is no case where money has been actually paid by one of two parties to the other upon an illegal contract, both being particeps criminis, where an action has been maintained to recover it back." It is said in Cro. Jac. 187, that "a man shall not avoid his deed by duress of a stranger. This rule was applied in Robinson v. Gould, 11 Cush. 57, where a surety sought to plead the duress of his principal. The rule has been modified so as to allow a father to plead the duress of his child, or a husband the duress of his wife, or a child that of his parent. Wayne v. Sands, 1 Freeman, 161; Bayley v. Clare, 2 Browne, 276; 1 Rolle's Abr. 687; Jacobs' L. Dict., "Duress." Plaintiff, in the case at bar, was in pari delicto with defendants, being only remotely related by marriage to the debtor. Plaintiff cannot complain that defendants negotiated the note so as to shut out the equities, as the words of negotiability therein show that its negotiation was contemplated when it was given. Judgment affirmed. Solinger, appellant, v. Earle. Opinion by Andrews, J. [Decided Nov. 9, 1880.]

STATUTE OF LIMITATIONS- BEGINS TO RUN ON CHECK AT TIME OF MAKING IF DRAWER HAS NO FUNDS WITH DRAWEE.-Defendant gave a check upon a bank where he had no funds at the time or for more than six years thereafter. The check was not presented for payment until ten years after it was made. Ileld, that the statute of limitations began to run at the time the check was made, and an action thereon against the maker was barred after six years. The rule is well established that if the drawer has no funds in the hands of the drawee, an action can be maintained against the former without presentment or notice of non-payment. Mohawk Bank v. Broderick, 10 Wend. 304; Fitch v. Redding, 4 Sandf. 130; Healy v. Gilman, 1 Bosw. 235; Johnson v. Bank of North America, 5 Robt. 554. The circumstance that the want of funds was the result of the fraudulent act of the drawer would not estop him from setting up the defense of the statute. In such a case the check is due without presentment and demand. The breach of the contract is the cause of the action, and the statute begins to run from the time of such breach even if there is fraud on the part of the defendant. East India Co. v. Paul, 1 Eng. L. & Eq. 44, 49; Battley v. Faulkner, 3 Barn. & Ald. 288; Whitehouse v. Fellowes, 100 Eng. C. L. 795; Wilkinson v. Verity, L. R., 6 C. P. 206. Order affirmed. Brush, appellant, v. Barrett. Opinion by Miller, J.

[Decided Nov. 9, 1880.]

SURETYSHIP - WHAT NOTICE SURETY MUST GIVE TO CREDITOR TO COMPEL LEGAL ACTION AGAINST DEBTOR.

-F., who stood in the relation of a surety for the payment of a bond and mortgage not due, told plaintiff who held the mortgage, in January or February, to collect that mortgage in the spring and not let it run over the time it is due." There was nothing due and payable until the 23d of May in that year. Held, not a sufficient notice to plaintiff to release F. from liability where plaintiff neglected to foreclose when the bond and mortgage becamo due. Plaintiff might well have understood defendant to mean that when the bond became payable payment should be asked, for be was not forced by the words used at the time when they were used to understand that collection by legal proceedings was meant. The doctrine that a surety may give the creditor notice to proceed against the principal, and if the latter refuses, to the damage of the surety, the obligation of the surety is discharged or diminished, is not a favorite in the law and is not accepted in all forums. 3 Kent's Com. 124, note c. It was against opposition that it was adopted into the law of this State. See King v. Baldwin, 17 Johns. 384, 390, 394, 396, 397, 402; Colgrove v. Tallman, 67 N. Y. 95, 99. It is not one that is to be applied with laxity. It is

certainly to be required that the surety deal fairly and plainly with the creditor and give him to know that he intends to put him upon his equitable duty. The notice to the creditor should clearly inform him that he is required to take proceedings in the courts to enforce the mortgage. Singer v. Troutman, 49 Barb. 182, citing Remsen v. Beekman, 25 N. Y. 552. Judgment affirmed. Hunt v. Purdy et al., appellants. Opinion by Folger, C. J.

