eration of forbearance to proceed against such person to have him adjudged a bankrupt, if at the time of the promise the creditor had not the right, under the Bankrupt Act, to institute such proceedings. A promise made under such circumstances is without consideration and not binding. Ib.

3. Who may not institute proceedings in bankruptcy.- | Under the Bankrupt Act of the United States, no creditor who has received a preference, knowing at the time, or having reasonable cause to believe, that his debtor is insolvent, is authorized to institute proceedings in bankruptcy against him. Ib.

CONSTITUTIONAL LAW.

1. Tax on receipts of railway company. - The imposition by the act of 1872, ch. 234, of a tax of one-half of one per centum upon the gross receipts of all railroad companies worked by steam, incorporated by, or under authority of the State, and doing business therein, in lieu of all other taxes, is a valid exercise of constitutional power. Such tax is not a direct tax upon the property of the companies within the meaning of the 15th article of the Bill of Rights, but a tax upon the franchise of said companies, measured by the extent of their business. State v. Phil., Wilm. & Balt. R. R. Co.

2. Exemption of corporation from taxation by clause in charter: what not violation of agreement for exemption.-The appellee was formed by a union of the Baltimore and Port Deposit Railroad Company, extending from the city of Baltimore to the Susquehanna river, The Wilmington and Susquehanna Railroad Company, extending from said river to the Delaware and Pennsylvania line, and The Philadelphia, Wilmington and Baltimore Railroad Company, extending from the Delaware line to Philadelphia, thus forming a continuous line from Baltimore to Philadelphia. The Wilmington and Susquehanna Railroad Company was also formed by the union of a company chartered by that name, by the State of Delaware, and the Delaware and Maryland Railroad Company, incorporated by the State of Maryland, and running from the Susquehanna river to the Maryland and Delaware line. Section 19 of the act of 1831, ch. 296, incorporating the latter company, provided, "That the said road or roads, with all their works, improvements and profits, and all the machinery of transportation used on said road, are hereby vested in said company * ** and the shares of the capital stock of said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen by the State's assenting to this law, except upon that portion of the permanent and fixed works of said company, which may be within the State of Maryland." By the consolidation of these companies, the qualified exemption granted by the act of 1831, ch. 296, to the Delaware and Maryland Railroad Company, became vested in the Philadelphia, Wilmington and Baltimore Railroad Company. Under the act of 1872, ch. 234, a tax of one-half of one per centum was imposed upon the gross receipts of the Philadelphia, Wilmington and Baltimore Railroad Company in lieu of all other taxes. In a suit by the State to recover the tax thus imposed, it was held, 1st. That under the exemption granted by the act of 1831, ch. 296, it was not competent for the legislature to impose a tax upon the gross receipts of that portion of the road of the defendant which was formerly the Delaware aud Maryland railroad. 2d. That as there was no exemp

tion from taxation in the charter of the Baltimore and Port Deposit Railroad Company, the legislature had the right to tax the gross receipts of that portion of the road of the defendant, which formerly constituted the Baltimore and Port Deposit railroad, being the only other portion of the road of the defendant lying within the State of Maryland. 3d. That the plaintiff was entitled to recover one-half of one per centum on the same proportion of the gross receipts of the defendant, on its entire road, as the length of the Baltimore and Port Deposit railroad, constituting a part of the road of the defendant, bore to the whole length of the defendant's road. Ib.

CONTRACT.

Argument void for uncertainty. — A written agreement under seal, for the lease of a store for a term certain at a fixed rent, contained the following words: "The said A. D. (the lessee) to have the preference of renting said property so long thereafter as it shall be rented for a store." In an action for the breach of this stipulation in the contract, it was held that the stipulation was void and inoperative for uncertainty. Delashmutt, executor, v. Thomas.

PARTIES.

Tax payers of a municipality may inroke equity to re strain municipal authorities acting ultra vires. - Tax payers of a municipal corporation may invoke the restraining powers of a court of equity, and the court will entertain jurisdiction of their suit against such corporation and its officers, whenever the latter are shown to be acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such unauthorized acts may affect injuriously the rights and property of the parties complaining. St. Mary's Industrial School v. Brown.

