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land apparently subject to the mortgage, and then to have its lien annulled afterward. He has a right to reach his debtor's property, and have it sold for what it will bring at a fair and open sale; but he has no claim to speculate out of his debtor's fraud, and by using the mortgage to keep others from competing, obtain the property for so much less than its value. A purchase under such circumstances must be held to be, what it appeared to be at the sale, a purchase subject to the mortgage. Mesmore v. Haggerd. Opinion by Cooley, J.

GRANT -SUBSTANTIAL COMPLIANCE WITH CONDITIONS SUFFICIENT. - The State of Michigan granted to the G. Seminary, a corporation, certain lands to aid it in erecting buildings for its use, on condition that if it should fail to erect buildings, etc., it should forfeit the lands. A bond with sureties was required and given, to secure the performance of this condition. The corporation consolidated with another institution and thereby acquired buildings fitted for its use, of considerable value, to which it made extensive additions. Held, that the acquiring of the buildings was a substantial compliance with the condition and that the sureties were entitled to a discharge from liability under their bond. The general rule undoubtedly is that public grants are to be construed strictly as against the grantees. United States v. Aredondo, 11 Pet. 544; Martin v. Waddell, 16 id. 367; Dubuque, etc., R. Co. v. Waddell, 23 How. 66; Baltimore v. Railroad Co., 21 Md. 50; Bradley v. Railroad Co., 21 Conn. 294; Richmond v. Railroad Co., 21 Grat. 614; De Lancey v. Ins. Co., 52 N. H. 581; La Plaisance Bay Harbor Co. v. Monroe, Wall. Ch. 155; Pennsylvania R. Co. v. Canal Com'rs, 21 Penn. St. 22. The grantees shall take nothing which is not plainly granted, and as is said in the case last cited, "every resolution which springs from doubt is against him. But there is no question in this case in respect to the grant; its terms are clear and precise and its extent undisputed. The controversy arises upon the terms of a restraint imposed by the grant, and which is in the nature of a condition subsequent, and tends to a defeat of the grant by way of forfeiture. If the grant is to be construed strictly as against the grantees, the condition is to be construed strictly against the State, and the State is entitled to enforce it only when a forfeiture would be fairly within the intent of the act whereby the grant was made. The purpose of construction is to give effect to an instrument; not to defeat it (Rice v. Railroad Co., 1 Black. 358; People v. Burns, 5 Mich. 114; Tabor v. Cook, 15 Mich. 322); and in a public grant especially more than in any other, we should expect to find provisions looking to the permanent enjoyment of the right or property granted as against mere technical breaches of contract or condition on the part of the grantee, not tending to defeat the general purpose. A literal and technical construction of the grant would require the very moneys realized from the lands to be applied to the purchase or erection of buildings. But the view consonant with the generosity which prompted the donation looks beyond the technical and finds the purpose substantially accomplished if the grant has enabled the donee to procure buildings for its purpose, whether exactly in the method contemplated or otherwise. If buildings were procured of a value equal to the fund donated, the condition of the grant would be kept in spirit and it would be beneath the dignity of the State to raise technical objections and demand a forfeiture based upon a failure in literal compliance under such circumstances. Sovereignties do not deal with the objects of their bounty in that spirit. Kiefer v. German American Seminary. Opinion by Cooley, J.

STATUTE OF FRAUDS-CONTRACT TO SELL REAL ESTATE.-In order to render a written contract for the