[Decided Nov. 9, 1880.1

TRADE-MARK-"RYE AND ROCK' TO DESIGNATE MIXTURE OF RYE WHISKY AND ROCK CANDY NOT.-It is a rule in the law of trade-marks that the use of any name or symbol as a trade-mark must be new to make an exclusive right to use it as such. If the term has ever before been used as applicable to a like article, it cannot be exclusively appropriated. It is also a rule of that law that if the article is known to commerce in general by the term claimed as a trade-mark, the claim is ill-founded. It is also a rule that if the term employed indicates the nature, kind or quality of the article, instead of showing the origin of it, an exclusive right to the use of the term may not be maintained. Plaintiff claimed as a trade-mark the words "Rye and Rock," to designate as a beverage a mixture of white rock candy dissolved in rye whisky, aud alleged that plaintiff had for ten years used the words to designate the mixture; that in 1877 defendants began to use the same words to designate a like mixture; that in 1878 the commissioner of patents granted plaintiff's application for a trade-mark in the words Rye and Rock," etc. Held, that under the rules above mentioned, plaintiff was not entitled to claim as a trade-mark the words mentioned to designate the mixture named. Judgment affirmed. Van Beil, appellant, v. Prescott et al. Opinion by Folger, C. J. [Decided Nov. 9, 1880.]

WILL-CONSTRUCTION - DEVISE TO WIFE WITH DISCRETION TO DEVISE TO CHILDREN GIVES HER FEE.-A will read thus, "I do give and bequeath all my property, both real and personal, to my beloved wife Mary, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good." Held, that the wife took the testator's estate in fee and that the qualifying sentence would not be construed to create a trust. The tendency of modern decisions is not to extend the rule or practice which from words of doubtful meaning deduces or implies a trust. 2 Story's Eq. Jur., § 1069; Lamb v. Eames, L. R., 10 Eq. Cas. 267. In re Hutchinson v. Tennant, L. R., 8 Ch. Div. 540, the doctrines set forth in the cases or text-books are subject to the rule in Williams v. Williams, 1 Sim. (N. S.) 358, that "the real question always is whether the wish or desire or recommendation of the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion." This rule is applied and illustrated in Bernard v. Minshell, Johns. Ch. (Eng.) 276, and in Howarth v. Dewell, 6 Jur. (N. S.) 1360, where a devise by a testator of all the residue of his property, real and personal, to his wife, with power to dispose of tho same among his children in her discretion, was held an absolute gift to the wife. In Hutchinson v. Tenant, supra, testator gave all his property to his wife "absolutely with full power to her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so." The court said: "Both on principle_and in consonance with the most modern authorities, I decide that the widow took absolutely." Judgment affirmed. Foose, appellant, v. Whitmore. Opinion by Danforth, J.

[Decided Nov. 9, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

PATENT-RE-ISSUE BY COMMISSIONERS MUST BE FOR SAME INVENTION.-Under the statute in force in 1869 and 1870, the commissioner of patents had authority to grant re-issues only in certain specified cases. These were whenever a patent was inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee's claiming as his own invention or discovery more than he had a right to claim as new, if the error had arisen by inadvertence, accident, or mistake, without any fraudulent or deceptive intention. The commissioner was invested with authority to determine whether the surrendered patent was valid by reason of a defective or insufficient specification, or because the patentee had claimed more than he had a right to claim as new; and if he found such to be the case, and found also that the error had been due to inadvertence, accident, or mistake, without fraud, his decision was conclusive, and not subject to review by the courts. But the law did not confer upon him jurisdiction to grant a re-issue embracing new matter, or a broader invention than what was revealed by his original specification, or drawings, or models, except in some cases where there was neither model nor drawing. A re-issue for any thing more was therefore inoperative and void. Accordingly this court has repeatedly held, that if on comparing a reissue with its original, the former appears on its face to be for a different invention from that described or indicated in the latter, it must be declared invalid. Seymour v. Osborn, 11 Wall. 544; Russell v. Dodge, 93 U. S. 461. In this case in the issue of an original patent for improvements in ovens, it appeared by the specifications that the products of combustion were carried on their way to the chimney through flues exterior to the oven proper and could not pass through it. In the re-issue the specifications showed that the products of combustion passed through the oven. Held, a different invention, and the commissioner had no authority to grant a re-issue of the patent. Decree of U. S. Circ. Court Louisiana affirmed. Ball et al., appellants, v. Langles et al. Opinion by Strong, J. [Decided Nov. 15, 1880.]

