constitutional treatment, which is always the best for the body politic as for the body natural.

The tenant act of 1870 has had a coach and four run through it by Lord Justice Christian. But the nature of that measure was so well considered that

CURRENT TOPICS.

The city officials of New York are having a considerable experimental instruction in the law of arrest. The ex-controller seems to be so far the most unfortunate, as he has been put in a real jail. It seems likely that the remainder of the arrested will, in time, follow, as their bondsmen are becoming uneasy and wish to withdraw. It is probable that, in view of the manifest popular approval of such a course, the prosecutions already undertaken will be carried to the extent of the law. There seems to be in the

A DIFFICULTY SURMOUNTED. The constitutionality of an act of congress is a question that ought never to arise. On the other hand, so long as States have any rights, these must be protected against congressional encroachments. There is a way, however, for steering between this Scylla and Charybdis, which will leave congressional and State rights in the present status, and yet prevent the discussion of any act of congress before our federal tribunals, on the ground of unconstitutionality. If every bill, whose constitutional character might be open to question, were submitted to a majority of the judges of the supreme court of the United States before it received the president's sanction, and if the judges directed amendinents, which were adopted afterward by congress, there never could be any subsequent contention that the measure thus sanctioned was unconstitutional. Qui bono to litigate a point that had been already decided by the very court before whom it should be tried.

The separation of the judiciary from the legislative, which we have copied from England, is not carried in that country to the extent of shutting out the judges from advising parliament on the probable legal result of a contemplated measure. Judges and clergymen are excluded from the house of commons, because they are represented in the house of the lords by the superior members of their class. The lord chancellor, who is the head of the English law department, is, ex officio, chairman of the house of lords. He is placed there to see that no untechnical or unconstitutional measure is passed by the peers through accident or mistake. Why should not our constitutional judiciary, the judges of the supreme court of the United States, be publicly consulted upon all questions of constitutional law that may be involved in measures before congress. This would greatly simplify the work of legislation and prevent any heartburnings that may arise, as in the case of the legal tender act decisions, in respect to the adjudications of our ultimate court of appeal in constitutional causes.

public mind, however, a very indefinite notion about what has been really done, most of the people think

rants. The sheriff's officers are, in consequence, blamed for treating their prisoners with ordinary civility. It would, doubtless, have given greater satisfaction to those individuals who look upon a police officer as a sort of Nemesis, if the taking into custody had been performed in the most effective theatrical style, with the accompaniment of handcuffs and a terrible voice, but, as none of the prisoners tried to escape, it is possible that the method actually pursued was just as proper.

One of the New York dailies suggests the establishment of a tribunal of the nature of the French tribunal of commerce as a remedy for the evils of the referee system. The principal alleged evil in that system is, so far as we can discover, that the fees flowing from it are not divided between a sufficient number of persons, the several judges bestowing their favors on a limited number instead of scattering the same ad libitum. If there are abuses we cannot see how a new kind of court would do any thing more than change their character. It is claimed that, in mercantile matters, a mixed court, composed of merchants and lawyers, would do its duty better and more satisfactorily than one composed wholly of lawyers. If this is true the present system affords ample opportunity for such a court, the law making no limitation as to the calling from which the referee must be chosen. To be sure the selection is usually made among members of the bar, for the very good reason that a single referee is usually desired, and it would be a piece of folly to appoint, in such a case, a person

unfamiliar with the rules of law. If a tribunal of commerce is established, we anticipate that it will be found about as valuable as the tribunal of conciliation some years ago set up in the sixth judicial district of this State.

Lynch law appears to have become chronic in Indiana. Every week or so we hear that a new victim has been offered as a sacrifice upon the altar of justice in an irregular manner. This mode of procedure, though sometimes allowable in a border settlement, where the legitimate exercise of civil power

is impossible, has no excuse in a community where the law of the land is dominant. Besides, these Indiana dispensers of punishment do not perform their work in accordance with the code under which they pretend to act. The genuine Judge Lynch of the backwoods, though inflexible and summary, is neither cruel nor corruptible, and seldom prejudiced. He always accords as fair a trial as possible under the circumstances, and sometimes acquits. When he convicts he yields to the unfortunate individual, whom he feels it his duty to punish, a reasonable time to settle his affairs, both in this world and the world to come. But his pretended followers give the accused neither trial, time nor mercy. They usually embitter his last hours with reproach and insult, and add by every means in their knowledge to the physical pain of his death. If, as we believe to be the fact, these Indiana mob-murders are perpetrated, not from a desire to punish men known to be guilty of crime, but in order to gratify a lust for human suffering, it is time for the authorities of Indiana to put some of the murderers in a place where they will find it expedient to yield obedience to law.

