2558, 3. For the reason why costs. will not be awarded to the unsuccessful contestant of a will, see 1 Dem., 67. § 2611. A will of a resident of New Jersey, whose will was executed according to the laws of that State and who died there, was held properly admitted to probate by the Surrogate of New York County, where the decedent left some personal property. Held also unnecessary that the will be first probated in New Jersey. (3 Dem., 416.) A will of personalty, executed by a person domiciled in Austria according to Austrian law, may be admitted to probate here in a country where the decedent left personal property even though the original will cannot be procured here. (46 Hun, 225; see 87 N. Y., 19.) § 2618. The burden of proof is on the proponent to the end of the litigation. Surrogates' Courts usually require from him, in the first instance, only slight evidence of the testator's mental capacity and freedom from undue influence, affording him at the close of contestant's evidence the opportunity of attacking the contestant's case by any relevant and material testimony, even though this is not of such a nature as to be deemed strictly evidence in rebuttal. (2 Dem., 443.) 82626. The difference in effect between admitting a will of personalty, and a will of realty to probate, is considered in the Hoyt Will Case. (112 N. Y., 493.) § 2627. Where a will of realty was admitted to probate on the application of heirs of decedent, held that this did not estop them from afterwards suing to recover the land and disputing the validity of the will. (36 Hun, 545.) A Surrogate's Court has no jurisdiction to determine the construction, validity, and effect of a devise of realty on an application for probate. (3 Dem., 339.) § 2660. A Surrogate, in issuing letters of administration, may limit the powers conferred on the administrator; as where the letters said "these letters are issued with limited authority to prosecute only and not with power to collect or compromise." (92 N. Y., 79.) A divorced wife, whether the divorce was granted for her misconduct or her husband's, is not entitled to administration or to a distributive share of his personal estate. (103 N. Y., 284.) § 2662. Though married women may now receive letters of administration as if unmarried, this does not do away with the former law giving unmarried women the preference; hence, the two are not persons having an "equal right" under this section, and an unmarried sister may be appointed without notice to the other. (89 N. Y., 401.) A non-resident of this State, being a citizen of some other State, may be appointed administrator, but persons not citizens of the United States are not qualified. (44 Hun, 67.) It is not necessary to cite a non-resident, when a petition is presented by a resident, but if the non-resident has a prior right by reason of relationship, or as being husband or wife, etc., and appears before the letters are issued, and asserts his prior claim, the Surrogate may not deny it. (112 N. Y., 525.) § 2694. The subject of auxiliary administration is fully considered in 95 N. Y., 55, 70 N. Y., 103, 53 N. Y., 192. § 2695. The will of a United States citizen residing in China, executed by Chinese law and admitted there to probate by the United States Consulate-General, may be proved here by a copy of the record, etc., and letters be issued here thereon. (5 Redf. 79.) § 2700. The chief object of the statute as to auxiliary administration is the protection of creditors in this State. It is in the discretion of the court whether to direct administration of the local asserts or foreign administrator. (1 Dem., 71.) to order their transmission to the foreign $2703. As to proof of wills made in foreign countries, see 87 N. Y., 19, 45 Hun, 225. Rule 2. Notice of entry of judgment will not limit the time of appeal unless the office address of the attorney is stated. (78 N. Y., 229; 76 N. Y., 325.) In general, however, the omission of the address is a mere irregularity and does not necessarily visiate either the paper or its service; the attorney served may return the paper or move to set it aside, but if he accepts it without objection, this will be deemed a waiver of the irr. (101 N. Y., 289; 48 Hun, 76.) Where, upon a copy of a judgment served was endorsed the name of the attorney with his post-office and business address, and below was endorsed a notice of judgment signed by the attorney without giving any address, held that this was a sufficient compliance with the rule. (101 N. Y., 610; 100 N. Y., 86.) Where the post-office address was omitted from the notice of entry