PARTNERSHIP.

What will constitute partnership. - Where two persons agree to carry on a trade or business for their mutual benefit, one to furnish the money and the other to perform certain labors and services, and each to share the profits to be derived from such trade or business, they become liable as partners to third persons, although in fact no partnership was contemplated by the parties themselves. It is not material that the exact proportion of profits to which each was entitled should appear. Rowland v. Long.

TAXATION.

1. Power of municipal corporation as to: appropriations to benevolent institutions.-The mayor and city council of Baltimore has no authority to make appropriations, by the exercise of the taxing power, to sustain or aid institutions, however benevolent and charitable in their character, which do not owe their creation to the municipal power conferred on the city of Baltimore, and were not created for the city by the legislature of the State, as instruments of municipal administration, but which are separate and distinct corporations, composed of private individuals and managed and controlled by officers and agents of their own, and over which the city has no supervision or control, and for the management of which there is no accountability to the city whatever. St. Mary's Industrial School v. Brown.

2. Right of governor and mayor to appoint trustees does not make institution a municipal agency.-The fact that the governor of the State and the mayor of the

city of Baltimore each appoints, every two years, three persons to represent the State and city in the board of trustees of the St. Mary's Industrial School for Boys under the amendment of its charter, by the act of 1874, ch. 288, in no manner changes the nature of the institution, nor makes it a municipal agency. The fact that the governor of the State is empowered (act of 1870, ch. 391) to appoint ten, and the mayor of the city of Baltimore five of the directors of the Maryland Industrial School for Girls, the board being composed of thirty, does not put the State nor the city in such relation to the corporation as to make it either a public, State or municipal institution. Ib.

3. Nor does the fact that the city owns ground on which institution is located.-The mere fact that the city of Baltimore may own the ground upon which the building is erected, or that the city, in its deed to the institution, has reserved certain privileges in the use of the hall, as part of the consideration for the grant, cannot constitute the Maryland Institute for the promotion of the mechanic arts, a municipal agency. Ib. 4. Limit of municipal powers.-Municipal powers are delegated, and depend upon legislative charter or grant; and the corporate authorities can exercise no power which is not, in express terms, or by fair and reasonable implication, conferred upon the corporation. Ib. 5. What municipal corporation may not do.-Municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. The authority must be given either in express words, or by necessary implication, and it cannot be collected by doubtful inferences from other powers, or powers relating to other subjects, nor deduced from any consideration of convenience or advantage. While the city of Baltimore has ample power delegated to it to provide for the foundlings, the insane, the indigent infirm and helpless, and for the correction of the vicious and vagrant portions of its population, such provision when made must be under the control, and subject to the supervision, of municipal authority. Ib.

TRIAL.

Criminal trial: jury judges of law and fact: instruction of court. The jury, in the trial of criminal cases, being the judges of law as well as of fact, are not bound by any instruction given by the court. They are at liberty to find a verdict in direct opposition to the instruction. In the trial of criminal cases the court may advise the jury as to the law and legal effect of the evidence, but is not bound to do so, and being a matter within its discretion, its refusal to do so cannot be reviewed on appeal. Broll v. State of Maryland.

WATER-COURSE.

1. Action for obstructing mill-race; negligence not gravamen of. — In an action for obstructing the race leading to the plaintiff's distillery by throwing or placing therein, or by cutting and allowing to fall therein trees, branches, logs, stumps, brush, chips, stakes, leaves, etc., whereby damage accrued to the plaintiff, the question is not whether the defendant has acted with due care, but whether his acts have occasioned the damage complained of. If the acts complained of were done by the defendant, or by his agents or servants in the course of their employment, they were unlawful invasions of the plaintiff's rights of property, and it matters not that they were done without negligence. Negligence is not the gravamen of the action. Lawson v. Price.