The practice of enacting that an illegal act already done shall be held to have been lawful, which has prevailed to some extent in various State legislatures, has received an illustration lately in the State of Massachusetts. A citizen of that commonwealth, having one wife living, took unto himself another as wife, under an erroneous impression that he had a right by law so to do. Upon being informed of his mistake he proved himself equal to the occasion by procuring the passage of an act declaring the second marriage legal and the offspring thereof legitimate. Tiring at length of the second woman also, he applied to the court for a decree of divorce, which was refused on the ground that the second marriage was void, the act of the legislature to the contrary notwithstanding.

By the laws of this State a fire insurance company is required, before commencing business here, to make a deposit for the benefit of policyholders in the United States. In view of the careless manner in which these companies are shown by the Chicago fire to have done business, further precaution seems necessary to secure policyholders against loss. If the deposit made here by certain companies who have recently gone under had been for the benefit of those taking out policies on property in New York only, it would have saved our citizens much loss and trouble, without materially injuring those who lost in the Chicago fire. That a fire in a single city could sweep away the total assets of a large number of companies, located in places a thousand or more miles away, and seriously impair those of nearly all the companies in the country, is indicative of how great risks insur

ance men will take. That the local companies went under is not a matter of wonder, but the failure of companies in San Francisco and Boston, and in various cities and villages between, is without excuse. And this is not the first time that a single fire has given these associations a shaking up. The great fire in New York did the same, and, in a less degree, that in Portland. They will, however, go on taking all the chances they can, caring only for the premium, until legislative authority steps in and compels them to give ample security that they will be able, when called upon, to perform their part of the contract.

The case of Cobb v. Hatfield, which we elsewhere print, besides the interest of the question decided, contains some remarks, of especial interest to the lawyers of this State, upon "the hazardous practice, which is becoming so general, of risking an appeal to this court (the court of appeals) from an order granting a new trial, with a stipulation, made necessary by statute, that, in case the order is affirmed, judgment absolute shall be given against the party appealing."

OBITER DICTA.

We know a young man who has had his shingle out fourteen years, and the only case he ever had was a bookcase, which he had made for him when he started.

At New Orleans a ten year-old negro boy, who had been arrested for theft, refused counsel, and pleaded his own cause so eloquently that he was straightway discharged.

A remarkable feature in Jeremiah Mason's practice was his great power of keeping reticent, when others would damage a cause by demonstrativeness. In the celebrated Avery case he showed this quality preeminently.

Coroners' juries at La Crosse call it "probable murder" when a corpse is found with seven stabs in the back. They order things better in Missouri: "The deceased came to his death by the improper care exercised by the Tom Taylor vigilance committee," was the verdict of a coroner's jury in that State. They are, perhaps, more used to it.

Randolph, secretary to Gov. Andros, writes to Povey, in England, under date of January, 1688: "I have wrote you of the want we have of two or three honest attornies, if any such thing is in nature. We have but two; one is West's creature, come with him from New York, and drives all before him. He also takes extravagant fees, and for want of more the country cannot avoid coming to him, so that we had better be quite

without them than not to have more."

Hobson is a very well-read and a very shrewd lawyer, but he never pays any bills. It is unnecessary to add, that he has a great many of them. He believes that not only "base is the slave that pays," but "base the abject wretch who even talks of paying." It was whispered around the bar that Hobson was at work

writing a book. Somebody asked what the subject was, and got as an answer: "I understand it to be a treatise on the 'Evasion of Payments.""

Rufus Choate's remark about the libretto suggests the phrase with which an eminent law professor and judge asked for a programme at a place of public amusement: "Will you just be good enough to hand me the statement of facts."

