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WHEN PAYMENTS UPON ILLEGAL ASSESSMENTS RECOVERABLE.

NEW YORK COURT OF APPEALS-SEPT. 25, 1877.

PEYSER V. MAYOR OF NEW YORK.

Money involuntarily paid on an illegal assessment may be recovered back. If the assessment is regular on its face, so that its collection can be enforced by seizure or sale, and evidence aliunde is necessary to show its invalidity, money paid thereon is paid involuntarily or by coercion by law. Coercion in fact and coercion by law defined.

APPEAL by plaintiff from a judgment of the Gen

eral Term of the Supreme Court in the First Department, affirming a judgment in favor of defendants. The action was brought to recover the amount of an assessment paid to defendants under these circumstances: In the latter part of July, 1869, plaintiff received a notice from the bureau of collection of assessments of the city of New York, stating that an assessment had been made upon his property and confirmed. The plaintiff then paid the amount of the assessment under protest. An action was brought by plaintiff and others, and the assessment was declared invalid, after which plaintiff brought this action to recover back the amount paid.

A. R. Dyett, for appellant.

D. J. Dean, for respondents.

FOLGER, J. The reversal of the assessment and the setting it aside as illegal and void, is conclusive that the money obtained upon it by the defendants was got from the plaintiff without primary right. In such case the general rule is, that the money ex æquo et bono belongs to the plaintiff and is held by the defendant for his use. The law raises an obligation on the part of him who has received the benefit of it, to make restitution. It is upon this principle, that an action is maintainable to recover back money collected in satisfaction of an erroneous judgment which has been reversed after payment made. Bank of United States v. Bank of Washington, 6 Pet. 8; Stinges v. Allis, 10 Wend. 355; Clark v. Pinney, 6 Cow. 297. But in actions to recover money paid in such case, another principle comes in and must be observed. That is, that the payment must be involuntary, which is tantamount to saying that it must be compulsory, from coercion either in fact or by law. The reason of this principle is, that a person shall not be permitted, with knowledge that the demand made upon him is illegal and unfounded, to make payment without resistance, where resistance is lawful and possible, and afterward to choose his own time to bring an action for restoration, when perchance his adversary has lost the evidence to sustain his side. I have spoken of coercion in fact and coercion by law. By the first, I mean that duress of person or goods, where present liberty of person, or immediate possession of goods, is so needful and desirable, as that an action or proceedings at law to recover them, will not at all answer the pressing purpose. Duress of person is exemplified in Forshay v. Ferguson, 5 Hill, 154; Eudie v. Shimmer, 26 N. Y. 9. The cases of Maxwell v. Griswold, 18 How. (U. S.) 242, 256, and Harmony v. Bingham, 12 N. Y. 99, illustrate what is duress of goods. It may be well to say that there can be no pretense in this case of a coercion in fact. There was no taking or threat of taking

goods. The oral protest was of no import, save to show that there was not an assent to the proceedings. Fowler v. Lance, 59 N. Y. 603, 610. Coercion by law is where a court having jurisdiction of the person and the subjectmatter has rendered a judgment which is collectible in due course. There the party cast in judgment may not resist the execution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he cannot resist the execution of it when execution is attempted he may as well pay the amount at one time as at another and save the expense of delay. It may be well to say, that if the judgment is not afterward reversed, but is invalid for any collateral reason, or the process issued upon it is illegal, payment with knowledge of the fact would perhaps be voluntary, which seems a sound distinction taken by Emott, J., in Lott v. Sweezy, 29 Barb. 87-92. To each case of coercion by law, as is above given, are to be added those quasi adjudications of inferior tribunals, such as assessors of taxes or assessments, where their proceedings are regular on their face, and on presentation make out a right to have and demand the amount levied, and to. collect it in due course of law by sale of goods or municipal lease of real estate. Unless void on their face, they have the force of a judgment; the party is legally bound to pay and has no lawful mode of resisting. The only remedy is a reversal of the adjudications. Until reversed they give the collector of the tax the right to take and sell goods and the assessment remains a prima facie valid lien upon real estate. Bank of Comm'l v. The Mayor, 43 N. Y. 184-8.

