the law. So well has he accomplished this, that we have no hesitation in predicting that his work will be

CORRESPONDENCE.

RIGHT OF CONSTABLE TO SUMMON A JURY TO TRY TITLE.

To the Editor of the Albany Law Journal:

SIR-Is it a legal mode of procedure where an ex

ecution constable has thereunder levied on personal property which is claimed by another person than the debtor, for the constable, if no indemnity be tendered by the creditor, to call and impanel a jury and try the title? If so, where is the law authorizing it? Or is it but an illegal imitation of the proceedings of a sheriff and his jury in similar cases? D. WINDHAM, N. Y., April 10, 1877.

[The constable has the same power in the premises as a sheriff. See Platt v. Sherry, 7 Wend. 236; 2 Wait's Law & Practice, 724; Crocker, § 1019. The court in Townsend v. Phillips, 10 Johns. 98, expressly avoided passing on the question. ED. A. L. J.]

BOOK NOTICES.

WOOD'S LAW OF MASTER AND SERVANT.

A Treatise on the Law of Master and Servant, covering the Relation, Duties and Liabilities of Employers and Employees. By H. G. Wood, author of "A Treatise on the Law of Nuisances;" editor of "Best on Evidence," and "Addison on Torts." Albany, N. Y.: John D. Parsons, Jr., 1877.

A TREATISE upon the Law of Master and Servant,

as it exists here, has been very much needed by the profession in this country, and it is remarkable that heretofore no one has undertaken to supply the want. Works upon what are styled the domestic relations have included this as one of the topics discussed, and have given it an important place, and it has also been treated in connection with the subject of negligence. But in each of these instances where it has been treated as a subordinate subject, only a single phase of the law governing it has been developed. In England, indeed, and in Scotland the law of Master and Servant has been treated separately in the works of Mr. Manly Smith and Mr. Frazer. These writers have produced able and valuable books, but not such as will much assist the American lawyer. While the same underlying principles of law upon this subject are recognized by the courts of every country and locality, these principles are applied differently in different places, and for a case in hand, the decisions of a foreign court would be often liable to mislead.

As we said, Mr. Wood has produced the only American treatise devoted exclusively to the subject of Master and Servant, and we must say further, that he has done his work so thoroughly and accurately, that there will be no need or opportunity for another to enter the same field. He has had no easy task in endeavoring to elucidate the principles accepted by our courts as governing the subject, the decisions being often apparently conflicting, but by a discriminating care in following the lead of the better class of cases, he has been able, in most instances, to bring order out of chaos, to harmonize apparent conflicts, and to develop clearly the fundamental rule governing each phase of

concerning which it treats.

The opening chapter of the volume is devoted to a general consideration of the subject, and a classification of the various kinds of masters and servants, and who are and may be such. Then follow chapters upon these topics: Apprentices, Implied Contracts, Express Contracts, Rewards, Prefessional Services, Statute of Frauds, Illegal Contracts, Injuries to Servant, Enticing Away, Seduction, Liability of Master for Servant's Contract, Liability of Master for Servant's Acts, Servant's

Liability, The Master's Liability to the Servant, FellowServants, Municipal Corporations. The chapters relating to the liability of the master for the servant's contracts and acts, and the mutual liability to each other of masters and servants for acts done by either, are peculiarly well written, and the chapter upon the subject of fellow-servants contains the clearest and most satisfactory exposition of the law regulating the liability of the master to the servant for the negligence of a co-servant, that has yet appeared. If Mr. Wood's work consisted of this chapter alone, it would form an addition of inconceivable merit and value to the law relating to the subject he has treated, and to that of negligence. The book is exhaustively and carefully indexed, and contains a table of cases cited, which we think embraces every reported decision up to the time of issue upon the subject considered. The proofreading is remarkably well done, and the mechanical execution of the book is, in all respects, of the best character.

GROSS ON THE RULE IN SHELLEY'S CASE.

The Rule in Shelley's Case in Pennsylvania. Tabular Statements of the Decisions of the Supreme Court. By Joseph P Gross, of the Philadelpeia Bar (a Graduating Essay in the Law Department of the University of Pennsylvania, Class of '76). Printed by order of the Senate of Pennsylvania, February 15, 1877.

