15 id. 9: Demeritt v. Lyford, 27 id. 541, 547; Lamprey V. Nudd, 29 id. 299, 303; Hollister v. Abbott, 31 id. 442, 447; Tebbetts v. Tilton, id. 273, 287; Hall V. Dodge, 38 id, 346, 350; Gove v. Lyford, 44 id. 525; Sanderson v. Peabody, 58 id. 116; Bigelow v. Winsor, 1 Gray, 299, 301; Foote v. Gibbs, id. 412; Story Eq. Pl., § 793; Story Eq. Jur., § 1528. (2) To charge a trustee, it must be shown, first, that he has money, goods, chattels, rights or credits of the defendant in his hauds; second, that they are open to attachment, either because the defendant has a right of action against the trustee to recover them, or they are held by the trustee by a title fraudulent as to creditors. When a creditor of A. seeks, in foreign attachment. to charge B.. the trustee, for property which the creditor alleges was bought by B. of C., and paid for by B., upon an agreement between A. and B. that B. should buy and hold the property for A., the creditor is estopped by a judgment, recovered by B. against A., establishing the fact that there was no such agreement; and the creditor does not avoid the estoppel by proof of fraud in the agreement the existence of which he, as a privy claiming under B., is estopped to assert. Great Falls Co. v. Worster, 45 N. H. 110; Vogt v. Ticknor, 48 id. 242, 248; Granger v. Clark, 22 Me. 128; Candee v. Lord, 2 N. Y. 269, 275; Burgess v. Simonson, 45 id. 225, 229; Christmas v. Russell, 5 Wall. 290; Flanders v. Davis, 19 N. H. 139, 149; Dickinson v. Lovell, 35 id. 9, 16; Stacy v. Thrasher, 6 How. 44; Haven v. Wentworth, 2 N. H. 93; Adams v. Barrett, id. 374; Greenleaf v. Perrin, 8 id. 273; Paul v. Paul, 10 id. 120; Boardman v. Cushing, 12 id. 112; Getchell v. Chase, 37 id. 110; Richards v. R. R., 44 id. 127, 139; Banfield v. Wiggin, 58 id. 155; Insurance Co. v. Weeks, 7 Mass. 438; Hooper v. Hills, 9 Pick. 435. Forrist v. Bellows. Opinion by Stanley, J.

NEGOTIABLE INSTRUMENT NOTE FOR PATENT RIGHT.-The presumption is that a note given for a patent right has a legal consideration, where there is no evidence either that the patent was valuable or that it was worthless. The purchaser of such a note before due is not put upon inquiry. Vermont Supreme Court, January Term, 1883. Gerrish v. Bragg. Opinion by Ross, J. (55 Vt).

NEGOTIABLE INSTRUMENT-PAYMENT OF LOST NOTE MUST BE ENFORCED IN EQUITY.-The payee of a lost note, which is negotiable and payable to him or bearer, cannot sustain an action at law to recover the amount. A court of equity alone can give relief. A note payable to bearer imparts a legal liability of the maker to pay any holder who may present it, and if lost it may come to the hands of a bona-fide holder for value before maturity and thus be enforceable even though it had been paid to the true owner. This rule of law doubtless springs from the custom of merchants which requires the surrender of the note, on payment, to the maker, that he may have a voucher showing payment. Without such voucher the maker is exposed to the hazard of litigation with an unknown holder. A different rule prevails in some of the States, but this court has uniformly followed the English rule, which is thoroughly discussed in Hansard v.

Robinson, 7 B. & C. 90; Wright v. Jacobs, 1 Aik. 304; Lazell v. Lazell, 12 Vt. 443; Hough v. Barton, 20 id. 455. The case of Hopkins v. Adams, id. 407, is not in conflict with this rule. Vermont Sup. Ct., January Term, 1883. Adams v. Edmonds. Opinion by Powers, J. (55 Vt).