There is no clashing here, with the case of N. Y. & H. R. R. Co. v. Marsh, 12 N. Y. 308. In that case there was wanting another element, which is assumed to exist, in the cases above supposed. There had been no reversal of the assessment of tax, in that case. There had been no alteration of the rights and positions of the parties, and the action was brought upon the same state of facts, as existed when the payment was made. Besides, in that case, the collector did not assert a right to seize property then and there. There was no taking nor imminent danger thereof. He was out of his bailiwick, which fact was as well known to the plaintiff as to him, and at the time payment was made as when action was commenced. Nor is it the same as Fleetwood v. The Mayor, 2 Sandf. 475. There it was apparent upon the face of the proceedings, that there was no foundation for them, no ordinance having been adopted for laying the assessment. The owner of the land assessed could always have relied upon this as a defense to an action to disposses him. The lessee of the city would have needed to show and would have failed to show an ordinance for the assessment. The assessments were not a cloud upon his title, warranting an action to remove an apparent lien. Marsh v. City of Brooklyn, 59 N. Y. 280; Washburn v. Burnham, 63 id. 132. To warrant an action to recover back money paid by coercion of law upon a judgment, or tax levied, or assessment laid, it must appear that the judgment or proceedings were prima facie regular, so as not themselves to furnish evidence of their own invalidity, and it must also appear that the rights and positions of the parties have been changed since the payment was made, as by a reversal for error, or a setting aside for irregularity or illegality.

By the setting aside of the assessment in the case in hand the last of these requirements is made out. We

must look into the case to see if the first is. The complaint alleges, that the defendants imposed and put upon record what appeared to be and was an assessment on the plaintiff's land, and that the same became and was an apparent lien and incumbrance thereon. The answer admits that the assessment was duly imposed pursuant to law. The petition for the vacating of the assessment, which was given in evidence, alleges on the ground of illegality that there was included in the amount, the cost of works not authorized by the ordinance in pursuance of which the assessment was laid. The order of the court setting aside the assessment recites that it satisfactorily appears that each irregularity took place. This is sufficient to show that the illegality of the assessment consisted in something aliunde the record which would be produced by a municipal lessee, to establish his right to possession of the lot assessed. It was in a fact of which the plaintiff would have needed to make proof on his part to rebut the prima facie case made against him. It thus appears that the plaintiff fulfilled the other requirement of a payment involuntarily made.

It follows that the complaint was erroneously dismissed at the trial, and the judgment should be reversed.

"All concur."

THE BAR AND THE COURTS.

THE Court of Appeals of this State has instituted a

much-needed reform by the promulgation of a body of rules regulating the admission to the bar, the most prominent features of which are the requirement of a three years' clerkship in an attorney's office, and two years' practice as attorney, before beginning to practice in court as a counselor, with certain allowances of time in the period of clerkship to graduates of colleges and universities as well as students in law schools. Down to a very recent period the only qualifications for admission required by the courts in this State were the male sex, full age, citizenship of the United States, and ability to pass an examination which was little more than a sham. This extraordinary facility was the result of the constitution of 1846, and was due to the democratic hostility, of which the constitution was in large part the expression, to all artificial qualifications of whatever nature for any calling or office. Man as man, in the simple character of a furless animal, probably never stood so high in this or any other country as at that time, and the notion that he needed any training or preparation for any duty or pursuit was almost treated with scorn as an antiquated delusion. The long period of apprenticeship (seven years) which had previously stood in the way of young males desirous of pleading causes, had come to be regarded as an instrument of oppression devised by the well-todo for the exclusion of "the poor boy" from a lucrative calling; and in order that he might have a full chance all restrictions on his admission were remorselessly swept away, and the relations of the bar to the public placed on exactly the same footing as those of dealers in butter. In other words, the practice of the law was converted into a trade, and placed under the rule of caveat emptor. If you wanted to know whether a lawyer understood his business or not, or was honest and trustworthy or not, you were told to try him: and if you found him incompetent or were cheated by him, your remedy was to go to another. The effect of this on the profession in this city- the bar of which