There is a good story told of a person who was permitted to visit the place of departed spirits (the lower one), and to witness the punishments that are thereinflicted upon individuals for their shortcomings while in the flesh. After he had viewed all the various ordinary tortures, such as appear in religious pictures, and of which burning and wounding form the chief portion, he was taken where the more terrible penalties, such as neither words nor art can describe, are inflicted. Among those who were undergoing these most excruciating torments, he noticed an old man with long grey locks, seated at a table which contained an immense number of law books, intensely perusing an open volume before him. As this man's countenance and frame indicated that he was suffering the most intense agony, our visitor asked his guide who the sufferer was, and what was the nature of his punishment. "That man," said the guide, was named Shelley while on earth. He was a party to a famous litigation. What great sin he committed while living I know not, but the penalty which has been imposed upon him is that he must read and understand all that has ever been or will be written about his case." The severity of this punishment will be understood by every one who has undertaken to grasp the meaning of the famous "Rule," concerning which the work before us has to do. But the rule itself is not as perplexing as the explanations which various courts and writers have undertaken to give of it. It is of little moment

The Massachusetts legislative committee on the revis

to the lawyers of Pennsylvania and other States, where the rules of the common law in relation to the transfer of real estate have been unaltered, a synopsis of the decisions of the courts of that State upon the principle enunciated in Shelley's case cannot fail to prove of great benefit. The author of this summary has certainly displayed great care and industry in the arrangement of the decisions, and his work is well worthy of the compliment paid it by the senate of his State in ordering it to be printed for the use of its members.

COURT OF APPEALS DECISIONS.

THE following decisions were handed down in the

New York Court of Appeals on Tuesday, April 17, 1877:

Order affirmed, with costs - Rosenback v. The Manufacturers and Builders' Bank; Sweet v. Tinslar.

Judgment affirmed, with costs - DeForest v. The City of Utica; Allen v. The Williamsburgh Savings Bank; Raplee v. Arnot; Hall v. Sheehan; The Greenpoint Sugar Co. v. Whitin, impleaded, etc.; Haughwout and ano. v. Garrison and ano.- -Order affirmed and judgment absolute for defendant on stipulation, with - Order costs-Goldenberg et al. v. Hoffman et al.affirmed assessment on No. 2 to draw interest only from date of the order of Special Term, without costs in this court to either party as against the other-In the matter of the petition of St. Joseph's Asylum to vacate assessments.— Judgment reversed and new trial granted, costs to abide event Bleeker v. Johnston and ano.; Kiersted and ano. v. The Orange and Alexandria and other railroad companies; Cahen v. Platt and ano.

NOTES.

general equity jurisdiction to the Supreme Court. The bill also provides that the terms of court now held for Dukes county at Barnstable, in May, and for Nantucket at Nantucket, in July, shall be held at New Bedford on the second Tuesday of November; repeals section 15, chapter 107, General Statutes, giving trial by jury in cases of divorce; and provides that in all suits in equity where the right of appeal from a final decree of a single justice exists, any attachment of goods or estate made in such suit shall continue for thirty days after such right of appeal shall cease.

A correspondent of the London Times, writing from Jamaica, says: An entire reform of the judicial system of the island, and the establishment of District Courts, was a leading feature of the new regime. These tribunals, freely resorted to by the negro population, who are rapidly becoming their own lawyers, monopolize almost entirely the litigation of the island."A correspondent of the same paper, writing from Southern Africa, gives the following account of the judicial system in the Transvaal republic: "The judicial system is conspicuous for its absence of all legal form. The Landrosts or magistrates are elected, but removable at the pleasure of the government; the Court of Heemraden, the next tribunal, consists of several old Boers, who receive £1 a day for the session; and the Supreme Court has no fixed sittings or judges, but consists of any three Landrosts the government may appoint. The traveling expenses and the pay of the judges and jurymen are divided pro rata among the suitors, and it is expressly provided that no decision of this or any other court is binding as a precedent. Each case is tried on its own merits, and the records show a wild variety of verdicts on identical points, but with a pretty general leaning against the alien. This

