Imágenes de páginas

by the servant of the defendants, not in the course of levied, and to have and demand it on due course of any common employment or operation under the same law by sale of goods or real estate, also constitutes comaster, but by negligence in the discharge of his or- | ercion by law. (N. Y. C. & H. R. R. R., 12 N. Y. 308, dinary duty to the defendants alone, this case is distin- and Fleetwood v. Mayor, 2 Sandf. 475, distinguished.) guishable from all which have been decided in rela Ib. tion to the above doctrine of exemption, and that, 3. What necessary to warrant action to recover montherefore, this action is maintaiuable." Both these eys paid on erroneous assessment.-To warrant an accases were, no doubt, properly decided, upon the tion to recover back money paid by coercion of law ground that in each of them it could be correctly upon a judgment, or tax levied, or assessment laid, it affirmed that the servant who did the injury was in must appear that the judgment or proceedings were the employ of the defendants, and doing their work, prima facie regular, so as to themselves to furnish aud not what was common to that in which the plain evidence of their own validity. Where the facts tiff was employed. In the present case the circum showing invalidity must be furnished aliunde the acstances material to the legal position of the parties tion is maintainable. Ib. and the rights flowing therefrom are very different. [Decided Sept. 25, 1877. Reported below, 8 Hun, 413.) The deceased man, Swainson, though engaged by the

APPEAL. Great Northern Company, and wearing their uniform, 1. When not allowable.—This was an appeal from an was one of a joint staff, and for four years had re

order granting a new trial in a case tried by a jury. ceived his weekly wages as such, and he was, there

A motion for a new trial on the evidence was made at fore, practically in the service of two companies, who,

Circuit and denied, and an appeal from that order quoad his service and employment, were partners.

taken to the General Term where a new trial was But further than this, as was said by Lord Colonsay

granted. Held, that it is well settled that an apin Wilson v. Merry, ubi sup.: “We must look to the

peal will not lie to this court in such a case. (Wright functions the party discharges, and his position in the

v. Hunter, 46 N. Y. 109; Sands v. Crook, id. 464.) Aporganism of the force employed, and of which he

peal dismissed. Wagner v. Long Island Railroad Co. forms a constituent part." Referring, then, to the du

Opinion by Rapallo, J. ties of Swainson, and the very acts on which he was

2. Judgment for less than $500.-The judgment in engaged at the time of his death, the evidence shows

the case which was reversed was for only $325, excluthat they were not performed by him as servant of,

sive of costs. Held, that this court had no jurisdicor for the benefit of one company only, but were es

tion to hear the appeal. Ib. sentially necessary for the common business of both,

[Decided Sept. 25, 1877.] namely, the interchange of the traffic between the

ATTACHMENT. two stations. The case, therefore, falls within and is

Of goods in hands of carrier who has issued bills of governed by the principle that where there is common

| lading : failure to give bond.-When goods have been employment in common service the master is not lia

shipped and bills of lading issued by the carrier, such ble, and our decision must be for the defendants, for whom judgment must be entered.

goods cannot be attached without giving the bond of HUDDLESTON, B., concurred.

indemnity provided by the statute (Laws 1841, chap. Judgment for the defendants.

242) and the common law, and a seizure made by the sheriff without giving such indemnity is a trespass,

and the sheriff is liable to the carrier for the value of COURT OF APPEALS ABSTRACT.

the goods. Judgment below affirmed. Campbell v. ACTION.

Conner. Opinion by Church, C. J.

[Decided Sept. 18, 1877.) 1. Recovery back of moneys paid on illegal assessment: involuntary payment.-Where money has been

CONSTITUTIONAL LAW. obtained upon an erroneous judgment or tax levy, 1. Statutory construction: title to local act not emwhich has been reversed after payment, it is recovera- bracing provisions: delegating legislative power.-By ble back (Bank of U. S. y. Bank of Washington, 6 Pet. Laws 1873, chapter 505, entitled "An act to reorganize 8; Sturges v. Allis, 10 Wend. 355; Clark v. Pinney, 6 the village of Gloversville," passed May 14, 1873, it is Cow. 297); but to authorize a recovery the payment provided (5 51) that at each annual election in said vilmust be involuntary or compulsory, from coercion | lage a vote shall be taken to regulate the granting of either in fact or by law. Judgment below reversed. license to sell intoxicating liquors, and that if a maPeyser v. Mayor of New York. Opinion by Folger, jority of votes cast shall be for the granting of license J.

