country especially, where a book is designed to be used in every State, a citation of authorities from different States is desirable. A text book which is not up to the times on case law is of no value whatever to the practitioner, whatever it may be to one studying the elements. The volumes before us are of nearly eight hundred pages each, and together contain forty chapters. Not only is the subject of mortgages, their nature, form, and other incidents discussed, but a number of chapters are devoted to the methods in which they may be foreclosed or otherwise enforced, a very important part of the law relating to mortgages, but one that is generally not touched upon in books upon the subject, it being considered to belong to the department of civil procedure. The book is excellently indexed, and has a carefully prepared table of cases cited, and we need hardly add, is printed and bound in the best possible manner. Both author and publisher seem to have done their best to produce an excellent work, and we know that the profession will heartily thank them for it. MR. HALE ON THE NEW CODE. The Hon. Matthew Hale, Chairman of the Committee on Law Reform of the N. Y. State Bar Association, has addressed the following letter to Mr. Throop: ALBANY, March 23rd, 1878. Hon. MONTGOMERY H. THROOP: DEAR SIR-The Committee on Law Reform of the State Bar Association consists of twenty-four lawyers, three from each judicial district. As chairman of that committee, I have taken pains to ascertain, so far as possible, the views of its members with reference to the nine chapters" which passed the Legislature of 1877, but failed to receive the approval of the Governor. In pursuance of a resolution of the committee, passed at its first meeting, I assigned to different members specified portions of the nine chapters, requesting them to report any suggestions of amendment, together with their views as to the whole, at a meeting appointed to be held in Albany. ** About three-fourths of the committee responded, either in writing or orally. Of these all, with I think a single exception, favored the immediate adoption of the nine chapters. Those to whom the chapter on Surrogates' Courts was assigned were perhaps the most decided in favor of its adoption. The reasons given for this approval of the proposed law were, in substance, that the existing laws upon the subjects were very much scattered, in some instances inharmonious with each other, and with the practice in other respects, and so confused as often to render it difficult to ascertain exactly what was the law. * * * Such it was thought was the natural and inevitable result of the passage of various acts throughout a period of nearly fifty years without any revision. The proposed nine chapters were approved for the reason that they would substitute order certainly and harmony for confusion, doubt and inconsistency. The objections made by the Governor are, some of them, very grave, and are entitled to, as they will doubtless receive, the most respectful consideration. I think he is clearly right as to the repeal of the existing limitation "extra allowances," and the power given to surrogates to divide dead men's estate among lawyers, to the detriment of heirs and next of kin. Some of his criticisms I think are not well-founded. As the result partly of such examination as I have given the subject, and partly of the views of my associates on the committee, who have more thoroughly examined portions of the revision, I am of the opinion that the nine chapters should become a law. I understand that the Judiciary Committees of both houses are ready to report at an early day such amendments to the whole twenty-two chapters as will obviate well-founded objections; general opinion expressed was that the nine chapters were much more needed than were the thirteen comprising the Code of Civil Procedure. Had the latter not been enacted there would probably have been as to them more difference of opinion in the committee. But there was almost entire unanimity in opposition to their repeal. The prevailing sentiment as to them was, "let us have peace." At the same time it is right that I should say frankly that there are many provisions of the twenty-two chapters with which the committee were not satisfied. Many sections were objected to, among which were some of those referred to by the Governor in his veto message. The regret was also very generally expressed that in so many cases the Commissioners had changed the language where no change in substance was intended. But those who proposed amendments and pointed out objections were in most cases strongest in favor of the nine chapters as a whole. If the nine chapters shall be enacted, and the necessary amendments to them and to the Code of Civil Procedure adopted at this session, I think we shall have a body of practice in all our courts, from highest to lowest, more consistent and harmonious and freer from uncertainty and difficulty, than has existed in this State for the past thirty years. Yours very respectfully, MATTHEW HALE. isprudenza. It is under the editorial management of Mr. Luigi Lucchini, a Roman advocate well known for his learning and ability. The current number contains articles upon recent legislation in Germany affecting the criminal law, contemporary jurisprudence, remarks on foreign codes and the condition of the Italian Penal Code. The editorial matter, embracing book reviews and a chronicle of current events, is The Southcarefully prepared and full of interest. ern Law Review for February-March, 1878, contains three leading articles. The first on Homestead and Exemption Laws is by Seymour D. Thompson, Esq., late of the Central Law Journal. The subject of privileged debts is especially touched upon, and the case law relating thereto exhaustively considered. The second article, on the Taxation of Money, by Hon. David A. Wells, lucidly and strongly presents certain financial truths that our legislators are too apt to disregard in the enactment of laws relating to taxation. The