ought to stand as high as any in the world - we need hardly describe. It became, like any other trade, a very large body of dealers of all sorts. Lawyers swarmed, just as dry-goods men swarmed - some of them men of learning and high character, others, and by far the greater number, shiftless, ignorant persons, trying to get a living in any way they could. When you said a man was a member of the bar, you said nothing as to his character or attainments. You simply said that he was ready to conduct litigation, for any one who employed him; just as if you said he kept a store, you thereby gave no indication of the quality of his wares or the state of his credit. One had to inquire about a lawyer's standing with the same care and precaution as, bnt with much more difficulty than, about the standing of a dealer in Yankee notions. The scandal and mischief of this state of things became apparent, of course, before many years, and of late the examination for admission has been somewhat more rigid, but has still remained a totally inadequate test of skill and capacity. As a preparation for a profession like the law, the members of which really assist in an important degree in the administration of justice, and in which mistakes inflict such injury on innocent people, knowledge is not enough. Long familiarity with procedure is also requisite, and it is shocking injustice to allow this familiarity to be wholly acquired in actual practice and at expense of clients.

The change, therefore, which the Court of Appeals has just made is not simply a reform in legal education: it is another striking indication of the reaction against the hazy sentimentality which the triumph of the democrats thirty years ago embodied in so much State legislation, and with so much resulting mischief and demoralization. Thinking people have begun to see, though only through much bitter experience, that although theologians may have greatly exaggerated the natural man's depravity, yet as he comes into the world he is "no great thing" after all; that it is not what he is, so much as what he is capable of becoming, that is admirable and valuable about him; and that the best and kindest thing that can be done for him is not letting him run loose like a sacred ox, and then trying to see hidden meaning in his pranks, but providing the means by which his great powers cau be cultivated and his base inclinations curbed. deed, if we said that education and preparation were the ends as well as the means-nay, even more than the means of civilization, we should not be far wrong.

In

The evils of an ignorant, and untrained, and undisciplined bar are, however, not by any means confined to the mischief done to clients, as the history of the profession during the last thirty years in this State has abundantly shown. One of the highest functions of the bar is the vigilant criticism of the bench. Toward the judges the bar represents the public in a sphere in which the public cannot act for itself, and in matters of which a layman can form no adequate opinion. Whether a judge is good or bad is something which in a proper state of things the bar ought to be relied on to tell us; if corrupt or incompetent, it is the bar which ought to rid us of him. This would be true, even if our mode of selecting judges were the best now in use, and if the dignity and emoluments of the bench were, as they once were, such as to make judgeships eagerly sought by, or at all events not unwelcome to, leading lawyers. It is doubly true with

a system of selection which is probably the worst ever devised in a civilized country, and in the presence of the fact that the bench as a general rule does not tempt the foremost men in the profession. For this function of watchful criticism, however, an educated and disciplined bar is necessary- that is, a bar prepared for its work by some process of training and selection, and controlled in actual practice by some tribunal charged with a censorship of professional morals. To assign it to a heterogeneous body, such as ours, would be useless, even if the bench were all it ought to be. On such a bench as came into existence in this city between 1856 and 1870 a bar such as this, of course, was no check whatever. In fact, it may be said to have entered into an alliance with the corrupt judges for the spoliation of the public and the degradation of justice. We believe it is strictly true that during those fourteen years when the judges were daily waxing bolder in their excesses, until finally Barnard and Cardozo laid aside even the pretense of decency, and some of their brethren were moving rapidly forward in their tracks, no open word of warning or remonstrance came from the bar. There was among the better class of lawyers plenty of grumbling in their offices. Some refused to take cases before certain judges, and others went so far as to say that they would advise no young man to begin the practice of the law in this city; but none dared to raise his voice publicly against the awful scandals which were disgracing the State and nation, or make any organized effort to bring the ermined malefactors to justice. In fact, in the very last days of Barnard's iniquities, he was able to get a testimonial as to judicial character in a published opinion from a leading member of the bar; and we have little doubt that, had he demanded one from the whole bar, it would have received an extraordinary number of signatures.