the board of trustees may grant said license, and if a 2. Coercion in fact and by law defined.-Coercion in majority of votes be against, the said board shall have fact is that duress of person or goods where present no power to grant the same. It also provides that the liberty of person or immediate possession of goods commissioners of excise of the village shall possess the is so veedful and desirable that an action or pro powers and perforın the duties of boards of comceeding at law will not at all answer the pressing missioners of excise and be subject to the excise purpose. Forshay v. Ferguson, 5 Hill, 154; Eadie laws of the State and that all license moneys and all V. Skinner, 26 N. Y. 9, duress of person; Maxwell penalties for violation of excise laws shall be paid to v. Griswoli, 18 How. (U. S.) 747; Harmony v. Bing the village treasurers and be recoverable in the corpoham, 12 N. Y. 99, duress of goods. Coercion by rate name of the village, etc. A vote was taken in the law is where a court having jurisdiction of the village which resulted in a majority against granting person and subject-matter has rendered a judg- license. In an action against defendant for penalties meut which is collectible in due course. The quasi for selling intoxicating liquors in February and March, adjudication of assessors of taxes, when proceed 1875, in wbich defendant set up a license obtained from ings are regular on their face, and on presentation the commissioners of excise of the town wherein the make out a right to have and demand the amount | village is situated: Held, that the provisions of sec

tion 51 were not unconstitutional as (1) not being em- 1'. & C. 18; 56 N. Y. 476); but it was the duty of the braced in the title of the act (People v. Mayer, 50 N. | city auditor to allow the voucher if it was in proper Y. 504; Harris v. People, 59 id. 599); or as (2) delegat form. He could not revise it and readjust the claim, ing legislative power to the electors of the village. and after the admission by him that the voucher was (Bank of Rome v. Village of Rome, 18 N. Y. 38, 44; | in proper form, and its approval in that respect by the Bank of Chenango v. Brown, 26 id. 467; Clarke v. City comptroller, suit might be maintained for the claim of Rochester, 28 id. 605.) Judgment below affirmed. against the city. Judgment below reversed. LaniVillage of Gloversville v. Howell. Opinion by Rapallo, gan v. Mayor of New York. Opinion by Earl, J. J. (Church, C. J., dissented.)

2. Estoppel: what does not constitute.- A receiver of construction: amendments to general ex- plaintiff in supplementary proceedings took possession cise law: when not applicable.- Held, also, that the pro of the voucher and upon the refusal of the auditor to visions in question were not abrogated by Laws 1873, examine and allow it, procured a peremptory manchap. 820, as to the power of the village to sue for the damus directing the auditor to do so. The auditor expenalties, or as to the granting of licenses by Laws | amined the voucher and reduoed the amount, and 1874, chap. 444. Ib.

there being enough to satisfy the judgment the re[Decided Sept. 18, 1877. Reported below, 7 Hun, 345. ] ceiver took no further steps. Held, that plaintiff was CONTRACT.

not estopped from maintaining an action for the bal

ance due beyond such reduced amount. Ib. Construction of: sale of invalid patent right: rescis

[Decided Sept. 18, 1877.] sion.- Plaintiff's testator, Peck, by two contracts, sold and conveyed to defendant certain interests in two patent rights. The consideration of the first contract