2. Acts of injured party releasing other from liability. - Where wrong is done by the obstruction of a millrace, it is the duty of the party injured to avoid the consequences of such wrong as far as he reasonably can. If, by labor, or a reasonable outlay of money, he can stay or avoid the consequences of the wrong, he should do so. All consequences resulting from his own willful failure or gross neglect to use timely and reasonable precaution to prevent an extension or increase of the injury, should fall upon himself. Ib.

3. When notice not necessary before action brought. — The placing an obstruction in a mill-race is an infringement of the owner's absolute right of property, and the continuing such obstruction is equally an infringement of the right, and this the party placing the obstruction in the race is bound to know at his peril, and he has no claim to notice from the owner to remove the obstruction before action brought. Ib.

BOOK NOTICE.

NEW HAMPSHIRE REPORTS, VOL. LVII.

Reports of Cases in the Superior Court of New Hampshire. Daniel Hall, State Reporter. Vol. LVII. Concord: Josiah B. Sanborn, 1877.

THE

HE New Hampshire Reports are among the least valuable of State reports. Very seldom does a case of great importance appear in them, and the weight attached to the decisions of the court of last resort in that State does not appear to equal that given to the determination of like courts in the adjoining States. Yet the bench and bar of New Hampshire contain as able lawyers as are anywhere to be found; indeed some of the very foremost of the bar of America own that as their native State. It is probable that the habits of the people of the State are not favorable to litigation, and the judges have not enough material to enable them to produce opinions which will be of interest to the world outside. The present volume, which is an average one, contains few cases of general value. Among them we notice only these worthy of mention. Rowell v. Railroad, p. 132. A statute made railroad companies liable for damage caused by fire or steam escaping from their locomotives, and gave them, respectively, an insurable interest in property exposed along the line of their roads. Held, in an action for injury done by fire from a locomotive, that the doctrine of contributory negligence did not apply. Golding's Petition, p. 146. An infant cannot execute the office of judge, and the office of justice of the peace is a judicial office. Thompson v. Smith, p. 306. A coffin and grave clothes purchased by defendant for his mother-in-law, who died a member of his family, held necessaries so as to charge a trust fund. King v. Bates, p. 446. A conditional vendee of property holds it as bailee for the vendor. Brandon National Bank v. Hatch, p. 460. When the defendant has been properly arrested upon civil process the subsequent commencement and pendency of proceedings in bankruptcy by or against him furnishes no ground for his discharge from arrest. Watson v. Elliot, p. 511. The doing of an act which the defendant was obliged by law to do cannot be pleaded as a satisfaction. Tyler v. Flanders, p. 618. Hearsay in regard to the birthplace of a deceased person, is not admissible unless it comes from the relatives of such person. The reporting is fairly done, and the volume is well printed and bound.

Judgment affirmed, with costs-Davison v. Associates of the Jersey Company; Cobb v. Knapp; Marine Bank of Buffalo v. Fiske; Carrington v. Ward: Cockroft v. Muller.- Order affirmed, with costsThe People ex rel. Cooke v. Wood; New York Guaranty and Indemnity Co. v. Roberts.- - Appeal dismissed, with costs-The People ex rel. Siebrecht v. Clancy; Waring . Somborn. Judgment reversed and new trial granted, costs to abide event - Booth v. Kehoe. Order of General Term and Special Term reversed and motion granted, with costs in Supreme Court and this court to be paid by plaintiff to Thompson- Verdin v. Slocum (Thompson, purchaser, appellant). Motion granted, on payment of $10 costs of motion and $25 costs of argument, and upon plaintiff's stipulating to submit upon printed briefs if respondent consents thereto - Merwin r. Star Fire Insurance Co.

NOTES.

ANOTHER addition to the list of legal serials has just made its appearance. It is published by Messrs. E. B. Myers & Co., of Chicago, and is entitled The Chicago Law Journal. The first number contains only opinions in cases determined by various courts in Illinois, with notes by the editor to the cases deemed important. The purpose of the publisher, as announced, is to give the opinions of the Appellate and Supreme Court of Illinois, the important opinions of the Federal courts sitting in that State, and the leading cases of the United States Supreme Court. Each number is to contain 48 pages, and a number is to appear once in four weeks, or oftener if necessary. The first number contains twenty-five cases with fair headnotes. The annotations appended to several of the cases seem to have been carefully prepared, and we believe they will be found of considerable practical value to the profession, in Illinois especially.