WARRANTY-THERE IS NONE OF SOLVENCY IMPLIED UPON SALE OF NEGOTIABLE PAPER.-Where one sells negotiable business paper in good faith without endorsing it, making no misrepresentations respecting it, and at a rate of discount indicating that the purchaser has a compensation for his risk, there is no implied warranty on the part of the seller as to the past, present or future solvency of the makers or indorsers. In cases of sale or barter of commercial paper as of other personal property the rule of caveat emptor applies. In an action to recover the purchase money for which a negotiable promissory note of the Dennison Paper Manufacturing company was sold, the defendant requested the following instructions: "That if at the time of the sale plaintiff had knowledge of a fact obtained in conversation with A. C. Dennison, materially impairing the financial credit of the Dennison Paper Manufacturing company and which he knew or had reason to know was unknown to defendant, it was his duty to communicate such knowledge to defendant when he sold said notes to him, and if he did not do so, such concealment would be a fraud upon defendant and authorize him to rescind the trade." Held, that the instruction was properly refused. Baxter v. Duren, 29 Me. 434, partially affirmed, and Hussey v. Sibley, 66 id. 192, considered. See also Whitbeck v. Van Ness, 11 Johns. 409; Evans v. Whyle, 5 Bing. 485. Supreme Court of Maine, June 26, 1883. Milliken v. Chapman. Opinion by Barrows, J. (75 Me. 306).

CORRESPONDENCE.

TENURE OF the Judges.

Editor of the Albany Law Journal:

In giving his views as to the term of the additional Supreme Court justices, does not your correspondent, A. J., put too much stress on the words, "and including the first day of January," etc.? If the words "and including were left out, the rule in computing time would exclude the first day of January at the beginning of the term, and include it at the end, making the term in fact begin with the 2d day of January. To prevent this construction it would seem that the words "and including" were used to prescribe a rule of computation only, so as to make the term begin and end with the calendar year. If that were the purpose with which the words were used, no other meaning should now be imported into them, and the question of when the term of the new judges begins cannot be answered by any argument which has for its construction of those words as meaning more than a provision as to a rule of computation of time. March 1, 1884. TEMPORA.

The second volume is announced to appear early this spring.

HAYNE ON NEW TRIALS AND APPEALS.

A Treatise on New Trial and Appeal and other proceedings for review in civil cases. By Robert Y. Hayne. San Francisco, Sumner, Whitney & Co., 1884. 2 vols. pp. 1174.

This is a thorough and methodical work adapted and mainly limited to the practice of California. The general subject has been but little treated, and this work appears to be timely and useful. From the examination which we have given it-cursory, because of the limited application of the work-we should judge it to be well done and worthy of reliance by practitioners in that State.

PIERCE ON MORTGAGES OF MERCHANDISE. Fraudulent Mortgages of Merchandise. A commentary on the American phases of Twyne's Case. By James O. Pierce. St. Louis, F. H. Thomas & Co., 1881. Pp. v, 308. This is an interesting monograph, by one of the best of our recent law-writers, on mortgages of stocks of goods in trade reserving a power of sale to the mortgagors, a topic of every-day importance, and of great difficulty and discrepancy of holding. The author well quotes on his title page, "Crescit in orbe dolis." This subject illustrates the office of codification. Mr. Pierce reviews the cases in all the States, and in conclusion con demns such mortgages.

MYER'S FEDERAL DECISIONS.

Federal Decisions. Cases argued and determined in the Supreme, Circuit and District Courts of the United States, comprising the opinions of those courts from the time of their organization to the present date, together with extracts from the opinions of the court of claims and the attorney-general, and the opinions of general importance of the territorial courts. Arranged by William G. Myers. Vol. 1, Accounts-Appeals; vol. 2, Appeals-Award. St. Louis, Mo. The Gilbert Book Co., 1884. Pp. 1649. This is a great undertaking, requiring acute critical judgment. The plan is to give the important portions of every leading opinion under their appropriate heads, arranged in the manner of a digest, divided into sections with head-lines, and with a digest of other cases in point, and cross-references. Each volume is to have an index, and tables of cases digested and cited. The work will necessarily be very voluminous, as one letter takes two volumes. The publishers hope-we do not see any ground for it-to bring every other letter into one volume. The publishers announce that they have secured the editorial services of Messrs. Abbott (B. V.), Baldwin, Benedict, Bennett, Bigelow, Bump, Chase, Crosswell, Daniel, Hamilton, Hammond, High, Jones, McCrary, Mills, Schouler, Wood, and otherscertainly all very competent and experienced writers. At present we cannot say more than that the purpose and plan are excellent, and the execution seems very good. We shall endeavor to speak more specifically of the merits of the work hereafter. The paper and printing are good.

