GIFT OF MONEY IN SAVINGS BANK - DONATIO MORTIS CAUSA. It is well settled in Maryland that there is no difference in the legal requirements to make a good delivery in gifts inter vivos and mortis causa. Although a gift mortis causa depends for its absoluteness on the death of the giver from the disease threatening life when the gift was made, so that recovery would revoke it, still for the time being and until recovery, the absolute dominion over the thing given, must be parted with at the time of the gift. S., on the 3d of April, 1877, being sick at the time, gave C. a written order on a savings bank, for the payment to him of a sum of money on deposit in said bank in her name. A memorandum was added, "the book must be sent with this order." At the same time she gave C. a written order on G. in whose possession her book of deposit then was, requesting G. to deliver said book to C. The order for the payment of the money was presented at the bank by C. without the bank book, and he was told the money was there, and the order was in proper form, but could not be paid till the book was produced. S. died on the 10th of July, 1877, at a different place from that where the order was given. In au action by C. against the administrator of S. to recover the amount of the order, the above facts were proven, but there was no proof that C. ever had the bank book in his possession, or that he ever made any efforts to get it; nor did it appear of what disease S. died, or what was her disease at the time the order was given. Held, that standing as the money did in the name of S. at the bank when she died, it devolved upon her legal representative, who having properly possessed himself of it, the plaintiff had no enforceable claim against the defendant or the fund. That there was a serious failure of proof as to the disorder of which the alleged donor died, and it was essential to make the attempted gift, an effective gift mortis causa, that the donor should die of the very disorder with which she was suffering when the gift was made, and that there should be no intervening recovery. Pennington v. Gittings, 2 G. & J. 215; Bradley v. Hunt, 5 id. 58; Hebb v. Hebb, 5 Gill, 509; Taylor v. Henry, 48 Md. 559; Mitchener v. Dale, 23 Penn. St. 59; Tate v. Hilbert, 2 Ves. Jr. 112. Maryland Ct. of Appeals, April term, 1880. Conser v. Snowden. Opinion by Irving, J. (54 Md. 175.)

NEGOTIABLE INSTRUMENT-HOLDER FOR VALUE— PRESUMPTION. In an action to foreclose a mortgage securing promissory notes, S. intervened and claimed to own the notes. It appeared that S. had left the notes in the hands of his agent for collection, and that they were while there, by the fraud of the agent's partner, transferred to plaintiff, who took the notes as collateral security for the indebtedness of the agent's firm. Held, that the mere fact that the plaintiff took the notes as collateral security would not show that it is a holder for value. It would not be such if they were taken wholly as collateral security for an antecedent indebtedness and no extension was given. Ryan v. Chew, 13 Iowa, 589. Held, also, that if the fact that the notes came from its possession was sufficient to raise a presumption that it paid value, such presumption was overcome by the intervenor, showing his title to the notes, and the wrongful indorsement and delivery to the plaintiff. In 2 Daniell, Neg. Inst. 412, the author says: The legal presumption is that the holder of a note is not a finder, but a bona fide transferee for value. When, however, the loss of the original owner is shown, the burden of proof shifts, and the holder must show that he acquired it in good faith for value." See, also, Morton v. Rogers, 14 Wend. 581; Graves v. Am. Exch. Bank, 17 N. Y. 205; Mathews v. Poythress. 4 Ga. 305; Gerrard v. Pittsburgh, 29 Penn. St. 157. The rule enunciated finds support also in numerous analogous decisions where the maker proves

that the note was procured from him by fraud. Sisterman v. Field, 9 Gray, 33; Perrin v. Noyes, 39 Me. 384; Smith v. Sac County, 11 Wall. 139; Devlin v. Clark, 31 Mo, 22; Perkins v. Prout, 47 N. H. 387; Harbison v. Bank of Indiana, 28 Ind. 133; Bailey v. Bidwell, 13 Mees. & W. 73; Fitch v. Jones, 32 Eng. L. & Eq. 134. The same doctrine is recognized by the text writers. Chitty, Bills, 260; Byles, Bills, 190; 2 Pars. Bills & Notes, 438; Story, Prom. Notes, 196. Iowa Sup. Court, Oct. 4, 1881. Union National Bank of Chicago v. Barber. Opinion by Adams, C. J.

INSURANCE LAW.