The manner in which a great proportion of our laws came into being is well illustrated in an essay read by Prof. Barbeck of Cambridge, England, before the Antwerp congress. He said, "An attention to the history of law will, I think, further show that laws were established before penalties were invented for enforcing them, and that a penalty was exacted, because a law had been broken, as a consequence of a breach of the law; not, originally at least, as a part of the law itself. Take, for example, the rule of the road, I believe no trace of the existence of such a rule a hundred years ago can be found. It originated in no command of a political superior, nor in any command at all. About fifty years ago, if I remember rightly, the existence of the rule was denied by Lord Abinger, when chief baron of the Exchequer. It gathered strength because convenience demanded that there should be such a rule when thoroughfares became crowded. The rule required two carriages meeting each other to keep their left side of the road. And the rule became at length so well known in England, and so generally observed, that when an accident occurred in consequence of a carriage taking the right hand instead of the left, the owner of that carriage was held liable to make good any damage done to the other. The judge who first gave this decision did not

make the law. He gave the decision, because he found the law already made- made by general, though tacit, consent. The judge merely recognized and declared the law. If he had not found it existing, he would have refused to act upon such a rule, as was the case with Lord Abinger. There are, moreover, many legal maxims, the observance of which depends on no penalty which can properly be said to be attached to the breach of them, but on the voluntary observance of them by those intrusted with the administration of the law. As for example, that an assignee gener ally takes no better title than his assignor; that a married woman cannot contract so as to render herself eral rules of the highest importance." personally liable; and almost innumerable other gen

The London Standard thus speaks of the bar in Russia: The bar is to this day far behind in its standard of professional honor and dignity. A system obtains of bargaining direct with the client on the "payment by results" principle. In criminal cases the prisoner will agree to pay his counsel three or four times as much if he secures him an acquittal, and the counsel takes good care to get a large part of this money in advance. A barrister will even descend to frightening his client by exaggerated statements of the danger he is in; and, further, will not scruple to demand, also in advance, payments for "secret purposes"— that is, for bribing influential officials. Indeed, the bar in Russia is mercenary and rapacious; and, as the division of duties recognized in England between the solicitor and the barrister is not known in Russia, sharp counsel are brought face to face with their unhappy clients, and take the measure of their means and ignorant credulity. The barrister regulates his fees in much the same way as an advertising quack doctor would do, and carries on the action or cure in the lowest commercial spirit. During the hearing of a case in the New Zealand Supreme Court recently, one of the jury suddenly became insane and was on the same day placed in an asylum. In the city of London Court during the past year there were 19,023 suits instituted.

a woman

It is not often that a convicted criminal who has no ground of error to appeal upon can have his case tried over again before a more lenient jury, yet such has been the good fortune of three men, named Greenwood, Wild and Jackson, who were convicted at the Liverpool Summer Assizes of a criminal assault upon known as the Townley Park outrage-and sentenced by Mr. Justice Hawkins each to ten years' penal servitude. Subsequently three other men were indicted and tried for the same offense at the Manchester Assizes. In the interval between the two assizes public opinion in Lancashire was much excited on the subject, and a considerable amount of evidence was forthcoming tending to show that the three men tried at Liverpool had been wrongly convicted. On the second trial, which took place before Mr. Justice Lush, the convicts were called as witnesses, and the result of their evidence and the statements of other witnesses was that the jury expressed an opinion not only that the accused arraigned before them were not guilty, but also that no offense of the kind imputed had actually been committed, and Mr. Justice Lush undertook to bring the matter before the Home Secretary. He did so, and the Secretary has recommended the pardon of Greenwood, Wild and Jackson.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, DECEMBER 15, 1877.

CURRENT TOPICS.