sale of real estate binding under the statute of frauds it is not essential that the description [have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction; 80 that with the assistance of external evidence the description, without being contracted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property. The circumstance that in any case a conflict arises in the outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the statute. Whether the description answers the requirement of the statute is a question which occurs on the face of the papers and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents and before the arrival of opportunity for any conflict of the kind referred to. Moreover, it would hardly be deemed reasonable to allow the validity of the written description to depend on the ability of a party to bring about a conflict in the outside testimony. Tallman v. Franklin, 14 N. Y. 584; Hurley v. Brown, 98 Mass. 545; Scanlan v. Geddes, 112 id. 15; Mead v. Parker, 115 id. 413; Slater v. Smith, 117 id. 96; White v. Hermann, 51 Ill. 243; Nichols v. Johnson, 10 Conn. 192; Colerich v. Hooper, 3 Ind. 316; Waring v. Ayers, 40 N. Y. 357; King v. Ruckman, 20 N. J. Eq. 316; Ogilvie v. Folyamble, 3 Meri. 53-60; Bleakley v. Smith, 11 Sim. 150; Owen v. Thomas, 3 My. & K. 353; White v. Bradshaw, 13 E. L. & E. 296, 16 Jurist, 738; Stuart v. London & N. W. R. Co., 10 E. L. & E. 57; Commins v. Scott, L. R., 20 Eq. Cas. 11; Barry v. Coombe, 1 Pet. 640; Dobson v. Litton, 5 Coldw. 616. Eggleston v. Wagner. Opinion by Graves, S.

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INSURANCE LAW.

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FIRE POLICY - MISTAKE IN DESCRIPTION OF PROPERTY BY FAULT OF AGENT · REFORMATION OF POLICY. Upon an application for a fire insurance policy the insured stated to the general agent of the company, who was authorized to make out the policy in question, that the property was leasehold, and requested that it should be so described in the policy; but through the mistake of the agent this was not done, and his omission to do so was not noticed by the insured till after the loss had occurred. On a bill filed by the insured to have said mistake corrected and the policy reformed, and for the payment of the amount of the loss, held, that under the circumstances the complainant was entitled to have the policy reformed so as to make it express the contract of the parties, and to a decree for the amount of the loss sustained. The law is well settled that where the general agent of a company is intrusted with the power to make and issue policies, and the insured fully and frankly discloses all facts material to the risk, and the agent in making out the policy through fraud or mistake fails to state such facts, such error or fraud on the part of the agent cannot be relied on by the company in avoidance of the policy, and a court of equity upon application will reform the policy so as to make it express the real contract between the parties. Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 id. 152; Savings Bank v. Charte. Oak Co., 31 Conn. 517; Rowley v. Empire Ins. Co., 36 N. Y. 550; Columbia Ins. Co. v. Cooper, 50 Penn. 331; Masters v. Madison Ins. Co., 11 Barb. 624; Peck v. New London Ins. Co., 22 Conn. 575. Maryland Ct. of Appeals, June,

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1880. Ben Franklin Insurance Co. v. Gillett. Opinion by Robinson, J. (55 Md. 215.)

FIRE POLICY ACTION ON WITHOUT PERFORMING CONDITIONS PRECEDENT — DEMURRER. In an action on a policy of fire insurance, where the terms of the policy are set out in the declaration, and there is a failure to aver specific performance of conditions precedent, held, that the declaration is demurrable. Held also, that the defect is not cured by a general averment of performance by the plaintiffs of all things by them to be performed. By this policy of insurance the company agrees to pay the loss only upon conditions that the plaintiffs do certain things which the company deems essential for its own protection. It must appear therfore that each and all of these acts, as set out in the contract, have been discharged or some legal excuse for non-performance given, before the plaintiffs have a right of action. Oldman v. Bewicke, 2 H. Bl. 577, note; Worley v. Harvey, 20 Eng. Law & Eq. 541; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; also, 10 Pet. 507; Wellcome v. People's Ins. Co., 2 Gray, 480; Campbell v. Charter Oak Ins. Co., 10 Allen, 213; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Dolbier v. Agricultural Ins. Co., 67 Me. 180; Home Ins. Co. v. Duke, 43 Ind. 418; Doyle v. Phoenix Ins. Co., 44 Cal. 265; Dawes v. North River Ins. Co., 7 Cow. 462; Rockford Ins. Co. v. Nelson, 65 Ill. 415, 418; May on Ins., § 580; Phil. on Ins., § 2026. And the failure to aver performance is fatal on demurrer. See also, Catlin v. Springfield Ins. Co., 1 Sumn. 404. U. 8. Circ. Ct., Rhode Island, July, 1881. Perry v. Phoenix Assurance Co. Opinion by Colt, D. J. (7 Fed. Rep. 643.)