upon the ground that the crime which it was alleged the defendants had committed in Pennsylvania, had not been so committed, they having never been in the State, the indictment has been quashed. It was shown that the indictment was procured by the complainants without communicating with the district attorney or court. The judge who granted the motion to quash strongly condemned the whole proceeding, saying it appeared "monstrous that a respectable citizen of another State, or any citizen, without an arrest and examination before a magistrate, and without the knowledge of the court or district attorney, could be indicted by the grand jury upon the information of a private irresponsible citizen and thus branded as a criminal.". Judge Westbrook, in the case of Hoyt v. Continental Insurance Company, decided by him at Special Term, in New York city, last week, holds that a stockholder in a life insurance company cannot bring an action to wind up the company, but that the attorney-general alone can take the initiative in such

cases.

The judges of the Supreme Court of Mississippi do not shirk the labors incident to their positions. One year ago there were nearly eight hundred cases upon the docket of the court and in the consultation room. There is now only sixty cases on the docket, and none in the consultation room. The court recently adjourned after a continuous session of five months.

of the Transvaal trade, have but little trust in these tribunals, and it is only very serious loss which can drive them to seek what justice is to be found there."

Ex-Governor Chamberlain, of South Carolina, is about to begin the practice of his profession in New York city, as the senior member of the firm of Chamberlain, Cartter & Eaton.The remarks of Mr. Justice Clifford on the consultations of the electoral commission, respecting the electoral votes of Florida, are published in a neat pamphlet. There is such a thing as carrying retrenchment in public expenditure too far. The last Congress did so in the matter of court expenses, as appears from the following announcement made on the 16th inst., by Chief Justice Waite of the Supreme Court: "On account of the insufficiency of the appropriation by Congress for printing records, it is apparent that we shall not be able to continue the hearing of cases at the present term later than the 15th or 20th of May. We shall, therefore, close the term May 7, and thus enable the justices to give attention to their business upon the circuit which could not be done in many of the districts if we continue later. An announcement will be made hereafter of the time when the call of the docket will be stopped."A dispatch from Portland, Oregon, upon the 18th inst., says, that Dr. Ralph Wilcox, clerk of the United States Circuit Court for the ninth circuit, committed suicide by shooting himself.

The Albany Law Journal.

ALBANY, APRIL 28, 1877.

CURRENT TOPICS.

WE have often expressed our belief that, in order

to most effectually accomplish the purposes for which it should be formed, a bar association must, as to membership, be accessible to every attorney in good standing among his fellows. Any thing short of this will render such association merely a lawyers' clique. We do not mean to be understood that the simple circumstance that a person has been admitted to the Bar and has not since been disbarred ought to be sufficient to entitle him to admission, but the fact of being an attorney, and the absence of any charge against either his moral or professional character, ought to be all that should be required of a candidate for membership. That the New York City Bar Association has a very different standard from this we are well aware, and we have no doubt that the influence of that organization has been very unfavorably affected by the disposition shown by some of those composing it to exclude the mass of the profession in New York from connection with it. We, however, did not suppose that there was any religious test permitted, or that the circumstance that a person preferred a particular faith would furnish a reason for not allowing his admission. But the Jewish Messenger, in its issue of the 20th inst., charges that such is the fact, and gives two instances where individuals who were proposed for membership were rejected for the avowed reason that they were Jews. Whether or not this was the only reason for the action of the Association we are not informed, but the paper mentioned states that there was, in one instance at least, no other reason whatever that could possibly be assigned. If this is so, it places the Bar Association in a position in which its leading members ought to see that it does not remain. Of course it may be said that the Association has a right to admit and to exclude, as pleases it, and that the outside world has no concern in its action as to this matter. This may be true, but if it is so, the Association can no longer claim to represent the Bar of New York city. That Bar recognizes neither creed nor race, nor social rank, and it will not permit any organization which discriminates in such matters to speak for it, or to direct its action.