THE general rules of practice adopted pursuant to section 17 of the new Code by the convention of justices and judges, held in this city on the third of October last, have been promulgated. They are to take effect on the first day of January next. While the greater number of them are reproductions of the rules now in force, changes of considerable importance have been made. Nearly all of the changes are in the direction of a more strict and careful practice, and will meet the approval of the profession generally. A single one, however, seems to us not called for, and we are confident that its enforcement will be productive of more evil than good. We refer to Rule 20, requiring the plaintiff applying for an order for publication, under section 438, subd. 1, of the Code, to show that he has used due diligence to make personal service. The rule is proper enough in its application to subdivisions 4, 5 and 7, but why should plaintiff be required to show that he has used due diligence to serve within the State upon a foreign corporation or a non-resident natural person? The rules are ninety-one in number, six less than the present number, but this change is largely due to the consolidation into single rules of provisions now separated into two or more. Very few matters touched upon in the present rules have been omitted, and the new ones embrace several subjects not heretofore provided

for.

The changes of importance made by the new rules may be summarized as follows: Examinations for admission to the bar are required to be conducted both orally and in writing (Rule 1); personal service of a summons cannot be made by a person under eighteen years of age, and, in divorce cases, a sheriff serving the summons may be examined by the court as to his knowledge of the identity of the defendant (Rule 18); the provisions in Rule 31 of those now in force are essentially altered, especially by the omission of the one making certain acts on the part of an attorney or party a contempt (Rule 25); the referee to take proof and report upon the interests of parties in partition actions shall be selected by the court (Rule 70); the provision in the present Rule 85, limiting allowances upon a life estate to one-half the principal sum, is omitted, its VOL. 16.- No. 24.

validity, we presume, being doubted (Rule 76); the provision of the present Rule 87, requiring the court to order a reference to take proofs in uncontested divorce suits, is omitted (Rule 78). By Rule 85, a receiver appointed in supplementary proceedings applying for leave to sue must present the written request of the creditor in whose behalf he was appointed for the bringing of such action, or else give security for costs; in other cases he must show that the estate for which he acts is sufficient to pay costs. in case of an adverse decision or else he must give security. Rule 80 makes an important and proper regulation: Except in litigated cases, where reference is made by consent, no person, unless he is an attorney in good standing, can be appointed sole referee for any purpose, nor shall a person be appointed who is the partner or clerk of the attorney or counsel making application, "or who is in any way connected in business, or who occupies the same office with such attorney or counsel." Rule 88 limits the authority of receivers in the appointment of counsel, and Rule 89 prescribes that the affidavit necessary to procure an order for the examination of a party before trial shall specify the facts, showing compliance with subdivision 4 of section 872 of the new Code. In other respects the rules are substantially similar to those now in force.

Section 439 of the new Code gives considerable trouble to those having occasion to apply for orders for publication in actions of foreclosure. By it the plaintiff is required to present to the judge a verified complaint. As the only verified complaint in the case is usually on file in the clerk's office, having been placed there at the time the lis pendens was filed, the applicant is compelled either to take the judge to the clerk's office or procure an order for the production of the complaint in court. The difficulty can perhaps be obviated by making out in the beginning duplicate complaints, both of which are sworn to, but this involves trouble, and sometimes delay, which seems needless.

On Tuesday the contract for publishing the Court of Appeals Reports for the ensuing three years was, as usual, awarded to Mr. A. Bleecker Banks, he being (though not as usual) the lowest bidder therefor. The bids or proposals were to print, bind and keep on sale the New York Reports at the following price per volume: Mr. Banks, 48 cents; C. VanBenthuysen & Son, 74 cents; Weed, Parsons & Co., 90 cents; Gould & Son, 94 cents; Little & Co., $1.10; John D. Parsons, Jr., $1.15; Baker, Voorhis & Co., $1.45. These reports seem to have a peculiar fascination for publishers, as they seem willing and anxious to publish them at ruinously low prices. A volume such as required by the contract cannot possibly, under the most favorable conditions, be

produced for less than from $1.30 to $1.50. The loss on 3,500 copies, of each four volumes a year, at 48 cents a volume, is something of an item, even for a law bookseller. This is on the supposition that the publisher adheres to his contract — a supposition that has few facts in its favor.