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CRIMINAL LAW.

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BASTARDY CONVICTION UNCORROBORATED TESTIMONY OF PROSECUTRIX. - The statute of Iowa provides in cases of bastardy, "the issue on the trial shall be guilty or not guilty, and shall be tried as an ordinary action." An ordinary action is defined to be a civil action at law, as distinguished from an equitable one, and in such an action no corroboration of a witness is required to enable a party to recover. Held, that defendant in a case of bastardy may be convicted on the uncorroborated testimony of the prosecutrix. Iowa Sup. Ct., Oct. 4, 1881. State of Iowa v. McGlothlen. Opinion by Seevers, J.

FALSE PRETENSES EVIDENCE NOTICE. (1) At the trial upon an indictment for obtaining a horse, by purchase on credit, for which a note was given, by falsely pretending to be the owner of valuable unincumbered real estate, evidence to show that the note had not been paid is admissible. When one obtains credit by falselv pretending that he is the owner of property which he does not own, the fraud consists not in misrepresenting his intentions to pay, but in misrepresenting his ability to pay. His intentions are not important. (2) The doctrine of constructive notice of an existing mortgage because of its record does not apply to indictments for obtaining credit by falsely pretending to be the owner of valuable real estate upon which there is no existing mortgages. It is no defense in such case that the party deceived relied upon the statements made, without examining the public records. Maine Sup. Jud. Ct., May 24, 1881. State of Maine v. Hill. Opinion by Walton, J. (72 Me. 309.)

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tory, or any indorsement or assignment of any bond or writing obligatory, with intention to defraud any person, or who shall utter or publish as true any such forged bond, writing obligatory or indorsement, shall be deemed to be a felon." Held, that a certificate of indebtedness issued by the mayor and city council of Baltimore, known as city stock, is a bond within the meaning of this statute. All the authorities agree that the law does not require any particular set form of words as essentially necessary to create a bond. As a general rule it may be said that any instrument under seal, whereby the party from whom the security is intended to be taken obliges himself to pay a certain sum of money at a day specified, will constitute a bond (2 Black. Com. 340), or as laid down by Matthew Bacon, "any words which declare the intention of the party, and denote his being bound will be sufficient." Bac. Abr. "Obligations." (2) Anindorsement of such a certificate with fraudulent intent may be a forgery within the meaning of the statute, though the certificate is upon its face transferable only at the mayor's office in person or by attorney. This provision is for the protection of the corporation. 4 Black. Com. 248; 2 East's Crown Law, 852; Reg. v. Reston, L. R., 1 C. C. 200; Rex. v. Crocker, 2 Leach, 987. In Gade's case, 2 East C. L. 874, where the prisoner was indicted for forging a transfer of a share in the three per cents, and the objection was made that the transfer was not attested as required by the printed transfers of the bank, said, " that the entry and signature as stated in the indictment were a complete transfer without the attestation of witnesses, which was no part of the instrument, but only required by the bank for their own protection." (3) Whese the appellants were indicted not only for forging the indorsement of K. on the bond set out in the indictment, but also for uttering the same knowing it to be forged, to prove guilty knowledge, it was competent for the State to show that on or about the time of the forgery charged in the indictment, the appellants held and uttered similar forged instruments. Rex v. Ball, Russ. & R. 132; Rex v. Moore, 1 F. & F. 73; Rex v. Salt, 3 id. 834. In Whilly v. Harris, 2 Leach, 983, it was said: "This point is not new; it was reserved in King v. Tattersall, which was tried before Chambre, J., in Lancaster in 1801, and received the collective voices of all the judges." So in Rex. v. Hough, Russ. & R. 120, where the prisoner was indicted for forging and uttering with guilty knowledge, a bill of exchange purporting to be drawn upon a certain banking house, it was held that other forged bills on the same house, which were found upon the prisoner at the time of his arrest, were admissible to prove guilty knowledge. Maryland Ct. of Appeals, December, 1880. Bishop v. State of Maryland. Opiniou by Robinson, J. (55 Md. 138.)