The truth is that only lawyers of a high character and courage will ever make an enemy of a judge if they can possibly help it, because, unless they can drive him from the bench, he has it in his power to ruin their practice. Indeed, he must be a singularly and notoriously bad man if he cannot, when he is attacked, rally them around him and get them to roll their eyes with him over these monstrous assaults—so full of danger to the administration of justice on his judicial integrity. In this city it was left to the press, with its limited knowledge and its liability to damaging mistakes to fight the public battle against the company of knaves who had seized on the administration of justice, and to rouse the popular faith in the possibility of successful resistance. When the uprising came and it was plain that the position could be carried, there were plenty of lawyers to head the assaulting column and do the work of final expulsion. But it must ever remain a shameful memory that Barnard could say that down to the fall of the Ring no lawyer or lawyers of eminence had ever openly called attention to his iniquities. From a recurrence of such disgraceful episodes in forensic history we have no doubt the improvements in legal education will help to save us, but the public spirit and courage of the profession cannot be roused and its sense of duty to the public be quickened in a year; these things will come slowly, and through a more complete recognition in legislation and professional discipline of the weakness as well as of the strength of human nature.-The Nation.

RECENT BANKRUPTCY DECISIONS.
ASSIGNEE.

When entitled to disbursements: priority.-Where an insolvent who has made a general assignment for the benefit of creditors is afterward adjudged a bankrupt, the assignee under the assignment is entitled to his disbursements legitimately made in the execution of his trust, but is not entitled to priority as to his compensation as such assignee, nor as to attorneys' fees incurred in connection with the assignment, as to such items he stands in the same position as other creditors, and must prove his claim. U. S. Dist. Ct., Minnesota. In re George Lains, 16 Nat. Bankr. Reg. 168.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

Delivery of schedules: laches of assignee in bankruptcy.-Delivery of schedules is not necessary to the validity of an assignment for the benefit of creditors. A delay of more than three months in filing the petition in bankruptcy after the execution and delivery of an assignment for the benefit of creditors, will deprive the assignee in bankruptcy of the right to the possession of the property assigned. U. S. Dist. Ct., W. D. Michigan. In re Kimball, Austin & Co., 16 Nat. Bankr. Reg. 188.

COMPOSITION.

Notes given in: practice in proceedings for.-Where notes given upon a composition settlement fall due pending action upon a petition to review the order of confirmation, and the petitioners refuse to receive payment, the money must be paid into court in order to absolve the bankrupt from liability. Under such circumstances, upon a subsequent demand of payment by the creditor, and refusal by the bankrupt, the former is entitled to a summary order for payment. U. S. Dist. Ct., S. D. New York. In re Reynolds, 16 Nat. Bankr. Reg. 176.

INJUNCTION.

Against assignee for the benefit of creditors of bankrupt.-Upon the institution of proceedings in bankruptcy an assignee for the benefit of creditors may be enjoined from interfering with the debtor's assets before an adjudication has been had. U. S. Dist. Ct., Minnesota. In re Skoll, 16 Nat. Bankr. Reg. 175.

JURISDICTION.

1. When State courts have.-State courts have jurisdiction of actions brought by an assignee in bankruptcy to set aside mortgages alleged to have been made in fraud of the bankrupt act. Sup. Ct., Illinois. Isett v. Stuart, 16 Nat. Bankr. Reg. 191.

2. Service of process.- Personal service made upon one of the members of an insolvent firm out of the jurisdiction of the District Court, in which the petition is filed, is not sufficient to give the court jurisdiction to adjudicate as against the party so served. Ib.