of interlocutory judgment, but the attorney on whom it was served admitted due service, held that the objection was waived and that the notice limited the time for appealing. (38 Hun, 531.) Rule 5, last §. If an attorney does become bail, the other party cannot treat the undertaking as a nullity but must except thereto, whereupon it will be rejected. (4 Bosworth, 632.) An attorney who has retired from practice for some time may execute an undertaking. (15 J. & S., 366. See also 8 Civ. Pro. Rep., 420.) Rule 10. It is held that a client may discharge his attorney arbitrarily at any time and be liable to pay him only for the services which he has rendered up to the time of his discharge. (93 N. Y., 529.) Still a party cannot change his attorney without leave of the court. The court will grant this relief on the partie's request, but will consult the rights of the attorney and will not allow the change until the just claims of the latter are secured. Abb., Pr. 336; 49 How., Pr. 138.) (14 Rule 32. The former rule that the court or referee might pass upon questions of fact proposed by the party at the time of settlement of the case is now abolished. Section 1023 of the Code has introduced a different practice. (84 N. Y., 224.) The report of a referee cannot be sent back to him with instructions to make additional findings. (34 Hun, 582.) After an action has been once decided it is dangerous to permit an attempt to modify the decision by new findings or new conclusions. (2 Civ. Pro. Rep., 185.) (37 ¶ 3. See 7 Abb., Pr. 76. As to ¶ 4, see 4 Civ. Pro. Rep., 448; 6 Civ. Pro. Rep., 188.) Rule 40. The appellant need not file his appeal papers and serve them on the respondent's attorney until eight days before the term, and an order of the court which compels him to file them earlier will be set aside. (40 Hun, 557.) Rule 49. Hun, 593. See 5 Civ. Pro. R., 162; 43 Rule 64. In 12 Civ. Pro. R., 139, it was held that the referee's decision concludes the parties as to any question litigated before him and cannot be collaterally impeached, though an appeal can be taken after it is affirmed by the court. Rule 71. A widow who has left to her in her husband's will a life estate in his land in case there is a sale on foreclosure leaving a surplus is not entitled to a gross sum estimated by this rule. The court may give it or direct an investment; but in cases of dower (see Code, § 2793) she has a right to a gross sum. (94 N. Y., 605.) Rule 73. In actions in this department for absolute divorce where no answer is interposed reference to take proof will not be granted; such causes must be placed on calendar of special term for trial of issues of law and fact and testimony must be there taken and causes there heard. This rule adopted by Supreme Court of First Judicial District, October 19, 1889; (1 Civ. Pro. R., 419; 20 J. & Sp., 545. Rule 76. As to conclusiveness of conclusion, see 49 Hun, 340. Rule 80. An attorney occupying a connecting office in the same building with an attorney of the party should not be appointed referee. (13 Civ. Pro. R., 288.) Rule 85. See 49 Hun, 195, 202. COLUMBIA LAW TIMES. FOUNDED BY PAUL K. AMES AND T. GOLD FROST. PUBLISHED MONTHLY DURING THE COLLEGIATE YEAR Subscription, $2.50 per year. Single Number 35 cents. EDITORS: WILLARD C. HUMPHREYS. JOHN N. POMEROY Louis F. Hyde, George M. Weed, John Bennetto, John Palmieri, A. Page Smith, E. M. White, CORRESPONDENTS: Harvard Law School. Boston University Law School. New York University Law School. University of Penn. Law School. University of Michigan Law School. Vanderbilt University Law School. Illinois Wesleyan Law School. With this, our last number of the present college year, the board of editors and managers bid farewell to the law-school and its students, whose interests they have endeavored to serve faithfully during the past eight months. We regret not being able to print the last Moot Court decisions and thus finish up the set of them this spring, but they have not yet been prepared by the professors, and will thus have to go over, as they did last year, until the October number. The LAW TIMES will next year be in the hands of Mr. Frederic J. Swift, Class of '92, Editor, and Mr. Cornelius F. Collins, Class of '91, Business Manager. BOOK REVIEWS. A TREATISE ON STOCK AND STOCKHOLDERS AND GENERAL CORPORATION LAW, as applicable to Railroad, Banking, Insurance, Manufacturing, Mining, Telegraph, Telephone, Express, Gas, Commercial, Business, Turnpike, Bridge, Canal, and other Private Corporations. By William W. Cook, of the New York Bar. Second Edition, Chicago. Colloghan & Co., 1889. To this, the second edition of his well-known work on Corporation Law, Mr. Cook has made a number of important and valuable additions, which now render the book the most convenient and complete work upon this extensive subject with which we are acquainted. As indicated by its title this treatise deals only with corporations of a private character, and, in the main, the subject is approached only from the standpoint of stock and stockholders. But this limitation is not so restricting as it at first sight appears, for he who understands the rights, powers, duties, and liabilities of stock and stockholders, will have little difficulty in understanding the nature and status of corporations, and are the various peculiarities of corporation law. This remarkably rapid growth of corporations during the past thirty years has created a body of law which is fast becoming a system of jurisprudence in itself; and an orderly, concise and systematic, yet thorough, treatise upon it, ought to be a welcome addition to every lawyer's library. THE DISTRIBUTION OF PRODUCTS, OR THE MECHANISM AND THE METAPHYSICS OF ExCHANGE. By Edward Atkinson, Fourth Edition, New York. G. P. Putnam's Sons, 1890. This little work comprises three papers read by Mr. Atkinson on different occasions, and now collected into bookform. The first attempts to solve the much-vexed problem of "What Makes the Rate of Wages," and studies the forces to which both employer and employed are subjected in determining what rates of wages can be paid in money and which control the bargains made between them. In the second, Mr. Atkinson applies himself to answering the question, "What is a Bank," and discusses the functions of banks and bankers, bills of exchange, banknotes, and all other instruments by means of which the title to commodities is passed from one man to another. The last essay deals with the Railway, the Farmer, and the Public, and treats of their relations toward, and influence upon one another. The author's mode of handling a subject is never dull, but always entertaining and frequently very striking, and his works on any subject (and he is very versatile) are full both of enjoyment and instruction for the reader. THE TARIFF HISTORY OF THE UNITED STATES, a Series of Essays, by F. W. Taussig, Ph. D., New York. G. P. Putnam's Sons, 1888. Mr. Taussig's work is also a collection of previously and separately written essays, and none of the papers of this little volume (which forms one of Putnam's "Questions of the Day" series) were presented in it to the public for the first time. It is, moreover, now nearly two years since they were first published in book form, and they are almost too familiar to require further mention, and too favorably known to need a repetition of the words of commendation which they have so often and deservedly received at the hands of reviewers. A TREATISE ON THE LAW Of Corporate BONDS AND MORTGAGES, by Leonard A. Jones, Boston and New York. Houghton, Miflin & Co., 1890. This is substantially a second edition of Mr. Jones' former work on "Railroad Securities," enlarged by the addition of two or three hundred wholly new sections. The work may also be regarded as a continuation of the autho'rs "Mortgages of Real Property," as it discusses at length the application of the general principles of law to all mortgages made by corpora tions. A notable and very excellent feature of this treatise is that it gives in many instances not only an expression of general principles with a mere citation of the cases in which the principles were developed, but also the facts of the cases and the reasons for the judgments of the courts; thus presenting a much more comprehensive view of the subject than would be obtained from a work composed (as too many law books are) of mere names and head-notes of cases. To the exposition of general principles and the discussion of the courts is added a very serviceable statement of the various statutory laws. affecting this important subject. THE MODERN LAW OF RAILWAYS, as determined by the Courts and Statutes of England and the United States. By Charles F. Beach, Jr., of the New York Bar. San Francisco:The Bancroft Whitney Co., 1890. In this work, which does not profess to be a treatise upon the more familiar phaes of railroad law, but seeks to supplement rather than to supplant the other American and English treatises upon the same subject, especial attention has been given to so much of the law of corporations as applies to railways and to a complete exposition of the law of railway finance. As indicated in the