The General Term of the Supreme Court in the First Department, in the case of Noyes v. Children's Aid Society, decided recently, strike a blow at the habit prevailing among surrogates of allowing to a defeated contestant of the probate of a will, costs, payable out of the estate, under the provision of VOL. 15.- No. 17.

the Revised Statutes, that "the surrogate may award costs to the party in his judgment entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of controversy." This statute was amended as to New York, by Laws of 1870, chapter 359, by which the surrogate of that county was to make allowances in lieu of costs to counsel in any proceeding, in the same manner as are now prescribed by the Code. The court say that the surrogate can allow costs only to a successful party, and his discretion is limited to the determination whether such costs shall be paid by the other party personally, or out of the fund. This rule will work to the advantage

of many estates, but those poor lawyers whose income is derived from the prosecution of claims against estates and the contest of wills, will say, as did the frogs to the boys who were stoning them: "This may be sport to you, but it is death to us."

At this writing (Thursday) there has been no act passed postponing the day on which the chapters of the New Revision adopted last year are to go into effect. The Senate has passed a bill extending the time to October 1st, and the Assembly is considering a motion to extend the time to May 1, 1878. Some postponement will be agreed to before Tuesday. On Wednesday the Hon. D. D. Field addressed the Assembly Committee in favor of a postponement until May, 1878.

Mrs. Myra Clark Gaines has achieved another victory in a decision in her favor by the United States District Court for the District of Louisiana. The litigation, in which this decision is only an event, is exceedingly remarkable in many respects. It was begun nearly half a century ago by the present plaintiff, and had for its purpose the establishment of the existence of a will claimed to have been executed twenty years previous to that time, and also, incidentally, the legitimate birth of the plaintiff. It has since then been prosecuted by her with varying success, but without faltering, and, to a great extent, without the assistance of legal counsel. It is, indeed, a strange story that a solitary woman, possessed of no preliminary legal training, should be able to conduct a suit through the mazes of procedure, from the lowest local court of general jurisdiction to the highest court in the nation; that, burdened with an imputation as to her origin -- the most crushing of any known in civilized societywithout aid from the ordinary sources to which litigants resort, in spite of the most eminent counsel opposing her, and of an interested adverse popular sentiment, she should have wrung from reluctant courts and juries an acknowledgment of the legitimacy of her birth, and the justice of her claim for redress. Even if it should not be her fortune to come into possession of the property which the

Supreme Court of the United States says justly belongs to her (Gaines v. New Orleans, 6 Wall. 716), and which Judge Billings of the District Court determines shall be rendered up, the triumph she has gained is worthy the struggle of a life-time, and will, to some extent, repay her for the privation and disappointment and abuse she has undergone. She has, in addition to this, the satisfaction of showing the falsity of an old notion of the lawyers, that a woman cannot successfully conduct a lawsuit, and of disproving that time-honored maxim, that "he who is his own lawyer has a fool for a client."

The bill before the legislature entitled "An act defining the duties of receivers of insolvent insurance companies, and regulating the distribution of the assets of such companies," is worthy the support of all policyholders in life insurance companies, to whose benefit it will, if passed, specially inure. So many of these companies have recently failed that the public have lost confidence in the whole business of life insurance. Much of this lack of confidence comes from the fact that cases of insolvency have been heretofore so managed that policyholders have received little or nothing. The promoters of this bill hope by its enactment to remedy the matter, and we believe that they will accomplish that end.

In the State legislature during the past week, only these bills of general interest were introduced: Requiring justices of the peace to give bonds, with sureties, that they will pay over moneys received by them in their official capacity; and allowing the reduction of capital stock in corporations other than banks and insurance companies, by the assent of a majority of the shareholders and a majority of the trustees. The assembly, in Committee of the Whole, have been engaged in the consideration of the Code amendments. A considerable interest was manifested on this subject, Mr. David Dudley Field and Mr. Montgomery Throop being present at the discussion in the assembly. The governor vetoed several bills upon local matters, and one compelling highway commissioners to give out all work on roads to the lowest responsible bidder. One of the reasons for the veto of this last-named bill, namely, that it is of a kind that tends to countenance legislative meddling with the minutest details of local legislation, is a sound one, and merits the attention of all who advocate legislation concerning trifling matters.