last article on Trial by Jury is well written, and contains several interesting suggestions in relation to that time-honored institution. The book notices are well written and discriminating as usual. The syllabus of cases reported in the various law journals since the last issue of the Review forms, as usual, a very valuable feature, as does the list of valuable articles appearing in the law periodicals. Altogether the number is a very excellent one. The San Francisco Law Journal has changed its name, and now appears under the title of The Pacific Coast Law Journal. A curious question of negligence arose in the case of Firth v. Bowling Iron Co., decided on the 2d inst. by the Common Pleas Division of the English High Court of Justice. The action was for the loss of a cow which had died from eating a piece of wire fencing. Plaintiff and defendants were adjoining occupiers of land, and the defendants had fenced off the land occupied by them with a fence composed of iron rope. From exposure to the weather the strands of wire rusted and separated into pieces, some of which fell to the ground and lay hidden in the grass of the plaintiff's adjoining pasture. In 1867, two heifers belonging to the plaintiff had died in consequence of taking up pieces of wire while grazing in the plaintiff's said pasture. The court held that the action was maintainable; for that the defendants, by maintaining this fence, the nature of which was known to them, were liable for the injury caused to the plaintiff, which was the natural result of the decay of the wire. ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. and that in that case equities existing between the original parties shall accompany the note into the hands of any holder would be so. In the case decided, the note did not contain the words required Communications on business matters should be ad- by the statute, and the court held that it was in that dressed to the publishers. The Albany Law Journal. ALBANY, APRIL 6, 1878. CURRENT TOPICS. HE question as to where a man's residence is, for the purposes of taxation, when he lives with his family part of each year in different places, or in other words, has a town and a country seat, at one of which he passes the summer, and at the other the winter, is a question of growing importance in these days of oppressive taxation. The case of Thayer v. City of Boston, just decided by the Supreme Judicial Court of Massachusetts, appearing in our present issue, contains an interesting discussion of the subject. An inhabitant of the city of Boston, who had a summer residence in the town of his nativity, finding his personal taxes growing more and more burdensome each year, for the purpose of relieving himself in some degree therefrom, concluded to become an inhabitant of the latter place, and did all he was able to accomplish that purpose without changing his previous habits of life. He spent about six months each year with his family in the country, voted, paid taxes and held public office there. The remainder of the year he dwelt at his old residence in the city, where were his chief social relations, and where he spent most of his money. The city of Boston imposed a personal tax upon him and collected it, and an action was brought by him to recover back the sum paid. The court decided that in such cases, whether a man is an inhabitant of one town or another is a question of fact to be determined by the jury, and sustained a verdict for plaintiff. The decision is an important one. case to be treated the same as other negotiable paper, but the constitutionality of the statute was argued on both sides and examined by the court. In the cases of Woolen v. Banker, 17 Alb. L. J. 72, and Cranston v. Smith, 16 id. 330, the question is very fully examined; in the first-mentioned case, by the United States Circuit Court for the Southern District of Ohio, and in the other by the Supreme Court of Michigan. A bill introduced in the assembly, which prohibits justices of the peace from commencing any actions before themselves on claims left with them for collection, or about which they have given counis aimed at a practice which prevails very extensively sel, and making a violation of the act a misdemeanor, in some of the country districts of this State, and which has a very great influence in corrupting our inferior judiciary. Very many justices of the peace, in connection with their official business, carry on that of collecting small debts, and the temptation to use the process of their own courts for the purpose of inducing payment is too strong to be resisted. A defendant under such circumstances has no chance mentioned will pass. The bill of Mr. Graham, now pending in the assembly, which is designed to prevent non-resident insurance corporations from taking advantage of the Federal law, permitting them to transfer actions commenced in State courts against them to the Fed eral courts, ought to pass. The object of making The Supreme Court of Pennsylvania, in the case these transfers is in no instance to further justice, for of Haskell v. Jones, appearing in our present issue, the insurance companies cannot complain that the does not seem to acquiesce in the view taken in In-State courts or the juries therein would deal with diana, Michigan and elsewhere, as to the validity of State legislation in reference to negotiable instruments given for patent rights. The decisions of the various courts, heretofore passing upon these statutes, have been uniformly against their constitutionality. The court in Pennsylvania admits that a State law which should make a note given for a patent right void, if not in compliance with its requirements, would be invalid, but it does not think that one providing that a note given for a patent right shall have a statement that it was so given inserted on it, VOL. 17.