SLOANE ON LANDLORD AND TENANT.

A Treatise on the Law of Landlord and Tenant, with special reference to the law of the State of New York, to which are added appendices of statutes and forms. By Charles W. Sloane. New York, S. S. Peloubet & Co., 1884. Pp. xxvii and 261.

This is an amplification of the little volume issued in 1878 by the same author. It presents the result of an examination of over 1,100 cases, in the arrangement

of which is manifested industry and conscientious work; and those for whose use it is especially prepared can ill afford to be without it.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, March 4, 1884.

Judgment affirmed with costs-Morton A. Bowen, respondent, v. William F. Mandeville, appellant; William J. Callahan, exr., respondent, v. John S. Bancroft and another, appellants.- -Order affirmed with costs-People ex rel. Clinton B. Smith, appellant, v. Board of Trustees of village of Flushing, respondents; In re Security Life Insurance Co. and Annuity Co.; James McNulty, appellant, v. John B. Solly, respondent; Emigrant Industrial Savings Bank, respondent, v. Thomas J. Clute, impld., appellant; In re Application of Adelaide Clements, etc.-Order affirmed without costs to either party. No opinion. All concur-People v. Empire Mutual Life Insurance Co.-Order affirmed without costs to either party-Attorney-General v. Reserve Mutual Life Insurance Co.-Motion to advance cause as of date of first return, granted-City National Bank of Poughkeepsie, respondent, v. William Phelps, appellant.- -Motion to set cause down for day certain, granted and hearing set down for the first day of next term unless the parties otherwise agree-Robert L. Croke and others v. John D. Prince; Same v. County of Kings.—Motion to dismiss appeal, granted with costs, unless the appellant within twenty days gives an undertaking pursuant to section 1326 of the Code and pays $10 costs to the respondent-Frank Wilson, exr., v. Henry R. Reynolds. -Motion to suspend proceedings, denied with costs-Thomas Henry Bowles and infant v. Frederick Haberman.—Motion to dismiss appeal granted with costs, unless the appellant serves printed copies of cause within twenty days and pay a fine of $10 costs-Phillips Weeks, respondent, v. Wm. H. Clark & others, appellants.-Motion to amend denied with costs-Ann Reese, respondent, v. Talcott R. Russell, appellant, Thomas Boes, respondent. Reese v. Smyth.- -Motion for reargument denied with costs-William P. Clyde and another, respondents, v. Amos Rogers, appellant; Union Dime Savings Bank, appellant, v. Francis J. Clark and others, respondents; Daniel M. Porter, appellant, v. Isidor Wormser and others, respondents.

THE

NOTES.

THE Manitoba Law Journal," published at Winnipeg, is a new venture, the first number of which is before us, a comely octavo of 24 pages, with interesting contents.- -We regret to see that the Denver Law Journal threatens to discontinue. It is an excellent publication and ought to have ample local support.The American Law Register for February contains a leading article on State Legislation regulating railroad traffic, by Charles Chauncey Savage, and the following cases: Hughes v. Percival (House of Lords), on liability of owner for negligent injury to adjoining property by his contractor in rebuilding his house, with note by Lucius S. Landreth; Horne v. Boston, etc., R. Co. (U. S. Circ.) on citizenship of railroad company whose road runs through different States, with note by John F. Kelly; Olson v. Crossman (Minn.), on innkeeper's liability for theft of guest's goods by another guest occupying same room, with note by M. D. Ewell.-In a recent report we find the following head line: Wills, reprobate of." That must be in the "court of reprobates."

66

The Albany Law Journal.

ALBANY, MARCH 15, 1884.