Mr. Lang offered a resolution in the Assembly last week asking the Representatives and Senators in Congress from this State to urge a repeal of the bankrupt law. This resolution was tabled, for what reason we know not, but we think it is fairly indicative of the feeling of most business men and of lawyers outside of those who make a specialty of

bankruptcy business. In theory the bankrupt law is very fair. It pretends to provide for an equal distribution of the assets of an insolvent debtor among his creditors, and to guard against any attempt to do otherwise either on the part of the debtor or of any one of his creditors. This would be just if the pretense had a foundation in fact, and if all debts were equally meritorious. But every one admits that some debts are equitably entitled to preference, if a debtor has not enough to pay all debts in full. For instance, a bankrupt has borrowed of one creditor a thousand dollars; of another creditor he has bought goods to the extent of three thousand dollars, of which one thousand is due. Upon this sale the creditor, if paid in full, makes a profit of one thousand dollars, and he has been paid all but his profit. If the debtor has but one thousand dollars, and pays it to the one whom he owes for money lent, no one has lost any thing by him. But, under the bankrupt law, he must divide his money between the two creditors, the net result of the transaction being, if there were no expenses, that one creditor makes a profit of five hundred dollars in his deal and the other loses five hundred dollars. But, as bankruptcy proceedings are extravagantly expensive, the result, in fact, will be, that the one thousand dollars are eaten up by the proceedings, and one creditor is no better off than if there were no bankruptcy law, while the other loses his whole claim. In fact, as the law is administered in this country, no class of seriously harmed. The law works little, if any, good creditors is benefited by it, while most classes are to honest debtors. It sometimes may assist unfortunate insolvents to escape the penalty of their business misadventures, and thus operate to the advantage of others besides registers and marshals, but we believe the latter individuals, or those connected with them, have the greatest interest in preserving intact the law as it now exists. We trust that Mr. Lang's resolution will not remain on the table the rest of the session, because we believe it to be a move in the right direction, and to express the sentiments of the people generally.

NOTES OF CASES.

N the case of Pritchett v. Rollins, decided by the Supreme Court of Kansas at the January (1877) Term, the question was, whether a second mortgage can set up the defense of usury against the first mortgagee, to postpone or defeat the lien of such prior mortgage. The authorities are much divided upon the subject, the wording of the statute varying in different States, and the courts being more or less influenced by the popular feeling in construing the law strictly or liberally. That he can, seems to be the doctrine in Post v. Dart, 8 Paige, 640 ; Binks v. McClelland, 24 Md. 62; Brooks v. Avery, 4 N. Y.

225; Cummens v. Wire, 6 N. J. Eq. 73; Cole v. Bansemer, 26 Ind. 94; Green v. Taylor, 39 Penn. St. 361. That he cannot, see Austin v. Chittenden, 33 Vt. 553; Ransom ▼. Hays, 39 Mo. 445; Campbell v. Johnson, 4 Dana (Ky.), 177; F. & M. Bank v. Kemmel, 1 Mich. 74; Cain v. Gimon, 36 Ala. 168; Loomis v. Eaton, 32 Conn. 550; Adams v. Robertson, 37 Ill. 45; Powell v. Hunt, 11 Iowa, 430; Hough v. Horsey, 11 Am. Rep. 484. See, also, as bearing upon the same subject, Ladd v. Wiggin, 35 N. H. 421; De Wolf v. Johnson, 10 Wheat. 367; Green v. Kemp, 13 Mass. 515. In the principal case the court decide that he cannot plead usury, saying that this plea is a personal privilege, and if the parties to the usurious contract are willing to abide by its terms, no one not a party thereto should be permitted to interfere. In a case of two unsecured debts, no one would think of permitting one creditor to interfere with the payment by the debtor of the other debt on the ground that it was tainted with usury, even though his means should thereby so diminish as to render him unable to pay the remaining debt. The court very properly say that no distinction should be made between secured and unsecured debts, and that the law of usury, while it ought to protect the borrower from paying all but the legal rate, if such borrower feels in honor bound to pay a stipulated illegal rate, no stranger to the transaction should be permitted to interfere.