3. Impeachment of jurisdiction.-The jurisdiction of the bankrupt court may be impeached in collateral actions. Ib.

PRACTICE.

1. Non-appearance by creditor in bankrupt court, effect of: waiver.-A creditor having a lien upon the bankrupt's estate may decline to appear in the bankrupt court, in which case he will be unaffected by the proceedings unless the proper steps are taken to sell the estate and clear off all incumbrances; or he may elect to prove his debt in the bankruptcy proceedings and rely upon his security, and such action will be a waiver of his right to institute any suit or proceeding

in any way inconsistent with such election. Sup. Ct. App., Virginia. Spilman v. Johnson, 16 Nat. Bankr. Reg. 145.

2. Attorney for assignee purchasing property.-An objection that the purchaser at a sale made by the assignee in bankruptcy was the attorney for the assignee, and as such was incapable of purchasing, cannot be raised in a collateral action, but must be made in the bankrupt court. Ib.

3. When United States District Court should not restrain proceedings in State court.-Where an assignee sold property incumbered by a chattel mortgage, without an order of court, and the mortgagee brought trover against the purchaser in a State court, in a county where the parties and their witnesses resided, held, that, even if the District Court had jurisdiction to restrain the prosecution of the suit, it ought not to do so under the circumstances of the case. U. S. Dist. Ct., E. D. Michigan. In re Cooper, 16 Nat. Bankr. Reg. 178.

BOOK NOTICES.

KEILEY'S INSOLVENT ASSIGNMENTS.

The Law and Practice of Insolvent Assignments in the State of New York, with forms. By William S. Keiley, Counselor at Law. Second edition. New York: Banks & Brothers, 1877.

WE

E have before spoken of Mr. Keiley's book (ALBANY LAW JOURNAL, June 10, 1866, vol. 13, p. 419), and attempted to show its many faults. On learning that Mr. Keiley had issued a second edition of his work, we had a faint hope that it would be an improvement on the first, but we are disappointed. There are worse errors and more of them in this edition than appeared in the other. Mr. Keiley still continues indulging in the reprehensible practice of frequent and wholly unnecessary repetition, and in the make up of the book he has adopted the same methods of inflating its volume. Many of the instances of reiteration and repeated quotation which we pointed out in our notice of the first edition occur in the volume before us. We are pleased to see that Mr. Keiley has withdrawn the preposterous legal propositions mentioned by us, but we are very sorry that Mr. Keiley in this edition has advanced others equally absurd. We cite but two instances. On page 37 he gives his view of the purpose of filing the assignment or a certified copy of it. He says: "This [the assignment] should be filed, not for the purpose of vesting any title in the assignee, for his title is absolute for the purposes of the trust by virtue of the assignment; but the object is that any purchaser at an assignee's sale might have recourse to this certified document as a necessary link in his chain to the title thereof, in any action which he or others claiming under him may see fit to bring." The other original proposition of Mr. Keiley's which we refer to, is certainly sound, for it amounts to a truism; no sane man would question it, yet we cannot conceive of what benefit a knowledge of it would be to any person, lawyer or layman. He takes up the subject of the "requisites for an assignee," and says: "Any one can be chosen as an assignee, whether he be a creditor or not, unless he may be legally or physically incapacitated" (p. 39), but he does not explain how one " may be legally or physically incapacitated;" in other words, he says simply that the law permits one to be chosen assignee except where it does not permit him to be chosen! In his preface to this edition he says: "I send out the work, trusting that my labor

may not have been in vain, and that may be the means of enlightening those not professed in the law as well as lightening the labors of those who are." In the only instance where he has attempted the "enlightening" process, he has only made the darkness visible.

Mr. Keiley attempted in the former edition to reenact a repealed law. In this edition he cites as law a General Term decision (filling half a page with a syllabus of it), without stating that the decision, on the only point in the case, was reversed in the Commission of Appeals, or making any other comment; yet on the very next page he states without comment of any kind the decision of the Commission which reversed the decision of the General Term. Gates v. Lyon, on pp. 93, 94.