MARINE POLICY - PROMISSORY REPRESENTATION BURDEN OF PROOF AS TO SEAWORTHINESS. (1) A substantial compliance with a promissory representation is sufficient to sustain a contract for marine insurance. The cargo of a vessel which had been pronounced unseaworthy was insured upon the representation that she was "to be repaired." Upon a new survey however, it was found that no repairs were required, and the same were therefore not made. Held, that the fair construction of the representation, assuming it not to have been the statement of an expectation, but a promissory representation, was that the vessel was to be put in a seaworthy condition for her voyage before the commencement of the risk; and that if she was in that condition when she left the port from which the cargo was insured, the representation was satisfied. In De Hahn v. Hartley, 1 T. R. 343, Lord Mansfield said: "A representation may be equitably and substantially answered, but a warranty must be strictly complied with." The two cases most frequently referred to in illustration of the rule are Suckley v. Delafield, 2 Cai. 222, and Pawson v. Watson, 1 Cowp. 785. In Suckley v. Delafield, where the representation was that the ship would sail "in a few days for the West Indies, in ballast," it was held to mean the vessel would not be exposed to the sea perils attending a loaded ship, and was substantially performed, although the master secretly conveyed into the ship and transported a small quantity of merchandise. In Pawson v. Watson, the representation was that the ship was to sail with twelve guns and twenty men. She sailed with ten guns and six swivels, and with sixteen men and seven boys. It was held that as the representation had not been departed from fraudulently, nor in a manner detrimental to the underwriter, the policy was in force. (2) Seaworthiness must be shown by the assured, where proof of such fact is necessary to excuse the non-compliance with a promissory representation. See on the subject of the burden of proof, Moses v. Sun Mut. Ins. Co., 1 Duer, 176; Tidmarsh v. Wash. Ins. Co., 4 Mason, 439; Bullard v. Roger Williams Ins. Co., 1 Curtis, 148; Watson v. Clark, 1 Dow. 336; Parker v. Potts, 3 id. 23; Pickup v. Thames Ins. Co., L. R., 3 Q. B. D. 594; Taylor v. Lowell, 3 Mass. 347; Paddock v. Franklin Ins. Co., 11 Pick. 227; Myers v. Girard Ins. Co., 26 Penu. 192; Snethen v. Memphis Ins. Co., 3 La. Ann. 474. U. S. Circ. Ct., S. D. New York, April, 1881. Lunt v. Boston Marine Insurance Co. Opinion by Wallace, D. J. (7 Fed. Rep. 563.)

NEW BOOKS AND NEW EDITIONS.

STORY ON PARTNERSHIP. Commentaries on the Law of Partnership as a branch of Commercial and Maritime Jurisprudence, with occasional illustrations from the civil and common law. By Joseph Story, LL. D. Seventh edition. By William Firbur Wharton, Counsellor at law. Boston: Little, Brown and Company, 1881. Pp. li, 730.

THIS book is perfectly well known to every member of the profession, young and old. Its merits and demerits are familiar. One thing must be said in

favor of all this great lawyer's books: the older a practitioner becomes, the more valuable they seem to him. They have certain defects which detract from their usefulness to the tyro, but as a lawyer grows wiser, he puts a higher estimate upon them, not as mere tools of trade, but as exponents of the science of law. Mr. Wharton has added many citations to the present edition, as a great number of cases have accumulated in the thirteen years elapsed since the sixth edition. The volume is elegantly printed.

ODGERS ON LIBEL AND SLANDER.

A Digest of the Law of Libel and Slander; with the evidence, procedure and practice, both in civil and criminal cases, and precedents of pleadings. By W. Blake Odgers, M. A., LL. D., late scholar and law student of Trinity Hall, Cambridge, of the Middle Temple and the Western Circuit, barrister at law. First American edition. By Melville M. Bigelow, Ph. D. Boston: Little, Brown and Company, 1881. Pp. lii. 651.

There is no lack of excellent treatises on this subject, one of the best and most recent being Mr. Townshend's. The present work is written on the plan which Mr. Lawson adopted in his recent article in the American Law Review, and which we recommended him to adopt, for a complete work, namely, of abstract propositions and case illustrations. To these the learned editor has added copious American notes. The author has demonstrated the correctness of our judgment as to the practicability of a work on such a plan on this topic. We have looked over the work sufficiently to become very much interested in its novel treatment, its graphic expression, its judicious selections, and its logical division and arrangement. It is certainly a most meritorious production. It has a peculiar value in its freshness. The mechanical execution is beyond criticism.