title, considerable attention is paid to the English statutes and judicial decisions, as Mr. Beach believes that "the better sort of our lawyers and judges" are much interested in the English method of solving railroad problems of legal character, and it cannot be denied that there is among the thoughtful portion of our profession a growing concern about English decisions regarding the matter here in hand. The author has had, perhaps, unequalled experience and opportunity for observation and learning in this branch of the law, and his work will doubtless be regarded as garded as a valuable addition to legal literature. We regret that we cannot agree with the publishers in considering the 16mos. a convenient form for a law book; the pages are altogether too small, and the book does not "shelf" well with other full grown law books. By THE Law OF TRUSTS AND TRUSTEES. James H. Flint, of the Boston Bar. San Francisco: The Bancroft Whitney Co., 1890. The object of this little work (which is also a 16mo) is professedly "to present the law upon a broad and difficult subject in a clear and concise form," and from a necessarily hasty examination of it, we feel safe in congratulating the author upon the success which has attended his endeavor. The subject of trusts is one which, at best, presents many difficulties to the student and to the lawyer; but the present treatise is compact, well arranged and the cited cases are carefully digested. SPANISH COLONIZATION IN THE SOUTHWEST. By Frank W. Blackmar, Ph.D. Baltimore: Publication Agency of the Johns Hopkins University, April, 1890. Although the life and spirit of modern progress flows largely from Germanic sources, and although the remains of Spanish civilization in the United States are meagre and insignficant in comparison with our rich heritage of Teutonic institutions, still, the fragmentary results of the Spanish occupation of the New World present much that is of interest to the careful student of history. And in the present essay Mr. Blackman has collected most of what may be regarded as of permanent value or interest concerning the Spaniards in America, and he has done it in a scholarly and attractive manner. The endorsement of the Johns Hopkins University, which stands to-day facile princeps, as regards historic research and study, among American colleges, is sufficient recommendation of this little work. THE TRIAL OF JESUS, FROM A LAWYER'S VIEW. By C. H. Blackburn. Cincinnati: Robert Clark & Co., 1890. As this little pamphlet, addressed to humanity at large, will probably not reach its destination, we are glad to give it whatever encouragement we can by commending it to those among our little circle of readers who may be interested in amateur theology. But we cannot deny that, from the standpoint of the Wall Street lawyer, such a production as this by a member of the bar savours so strongly of the eccentric that it can neither enlist our sympathy nor arouse our admiration. A TREATISE ON THE LAW OF INJUNCTIONS. By James L. High. Third Edition. Vol. I. Chicago: Callaghan & Co.. 1890. The third edition of Mr. High's work has just made its appearance, and as the first two editions have already won for it the character of a recognized authority upon its subject, it is only necessary to state here that to the present editions some fifteen hundred new cases have been added, and the whole brought down to date. CAPTAIN COOK. By Walter Besant. don: MacMillan & Co., 1890. Lon This little work forms one of the " English Men of Action" series, and is not, as might be inferred from its author, a novel, but a biography of the famous navigator. We were at first surprised at seeing a new work on Captain Cook, because we had been of the impression that popular interest in him had by this time pretty much died out, but on perusing the book it proved entertaining reading and well worthy of a few hours' attention. We wish in connection with this to express our admiration for the faultless manner in which Messrs. MacMillans' books are always printed and bound; is a pleasure to handle them. HISTORY OF THE UNITED STATES AND THE CONSTITUTION. By James Schruler. 4 vols. Washington: William H. Morrison, 1889. Mr. Schruler's work on the History of the United States, takes up our national history at the point where Bancroft's great work leaves it, namely, at the close of the Revolutionary War, and will, when completed, bring it down to the outbreak of the rebellion in 1861. The fourth volume, which has but recently appeared, completed the narrative to 1855, and one more volume, to be published shortly, will fin |