The Irish Lord Justice of Appeal has delivered another speech denunciatory of the Irish Reports, in which he abuses those unfortunate volumes in his most vigorous style. The occasion of his remarks was the delivery of judgment in a case which had been determined in the Court of Appeal. He refused to publicly give the reasons for his judgment, stating that, if he did so, he took the "risk of seeing those reasons laid before him by and by in print, in a guise of parody," misleading to the parties litigant and discreditable to the court. The whole controversy between the Lord Justice and reporters was thoroughly aired, and the facts, as they appeared to him, stated. The animadversions of the Lord Justice upon the reports are said by those who know to be deserved, and the examples he gives of erroneous reporting seems to justify all he says. Fault is found, however, with his refusal to make public his reasons for judgment in the cases decided by him, the Irish Law Times "impeaching" the act "as highly unconstitutional," "and contrary to a settled principle of our judicial constitution," and protesting against any member of the bar applying to his lordship in private for those reasons, a course which he requests all those interested in the adjudicated cases to follow. In connection with the matter, the Lord Justice made some statements which many of the junior bar considered as reflecting upon them, and which they resented with becoming spirit. In every way Jonathan Christian, as the Irish Law Times calls him, seems to be making everybody about him angry and uncomfortable.

Associate Justice Harlan was formally inducted into office on Monday last. The proceedings were of an impressive and interesting character. After he had taken what is known as the "iron-clad oath" in the robing room, the justices formed in procession and entered the Supreme Court Chamber, Judge Harlan following in the rear, clothed in the judicial gown. He halted at the clerk's desk while the others took their seats. The Court was formally opened, when the Chief Justice announced that he had received the commission of Mr. Harlan as associate justice, which he directed the clerk to read. After such reading, the Chief Justice said: "The oath will now be taken." Judge Harlan read it in an audible tone, holding the paper containing it in one hand, while the other was placed upon the Bible. After this ceremony was completed, the new justice took the seat on the extreme left, formerly occupied

by Justice Hunt, who now sits on the right. The other judges then rose and bowed to their colleague, and the regular business of the court was resumed.

We mentioned last week as one of the advantages of the French judicial system the unanimity of the decisions of the Appellate Courts. This unanimity is probably rather apparent than real, the dissenting judges in any given decision making no manifestation, considering it better that the conclusion adopted should not be weakened by making public the want of harmony in the court adopting it. A very different method obtains here. The dissenting judges feel called upon to write out at length the reasons which induce them to disagree with their brethren, and their opinions are usually published, together with the prevailing ones. The result is, that the force of the decision, as a precedent, is very much weakened, those interested in cases involving a similar question saying that it is not the determination of the court, but of a part of it only. Therefore, when there is a change in the individual membership of the court, attempts are made to procure a reversal of the rule previously established, and too often these attempts are successful. Besides, the circumstance that a court was divided upon a question it has determined, encourages subsequent appeals thereto in like cases, the litigant hoping that by chance some of the judges who voted with the majority will, in his cause, change their mind. We would not, indeed, have the law as determined by our courts, like that of the Medes and Persians, absolutely unalterable, but it ought to be changed only for the most cogent reasons, and as a step toward stability, we would suggest the discontinuance by dissenting judges of the practice of writing opinions, and by reporters of indicating dissentients.

NOTES OF CASES.

THE validity of a marriage between slaves in a

slave State before the Emanicipation, contracted with the consent of their masters and according to the custom of marriage among slaves, was considered in the case of Minor v. Jones, 2 Bradf. 289. The court held that, if such marriage was contracted in a manner which would be valid if it occurred here, it must be adjudged a valid marriage when drawn in question in the courts of this State. This seems to be the only safe rule to follow. A similar question arose in the case of Colston v. Quander, 1 Va. L. J. 689, recently decided by the Virginia Special Court of Appeals. There a free negro married a slave woman with the consent of her master. This marriage, when made, was contrary to the existing statute, but the court held that the cohabitation of the parties after such statute was no longer in force validated the marriage, and rendered the