sured may, to meet the defense, by parol show that truthful answers were given to the company's agent, who made the errors in writing the application. Smith v. Farmers, etc., Ins. Co., 8 Norr. 287; Edenberger v. Protective Ins. Co., id. 404; American Cent. Ins. Co. V. McLanathan, 11 Kans. 533; Franklin v. Atlantic Fire Ins. Co., 42 Mo. 457; Rawley v. Empire Ins. Co., 36 N. Y. 550. (4) A waiver of notice and proof of loss, within a specified time designated in the policy, may be inferred from a denial of their obligation, by the insurers, exclusively on other grounds than the omission to give such notice. Inland Ins. Co. v. Stauffer, 9 Cas. 397; State Ins. Co. of Missouri v. Todd, 2 Norr. 272; Farmers' Ins. Co. of Schuylkill Co. v. Moyer, 38 Leg. Int. 232. Pennsylvania Sup. Ct., June 20, 1881. Farmers and Mechanics' Fire Insurance Co. v. Meckes. Opinion by Green, J.

LIFE POLICY -BENEFICIARY HAS VESTED INTEREST IN.-The beneficiary named in a policy of life insurance has a vested interest in the proceeds of a paid-up policy, given in exchange for such life policy. A written agreement, executed before the surrender of the life policy, stipulating that the said proceeds should be placed in the hands of a trustee, and distributed as therein provided, is voidable by an infant beneficiary when such agreement did not constitute the substantial consideration for the exchange of the policies. Authorities referred to, Clark v. Durand, 12 Wis. 223; Kerman v. Howard, 23 id. 108; Foster v. Giles, 8 N. W. Rep. 217; Charter Oak Ins. Co. v. Brant, 47 Mo. 419; Gambs v. Covenant Ins. Co., 50 id. 44; Ricker v. Charter Oak Ins. Co., 6 N. W. Rep. 771; Sandrum v. Knowles, 22 N. J. Eq. 594; Bliss L. Ins., § 317. U. S. Circ. Ct., E. D. Wis., May, 1881. Brockhaus v. Kemna. Opinion by Dyer, D. J. 7 Fed. Rep. 609.

-IN FAVOR OF WIFE AND CHILDREN OR REPRESENTATIVES INURES TO GRANDCHILD AND IS NOT AS

SIGNABLE BY INSURED. The statutes of Kentucky provide thus: "A policy of insurance on the life of any person, expressed to be for the use of any married woman, whether procured by herself, her husband, or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effecting the same or his creditors." "When a policy is effected by any person on his own life, or on the life of another, expressed to be for the benefit of a third person, the person for whose benefit it was made shall be entitled thereto against the creditors and the representatives of the person effecting the same." C. insured his life in 1872 for $5,000, payable to his wife and children or their representatives. At that time insured had three children, all minors and unmarried. In a few days thereafter his wife died. He continued to pay the annual premiums as they fell due, until 1878, when he died, having survived all his children, two of whom died in infancy and unmarried, and one, having married, left an only child, D., and her husband surviving her. Before his death, and after the death of all his children, the insured assigned and delivered the policy to his niece, R., intending it as a gift to her. Held, that the policy should be construed as if it were payable to such of the children as should survive the insured, and the surviving issue of such as might die during life. The insured had no interest in the policy and the assignment by him to R. gave her no right to any part of the proceeds. When the wife of insured died her interest in the policy inured, under the statute, to the benefit of her children, When one of the children subsequently died without living issue, and the policy was again renewed by the payment of the annual premium, there was in a modified sense, a new contract (Thompson v. Cundiff, 11 Bush, 573), which inured to the benefit of the children then living, there being no issue of those who were dead. So that at the death

of D., the last survivor of the children of the insured, she was the sole beneficiary. At the time the policy was last renewed before her death, D. was the only surviving child of the insured, and as she was the only living person answering the description of beneficiaries as contained in the policy, as the other beneficiaries had died without issue, it is to be taken to have been renewed for her sole benefit. When it was last renewed she was dead, and there was no person living answering the description except her surviving child, who is her representative within the meaning of that word as used in the policy. In Insurance Co. v. Palmer, 42 Conn. 50, the policy was payable to the wife if she survived her husband, if not, to their children. The husband survived the wife, and one of the children died, during the life of the father, leaving issue. It was held that the issue took the interest to which his father would have been entitled if he had survived the insured. Kentucky Court of Appeals, Sept., 1880. Robinson v. Duval. Opinion by Cofer, C. J.

RECENT ENGLISH DECISIONS.