RECENT ENGLISH DECISIONS. was paid in part by government bonds and defendant

CRIMINAL LAW. gave his note for $1,500, which was the whole considera- 1. False pretenses: evidence of pretense8.-C. was contion for the second contract. Subsequently, a contract victed of obtaining potatoes by falsely pretending in writing was made between the parties containing that he was then in a large way of business, that he this recital and having reference to the second con was in a position to do a good trade in potatoes, and tract: “And whereas, said contract was given after that he was able to pay for large quantities of potatoes the letters patent had been surrendered up for a re- | as and when the same might be delivered to him. The issue, and in ignorance of the fact that under certain evidence that c. had so pretended was the followcircumstances the letters patent would not be returned ing letter written by him to the prosecutor: “Sirto the owner of said patent; and, whereas, the said | Please send me one truck of regents and one truck of Peck desires a release from his obligations under said rocks as samples, at your prices named in your letter; contract in case he shall not be able to fulfill such ob let them be good quality, then I am sure a good ligations." It was then agreed that in consideration trade will be done for both of us. I will remit you of the return of the $1,500 Peck was to be released, and cash on arrival of goods and invoice. Yours, etc. it was further agreed that “when the said Peck shall P. S.-I may say if you use me well I shall be a good notify him of his readiness to fulfill the said contract customer. An answer will oblige saying when they by deeding to said Collins his interest in said patent or | are put on." Held, affirming the conviction, that the any re-issue which may be granted under said applica words of the letter were fairly and reasonably capable tion," the amount mentioned was to be repaid by de- | of a construction supporting the pretenses charged, fendant to Pock. Another contract was contained in a and that it was a question for the jury, whether the receipt for the government bouds signed by defendant, writer intended the prosecutor to put that construcacknowledging that the bonds had been returned to him tion upon them. The Queen v. Cooper, L. R., 2 (C. C. and agreeing to repay them to Peck "as soon as Byron | R.) Q. B. D. 510. Mudge (the patentee whose patent was the subject of 2. Malicious injury to property: 24 & 25 Vict., c. 97, the sale) succeeds in getting a re-issue of” the patent | $. 41: placing poisoned flesh in inclosed land: 27 & 28 in question, "now in the patent oflice, or providing | Vict., c. 115, 8. 2.- The placing of poisoned flesh in an the old patent is returned.” In the application for inclosed garden, for the purpose of destroying a dog re-issue the patent was declared void, but the agent of which was in the habit of straying there, is not an ofPeck procured the original letters patent. Held, that fense punishable under 24 & 25 Vict., c. 97, s. 41. But, the contracts called for a valid patent, and that Peck semble, that it is within 27 & 28 Vict., c. 115, s. 2. Danor his representative by offering to return the original iel v. Janes, L. R., 2 C. P. D. 351. letters patent could not claim a return by defendant

LANDLORD AND TENANT. of the government bonds or the $1,500. Judgment be

Liability of landlord for injury happening to stranger low affirmed. Peck v. Collins. Opinion by Church,

during tenancy: liability of landlord for defective reC. J.

pair of demised house : negligence.- A landlord is liable [Decided Sept. 18, 1877.]

for an injury to a stranger by the defective repair of NEW YORK CITY.

demised premises only when he has contracted with 1. Consolidation of county and city: rights of holders the tenant to repair, or when he has been guilty of of claiin against county to sue city.- Plaintiff held a misfeasance, as, for instance, in letting the premises claim against the county of New York before the city in a ruinous condition; in all other cases he is exempt and county governments had been consolidated which from responsibility for accidents happening to stranhad been duly audited and allowed by the board of gers during the tenancy. The defendants let to F. a supervisors. Held, that before the city officers could house by an agreement in writing, by which F. agreed pay, plaintiff's voucher for the claim must have been | “to do all necessary repairs to the said premises ex(Laws 1873, chap. 335) examined and allowed by the cept main walls, roof, and main timbers." There was auditor and approved by the comptroller, and this was no agreement by the defendants to repair, and the a condition precedent to payment (People v. Green, 2 house was in good condition at the time of letting it. Owing to the defendants' negligence in not repairinging that the bale might fall. Held, that the plaintiff a part of the main walls, a chimney-pot, during the was entitled to maintain an action for the injury sustenancy of F., fell upon the plaintiff, who was a ser- tained by him. Corby v. Hill, 4 C. B. (N. S.) 556; 27 vant of F., and injured him. Held, that the plaintiff L. J. (C. P.) 318, and Indermaur v. Dames, L. R., 1 C. was not entitled to recover compensation from the de- | P. 274; and on appeal, L. R., 2 C. P. 311, followed. fendants for the injury sustained by him. Nelson v. | White v. France, L. R., 2 C. P. D. 308. The Liverpool Brewery Company, L. R., 2 C. P. D. 311. MARINE INSURANCE.