INDICTMENT -DUPLICITY IN -CHARGING TWO OFFENSES NECESSARILY CONNECTED VIOLATION OF ELECTION LAW.

Under a statute declaring that any inspector of election who shall willfully make any false canvass of such votes, or who shall make, sign, publish or deliver any false return of such election, or any false certificate or statement of the result of such election, knowing the same to be false, shall be guilty of a felony, etc., held, that an indictment that charged that defendant, an inspector, did willfully make, certify and deliver to the officer entitled to receive it, a false statement and certificate of the votes received was not bad for duplicity, on the ground that it charged two separate offenses, the acts charged constituting one continuous transaction. For in case of felony, where one offense is a necessary ingredient or accompaniment of another, and the State has selected and prosecuted the former to conviction, there can be no further prosecution of the other. Whart. Crim. L., § 565. However the matter may be presented, whether joint or sepa

rate, but one offense will be set forth, and for that reason all may be contained in a single count of the indictment. It has been held to be error to state the successive gradations of statutory offenses disjunctively; but to state them conjunctively when they are not repugnant is always allowable. 1 Whart. Crim. L. (7th ed.), § 296. For that reason, under similar statutes, it has been held that the prisoner might properly be charged in one count with both offering for sale and selling one-half a lottery ticket (Commonwealth v. Eaton, 15 Pick. 278), and for receiving and aiding in stealing stolen goods, when each of these acts was declared to be an offense. Stevens v. Commonwealth, 6 Metc. 241. See also, to the same general effect, Commonwealth v. Harvey, 10 id. 422; Commonwealth v. Hulbert, 12 id. 446; Commonwealth v. Brown, 14 Gray, 419, 430, 431; State v. Fletcher, 18 Mo. 425; State v. Morton, 27 Vt. 310; Mackey v. State, 3 Ohio, 363; State v. Price, 6 Halsted, 203. When two or more crimes are of the same nature and are necessarily so connected that they may, and when both are committed must, constitute but one legal offense, they should be included in one charge. Commonwealth v. Tuck, 20 Pick. 356; State v. Ayer, 3 Foster, (N. B.) 301; Rex. V. Home, Cowp. 672; Hinkle v. Commonwealth, 4 Dana (Ky.), 519. And when a crime has been proved within the terms of the indictment, although not imputing all the attributes charged, the conviction of the accused is required. The principle is well settled that it is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime as therein charged. People v. Jackson, 3 Hill, 92; Dedieu v. People, 22 N. Y. 178; White v. People, 32 id. 465; Lohman v. People, 1 id. 379. New York Sup. Ct., Gen. term. 1st Dep., Oct. 28, 1881. Hall v. People of New York. Opinion by Daniels, J.

OBITUARY.

HENRY E. DAVIES.

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Ex-Judge Henry E. Davies of New York city died on the 17th inst. after a short illness, in the 77th year of his age. He was one of the oldest natives of that city. He was the brother of the late Charles Davies, the mathematician, and of Major-Gen. Thomas A. Davies; and the father of Major-Gen. Henry E. Davies, Jr. After leaving college ex-Judge Davies studied law with Chancellor Kent, and afterward became the partner of the late Judge William Kent. His knowledge of men and his good address adapted him to politics. In the Harrison and Tyler campaign he was one of the popular quartette of Whig local orators the other three being the late Ogden Hoffman, James S Thayer and Theodore E. Tomlinson. In 1841 he was made chairman of the young men's Whig committee and elected assistant alderman, and in the next year an alderman of the 15th ward. From 1849 to 1853 he was corporation counsel. From 1857 to 1860 he was a justice of the Supreme Court in the first judicial district, and left it to become a Republican member of the Court of Appeals, on the bench of which he continued until 1866, when he refused a renomination. Since then he has diligently practiced his profession and taken charge of law interests relative to life insurance, railways and municipal law-in which latter branch he was acknowledged to be one of the best authorities in the profession. At the time of his death he was the head of the firm of Davies, Work, McMamee & Hilton. He was remarkable for his winning address and amiable character. As a circuit judge he was distinguished for his promptness and fairness. In the Court of Appeals he wrote many learned opinions, after the style, prevailing in his day, of exhaustive examination of all the authorities, involving great labor and research.