DEFINITIONS -TIDAL NAVIGABLE RIVER NOT THE "SEA." A navigable and tidal river at a spot some considerable distance from its mouth (thirty miles) is not the sea within the meaning of 48 Geo. 3, chap. 75, so as to render the county chargeable with the expenses of burying persons whose bodies may have been cast or brought on shore from a wreck occurring near such spot. Q. B. Div., April 2, 1881. Church Wardens of Woolwich v. Robertson. Opinions by Lindley and Mathew, JJ. 44 L. T. Rep. (N. S.) 747.

LEASE COVENANT FOR RENEWAL DEPENDENT ON LESSEES OBSERVING OTHER COVENANTS.- A lease contained a covenant that the lessee should be entitled "on giving six months' notice" before the expiration of the term, to have a further lease from the expiration of the original term "upon the lessee paying the rent and performing and observing the covenants of this present lease." The lessee gave notice at the time stated. At the date of the notice and at the date of its expiration there was an existing breach of a covenant to paint. During the currency of the notice the lessor accepted rent. Held, that the performance of the lessee's covenants was a condition precedent to his being entitled to a new lease, and that the lessee could not therefore enforce the granting of it. The court declined to decide whether he would have been so entitled if the breach had been remedied before the expiration of the notice. Held, also, that the landlord had not by accepting rent waived his right to take this advantage of the breach. Cases referred to: Simpson v. Titterell, Cro. Eliz, 642; Anonymous, 4 Leon.50; Hays v. Bickerstaffe, 2 Mod. 34; Boone v. Eyre, 1 H. Bl. 273; Duke of St. Albans v. Shore, id. 270; Porter v. Shephard, 6 Term R. 665; Davis v. Thomas, 1 Russ. & My. 506; Dawson v. Dyer, 5 B. & Ad. 584; Gray v. Friar, 4 H. L. Cas. 565; Stavers v. Curling, 3 Bing. N. C. 355; Job v. Bannister, 2 K. & J. 374; S. C. on app., 28 L. T. Rep. 242; Finch v. Underwood, 34 L.T. Rep. (N. S.) 779. Ch. Div., April 29, 1881. Bastin v. Bidwell. Opinion by Kay, J. 44 L. T. Rep. (N. S.) 742.

MARITIME LAW — JURISDICTION —SUIT ON FOREIGN JUDGMENT. The Admiralty Division of the High Court of Justice cannot entertain a suit in rem on a foreign judgment in personam for damages arising out of a collision. Semble, a foreign judgment in rem for damages by collision can be sued upon in England in rem. Case cited: The Bold Buccleugh, 7 Moore P. C. Cas. 267. Ct. of App., May 4, 1881. The City of Mecca. Opinions by Jessel, M. R., and Baggallay, L. J. 44 L. T. Rep. (N. S.) 750.

OPL

WILL-LEGACY ON CONDITION OF MARRIAGE WITH GUARDIAN'S CONSENT. - A testator appointed his wife the sole guardian of his children during minority, and bequeathed to his daughter C. E. certain pecuniary legacies upon her attaining the age of twenty-one years, or on her marriage with the consent of her guardian or guardians, which should first happen.' After the death of the testator and his wife, and while no guardians were in existence, C. E. married without any consent, and died under twenty-one. Held (affirming the decision of Fry, J.), that the gift had never vested, inasmuch as the condition of consent could have been fulfilled by the appointment of a guardian by the Court of Chancery, and the obtaining such guardian's consent, and that the failure to fulfill the condition was attributable only to C. E.'s own default and not to any impossibility. Dawson v. Oliver-Massey, 34 L. T. Rep. (N. S.) 120, 551; L. Rep., 2 Ch. Div. distinguished. Ct. of App., May 13, 1881. Re Brown's Trusts. Opinions by James & Lush, L. JJ. 44 L. T. Rep. (N. S.) 758.

INSURANCE-MARINE POLICY-PERILS OF THE SEA.

Plaintiff's ship was chartered by the Admiralty

Commissioners for three months certain, and thenceforward until notice given. The charter-party contained a clause entitling the charterers, if the ship became incapable to perform efficiently the service contracted for, to put her out of pay. Before the expiration of three months the ship struck a rock, and was injured and had to be put under repair. She was put out of pay and discharged from the service. Plaintiffs were insured for three months on "freight outstanding." Defendants underwrote the policy, knowing of the existence of the charter-party, but not knowing its terms. In an action on the policy, held (reversing the judgment of Brett, L. J.), that the loss of freight was not a loss by perils of the sea, and therefore plaintiffs were not entitled to recover. Ct. of App., April 13, 1881. Inman Steamship Co. v. Bischoff. Opinion by Bramwell, L. J. 44 L. T. Rep. (N. S.) 763.