CURRENT TOPICS.

N commenting on Mr. Carter's pamphlet on Codi

“The arguments of Mr. Carter are not altogether

new. Mr. Austin offered most of them at an earlier period in a logical treatise of extraordinary merit, but they present in an attractive shape the objections which are usually urged against the measure. Mr. Carter does not add to the force of his arguments by attacking Mr. Field. To say that Mr. Field has been tampering with the laws to get a name, that the cherished passion of the gentleman referred to for the enactment of a civil code bearing his image and superscription has survived his concern for the merits of the performance,' is not, it seems to us, a fair way of meeting his antagonist, but rather an exhibition of exceeding bad taste on the part of the writer. Whatever he has to say on the matter in hand is much more to the point." The writer however does not give his own opinion on the merits.

The New York Post does not approve Mr. Babb's scheme for a convention on the subject of divorce, but prefers an amendment to the Constitution in the ordinary way. It says: "We would suggest to Mr. Babb that this is unwise. The study of our institutions has no doubt made him familiar with the fact that even the Constitution of the United States was the result of a movement started by a convention of a few States, called to consider the necessity of a uniform commercial system; and that in those early days there were conservatives who dreaded, just as he does now, any change in the fundamental law. Yet it was found, as Bancroft and other historians have shown, that uniformity could not be obtained without a new Constitution. This was

felt to be a dreadful step toward centralization; and yet we have survived it, and so it is possible that we might survive a change giving Congress the right to pass a uniform law, at least on the subject of marriage and divorce." We regard the amendment scheme as impracticable. The States will not adopt it. Probably they never will adopt any uniform law, but it may be well to try Mr Babb's experiment. In connection with this subject we cut from the Chicago Legal Adviser the following divorce statistics of Cook county:

Marriage licenses

Divorce suits begun.

It is perhaps arguing after decision to say any thing more about the judges' gowns, but the following from the Washington Law Reporter, although rather late for our own State, is worth attention from our heretical western brethren: "A president who would attempt the display that even Washington did, would probably excite ridicule, and much of the official display of the early days of the ReStill there is a very grave question whether we are public would not meet with public approval to-day. not drifting to the other extreme. Too little respect for the proprieties and formalities of official position is far more injurious than too much, and certainly there can be no position which it is more important should command the very highest respect than that of judge of the high courts, of both the States and the United States. There is no question, however much the statement of the fact may be ridiculed, that the appearance of the Supreme Court of the United States clothed in their gowns has a salutary effect upon the citizen who goes into the presence of that great tribunal. Lawyers do not sit in the presence of this court with their shawls, cloaks or overcoats wrapped around them, or with their feet on chairs or tables, but there is a decorum on the part of the bar and a respect for the court observable in no other judicial body in this country. If gowns for the judges will give more dignity to a court and enable it to command more respect from the public and the profession, why not have gowns ?"

It has come, just as we predicted - the breeze from the west. The Central Law Journal says of the action of our judges in putting on gowns: "They will be held responsible for this arrogant assumption of superiority and contempt for the people, and the day may come when they will repent that they have heeded the counsel of those men who have but used this movement to demonstrate their influence." It is earnestly hoped that the Central will forgive the judges before the next judicial election. But the new judges, whoever they may be, will go into the gowns all the same, unless a statute or constitutional amendment shall forbid it. To be consistent, the Central should never again use the phrase, "soiling the judicial ermine."

487

607

474

986

status or woman's rights. Mistress Miller having been put on God's footstool by Him, she has the right to win her bread in any moral, decent way which is open to any of His toiling creatures. If she chooses to do so as the master of a steam vessel, it is an honest calling and if she is fitted for it, though clothed in skirts rather than breeches, she has a right to follow it, and no man should say her nay.' To which the New York Evangelist pertinently adds; 'There is no danger, we take it, of any severe competition with men in this particular vocation, the Mistress Millers whose tastes run in this direction being very few. But would that