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Judgment affirmed with costs - Humphreys v. Hurtt; Fleischmann v. Bennett; The Buffalo Catholic Institution v. Weisser; Mutual Life Ins. Co. v. Dake.—Judg ment reversed and new trial granted, costs to abide event - Van Kirk v. Ledgwich. Judgment modified by striking out $183.66 and interest thereon, and as modified, affirmed without costs of this appeal - Richmond v. The Union Steamboat Co. Judgment and order reversed and motion denied with $10 costs and with costs of appeal to the General Term and to this court-Rogers v. Vosburgh. Order affirmed with costs-Gross v. Clark. -Motion for reargument denied, with $10 costs - Beach v. Colles.

IN COURT OF APPEALS, December 15, 1881. — Ordered, That the next term of this court will be held at the court room in the old Capitol, at Albany, commencing on the 16th day of January, 1882, at ten o'clock A. M.; that a new calendar be made for that term, upon which the clerk will place only causes in which notices of argument with proof of service for that term shall be filed with him on or before the 2d day of January, A. D., 1882. E. O. PERRIN. Proclamation made and court adjourned sine die. The next session will be held January 16, 1882.

OUR

NOTES.

Court of Appeals is getting into a demoralized condition. Judge Finch has been guilty of several poems, and Judge Tracy, it is rumored, drives a 2:22 horse. The latter will make a superb addition to Clerk Perrin's judicial cavalcades. Now that Chief Judge Folger has gone, we can divulge the sad fact that he too was very fond of horses. By the way, we observe that a railroad company have just killed a span of horses belonging to Judge Tracy. Probably they thought he would have no further occasion for them, having been made a judge. — The Kentucky Law Reporter (Frankfort) for December contains an interesting sketch of some of the opinions of the late Chief Justice Cofer, by Alexander P. Humphrey. The author gives the following disheartening statistics of the Court of Appeals: "In September, 1881, there were on submission to our court 400 causes, and on the docket for hearing at the term ending January 1, 1882, about 500 more, making, say 900, manuscript (!) records to be examined, and the questions involved to be decided in four months. And this with four judges. Such a task is utterly impossible, and no officer, however conscientious, should feel bound to sacrifice himself to so vain an endeavor."

Judge Cox, of Minnesota, now on trial of impeachment for "high crimes and misdemeanors," does not think it a high "crime and misdemeanor" for a judge to be drunken. An English solicitor of high standing has been sentenced to six months' imprisonment for bribery.- A bar dinner has been given to the retiring Lord Justice Bramwell. All the judges and 250 of the bar were present, and admirable speeches were made by the Attorney-General, the distinguished guest, and Lord Coleridge. The latter was especially happy and elegant. -Guiteau is sane enough. He does not admire Judge Porter's style.". We do not think much of anonymous communications, espe cially when the postage is not fully prepaid.

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PROF. SMITH, of the Albany Law School, com

municates in another column his opinion that Guiteau ought to be excluded from the jury room, unless he will behave himself. We do not share

this opinion, as we have more than once expressed

ourselves. We believe that Guiteau is entitled to be treated like a crazy man, or one afflicted with a nervous disease which he cannot overcome. Α

prisoner afflicted with St. Vitus dance, or a raving maniac, might convulse the audience, and create continual disorder, but he could not be put in a strait jacket, nor gagged, nor excluded. The vice of the opposite view is in basing it on his right as counsel. If he were merely counsel for another he might be excluded for such behavior, but not so where he is not only counsel but a party setting up insanity as a defense. This is the view taken by the London Times, as follows: "Guiteau is permitted to rant about any thing. It cannot well be otherwise. It would be hardly consistent to restrain him. He may insult the court, and call anybody bad names. He may talk about Mr. Beecher, Mr. Tilton, St. Paul, or his views about inspiration; yet he cannot be consistently silenced. The contention of his counsel is that he is insane.