PRACTICE-TIME WHEN JUDGE MUST SIGN EXCEPTIONS WRIT OF ERROR BEFORE EXCEPTIONS SIGNED NO WAIVER-DATE OF SIGNATURE EVIDENCEPROOF OF BOUNDARY LINES BY REPUTATION-STATEMENTS BY DECEASED PERSONS-ADVERSE POSSESSION - TRUE OWNER IN POSSESSION OF PART OF LOT.—(1) The rule requiring the presentation of bills of exception for the signature of the judge within five days is not a rule which controls his action. He may depart from it in order to effectuate justice. Stanton v. Embry, 93 U. S. 552. It is a direction to the parties and it expressly reserves the power to enlarge the time. It is no doubt necessary that exceptions should be taken, and at least, noted before the rendition of the verdict, but the reduction of the bills to form, and the signature of the judge to the bills, required for their attestation, or as said in the statute of Westminster, "for a testimony," may be afterward, during the term. In practice it is not usual to reduce bills of exception to form and to obtain the signature of the judge during the progress of the trial. Nor is it necessary. The statute of Westminster did not require it. It would greatly and uselessly retard the business of courts were it required that every time an exception is taken the progress of the trial should be stayed until the bill could be reduced to form and signed by the judge. For this reason it has always been held that the exception need only be noted at the time it is made, and may be reduced to form within a reason

able time after the trial is over. U. States v. Breitling, 20 How. 254; Stanton v. Embry, 93 U. S. 555; Dredge v. Forsythe, 2 Black. 568; Genesee v. Bonnamer, 7 Wall. 565. (2) Defendants sued out this writ of error before the signature of the judge to their exceptions was obtained. Held, that they did not thereby waive their exceptions. See Taylor v. Williams, 2 B. & Ad. 846; S. C., 6 Bing. 512, and 4 M. & P. 257. A contrary rule is not settled in England; nor is it asserted in this country save in one New York decision. See Brown v. Bissell, 1 Doug. (Mich.) 273; also Witbeck V. Waine, 8 How. Pr. 433. (3) The bills were not signed nunc pro tunc, but appeared on their face to have been signed ten days after the trial. Held, not an objection. The date of the signature was at most an irregularity. Dictum to the contrary effect in Walton v. United States, 9 Wheat. 657, disapproved of. See Ex parte Bradstreet, 4 Pet. 107; Neece v. Healey, 23 Ill. 416; Illinois R. Co. v. Palmer, 24 id. 416; Dean v. Gridley, 10 Wend. 254; Hollowell v. Hollowell, 1 Monroe, 130; Hughes v. Robertson, id. 215. (4) A witness called to prove the location of private lands was allowed to testify that one M., a surveyor, had, while absent from the lands in question, told him the location and direction of certain boundary lines which M. said to witness he (M.) had surveyed, and witness was allowed to state what the declarations of M. were. Held error. Ellicott v. Pearl, 10 Pet. 412; Bartlett v. Emerson, 7 Gray, 74; 5 Metc. 223; Long v. Cotton, 116 Mass. 414; Bender v. Pierce, 27 Penn. St. 335. The conclusions to which a great majority of the decisions of State courts lead upon this subject is this: In questions of private boundary, declarations of particular facts, as distinguished from reputation, made by deceased persons, are not admissible, unless they were made by persons shown to have had knowledge of that whereof they spoke, or persons on the land, or in possession of it when the declarations were made. To be evidence, they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties relating thereto. A declaration which is a mere recital of something past is not an exception to the rule that excludes hearsay evidence. The Texas decisions do not essentially vary this rule. George v. Thomas, 16 Tex. 74; Blaythe v. Sutherland, 3 McCord, 258; Stroud v. Springfield, 28 Tex. 649; Spear v. Coate, 3 McCord, 229; Weller v. Carroll, 29 Tex. 333; Evans v. Hunt, 34 id. 111; S. C., 49 id. 311; Smith v. Russell, 37 id. 247. (5) While when a person enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be co-extensive with his deed or title, and the true owner will be deemed to be disseized to the extent of the boundaries described in that title, still, his possession beyond the limits of his actual occupancy is only a constructive If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, the constructive possession is in him of all the land not in the actual possession of the intruder, and this though the owner's actual possession is not within the limits of the defective title. "The reason is plain. Both parties cannot be seized at the same time by the same land under different titles. The law therefore adjudges the seizure of all that is not in the actual occupancy of the adverse party to him who has the better title." Clarke v. Courtuey, 5 Pet. 354. In Altemus v. Long, 4 Penn. St. 254, it was ruled that though actual possession under a junior title of part of a tract of land, which interfered with an older grant, gave possession of the whole to the holder of the junior title, yet a subsequent entry of the true owner upon any part of his land was an ouster of the intruder from what he had in constructive possession merely. There is no authoritative decision that is in conflict with this. Judgment of U. S. Circ. Ct., W. D. Texas, reversed and new trial granted. Hunnicut et al., plaint

one.

iffs in error, v. Peyton et al. Opinion by Strong, J. [Decided Nov. 15, 1880.]