she or some other vigilant woman had had charge of the City of Columbus off Gay Head on the night of January 17.' There are inherent reasons why women should be admitted to practice law, growing out of the necessities of her fellow-women. There are cases involving questions of delicacy in which woman would rather suffer injustice and wrong than confer with a man. There are also questions touching the relations of the wife with the husband which a wife, from motives of prudence and a sense of wifely propriety, would not communicate to a man, but about which she would feel at liberty to advise

with her fellow-woman. Is she to be denied these rights and privileges because men, a thousand years ago, assuming and asserting their claim to superiority, when they were in a state of ignorance far below the ordinary intelligence of the women of today, and largely actuated by selfish motives, struck down their rights and bound them in the swaddling clothes of what they are pleased to term feminine

The other portrait is of Mr. Barnum's White Elephant, just imported at an alleged expense of $200,000. This is probably intended as a satire on the common law, which is equally clumsy, costly, and blindly worshipped.

A most singular case was tried in January last, at the Winchester (Eng.) assizes, as we learn from the Law Journal. It was an action of assault, brought against the governor of Portsmouth jail and two of his wardens, for improperly treating the plaintiff while an inmate of the jail. The plaintiff, a comthe county of Sussex to cause his daughter, Charlotte mercial traveller, was ordered by a magistrate for Mabel Kennard, aged three, to be vaccinated. This he refused to do," on principle," as he said. He was consequently summoned before the magistrates and fined. He refused to pay this fine. A distress was accordingly levied on his goods, but was returned unexecuted. The magistrates accordingly ordered the plaintiff to be imprisoned, but without hard labor, for fourteen days, in the Portsmouth prison, in default of payment of the fine. plaintiff was accordingly arrested and conveyed to Portsmouth jail. There he was ordered to take a bath, and whilst he was in the bath his ordinary substituted, which he was compelled to wear. clothes were taken from him and prison clothes deceased wife's wedding-ring, which he always wore, was removed from his finger. He was also

The

His

sonal estate when they became their wives? And as if this were not enough, denying to them the right of earning their own livelihood by the talents which God has conferred upon them! How long are these relics of semi-barbarism to be perpetuated? I am in favor of admitting Mrs. Gilgore to practice law as an attorney in this court." It may be that a woman under existing laws is not competent as an attorney, but if so, the sooner such ridiculous laws are repealed the better.

We have received two recent additions to our picture gallery, which by the way is a rather extensive one. The Travellers' Insurance Company of Hartford send us a capital lithograph of Mr. Evarts. We have not understood that Mr. Evarts is an agent or even an attorney of that company, and we do not understand the motive of the publication, but we are none the less grateful for a likeness of one of the most eminent lawyers and one of the wisest and brightest men at the American bar. Some people may suspect that the publication in the year of the presidential election has some political significance, but we hope not. It would be a pity to spoil so great a lawyer by sinking him in the presidential chair.

a criminal, subject to prison discipline. Lord Justice Lindley gave judgment for the defendants. This seems prima facie a hard case, but if men choose to break the laws they must not expect any lenity because they act "on principle."

NOTES OF CASES.

N Haigh v. Royal Mail Steam Packet Co., Court of 802, the ticket of a passenger by a steamer of defendants contained a notice that the defendants would not be responsible for any loss, damage, or detention of luggage under any circumstances; and that they would not be responsible for the maintenance or loss of time of a passenger during any detention of their vessels, nor for any delay arising out of accidents, nor for any loss or damage arising from perils of the seas, or from machinery, boilers, or steam, or from any act, neglect, or default whatsoever of the pilot, master, or mariners. Held, (affirming the judgment of Cave and Day, JJ., on demurrer), that this provision exempted the defendants from liability in an action for the loss of life of the passenger by negligence of the defendants' ser