RECENT AMERICAN DECISIONS. Partial loss: cost of repairs : allowance of one-third new for old: suing and laboring clause : salvage el SUPREME COURT COMMISSION OF OHIO.* penses.-The defendant insured the plaintiff for £1,200

AUCTION. upon a ship valued at £2,600. The ship encountered What does not constitute trade of auctioneer. – The rough weather, suffered sea damage, and incurred sal statute regulating sales at auction provides that all vage expenses to the amount of £519. She was re- property and effects sold by auction shall, in all cases, paired, and the result of the repairs, the ship being an be sold to the highest bidder Hence, a person who, old one, was to make her more valuable when repaired being in the business of selling merchandise at regular than she was at the time of the insurance. The de

retail prices, sells a portion of them at his store-room fendant, in an action on the policy to recover for a by public outcry, making known to the persons partial loss, contended that he could not be liable for that he will sell the property offered for sale at his regmore than a total loss with benefit of salvage, deduct ular retail price, and no other, is not, within the meaning from such salvage the ship's proportion of salvage ing of the statute, exercising the trade or occupation and general average expenses, and that the deprecia of auctioneer. Crandall v. State of Ohio. tiou in value of the ship by sea damage, not the cost

CONSTITUTIONAL LAW. of the repairs, was the measure of the partial loss.

What is not tax on commerce.--A State tax on the Held, that the cost of repair, making the usual deduc

gross receipts of such company for the year next pretion of one-third new for old, was the measure of the

ceding the assessment return is not a tax on commerce loss if the shipowner elected to repair, and conse

between the several States, within the meaning of artiquently that the assured was entitled to recover such

cle 1, section 8 of the Constitution of the United cost of repair up to the amount insured for, even al

States, although they arose chiefly from messages perthough the loss 80 estimated might amount to more

taining to such commerce, or from messages originatthan a total loss with benefit of salvage. But held,

ing or terminating outside of the State, or were earned that the assured could not recover under the suing

on the lines of such companies outside of the State. and laboring clause in respect of a proportion of the

W. U. Telegraph Co. v. Mayer, treasurer. salvage expenses over and above the £1,200, because,

CORPORATION. the damage done to the ship being so great as already

1. Corporation not citizen. - Corporations of other to exhaust the policy, and the assured not having

States are not citizens, entitled to all the privileges abandoned, the salvage expenses did not inure to the benefit of the underwriter, Lohre v. Aitchison, L. R.,

and immunities of citizens in the several States, within

the meaning of article 4, section 2 of the Constitu2 Q. B. D. 501. MASTER AND SERVANT.

tion of the United States, that provision being apNegligence: scope of employment.-The defendant's plicable to natural persons only. W. U. Telegraph Co. carman, without his master's permission, and for a

v. Mayer, treasurer. purpose of his own wholly unconnected with his mas

2. Foreign corporation may carry on business only by ter's business, took out the defendant's horse and cart,

legislative consent.-Foreign corporations can exercise and on his way home negligently ran against the plain

none of their franchises or powers within this State, tiff's cab and damaged it. The course of the employ

except by comity or legislative consent. That consent ment of the carman was, that, with the defendant's

may be upon such terms and conditions as the General horse and cart, he took out beer to customers of the

Assembly under its legislative power may impose. Ib. defendant (a brewer), and in returning to the brewery

3. Privilege of carrying on business not property. he called for empty casks wherever they would be

The privilege that a foreign corporation enjoys by leglikely to be collected, for which he received from the

islative consent of exercising its corporate powers, and defendant a gratuity of ld. each. At the time of the

of carrying on its business within the State, is not accident the carman bad with him two casks which he property within the meaning of article 12, section 2 of had picked up on his return journey at a public house

the State constitution. Ib. which his master supplied, and for which he after

DOWER. ward received the customary 1d. Held, that the car In property sold by assignee of husband.-A married man had not re-entered upon his ordinary duties at woman joins her husband in executing a mortgage. the time of the accident, and therefore the master | The assignee of such mortgage becomes assignee in was not liable. Rayner v. Mitchell, L. R., 2 C. P. D. insolvency of the husband, and sells the mortgaged 357.