TRIAL EXCEPTIONS ON.--Where a counsel at trial

asked of the court to give a charge, consisting of four propositions, which were set out, and "which instructions," according to the bill of exceptions, "the court refused to give," and the counsel excepted, held, that according to the well-settled rule of this court, if either of these four propositions were erroneous, or in other words, if all the charge thus asked was not sound law, the court did right in refusing the prayer which presented them as a whole. See Johnson v. Jones, 1 Black, 120; Harvey v. Tyler, 2 Wall. 338; Lincoln v. Claflin, 7 id. 139; Brown v. Taylor, 93 U. S. 54. Judgment of U. S. Circ. Ct., W. D. Tennessee, affirmed. United States v. Hough et al. Opinion by Miller, J. [Decided Nov. 15, 1880.]

KANSAS SUPREME COURT ABSTRACT. JULY TERM, 1880.*

UN

DELIVERY -WHAT DOES NOT CONSTITUTE GATHERED CROP. — A., being the owner of sixty acres of ungathered corn, and in debt to B. in a certain amount, and to L. in another sum, made an agreement with them, by which he was to deliver to B., in satisfaction of his debt, 500 bushels of corn, the same to be gathered by B., out of the said sixty acres, and a pair of mules upon which L. held a chattel mortgage, and also to deliver to L., on the latter's farm, and to be weighed on his scales, corn to the amount of $250, at the price of fifteen cents per bushel, and in the rise up to twenty cents per bushel, on the delivery of which L. was to credit his claim against A. with $250, and to release his lien upon the mules. There was no separation of the corn, and it was estimated that there would be corn enough to satisfy the agreement with B. and L., and also what A. should want for his own use. After some of the corn had been delivered to L. (but how much is not shown), a constable, with an execution against A., levied upon thirty acres of standing corn, being a part of the corn above mentioned, and of the value of $240. L. thereupon brought replevin, claiming to be the owner. Held, that upon the facts as stated, no delivery and no separation having been made, and both price and number of bushels as yet unsettled, the title had not passed away from A., and L. could not maintain his action. Bailey v. Long. Opinion by Brewer, J.

PARENT AND CHILD-STEP-CHILD. It is well settled, that in the absence of statutes, a person is not entitled to the custody and earnings of step-children, nor bound by law to maintain them. Yet if a stepfather voluntarily assumes the care and support of a step-child, he stands in loco parentis; and the presumption is, that they deal with each other as parent and child, and not as master and servant; in which case the ordinary rule of parent and child will be held to apply, and neither compensation for board is presumed on the one hand, nor for services on the other. Smith v. Rogers. Opinion by Valentine, J.

the deed L. was granted expressly the privilege of alienating this right. To utilize this water he constructed a tank cistern and bath-room in the said

nature.

dwelling-house which were supplied with the water. He also used it in irrigating the land. L. thereafter conveyed the land to another, through which conveyance plaintiff acquired title thereto. Subsequently L. conveyed to T. the water right. Held, that the right to water was appurtenant to the land at the time L. conveyed it, and passed to his grantee, and defendant had no right to deprive plaintiff of water. Appurtenants may be of a corporeal or incorporeal Jackson v. Stryker, 1 Johns. Ca. 284. In Nicholas v. Chamberlain, Cro. James, 121, Croke says: "It is held by all the court, upon demurrer, that if one erects a house, and builds a conduit thereto in another part of his land, and conveys water by pipes to the house, and afterward sells the house with the appurtenances, excepting the land, or sells the land to another, reserving to himself the house, the conduit and the pipes pass with the house, because they are necessary and appurtenant thereto." An appurtenant is that which belongs to another thing, but which has not belonged to it immemorially. 1 Ventris, 407; Coke on Litt. 121 b, and 122 a; Moore, 682. Appurtenant denotes annexed or belonging to; but in law it denotes an annexation which is of convenience merely and not of necessity, and which may have had its origin at any time, in both of which respects it is distinguished from appendant." Abb. L. Dict., "Appurtenance." An appurtenance may be annexed at any time. It is the nature and use of the thing aunexed which makes it appurtenant or not, as the case may be. Farmer v. Ukiah Water Co. Opinion by Sharpstein, J.