In the case of Randall v. Newson, 36 L. T. Rep. 164, decided by the English Court of Appeal on the 23d of January last, the action was brought for damages for injuries caused by the breaking of a pole of a carriage supplied by the defendant to the plaintiff. It appeared on the trial that after the carriage had been in use ten months the pole broke upon a sudden pulling up of the horses, in consequence of one of them having shied. Considerable injury to the horses and carriage resulted from the accident. At the trial evidence was given as to the quality of the wood of which the pole was composed, and the court left these questions to the jury, both of which were answered in the negative. (1) Was the pole in fact reasonably fit and proper for its purpose? (2) Was there any negligence in the defendant in supplying the pole? The damages were assessed at £3, the admitted price of a new pole. The Queen's Bench division upon these findings, upon motion of defendant, entered judgment for him. This judgment was reversed by the Court of Appeal, which held the rule to be that where an article is supplied for a specified purpose, the manufacturer warrants that it is reasonably fit for that purpose, and that under this rule the plaintiff was entitled to recover, as the defendant must be considered to have warranted the pole fit for the use to which it was put. The decision of the court is sustained by the cases of Gardner v. Gray, 4 Camp. 144; Laing

v. Fidgeon, 6 Taunt. 108; Gray v. Cox, 4 B. & C. 108. In the latter case the principle is stated by Best, C. J.: "If a man sells an article he thereby warrants that it is merchantable; that it is fit for some purpose. If he sells it for a particular purpose he thereby warrants it fit for that purpose." See also to the same effect Brown v. Edgington, 2 Man. & Gr. 279; Wieler v. Schilizi, 17 C. B. 619; Nichol v. Godts, 10 Ex. 191; Josling v. Kingsford, 13 C. B. (N. S.) 447; N. Y. Civ. Code, § 883; Sweat v. Shumway, 3 Am. Rep. 471; Foot v. Bentley, 4 id. 652; Hawkins v. Pemberton, 10 id. 595.

The United States Circuit Court for the Western District of Michigan, in the recent case of Buchel v. The Mason Lumber Co., 9 Chic. Leg. News, 225, make application of the rule that a written contract cannot be varied by parol. Plaintiff contracted in writing to sell defendant's grantor certain pine lands at a specified price, which such grantor agreed to pay, but in the contract there was a stipulation that no timber should be cut or removed from the land without the permission of plaintiff. The agreement of sale and purchase was assigned to defendant. At the time of the assignment plaintiff and defendant entered into a contract in writing whereby defendant guaranteed the payments stipulated under the assigned contract, and plaintiff gave permission to cut and carry away timber. The action in this case was brought on this guaranty. At the trial, defendant having set the same up by way of defense, offered to prove that at the time the guaranty was made plaintiff by parol warranted to defendant that there was a specified quantity of timber on the lands sold; that this warranty was the leading inducement to the execution of the contract of guaranty, and that there was not the quantity of timber specified on the lands. The court held the evidence inadmissible under the rule mentioned. See Van Ostrand v. Reed, 1 Wend. 424; Mumford v. McPherson, 1 Johns. 414; India Rubber Co. v. Adams, 23 Pick. 257; Smith v. Dallas, 35 Ind. 255; Robinson v. McNeil, 51 Ill. 225; Helmeichs v. Gehreke, 56 Mo. 79; Randall v. Rhodes, 1 Curtis' C. C. 90; Dean v. Mason, 4 Conn. 428; Martin v. Hamlin, 18 Mich. 354; Oelrichs v. Ford, 23 How. 49. See however Powelton C. Co. v. McShain, 75 Pa. St. 245. Here a contract in writing contained a statement different from the parol understanding of the parties, and one of the parties when signing the contract called the attention of the agent of the other to the discrepancy, and was told that that was understood, and that it was the intention of the agent's party to carry out the contract as the other understood it. The court held that the oral agreement was admissible. The ground taken in this case was that there was fraud on the part of the party objecting to the evidence in securing the contract, and under such circumstances parol evidence is admissible to defeat fraud.