property to defendant under the general authority of NEGLIGENCE.

the Probate Court, no special proceedings having been Licensee : invitation: concealed danger.-A barge of

instituted, to which the wife was made party. The prothe defendant bemg unlawfully navigated on the river ceeds of sale being more than double the amount of T., the plaintiff, a waterman, complained to the man

the mortgage, go into the hands of the assignee, who in charge, who referred him to R., the defendant's fore

pays himself his debt out of the general funds of the man; the plaintiff went to defendant's wharf in order

husband's estate, and during his life-time. Held, that to speak to R., and whilst he was there a bale of goods,

upon the death of the husbaud, the mortgage having by the negligence of the defendant's servants, fell upon him and injured him; the plaintiff had no warn- | * From advance sbeets of 28 Ohio State Reports.

been discharged, his widow is entitled to dower in the |dications to other hands. Among the cases of interest whole property. Ketchum v. Shaw. .

contained in the volume we notice these: Sawyer v. PARTNERSHIP.

Turpin, p. 29. A change in the form or even the sub

stance of a security within four months of bankruptcy 1. Liability of partner for contracts of copartner.

is protected if the first security was unimpeachable, The liability of one partner for the contracts of

and no greater value is given to the creditor than he another, when not estopped from denying the liabil.

had before. Re The Massachusetts Brick Co., p. 58. ity, is founded on the relation they sustain of being

The stockholders of a trading corporation agreed to each principal and agent in the joint business. That

lend money to the company in proportion to their relation is, therefore, the true test of a partnership,

respective shares. One of them made the loan by and the liability rests on the ground that it was in

giving his note which the company indorsed and agreed curred on the express or implied authority of the

to care for at maturity. It failed to take it up for party sought to be charged. Harvey v. Childs.

fourteen days after maturity, when the promisor paid 2. Facts constituting partnership - Participation in

it. Held no suspension of commercial paper under the profits of a business, though cogent evidence of a

the bankrupt law. Pratt v. Curtis, p. 87. It seems partnership, is not uecessarily decisive of the question.

that to render a voluntary deed for the benefit of wife The evidence must show that the persons taking the

and children fraudulent as to creditors, it would be profits shared them as principals in a joint business,

enough to prove that the grantor was in a doubtful in which each has an express or implied authority to

position in respect to solvency. Wrentham Manuf. Co., bind the other. Ib.

ex parte Southwick, p. 119. A receipt not negotiable SURETYSHIP.

and intended as a memorandum of indebtedness by Waiver of defense of fraud by surety.Where a per- the maker thereof to the holder, does not come within son, with knowledge that he had been induced to sign the rule of law in Massachusetts that one who indorses the promissory note, on which suit had been brought, a note not being the holder of it, is an original promas surety, through the agency of the principal maker isor. Re James McGlynn, p. 127. It is not illegal to and payee, by fraudulent representations that would hold a court of the United States on a day appointed have been for him a valid defense in the suit thereon, by the president of the United States and by the govafter the note had matured, with a full knowledge of ernor of the Commonwealth as a day of thanksgiving, the facts constituting the fraud, but ignorant that the and a meeting of the creditors of a bankrupt on that fraud was a defense in law, voluntarily requested the day was held valid. Re Krueger, ex parte Bugbee, p. payee to extend the time of payment of the note, 182. Letters written by one partner to another conwhich was done, and upon that consideration promised cerning a lawsuit which the partners expect to begin to pay. Held, he thereby waived his defense to the and do presently after begin are privileged. The Belnote. In an action on such note, a parol waiver of knap, p. 281. A ship manned with landsmen only such defense by the surety, voluntarily made upon a while being towed by a tug collided with another sufficient consideration, upon a full knowledge of all vessel. Held, that the tug was prima facie liable. In the facts, is binding. Rindskopf v. Doman.

re Peter Kelley, p. 339. A judge of the United States

Court can, under the extradition treaty with Great TAXATION.