ADAMS' EQUITY.

The Doctrine of Equity. A Commentary on the law as administered by the Court of Chancery. By John Adams, Jr., Esq., Barrister at Law. Seventh American edition. Containing the notes to the previous editions by J. R. Ludlow, J. M. Collins, Henry Wharton, George Tucker Bispham, and George Sharswood, Jr. With additional notes and references to recent English and American decisions, by Alfred J. Phillips. Philadelphia: T. & J. W. Johnson & Co., 1881. Pp. xc; lxviii-lxix; 456.

This is a very brief and pregnant commentary, presenting a noticeable contrast to Story's great work. Its statements are models of conciseness and clearness, showing how few words a man needs if he clearly understands his subject. It has received a vast amount of annotation by some of the most learned of our lawyers, as the title page shows. Taken as a whole it may be pronounced a very admirable work, perhaps the most useful in a practical view, on this very important subject. It has separate tables of the English and American cases, which is not well. It is printed in a very attractive manner.

CORRESPONDENCE.

MERGER IN JUDGMENT.

Editor of the Albany Law Journal:

extinguishes the mortgage lien." The court also said in that opinion: "Upon principle it is, in our opinion, very clear that although the judgment merges the mortgage as a cause of action, it does not abridge or extinguish its lien." * **"There cannot well be two opinions upon the proposition that the mortgage as a cause of action is merged in the decree, and that all rights growing out of it as a right of action are merged in the judgment or decree." So far as the decision had any concern with the litigants, the conclusion thus reached was unquestionably the right one. But the more we think of the court's method of reaching the conclusion the more we are convinced that the court mistakes the mere use of phrases for the expres sion of ideas. When a judgment is the thing that is merged, it will be proper to look for sense in the phrase, "the merger of a judgment." But let that pass. The court speaks of the mortgage as something existing in two entirely separate and distinct characters, viz., (a) “as a cause of action," and (b) “as a lien;" and while it is idle to speak of the mortgage "as a lien," without meaning a lien that is enforceable by action, yet according to the court, "all rights growing out of" the mortgage "as a right of action are merged in the judgment or decree." Possibly the court, in speaking of the mortgage "as a cause of action," and in speaking of "all rights growing out of it as a right of action," had an idea of the remedial right which in general belongs to the holder of the mortgage for its enforcement as a subsisting charge in specific property. Possibly it had an idea of the remedial right which in general belongs to the holder of the mortgage for the enforcement of the debt for which the mortgage, as such charge, is a security. But whichever remedial right it was, the court is clearly of opinion that it is a remedial right which the "merger of the judgment' the court is talking about incontinently "takes up." After all, it remains to be seen how the mortgage, which the court is clearly of opinion "the merger of a judgment" does not take up "as a lien," is to be made of much practical avail after "the merger of a judgment" has taken it up "as a cause of action." together with "all rights growing out of it as a right of action." We fear the "broad distinction between the merger of a cause of action and the merger of a lien," on which the Supreme Court of Indiana would fain enlighten "some of the courts," is a mare's nest -"only that, and nothing more." A. B. C.

ACCRETION.

Editor of the Albany Law Journal:

The case of Murphy v. Norton, reported in 61 How. Pr. 197, presents a question of very unfrequent occurrence; but it came before one of our courts as early as 1815. In the case of Little Tinicum Island, in the Court of Common Pleas of Delaware county, it was decided by the Hon. Burd Wilson, then president judge, that

if a portion of the fast land of an island be washed away by the encroachment of tide-water, and subsequently restored by the deposit of alluvion, such restored land belongs to the original owner of the fast land, as does also any increase thereof. Yours, etc., F. C. BRIGHTLY. GERMANTOWN, IA., Nov. 28, 1881.

THE following decisions were handed down, Tues

day, December 6, 1881:

The Albany Law Journal.

"A

ALBANY, DECEMBER 17, 1881.

CURRENT TOPICS.