We cannot imagine for what purpose the book is published. It is, as we have said before, worse than worthless; and its publication with the expectation of imposing it upon the profession is about the greatest exhibition of effrontery we have ever seen or heard of. Language too strong cannot be used in condemning it. We can ascribe its faults to naught else than Mr. Keiley's ignorance of law, inability to reason logically, and incapacity to marshal his ideas and give utterance to them with clearness.

TEXAS COURT OF APPEALS REPORTS, VOL. I. Cases Argued and Adjudged in the Court of Appeals of the State of Texas, during the Austin and Tyler Terms, 1876, and the Galveston Term, 1877. Reported by Jackson & Jackson. Vol. I. St. Louis: Soule, Thomas & Wentworth, 1877.

ence.

The Court of Appeals of Texas was organized on the 6th of May, 1876, under a constitutional provision which went into effect April 18, 1876, and an act of the legislature adopted May 6, 1876. It is a court of appellate jurisdiction, but it and its judges have the right to issue writs of habeas corpus, and such writs as may be necessary to enforce its own jurisdiction. It consists of three judges, and the concurrence of two is sufficient to decide a case before it. It entered upon business immediately upon its organization, and the present volume records its decisions for the first year of its existAmong the cases of interest in the volume are these: Chiles v. The State, p. 27: It is here held that betting in itself is not forbidden by the law of the State, but only certain kinds of betting, such as at games, tables and banks prohibited by law. Therefore, a bet upon the result of a game of ten pins, the alley for the playing of such game being licensed under the State law, was held not unlawful. It was held, however, in O'Tuttle v. The State, p. 365, that a bet upon an unlawful game, played upon a licensed table suitable for such game, was unlawful. Dorsey v. The State, p. 33; Rogers v. The State, p. 187; and Jenkins v. The State, p. 346, are cases of rape. In these cases it is held that evidence impeaching the general character of the prosecutrix for chastity, is admissible, not to excuse the offense, but to raise a presumption of consent; and in the latter one it was also held that to convict, there must be shown something more than a mere want of the female's consent; there must have been resistance on her part. Dill v. The State, p. 278: The evidence of an accomplice must be corroborated, not merely as to the commission of the offense, but also by evidence of the fact that the accused was engaged in the commission of it. A wife of an accomplice is a competent witness to corroborate his testimony. Masten v. The State, p. 525: Entry through an open

outer door, and then through a latched or locked inner door, with intent to commit felony, is burglarious. Johnson v. The State, p. 609: The admission as a witness of a girl ten years old, who stated that she attended Sunday school, and knew it was wrong to tell a lie, held not error. Plasters v. The State, p. 673: If a party whose arrest is attempted under legal process, knows the purpose and official character of the officer, and the arrest be otherwise lawful, it is his duty to submit, and resistance is unjustifiable, though the officer makes no declaration of his official character and purpose. Waddell v. The State, p. 720: Though a son may by force aid a parent when attacked, he cannot assist when the parent is the assailant. The reporting is thoroughly well done, and the mechanical execution of the book is good.

WOOD'S FOLKHARD'S STARKIE ON SLANDER AND LIBEL.

Folkhard's Starkie on Slander and Libel, including Pleading and Evidence, civil and criminal; also Malicious Prosecutions and Contempts of Court. By Henry Coleman Folkard, Esq., Barrister at Law. Fourth English Edition. With Notes and References to American Cases. By H. G. Wood. Banks & Brothers, New York and Albany, 1877.