Britain and the statutes, upon due complaint issue a What is not voluntary payment of taxes.- Where a

ere a warrant for a supposed criminal without a previous corporation is assessed on its gross receipts, under the

application being made to the president. In re Dugan, provisions of “an act for the assessment and taxation

p. 367. The extradition treaty with Great Britain does of express and telegraph companies" (S. & S. 769-771),

not give the accused a right to be confronted with the and pays such assessment to avoid the penalties and

witnesses against him. Re Cote, p. 374. A farmer disabilities incurred by a refusal to pay, but under pro

who occasionally sold horses, cattle and bay, held not test, and after notifying the treasurer that an action bound to keep books as a tradesman under section 29, would be brought to recover back; such payment is of the bankrupt law. The volume is, as is the case not voluntary, and an action may be maintained to with all works published by this firm, elegantly printed recover back the amount so paid, if the tax is illegal. and bound. W. U. Telegraph Co. v. Mayer, treasurer.


Digest of the Published Opinions of the Attorneys-Gencral and BOOK NOTICES.

of the Leading Decisions of the Federal Courts, with reference to international law, treaties and kindred sub

jects. Washington, D. C.: W. H. & D. H. Morrison, 1877. LOWELL'S DECISIONS, Vol. II.

To the student of international law and to every one Judgments delivered in the Courts of the United States for the District of Maxsachusetts. By John Lowell, LL.D., Dis

interested in the various subjects embraced under that trict Judge. Vol. II. Boston: Little, Brown and Com head this digest will prove of great value. The opinpany, 1877.

ions of the attorneys-general which form a consideraTHERE is an old saying, speaking slightingly of one ble part of the unwritten law upon these subjects, I who acts as his own lawyer, and it is also suggested have to most readers been heretofore practically inaciu another saying that a physician is not able to cure cessible, but an effort has here been made to give a his own ailments, but we think a like principle would reference to every published decision relating thereto not apply to the reporting of decisions, and that a and arising upon questions coming before the departjudge can be his own reporter not only with safety, ment of State. The leading decisions of the Federal but with a certainty of having his decisions produced courts upon all the titles named in the rolume are given, in better form than could be the case if another uuder- and in those of treaties and extradition it is intended took the labor. The volume before us is so excellently to embrace all decisions bearing upon these subjects. prepared that we trust that it may be long before The work upon the digest seems to be carefully and Judge Lowell commits the task of reporting his adju- | accurately done, the statements of principle are full but concise, the arrangement of titles is methodical cited as an authority on “set-off," and yet, I have and judicious, and the cross references sufficiently nu- been unable to find in any Court of Appeals case a merous to answer the needs of every one. The work, more lucid or satisfactory presentment of the right of therefore, forms an excellent compendium of interna a court of equity to enforce a set-off, not within the tional law, and being well printed and bound will un- letter of the statute, than is found in the opinion of doubtedly meet with a favorable reception from the Andrews, J., at pp. 537-539 of that case. profession.

Without looking further I became convinced that,

notwithstanding the author's preface and his work, BENNETT'S FIRE INSURANCE CASES.

" the necessity of an examination of the reports them. Fire Insurance Cases: Being a collection of all the reported selves" still exists, and that the “Digest of the New

Cases on Fire Insurance in England, Ireland, Scotland and America, from the earliest period to the present

York Reports" (vols. 2 and 3) is not the very best of time, chronologically arranged. Vol. V. Covering the modern compendiums. period 1865 to September, 1875. By Edmund H. Bennett. New York : Hurd and Houghton. Boston: H. O. Hough

Hoping this communication may lead to the detecton and Company, 1877.

tion and exposure of any other errors that may be This collection of cases is indispensable to the prac- found to exist in the work referred to, titioner who has to do with insurance law, and that

I am, very truly, yours,

J. D. description must include nearly every one of the pro NEW YORK, September 29, 1877. fession who is engaged in active business. In the compass of five volumes are embraced all the decis