vants in a collision with another ship. Brett, M. R., said: "The ticket, however, is also a passenger ticket, and contains the stipulation against responsibility and with regard to passengers on which the defendants rely. I confess this seems to me to be a somewhat odd stipulation, for I cannot understand how there can be any loss or damage to a passenger, as such, exclusive of loss or damage to his property, for which the shipowner could be liable if it were caused by perils of the sea. Again, by reason of the words 'from machinery, boilers, or steam,' if damage were caused by the accidental explosion of a boiler, or from some accident not occasioned by negligence, the shipowners would not be liable. Therefore, if we exclude the words which are inapplicable to the present case, the stipulation as to passengers will read as follows: 'The company will not be responsible for any loss or damage arising from any act, neglect, or default whatsoever of the pilot, master, or mariners.' It has been suggested on the part of the plaintiffs that the word damage' cannot be correctly applied to personal injury, and certainly it is not a very usual expression to say that a man is damaged; it seems more natural to say that he is hurt. Personal injury cannot be included under the word 'loss;' but although 'injury' would have been a more apt word, I think there can be no doubt that' damage' may include personal injury. Here the sentence in which the word occurs appears to be solely applicable to passengers personally, and we are unable to come to the conclusion that personal injury is not covered by the words of the stipulation; and we think that personal injury to a passenger, caused by the negligence of the pilot, master, or mariners, is an injury from which the defendants have relieved themselves by the contract contained in the ticket. After careful consideration of the case, and after considerable hesitation, we have come to the conclusion that we cannot differ from the decision of the divisional court, and we think that if the passenger had not been killed, but only injured, he could not have recovered for the injury. If this is so, it follows that his executors cannot recover under Lord Campbell's Act. We are therefore of opinion that this appeal ought to be dismissed." We doubt.

In Metcalf v. Gilmore, 59 N. H. 417, it is held that a bill in equity for an injunction against the use, in that State, of a judgment rendered in another State cannot be maintained on the ground that it was obtained by false and fraudulent testimony. Doe, C. J., said: "If the judgment had been rendered in this State, and the plaintiff were entitled to any relief for the cause alleged in this bill, his remedy would be a new trial, upon the result of which the alleged wrong could be rectified, and a just judgment rendered that would take the place of, or operate as an amendment of, the one alleged to be unjust. An injunction against the use of the judgment would not be an appropriate remedy, because the rights of the parties, so far as they are brought

in question by this bill, should be established by the judgment complained of, or by a correction of it; and as this would not be done by an injunction against the use of it, the bill could not be maintained. If the plaintiff ought to have redress, there should be, not an order forbidding the use of the judgment, but an order making the judgment what it ought to be, so that both parties could use it justly. Being the settlement of a controversy, its use is to be facilitated, not obstructed. The purpose of the law, requiring a judgment to be rendered, is to be accomplished, not by depriving it of its operation and effect, but by making it right, and giving it free course. A correction of the alleged wrong should be sought in some direct proceeding for the reformation of the judgment, which cannot be reformed on this bill, or in any proceeding in this State. Lyme v. Allen, 51 N. H. 242; Adams v. Adams, id. 288. If the plaintiff had a remedy, it is in Illinois. The court of that State might find, as matter of law or fact, that his only remedy was a motion for delay, and an opportunity to prove the facts and show the falsity of Gilmore's testimony, before the judgment was rendered. They might think his counsel should have been fully instructed as to all material facts, and should have taken such a course, at the trial, or before the trial, as would have enabled the court, upon sufficient evidence of the truth, to render a just judgment. Hearing all the evidence the plaintiff has to offer, they might be of opinion that Gilmore's testimony was true, or that, if it was inture, relief was barred by some fanlt of the plaintiff or his counsel. On many material points of law and fact, different conclusions might be reached in Illinois and New Hampshire; and there being no right of appeal from one State to the other, the questions of fact and law, raised by the complaint of perjury, should be settled in Illinois. When they are settled in that State, there will be no difficulty here in giving both parties the benefit of the adjudication."

In State v. Teissedre, 30 Kans. 476, the court said: "It was no error for the court below to instruct the jury that beer is presumed to be intoxicating, until the contrary is proved.' In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor. State v. Volmer, 6 Kans. 371; Briffitt v. State of Wisconsin, decided by the Supreme Court of Wisconsin, May 31, 1883; 28 Alb. Law Jour. 332; State v. Lemp, 16 Mo. 389; Markle v. Town of Akron, 14 Ohio, 586."