66

EVIDENCE- EXCEPTION TO TESTIMONY OFFERED IN GROSS NOT GOOD IF ANY OF TESTIMONY COMPETENT.Where a mass of evidence is offered as an entirety and part of it is competent and part incompetent, an objection to it as an entirety should not be sustained. Upon this subject there is a conflict of opinion. In New York and Pennsylvania it has been held, that if an offer contains any matter not admissible as evidence, the whole may be rejected. Hosley v. Black, 28 N. Y. 444; Gardner v. Barden, 34 id. 436; Wharton v. Douglass, 76 Penn. St. 273. But in Alabama and Maryland, and in the Supreme Court of the United States, the contrary is held to be the more correct rule. In Buffington v. Cook, 39 Ala. 66, a motion was made to exclude from the jury all the indorsements on an execution; but a part of them was legal evidence, and the court said: "If a portion of the testimony was illegal, the court was not bound to separate the legal from the illegal evidence, but might properly overrule the whole motion." In Carroll's Lessee v. Granite Manufacturing Co., 11 Md. 403, and Curtis v. Moore, 20 id. 97, the rule is thus declared: "When an offer is made of a mass of evidence complex in its character, and the whole of it is objected to in such case, if any part of it is admissible, it is error to exclude the whole." In Moore v. Bank of the Metropolis, 13 Pet. 302, it is said: "It is the duty of the party taking exceptions to the admissibility of evidence to point the part out excepted to, when the evidence consists of a number of particulars, so that the attention of the court may be drawn to the

SEPTEMBER, 1880.

APPURTENANCE-RIGHT TO TAKE WATER BY CONDUIT FROM CONDUIT OF ANOTHER.-L., who owned land with a dwelling-house and buildings thereon, acquired by deed from defendant, a water company, so much water as could be conveyed through a halfinch pipe which tapped the pipes of defendant. By

* To appear in 24 Kansas Reports.

missible evidence, it is rightly overruled." Board of Education v. Keenan. Opinion by McKee, J.; McKinstry, J., dissented.

RECEIVER-WHERE MORTGAGE CONDITIONED THAT MORTGAGEE MAY TAKE POSSESSION UPON DEFAULT, RECEIVER MAY BE APPOINTED IF DEFAULT OCCURS.A mortgage given by a railroad company provided that in case of default in the payment of the principal or interest secured thereby, the mortgagees might take possession of the mortgaged railroad. Held, that in

guardian, for their sole use and benefit. Nothing remained to be done on his part to make the intended gift of the policy to the beneficiaries therein named complete and effectual as against himself and all mere volunteers claiming under him. In paying for the insurance and procuring the policy to be issued, payable, in express terms, upon his death, to his wife E., if then living, and if not, to his children, for their sole use and benefit, without any condition or stipulation reserving a right to change or alter any of the terms of the agreement, he did all that could well be done, under the circumstances, in the execution of an intention to vest in his said appointees the entire interest in the policy, and all rights thereunder. Adams v. Brackett's Ex'r, 5 Metc. 280; Landrum v. Knowles, 22 N. J. Eq. 594. What he did was a clear and distinct act, wholly divesting himself of all ownership or control over the money paid for the insurance, disclaiming any interest in the policy, or intention to take or hold it for himself or his legal representatives, at the same time putting it beyond his power so to do by the stipu- | lation obligating the company to pay the sum insured, whenever it should become due, to such of the persons named in the policy as might then be entitled thereto by its terms. Taking the delivery of the policy from the company, under these circumstances, can only be construed as an act of acceptance for the designated beneficiaries, and his subsequent holding of the same as that of a naked depositary, without any interest, for those entitled thereto. Minnesota Supreme Court, September 24, 1880. Ricker v. Charter Oak Life Insurance Co. Opinion by Cornell, J.