The profession will thank Mr. Wood for reproducing, in so attractive a form, this valuable work. Starkie on Slander has been long and favorably known, but the work as rehabilitated by Mr. Folkhard has not before been seen here. The last-named gentleman has, however, made some very important additions to the original treatise, not only by bringing the case law therein referred to down to the present time, but by pointing out the distinction between the former and the present practice of the English courts, so that the reader may be better able to determine the applicability of late English cases involving questions of practice. The notes added by Mr. Wood are to the American practitioner no less valuable than the other parts of the work. Every American case of value is referred to, from the earliest to the latest, and the principles enunciated fully and correctly given. Almost every section throughout the volume is annotated, and Mr. Wood's notes are thoroughly reliable. This is, therefore, an excellent treatise on the American law of slander and libel. The volume opens with a general commentary upon the subject. Then follows the law of slander, including the various kinds of slander, then the law relating to slander and libel, including privileged communications. Next the pleadings in civil actions founded upon slander and libel, the remedies and the rules of damage and practice. The closing chapters of the book are devoted to the criminal law relating to the subject, and the pleadings and practice thereunder. The book contains over a thousand closely printed pages has a table of cases cited, and a fair index, and is well printed and bound.

ANGELL ON CARRIERS, FIFTH EDITION. A Treatise on the Law of Carriers of Goods and Passengers by Land and by Water. By Joseph K. Angell. Fifth Edition, revised and enlarged. By John Lathrop, of the Boston Bar. Boston: Little, Brown & Company, 1877.

The works of Mr. Angell have long been the standard authorities upon the subjects concerning which he treats. Among them the one on carriers has occupied a prominent position, as is attested by the numerous editions called for. The later editions have been prepared by Mr. Lathrop, whose labors are visi

ble in almost every page. The rapid development of the law relating to the subject treated of, since steam has become the chief motor power on both land and sea, has required numerous additions to be made, although the statements of principle are unchanged. Five hundred cases have been added to this edition. The new matter, amounting to about forty-four pages, has been incorporated with the additions made by the same editor to the fourth edition, and is printed in notes designated by the letters of the alphabet, while the notes of the author are designated by numerals. The book itself is too well known to the profession to require a statement of the contents of the volume here. It is sufficient commendation to say that the editor's work is, in every respect, worthy of the treatise upon which he has done it, and the profession will find no book which compares with the one before us, devoted to the now important subject of common carriers. The work is well indexed, contains a table of cases cited, and is printed and bound in the very best man

ner.

CORRESPONDENCE.

DIGEST OF "New York" REPORTS.

To the Editor of the Albany Law Journal: SIR-In your JOURNAL of October 13, "J. D." complains that certain cases named are not to be found in the above Digest under the head of "set-off." It ought to be held a sufficient answer to say (if it be true) that they do not belong there.

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Smith v. Felton, 43 N. Y. 419, will be found under the head of "Equitable defense." 2 Dig. 584. Also, under the head of ·Partnership." 3 id. 234. And a reference to the Table of Cases will show where the case is to be found. I submit the case was properly placed in each instance.

Smith v. Fox, 48 N. Y. 674 (not "684 "), is merely cited (2 Dig. 203) in this manner: "On this subject see Kerr v. Blodgett, 48 N. Y. 62; Smith v. Fox, id. 674." This reference was designed only to aid the reader in making a further examination, if desirable, not to sustain the heading. "Assignee need not sue as trustee," which was sufficiently supported by the case first cited there (Hoagland v. Trask).

Bathgate v. Haskin (not Hasken) is not a case of setoff, but of counter-claim. The reporter's head-note contains not one word respecting set-off. The case is found at page 461, section 13, vol. 2. Digest, under the head of Counter-claim;" also at page 693, under the head of "Foreclosure," where it is stated that in a foreclosure suit a counter-claim may be set up as a defense.

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All a digester can do is to distribute the several points decided, under the appropriate heads, according to the best of his judgment. There is no absolute rule or practice on this subject that I am aware of, and probably no two persons will agree as to the precise method of marshaling cases decided. Certainly no two authors have agreed, as yet, upon that point.

I trust that when lawyers become a little more familiar with the construction of this digest they will have less trouble in finding particular cases, or the cases upon any given subject. In the meantime the cross-references, which are intended to be pretty full, will aid them. O. L. B.

October 15, 1877.

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