- No. 14. them in any different manner from what they would be dealt with in the Federal tribunals, but to render the proceedings tedious and expensive to the litigants. It is suggested that there are doubts as to the constitutionality of the act, but we do not believe it to be so. In the case of Insurance Co. v. Morse, 20 Wall. 446, a statute requiring an agreement to abstain from resorting to the courts of the United States, was said to be unconstitutional, and an agreement made in pursuance of the statute was held invalid; but in Doyle v. Continental Insurance Co., 15 Alb. L. J. 267, also decided by the United States Supreme Court, it was held that a State has a right to entirely exclude an insurance company chartered by another State from its territory, or having given a license, to revoke it in its discretion for good cause or without cause. The proposed statute does not interfere with the right of non-resident corporations to transfer actions to the Federal courts, it only says, if they do so they cannot carry on the insurance business here any longer. See as supporting the validity of a similar statute, State ex rel. Drake v. Doyle, 40 Wis. 175; 22 Am. Rep. 692. A bill for the relief of tax payers owning mortgaged real estate, introduced in the senate of this State, on Wednesday last, is an attempt to shift the burdens of taxation from real estate to personal property of a specified kind, and is both dishonest and impolitic. It provides that any person owning a cemetery lot belonging to defendant. Thereafter plaintiff demanded a delivery of the coffin and body to him that he might re-inter them, and this being refused, he brought this action. The court held, that there is no property in a corpse, that the relatives have only the right of interment; that this right, in the case at bar, having been exercised by a burial in the father's lot, with the consent of the husband, no right to the corpse remained except to protect it from insult. The doctrine that there is no absolute property in a dead body has been asserted in several cases. Wynkoop v. Wynkoop, 42 Penn. St. 293; Pierce v. Proprietors of Swan Pt. Cemetery, 10 R. I. 227; 14 Am. Rep. 667; Kemp v. Wickes, 3 Phillim. 264. By the old English law the charge of the body belonged exclusively to the ecclesiastical courts. The only common law remedy for a wrongful removal was by criminal process. In Rex v. Sharpe, Dears. & B. 160, an indictment against a man for removing his mother's body from one graveyard for the purpose of burying it in another, was sustained. But under the old English law it was the practice to arrest and detain dead bodies for debt. In several States, Rhode Island, Massachusetts, etc., there are statutes forbidding this. For an interesting discussion of the subject, see Peirce v. Proprietors, etc., supra, and notes, 14 Am. Rep. 676, 678. NOTES OF CASES. THE case of Angus v. Dalton (L. R., 3 Q. B. D. 85) of the English High Court of Justice, establishes a rule of law upon the important subject of lateral real estate, on which there is a lien by mortgage, shall have the amount of the mortgage deducted from the actual value of the real estate, and an assessment made only on the difference between the value of the estate and the amount of the mortgage; that a tax shall be assessed on the mortgage, to the owner thereof, but it may be paid by the owner of the real estate and deducted from the principal or interest of the mortgage. If the owner of the mortgage resides in this State, he may have the amount for which he is assessed thereon deducted from the assessment against him for personal property. It is, however, made lawful for the parties to a mortgage to stipulate that the mortgagor shall pay the entire tax on the real estate, in which case the act is not to apply. A mere statement of the features of the bill shows its thoroughly dishonest char-support, which is not in harmony with what has acter. If it were made to apply only to mortgages hereafter to be executed, it would do no harm, perhaps, as parties could then contract in reference to it. The act violates these principles, which have, in every instance except in the taxation of bank shares, governed the imposition of personal taxes in this State, namely: that the individual should be taxed only where he resides, and that he should be allowed to offset his indebtedness against his personal property in estimating values for assessment. If the bill should become a law, it would ruinously impair the securities held by savings banks throughout the State, and perhaps destroy many of those institutions. Numerous other objections exist to the proposed law, but we have stated enough. The case of Guthrie v. Weaver, 1 Mo. App. Rep. 136, was an action of replevin to obtain what was described to be a coffin of the value of $90, with its contents. The contents were the dead body of plaintiff's wife, who was the daughter of defendant. The body had, with the consent of plaintiff, who had paid for the coffin containing it, been buried in generally been understood in England, namely : that twenty years open enjoyment of lateral support for a building is sufficient to raise a presumption of a grant of the right to such support. The action was brought by the owners of a factory against the defendants for excavating the soil of an adjoining house in such a manner as to leave the foundation of part of the factory without sufficient lateral support, and thereby causing it to fall. It appeared that the two buildings had apparently been erected at the same time, and were estimated to be upwards of 100 years old. Both had been occupied as dwellinghouses until about twenty-seven years before the accident, but the plaintiff's predecessor had then con verted his house into a coach factory, removing the internal walls and erecting a stack of brickwork which both served as a chimney stack and supported the girders which had to be put up to sustain the floors. The defendants, in taking down the adjoining house, and in digging cellars which had not previously existed, left a support for the chimney stack which proved insufficient, and it fell, drawing after it the entire factory. It was held, by Cockburn, C. J., and Mellor, J., who constituted the ma |