CORRESPONDENCE.

CONDITIONAL SALES.

Editor of the Albany Law Journal:

In your consideration of "Conditional Sales," and the apparently conflicting decisions of Wait v. Green, 36 N. Y. 556, and Ballard v. Burgett, 40 id. 314, has your attention been directed to the "explanation" of the Reporter, 46 How. 530?

Judge Bockes, who wrote the opinion in Wait v. Green, there says: "The heresy of that case (Wait v. Green) should not be perpetuated."

This would seem to settle the question as to which of the above cases is authority in this State.

THE

HE following decisions were handed down, Tues. day, October 4, 1881:

Judgment affirmed with costs - Morton v. Thurber; Olmstead v. Keyes & Vosburgh; Brummer v. Cohn; Sherman v. Kane; Gould v. The Cayuga County National Bank; Gillette v. Bate; Godfrey v. Hansen; Lawrence v. Miller; Barkley v. Wilcox; The People ex rel. Emerick v. The Board of Fire Commissioners of the City of New York; Show v. Jewett; Burdett v. Taylor; De Jongs v. Goldsmith; Van Schoonhoven v. Curley; Scott v. The Middletown, Unionville and Water Gap R. R. Co.; Byrnes v. Baer; The Trenton Banking Co. v. Duncan; Havemeyer v. Havemeyer; Poncher v. Blan

-

chard; Davenport v. McChesney. Judgment affirmed, without costs to either party in this courtLehman v. Roberts. Judgment modified by adding the item of interest ($1,748.22), and as modified affirmed, with costs to appellant Winch-Winch v. The Mutual Benefit Ice Co.- Judgment reversed and venire de novo ordered-O'Reilly v. The People.- Judgment reversed and new trial ordered, costs to abide event Hood v. Hood; Munger v. The Albany City National Bank; Van Dyck v. McQuade; Pier v. Hanmore, Pier v. George; The Mutual Life Ins. Co. of New York v. Hoyt; Becker v. Hallgarten; Dalton v. Smith; Baxter v. Bell; Green v. Collins. Judgment reversed and complaint dismissed with costs - The Troy & Boston R. R. Co. v. The Boston, Hoosac Tunnel and Western R. R. Co. Orders of general and special terms reversed and injunction order dissolved, without costs to either party-The People ex rel Clausen v. The Newburgh & Shawangunk Plankroad Co. Judgment reversed and new trial granted, without costs to plaintiff, or Sarah A. Brentnall, but with costs to the appellant Rose Van Voorhis, and the respondents Ella Van Voorhis and Elias, to be paid out of the estate v. Brentnall. Order affirmed and judgment absolute for respondents on stipulation, with costs - Heiser v. Hatch. Order denying new trial on defendant's appeal affirmed, and plaintiff's appeal dismissed, without costs to either party in this court Walker v. Spencer. Appeal dismissed, with one bill of costs to respondents Keck v. Werder. Appeal dismissed, with costs to the receiver - In the matter of the Attorney-General v. The Security Life Insurance and Annuity Co.

NOTES.

N Baile v. St. Joseph F. & M. Ins. Co., 13 Cent. L. J. 233, Sherwood, C. J., delivering the opinion of the Missouri Supreme Court, says: "A caudal point, not presented in the oral agreement nor in defendant's printed brief, is found appended thereto." "Caudal point" is original, certainly. It probably means "a round, unvarnished tale." -Two rum cases attract our notice. In United States v. Ninety Demijohns of Rum, 8 Fed. Rep. 485, it was held that a demijohn is not a "bottle," within a statute requiring imported liquors to be packed in packages of not less than a dozen bottles each. This is put on the ground that such packages of demijohns "would be inconvenient and cumbersome." In Boyd v. Bryant, 35 Ark. 69, an act is passed upon, forbidding the sale of intoxicating liquors within three miles of any academy, college or university, and including "bitters" within its provisions.

The following is the initiatory paragraph, literally and with punctuation, transcribed from a brief lately presented by an attorney to a high court sitting in Kentucky. It needs no comment: "The desire of Counsel to free your Honor, from an oral argument of length suggested, by the continuity of arduous labors since the commencement of the term and the appearing fatigue caused, by preceeding matters prevented full verbality, at the time upon the Propositions of Law-agreement and facts shown, by the papers of the controversy, as would otherwise have done.". Kentucky Law Journal.