FOR BENEFIT OF CHILD- CONSTRUED TO INCLUDE GRANDCHILD - STIPULATION IN POLICY CONTRAVENING CHARTER OF COMPANY -LIFE POLICY

CONSTRUED LIKE A WILL.—(1) The charter of a Masonic life insurance company provided for the raising of a fund which should "be paid for the benefit of the widow and children" of deceased members, and that "the fund created for the benefit of the widow and children of deceased members shall be paid to them by said company as soon as it can be collected, or to their trustee, in the discretion of the company; subject, however, to be appropriated for their benefit, equally, according to the will of the deceased member; or if he should leave no widow or child, then to be appropriated according to his will; or if he makes no will, or leaves no widow or child, it shall rest and remain in the company, and be added to its capital stock, or be appropriated as they may deem expedient." C., at the time of his death, held a certificate of membership in the company. When he procured it he was a widower and had only two children. Both died during his life; one without issue and the other leaving one child. C. left a will devising his residuary estate to his executor in trust, to be invested during the life of one of his children for her benefit, and after her death to be disposed of as directed in the will. No mention was made of the insurance fund. Held, that D., the grandchild of C., was entitled to the fund, and not the executor. To the general rule that the word "child" does not embrace a grandchild, there are two exceptions. First, where a will or writing would otherwise be inoperative, or the manifest intention would be defeated; or second, when a will or writing shows by other words, that the word was not used in its ordinary and proper sense, but in a more extended sense. This case falls within the first exception. If it was held that it did not, then, when a member dies intestate, and without wife or child, the proceeds of his membership are forfeited to the company, even though he may leave lineal descendants surviving. No construction should be adopted which would lead to such consequences. A life policy for the benefit of the family of the person procuring it. though not a

testament, is in the nature of a testament; and in construing it, the courts should treat it, so far as possible, as a will; as, in so doing, they will more nearly approximate the intention of the person, the destination of whose bounty is involved in such cases. It is manifest, from the charter, a member of the company has no personal interest in his membership, and that his personal representative, as such, can never take any interest in it after his death. This is shown by the provision that if the member has no widow or child surviving, and no will, the fund shall vest in the company; and the further provision that the proceeds of the membership shall not be liable for the debts of the member. The charter gives a mere power of appointment in case he has neither wife nor child, and he has no interest whatever in the fund, and it did not, therefore, pass under a will merely disposing of all estate, but in which no mention is made of the fund to arise from his membership. 4 Kent, 327. (2) A stipulation in the certificate of membership was, "to pay to said Crofoot's daughters, Anna and Lou. Crofoot, or his assigns, or as he may direct by will," etc. Held invalid. It is not in the power of the company, or of the member, or of both, to alter the rights of those who by the charter are declared to be the beneficiaries, except in the mode aud to the extent therein indicated. Masonic Insurance Company v. Miller's Adm'r, 13 Bush, 494. Kentucky Court of Appeals, October 4, 1880. Duvall v. Goodson. Opinion by Cofer, C. J.

CORRESPONDENCE.

BANKS' REVISED STATUTES.

Editor of the Albany Law Journal:

Messrs. Banks & Brothers have published a sixth edition of the Revised Statutes of the State of New

York, edited by George W. Cothran, for which I, along with other members of the profession, pay twenty dollars. The first volume is prefaced with the Constitution of the United States. What purports to be the thirteenth amendment to that instrument may be found at page 32 of Vol. I, and it is given in the following words:

"ARTICLE XIII.

"SECTION 1. Slavery, being incompatible with a free government, is forever prohibited in the United States, and involuntary servitude shall be permitted only as a punishment for crime.

"SEC. 2. Congress shall have power to enforce the foregoing section of this article by appropriate legislation."

The real thirteenth amendment to the Constitution of the United States reads as follows: (R. S. U. S., 2d ed., p. 30.)

except as a punishment for crime, whereof the party "SEC. 1. Neither slavery nor involuntary servitude, shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

"SEC. 2. Congress shall have power to enforce this article by appropriate legislation."

Is it possible that Mr. Cothran, or the publishers, or whoever else may be responsible, have taken the same liberties with the statute laws of New York as he or they have taken with the Constitution of the United States? or have they confined their attentions of this character to the former instrument? Respectfully,

NEW YORK CITY, Dec. 1, 1880.

WM. L. ROYALL.

SHADE TREES IN VILLAGE STREETS. Editor of the Albany Law Journal:

The charter of an incorporated village gives the directors (trustees) power to lay out, alter, repair and improve the streets, highways, lanes and alleys within the bounds of said village, and to cause the same to be guttered and curbed. A street in the village with the