He must be allowed to prove this by all legitimate means; and every piece of irrelevancy which Guiteau utters in court is in point, according to this theory, as showing that his mind is unhinged. It is to be hoped that in most courts of justice here proceedings would be conducted without the animated irregularity which has characterized the trial at Washington from first to last. The question of insanity is always obscure, and involves minute investigations, when experts are called in, and intelligence is alleged to co-exist with the absence of free volition. Matters are complicated when the prisoner, as here, asserts that he is sane, and his counsel contends that he is mad." See Notes of Cases, post.

In connection with the remarks upon the Guiteau trial the London Times advocates the permitting of prisoners to testify on their own behalf, in the following cogent line of argument: "It is not so clear as it seemed to be that justice would have so heavy odds against it in its contest with the murderer or thief. The rational rule seems to be that every thing should come out; and in the end this is likely to obtain acceptance. It is almost a daily occurrence that men get verdicts of acquittal, when if one or two questions had been put to them the hollowness of their defenses would have been revealed. A jury acquits a prisoner under the belief that he has never been convicted. They are then informed that he has been in prison half a dozen times for VOL. 24.-No. 27

the same offense. They feel that they have been duped. Their verdict would have been otherwise had they been trusted, and the whole facts laid before them. With our traditions, it might not be expedient to allow the judge, as in France, to questian the accused; that would depose the former from his position of impartiality. But it is probable that we should on the whole gain, were the accused free to go into the box. In many instances guilty prisoners would be deprived of a false, artificial advantage. Even in controversies as to sanity, should be examined in presence of the jury. A it would be, as a rule, better that the defendant

few answers from him would tell more than the conflicting testimony of crowds of experts, all sworn to context, of medical writers, or loose anecdotes about some theory; more than citations, torn from their the imbecility of the prisoner's ancestors." The world moves.

It seems that Judge Allen's portrait, after all, is in the Court of Appeals chamber. It was placed there during the last term, and after our last visit to the court. We learn from Mr. Perrin, the clerk, that the judge sat once for the portrait, and that it was completed from photographs. It is a bust portrait, a good likeness, and a good work of art, but looks much younger than the eminent man looked when he last appeared in court. The other judicial portraits now comprise the following: Chief Judge Church, a standing half-length, only tolerable as a work of art, and not remarkably good as a likeness; more resembling a shrewd and scheming bank president than the great chief judge. Judge Peckham, a standing three-quarter length, an excellent likeness, and artistically good, except that it is rather too shiny and "pretty," and lacks strength. Judge Grover, a bust portrait, not commendable in any sense. Judge and Commissioner Alexander S. Johnson, and Judge and Commissioner Gray, both busts, good pictures, and excellent likenesses, and evidently by the same hand (Mr. Flagg's) as that of Judge Allen. Judge and Chief Commissioner Lott, a sitting three-quarter length, an admirable work in every point. Now, where is Commissioner John H. Reynolds? - one of the ablest lawyers and one of the brightest and most lovable spirits that ever adorned this spherc. Let us now have him. No doubt the Albany bar would feel it a privilege to contribute this memorial. But so far as seeing the portraits is concerned, they might about as well be in a vault.

The publishers of the ALBANY LAW JOURNAL propose to issue in future a regular series of monthly Case-Supplements, containing all current decisions, indexed and tabulated in a condensed form. The essential design will be to present, duly arranged and classified, all the decisions as fast as they are rendered, giving with each a brief memorandum of subject-matter, just sufficient for purposes of reference. No selections will be made; every case without exception being noted, however briefly. The

publication will thus be in the nature of a serial index or docket, running along, as it were, just in the rear of the dispersed mass of current decisions, bringing them into orderly form, and giving the practitioner a clue to their whereabouts. We should add that English cases will be included, our intention being to make the plan in all respects comprehensive. We think every member of the profession will agree that an auxiliary publication of this kind has long been needed, and will be a great convenience. We shall soon give further particulars. The price of the supplements will be put at the lowest rate consistent with the labor and cost of preparation, which will be large. This new feature will admirably supplement our present weekly reports and abstracts, and make up a system far more complete than any thing yet accomplished in the field of case-reporting. Each number of the new series will probably contain about a thousand fresh decisions, thus covering the whole ground of current case-law.