In a commendatory notice of Mr. Snyder's "Great Speeches of Great Lawyers," the London Law Journal says: The forensic style of the American bar, as evidenced in this volume, is not wanting in fluency and vigor; what it requires, to English taste, is restraint and condensation. The notes to the speeches are full and carefully written.

The Albany Law Journal.

THE

ALBANY, OCTOBER 15, 1881.

CURRENT TOPICS.

THE New York Court of Appeals, in the case of O'Reilly v. People, reported elsewhere in this issue, establishes the doctrine that to constitute an oath for the falsity of which an indictment for perjury will lie, there must be an unequivocal statement by the affiant at the time of its administration that he takes upon himself the obligation of an oath. A silent acquiescence in the act of the acknowledging officer who certifies that the oath has been administered when it has not, is not sufficient, even though the party intends to swear to the paper certified to and afterward makes use of it as a valid affidavit. The trial court in this case held that if the jury were satisfied that the prisoner meant to swear to the affidavit this was perjury if the affidavit was false. We took occasion to criticise this ruling at the time (see 23 Alb. L. J. 201), remarking that the indictment was for false swearing and not for intending to swear falsely. The Court of Appeals adopt the view we then took, as we had no doubt it would if the case came before it. The rules of strict construction apply to criminal statutes, and it is neither proper nor just to hold a man guilty of an offense that he merely tries to commit, even though he afterward in fact supposes he has committed it.

Messrs. J. R. Osgood & Co., of Boston, have in press an important and extensive work which will prove of considerable interest to the legal profession. It is entitled "The Public Service of the State of New York," and is a history of the State government under Governor Cornell. It will form three very large quarto volumes, and will be illustrated with portraits of all the officers of the State -executive, legislative, and judicial- and will contain historical sketches of the several departments from the earliest times. The sketch of the judiciary department has been prepared under the supervision of Chief Judge Folger, and is the only complete one to our knowledge, and alone will commend the work to the lawyers of our State. Accompanying the portraits will be biographical sketches of the present judges of the Court of Ap-| peals and the Supreme Court, and also of the four deceased judges of the Court of Appeals. These judicial portraits will be a very interesting feature of the work. Similar portraits of our old judges -Spencer, Bronson, Cowan, Beardsley, etc. would be invaluable if they were attainable. The work will also contain views of all the State buildings, and bids fair to be a sumptuous example of typographical and pictorial art. We have carefully examined the scheme of the work, which is under the editorial charge of Dr. Chadbourne, ex-president of Williams College, and the considerable VOL. 24.- No. 16.

portions of it already executed, both literary and pictorial, as well as a completed similar work relating to the State government of Massachusetts, issued last year by the same house, and have no doubt that the present work will prove an important and permanent contribution to the history of our State, and well worthy the patronage of our profession and the public.

The procedure in the extradition of Exposito, who was recently surrendered to the Italian government, is, to say the least, peculiar, and should receive the attention of the State department at the earliest moment. As is well known, Exposito was claimed as a fugitive from justice from Italy, it being alleged that his true name was Randazzo, and that he had committed various robberies with vio

lence, and a murder or two. The offenses charged against him were numerous enough and heinous enough to justify his surrender, and it would seem that there should have been no difficulty in procuring that by the methods supposed to be usual. Exposito was arrested in New Orleans, where he resided, and was brought by steamer from that place to New York, where he was examined before a United States commissioner in accordance with the statute, and as a result of such examination delivered to the Italian authorities. The arrest was made in New Orleans, under a United States warrant directed thus: "To any marshal of the United States," etc., "to James Mooney." Mooney was not a public officer but a private detective. There are United States commisioners in New Orleans having jurisdiction to examine in cases of extradition, and as an important if not the principal question in the case was the identity of the accused, the injustice of conducting the examination before a commissioner fifteen hundred miles away is apparent. At New York the commissioner who had issued the warrant for arrest, and who held the examination, assigned counsel to defend the accused, and gave him all opportunity to establish his right to a discharge that was then and there possible. At the conclusion of the hearing the commissioner decided to hold the prisoner to await the action of the government at Washington. This decision was made September 14, and forwarded to Washington on the 17th. On the 19th a warrant of extradition was issued by the State department, directing the surrender of the prisoner to the agent of the Italian government. This warrant was presented to the United States marshal in New York by the agent mentioned, and a request made that the matter be kept secret, which it appears was done for a while, for the prisoner was conveyed on board of a steamer about to leave for Europe, without opportunity to communicate with his counsel or his family. There were several irregularities, other than those mentioned in the proceedings, that make the transaction not a very creditable exhibit of the fair play that is supposed to exist in criminal examinations and trials in this country, and which certainly ought to exist in extradition examinations where at the best the accused has not more than half a chance.