COURT OF APPEALS DECISIONS. ions relating to the subject of fire insurance which are THE following decisions were handed down on Tuesscattered in the regular reports through, we suppose, 1 day, October 9, 1877: nearly four thousand volumes, and which are accessi Judgment affirmed – McGinn v. People; Coburn v. ble in that form to not more than one in ten of the People.- Judgment affirmed, with costs - Ganson v. practicing lawyers throughout the country, and even | Tifft; Ferguson v. Helfenstein: Putuam v. Furman; to these only with difficulty. In fact, it would take a

Church v. Cropsey ; Hill v. Newichawanick Co.; Moreperson so long a time to find what he probably wanted

house v. Yeager. -- Order affirmed, with costs — Chase that it would be economy for him to procure these v. Bibbens. - Motion denied – McLean v. Freeman. volumes as a guide, if nothing more. But all the val

- Appeal dismissed, with costs – Allen v. Meyer. uable decisions are given in full, and those of minor

- Order of General Term and Special Term remerit are given sufficiently to include every thing

versed, with costs of one appeal – Harrison v. Gibof value in them. The present volume contains 539

bons. Order granting new trial reversed and judgcases, and embraces every thing that appears in the ment of Special Term affirmed, with costs - Hubbell reports during the period of ten years previous to v. Blakeslee.- Order of General Term reversed and September, 1875. The head-notes are carefully pre

judgment ordered for plaintiff on verdict, with costs pared and can be relied upon as accurate. The state - Powell v. Powell. --- Judgment of General Term ments of facts are brief but sufficiently full. In every reversed, with costs of this appeal, and case sent back respect the volume is worthy of commendation. Of to referee to make further findings as to matters emcourse, the mechanical execution is first class. Every

braced in the 12th and 13th requests – Potter v. Carbook issued by these publishers is a model of excel penter. lence in printing and binding.

The following decisions were handed down Wednes

day, October 10, 1877: CORRESPONDENCE.

Judgment affirmed, with costs - Parhan v. Moran;

Hall v. Easton.— Appeal dismissed, without costs to BARBOUR'S DIGEST OF NEW YORK REPORTS. either party as against the other — Petrie v. Adams. To the Editor of the Albany Law Journal:

- Judgment reversed and new trial granted, costs SIR- In the preface to the “Digest of the New

to abide event - Ward v. Atlantio and Pacifio TeleYork Reports," Mr. Barbour says: “That a digest

graph Co.; Same v. Same; Rawley v. Brown.-Judgshould be sufficiently full to give a clear idea of the

ment modified by giving judgment for return of the points decided without the necessity of an examina

canal boat, aud in default of return, that plaintiff retion of the reports themselves." Having a case on hand

cover the amount due on the mortgage, with interest on the question of " set-off," I turned to that heading

and the expenses reported by referee deducting the (vol. 3, pp. 519-521) to see if the author's views of the

sum received on sale of horse and harness, and as cases thereon agreed with my own. Fancy my sur

modified affirmed, without costs to either party in this prise on discovering that two of the principal cases on

court as against the other — Allen v. Judson. set-off, viz. : Smith v. Felton, 43 N. Y. 419, and Smith

On the last-mentioned day the court made this v. Fox, 48 id. 684, are not cited under that head.

order: Even the casual reader will confess that the decis

Ordered, That the court take a recess until Monday, ions in both these cases are extremely important, the

November 12, 1877, and that the call of the present former being, I think, the first explicit recognition by

calendar then be resumed. the Court of Appeals of a right of set-off in equity outside the statutes: the latter citing and distinctly

NOTES. following the former case.

THE October number of the American Law Review Turning to the “ Table of Cases," I found Smith v. 1 contains the following articles: Presidential ElecFelton cited at p. 234, vol. 3, under “Partnership," tions, by George F. Edmunds; the Court of Star and Smith v. Fox at p. 203, vol. 2, supporting “ Assignee Chamber, by the late Emory Washburn; Lord Abinneed not sue as trustee,” for which, as reported, it is ger, by C. H. Hill; the relation of master and serclearly no authority whatever.

vant in the light of some recent decisions, by William Again. Bathgate v. Hasken, 59 N. Y. 533, is nowhere F. Wharton. The usual well selected and well pre

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