Saints do not often get into court, but one was the subject of action in Laguna v. Acoma, 1 New Mex. 220. It was there held that an oil painting of San Jose, patron saint of the pueblo of Acoma, left with them by the early conquerors, belongs to that pueblo, and not to the parish priest, nor to the pueblo of Acoma, and restoration of it was decreed. "The priest, after the Lagunians took the saint away, said to them not to mourn for the saint, that he would get another from Mexico." Saints must be uncommonly plenty in that region. The court remarked, p. 237: "However much the philosopher or more enlightened Christian may smile at the simple faith of this people in their supposed immediate and entire guardian of the pueblo, to them it was a pillar of fire by night and a pillar of cloud by day, the withdrawal of whose light and shade crushed the hopes of these sons of Montezuma, and left them victims to doubt, to gloom, and to fear. The cherished object of the veneration of their long line of ancestry, this court permanently restores, and by its decree confirms to them, and throws around them the shield of the law's protection in their enjoyment of their religious love, piety, and confidence. In this case, the title that Spain had given this people, confirming to them the possession and ownership of their lands, and the rock upon which they have so long lived, was found in the hands of one professing to be of a better-instructed and more civilized race, and turned by him into the means of extortion and money-gathering from the unoffending inhabitants. It is gratifying to us to be the judicial agents through which an object of their faith and devotion, as well as the ancient manuscripts, that is the written evidence that established their ancient rights in their soil and their rock, are more safely restored and confirmed to their possession and keeping."

A county judge of this State submits to us the following scheme for remodelling the Federal

courts: First, divide the country into districts of about a million each; no city or county to be divided, and no district to contain a part of any two States; one judge for each district, to have all the present original jurisdiction. Second, divide again into judicial departments, to contain not more than ten judicial districts each, with an appellate court in each, composed of three judges, other than the district judges, to hear all appeals from the district courts; with an appeal to the Federal Supreme Court, to be regulated by law. Third, the present district judges to be continued as district judges where they severally reside; the present Circuit judges to be judges of the appellate courts in the departments where they now reside; the President to fill all vacancies when the law goes into effect; all vacancies in district judgeships after January 1, 1883, to be filled by popular election in the districts respectively; all vacancies in the appellate court to be filled by appointment from the district judges where the vacancies occur; all vacancies in the Federal Supreme Court to be supplied by appointment from the appellate judges; all judges to hold till seventy and during good behavior. Fourth, district judges to have a salary of $7,000 with no allowances for expenses; department judges $8,000 with no allowances. Our correspondent observes: "The election of district judges would do away with a vast deal of the prejudice existing throughout the whole country against United States courts. The selection of judges of the appellate tribunal from the district judges and justices of the Supreme Court from the appellate judges would keep the bench of the United States Supreme Court filled with men who had long studied Federal questions before taking their seats." There are some good features in the scheme, especially those commented on by our correspondent. It does not seem to us advisable, however, to have so many intermediate

courts.

A western correspondent writing to us about Evarts v. Middlebury, 53 Vt. 626, ante, 483, objects to the use by the court of the word "corks," saying that no respectable authority can be found for it in connection with a horse's shoe, and that "the difference between a 'cork' and a 'caulk' (pronounced 'kauk') is as great as that between a horse chestnut and a chestnut horse. We don't mind these slips of the pen out west, but we have a right to expect better things of the New England bench." Our correspondent is unquestionably right. It only goes to show that the Vermont judges know less of horse-shoeing than of law. Perhaps a "'caulk on the judicial quill would prevent such "slips" in future.

NOTES OF CASES.

IN People v. Higgins, California Supreme Court.

Oct. 28, 1881, 8 Pac. Coast L. Jour. 637, an indictment for larceny, the defendant had once before been put upon his trial for the same felony on the same indictment before a competent court and jury,

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