fair trial is not probable, and to commit to the magistrate without a jury the trial of offenses of inferior grade, and lastly, to suspend for a while the right to a jury trial in localities where the disturbing influences exist. The latter appears to be the only way out of the difficulty. In a neighborhood where one who violates the law has the popular sym

they introduce to a considerable extent the ideas of a different and unlike social system, the Codes having been prepared by a French legist, who followed, as a model, the Code Napoleon. It is said that the peculiar customs and ancient laws of Japan have been incorporated into the work, but this has been done only when the spirit of modern legislation would permit it. Among the more noticeable changes made by the new enactments are the substitution of hanging for decapitation in inflicting the punishment of death, and the abolition of class distinctions in punishment. The advantage of the first-mentioned change is doubtful, but there can be no question that the latter is one of great moment, as it takes away privileges that rendered the favored ranks in many instances substantially not amenable to the criminal law. Heretofore an individual of any of those ranks would frequently have only to pay a small nominal fine for precisely the same offense for which a person of an inferior caste would be compelled to undergo a long imprisonment. If the new Codes have no other merit than this, that they make the law of Japan no longer a respecter of persons, it is sufficient to entitle them to a trial. At any rate their adoption is an indication of a wonderful progress in that country toward Western ideas.

The mode of trial by jury seems to be in danger of being abolished in Ireland. In a report by a special committee of the House of Lords, appointed

to inquire into the operation of the Irish jury laws, it is stated that juries in most districts in that country have, during the recent agitation, been guilty of very gross misconduct, limited, however, to crimes arising out of disputes as to the occupation of land; crimes arising out of political or religious antagonism, and aggravated assaults. The report states that though the criminal may have been detected in the act of committing the crime, though he may have been arrested bearing upon his person traces which could leave no doubt as to his guilt, though his identity may have been clearly established, the jury have again and again either disagreed or found a verdict of acquittal. On other occasions the prosecution has been compelled to accept a plea of guilty upon an understanding that the defendants were to be liberated without punishment on their own recognizances. The committee very naturally remark that it is scarcely possible to conceive a more complete frustration of justice or one more calculated to demoralize society. The remedies proposed are to make the juries more intelligent by the infusion of classes which possess more education; to allow a change of venue in cases when a

it enables the law-breaker to masquerade as a hero without peril, and thus encourages others to become. law-breakers. To change the venue to a distance, and to a locality where the people are probably hostile to those in the locality of the crime, which will be necessary in Ireland to escape the influences for which a change would be sought, would be preserving the form of a jury trial, indeed, but superseding it in effect, and would be in many ways unjust to the accused. The proposal to add intelligence to the juries is not seriously advanced we imagine. A majority only of the committee adopt the sugges tion to suspend jury trials.

The Troy Budget, in what appears to be a carefully-considered article upon the case of Guiteau, reaches the conclusion that in the absence of a Federal statute giving it, the criminal court of the District of Columbia has no jurisdiction to try that individual for the murder of the president. We have heretofore we think shown that such a statute is not needed to confer jurisdiction, and the reasoning in the article in question does not change our view.

The London Law Times says "an American lawyer is the new president of the United States," as if it was a not very usual circumstance for a member of our profession to occupy the executive chair. If our memory serves us right, all but three or four exceptions being Washington, Taylor and Grant, of the presidents have been lawyers, the notable

who won their way to the position through success as military leaders.

NOTES OF CASES.

N McDonald v. Minneapolis Lumber Co., Minnesota Supreme Court, Sept. 15, 1881, 9 N. W. Rep. 765, it was held that a mechanics' lien could not be conveyed from one lot to another by steam. The lumber company had a saw-mill and planing-mill on two lots, operated by an engine and boiler on an intervening lot; and subsequently built a dry-kiln on another lot across the street. "The process of drying in said kiln was through the agency of steam, and a pipe permanently connected with one of the boilers in the boiler-house conducted steam to the kiln, and the kiln had no other necessary connection with the saw-mill proper than that the same boiler furnished steam for both, but might furnish for one and not for the other, as circumstances required. The steam furnished by the boiler was necessary for conducting the business of said kiln, and said kiln was constructed at said place to be run in connection