SSOCIATION of the Bar of the City of New York; Report of the Special Committee 'to urge the rejection of the proposed Civil Code,' appointed March 15, 1881; presented October 21, 1881." This is the title of a pamphlet of twentythree pages lying before us, signed by Messrs. Wm. D. Shipman, Herbert B. Turner, Albert Mathews, Douglass Campbell, John M. Scribner, F. R. Coudert; with an appendix consisting in a reply by Mr. Clifford A. Hand to Mr. David Dudley Field's answer to the former report of the association against the Civil Code. We do not understand that the present report has been adopted by the highly respectable but exceedingly close and old-fashioned corporation to which it is addressed. Very likely it will be adopted, and that the association will dispatch sundry emissaries to Albany to endeavor to coax the Legislature not to improve the laws, and above all not to compel the members of the association to read a new law book. Very likely some of these same ambassadors will have some measures to suggest by way of new statutory enactment, but statutes changing or settling the common law are a very different thing from a Code effecting the same re

sult!

Such statutes are commendable; such a Code is reprehensible! The "Report" is not a very loud one, and it seems to us to announce a particularly blank cartridge. It is the same old story - bitter hostility to all general codification, under the guise of particular criticisms upon a few features of the proposed Code. It embodies the same old wailings and Cassandra prophesyings. The honorable committee's "mind shrinks appalled at the prospect,' etc. We are glad to have this official explanation of the cause of the annual shrinkage of their mind which is so evident an accompaniment of the proposal of the Code. "Uprooting of the landmarks of the law" is another pet phrase. As Polonius would say, this is "good." One might as well talk about uprooting a tree floating on the tide at ebb and flow! We have always given the association people credit for every good quality except humor, but here they appear as humorists. "If such a revolution and upheaval of what has cost centuries of learned labor and millions of treasure to settle into an approximation to certainty is ever to occur, it is to be hoped it shall not overtake the community as a surprise," etc. The italics are our own. This we call true humor. The idea of characterizing the common law as "an approximation to certainty," and of describing a Code that proposes to make certain that which is now notoriously uncertain, as "a revolution and upheaval," is decidedly funny, and only surpassed in sportiveness by the ensuing idea that the Code is a "surprise.' A "surprise" sixteen years old, repeatedly enacted by one or the other or both of the VOL. 24.--No. 25

branches of the Legislature, printed and reprinted and scattered all over the State for years, the subject of discussion in all the newspapers of the State for three years last past, and of one elaborate veto message by a recent governor- to call this a "surprise" is really surprisingly amusing. But we shall await developments, and fresh "revolutions," “upheavals," and "surprises.'

Attention is called to Mr. Niven's communication in answer to our paragraph about the Sullivan county judge case. Of course Mr. Niven will understand that we would not have expressed an opinion upon. a purely private case, pendente lite, but this seems a case of peculiar public importance. Mr. Niven is right in saying that our remarks were written "in haste." Every thing in such a publication as ours necessarily has so to be written. But the subject is not new to us, nor was what we published written without reflection. A perusal of Mr. Niven's remarkably able and ingenious brief has not converted us. He asks us if proof of an actual effect upon the balloting by "bull-dozing" must not be shown to avoid an election for that cause. Let us suppose that a candidate publishes and circulates a campaign card threatening a withdrawal of patronage from those who fail to support him; or better, threatening the burning of their houses and death to themselves. Would it be contended that this would not in itself avoid his election, and that the opposing candidate would be forced to show that these threats actually intimidated opposition and made votes for the candidate issuing the card? We suppose not. We believe that a threat by a candidate of a crime to influence an election would avoid the election. Such an election would not be "free." Now Judge Thornton threatened a crime to influence the election, did he not? To be sure, he did not intend any offense, and the offense perhaps was not peculiarly heinous, but still he technically committed the offense of offering to bribe voters. He offered the extraneous and improper inducement of proposing to perform the duties of the office for less compensation than the other man, and thus put up an office to the lowest bidder. We believe that at common law such an offer is criminal, and avoids the election per se, on grounds of public policy. (In this connection reference is made to Commonwealth v. McHale, ante, 412, holding that fraud committed at an election is an indictable offense at common law.) It seems to us that if a candidate commits the offense of publicly offering to bribe voters to effect his election, his election is void, because such an offer naturally and inevitably tends to divest the election of its proper freedom. It is a different case from a private offer to bribe a particular voter. In the case of such a public and wholesale offer to bribe as that in question we do not think that courts of justice are reduced to the extremity of requiring proof of an actual effect upon the ballot. Its effect is even more apparent, certain and inevitable than an offer to pay every voter five dollars would be, for the very reason that it does not carry intrinsic immoral

ity on its face, and all classes of men, good as well as bad, must in human nature yield to its influence.

The Governor has appointed Gen. Tracy, of Brooklyn, to the vacancy on the bench of the Court of Appeals, and the appointment has been accepted. The new judge is a man of excellent character and talents; has served his country with distinction in the field; and has for some years been considered in the front rank, perhaps the leader, of the Brooklyn bar. He has had a large and varied experience at the bar, and has commanded a lucrative clientage. It is believed that his professional attainments are sufficient, if not profound, and that candor and patience will be found his characteristics. Personally Gen. Tracy is very highly esteemed for the uprightness and fairness of his life and the amiability and courtesy of his bearing. He has unquestionably made a pecuniary sacrifice in accepting this post, and it is to be hoped that he will reap honor enough to recompense him. Aside from the fact that he is untried as a judge, the appointment may be pronounced unexceptionable. On the whole Governor Cornell is to be praised for his judicial appointments. He has exhibited good judgment and freedom from favoritism.

The repulsive reptile, Guiteau, still drags his slimy length and belches his foul breath in court. Every word he has spoken has helped to damn him. The wisdom of Judge Cox's course in letting him say his say and go his length is now more than ever obvious. Guiteau's career would go far to justify an acceptance of the dogma of total depravity. Probably there is no serious difference of opinion among the legal profession about the creature's legal accountability, however much there may be about his sanity, speaking technically. He has demonstrated by his own confession that he had the will power to refrain from killing the President whenever he chose; that he prayed and struggled against the promptings of his "inspiration;" that he finally felt remorse for his act. He has exhibited a remarkable memory, extending to almost every word of his old letters and to every dollar of which he has defrauded his victims produced as witnesses.

If Guiteau is insane at all it is through his colossal self-conceit. An amusing proof of the extent of this characteristic, as well as of his marvellous impudence and half-crazy fraud, is now before us. It is a manuscript speech of thirty-two foolscap pages, with notes and corrections in his hand writing, designed to be delivered by him in opening the trial of his case as plaintiff against James Gordon Bennett, for libel. Guiteau left the speech at the office of an eminent lawyer of New York city, whom he desired to "retain," but who, we believe, never had the pleasure of meeting his would-be client. At the head of the manuscript are these words in Guiteau's handwriting: "I shall deliver this from memory with all the power and pathos I can command. C. J. G." This note shows his reliance upon his remarkable memory. The speech is

well enough constructed, and it certainly displays a considerable and very unusual sort of prevision. Guiteau's handwriting is remarkably legible and forcible, and rather elegant. We do not wonder that Guiteau wanted to sue Bennett, for Bennett had published in the Herald, that Guiteau “always charged one-half on all collections, and had dishonestly retained moneys belonging to his clients." Either branch of this accusation was a grievous charge, and it seems that even Guiteau shirked the reputation of one characteristic of the "contingent fee business!" If this was false, he might well style it "a cruel and malicious libel." Further on, however, we get a disclosure of a want of conscience and of logic, and of a stupendous impudence, which might go far to justify a belief in his insanity. The charge was that he had taken a bill of $350 to collect, and having collected $175 refused to account. His answer as written to his clients, according to the Herald account, was: "All respectable lawyers retain one-half for collections; I have collected my half, and therefore nothing is due to you!" Guiteau only complained that the word "such" which he had written before "collections," was omitted! And this was the basis of his libel suit for $100,000! He piles up the agony in the speech, quite in the advocate fashion, and lays particular stress on having been immured in the Tombs, on account of this publication and his consequent loss of business, with thieves and "murderers." The particular charge on which he was thus imprisoned was of defrauding the St. Nicholas Hotel of a board bill. Nothing but "beating" first-class hotels and assassinating the President would answer Guiteau's selfconceit.

Having had recent occasion to review the career of the four deceased judges of our Court of Appeals formed in 1870, we have incidentally remarked an omission which although undoubtedly unintentional is unpleasantly noticeable. The portraits of Chief Judge Church and Judges Grover and Peckham hang on the walls of the court room, but that of Judge Allen is not there. Judge Allen served the State as a judge (to say nothing of purely political offices) for more than a quarter of a century -the longest of any judge in very recent times-and in native powers as well as in attainments was the peer of any magistrate of his generation. Probably most of our readers, certainly all his survivors and successors on the bench, will agree with us in estimating him as the most remarkable jurist, for a combination of learning and ability, who has lately graced that court. His portrait should be added to the rest, and if it chanced to be better as a work of art than two of the others, no harm would be done.