The same gentleman was once consulted by a young attorney upon a case of percolating waters, etc. "But, you remember, my dear sir," said he, "the familiar maxim that Cujus est solum, ejus est ad—ad- ejus est ad-both ways!"

Harrison Gray Otis, the celebrated lawyer of Boston, had a peculiar habit of lounging while thinking out his speeches. He would sit for an hour or more, his chair canted backwards and his feet resting against the wall, gently stroking his nose with his thumb and finger. It was understood that he was not to be interrupted on such occasions. His students jocularly called the process milking his brain.

The Fisk-Stokes case came before Judge Brady the other day in New York, on a motion to vacate the stay of proceedings, and, in the report of the proceedings had, we find the following spicy passage.

Mr. Courtney: Will you modify it enough to permit my client to talk to me? Her mouth has been sealed tight by this injunction.

Judge Brady: Is your client a woman?

Mr. Courtney: Yes, sir, Mrs. Mansfield - a very handsome woman, too.

Judge Brady: Do you suppose any injunction could restrain her from using her tongue? I shall dissolve that ex necessitate rei.

In Woolrych's "Lives of Eminent Serjeants," the following interesting anecdote is told of Serjeant Pell. He was once applied to by a servant of his brother, to know how she should recover a sum of £60 which she had lent to her brother-in-law, but who positively denied the loan. The serjeant said he scarcely knew how to advise her, but at last he recommended her to go to a professional man, and to urge her debtor through him to go before a magistrate and swear to the fact of his owing her nothing. Voluntary oaths had not then been abolished. This was done. The man was requested to go before the justice, and, in default of his being unwilling to do so, was told that proceedings would be taken against him.

The parties went before the magistrate, the woman, her brother and brother-in-law. Now the justice was a man of some sagacity, and, finding that he was to administer a voluntary oath, determined to sift the matter. The debtor said that he would instantly swear to the effect proposed, and asked for the book.

"No, no, my friend," said the magistrate, "you shall not swear in that light manner. You must now repeat after me the words which I shall dictate to you." The justice then began in a very solemn tone: "I, do solemnly swear." This the man gulped down very well. "In the presence of Almighty God." Then, without repeating a syllable more, the knave fell upon the floor. "Thee art a villain, and has stolen

my sister's money," said her own brother on the instant.

GENERAL TERM ABSTRACT.

THIRD DEPARTMENT.

FEBRUARY AND APRIL TERM, 1871.

AGENCY — INSURANCE.

The defendant employed M., who was an agent for several insurance companies, at Augusta, Ga., as its agent at that place, under a special authority, whereby he was authorized to receive proposals for insurance against loss or damage by fire, and to make insurance by policies, which were executed by the proper officers of the defendant in blank, and supplied to him, when used, to be countersigned by him. The plaintiff had a quantity of cotton in a building at Howard's Landing, on the Chatahoochie river, waiting to be transported down the river, to Appalachicola, and thence to be shipped for Liverpool, and in November, 1865, made an agreement with M. to keep the same insured in the various companies for which he was agent until it was on board ship at A., and it was kept so insured from month to month. The cotton was removed from Howard's Landing, and arrived at A. on or about January 15, 1866. Pursuant to the original agreement with plaintiff, M. entered in his register an insurance of this cotton in defendant's company for $6,100, for one month from January 15 to February 15, received from plaintiff the premium, and, early in February, transmitted it to defendant. On the morning of February 15 the cotton, which was lying on a wharf at A., where it was first placed on its arrival, was mostly burnt. No policy was made out until after the fire. The fact of loss was communicated to defendant, but not the fact that the insurance was by parol. Held, that M. received, by the power of attorney, no authority to insure by parol, but only by policies of insurance; but that, as he was in business as an insurance agent, authorized by the defendant to solicit and act upon proposals of insurance, and when terms are agreed upon, to receive the premium for insurance, which, if done by the principal, would have been sufficient to bind it without a written policy, the public had the right to assume that, in dealing with him as the agent of the company, the agreement upon terms of insurance and payment of the premium, would operate to the same effect as though done with the company itself, and hence that defendant was bound by the contract of insurance made by him with the plaintiff, and liable for the loss.

The plaintiff having had a verdict at the court, the defendant's motion for a new trial was denied, and judgment for the plaintiff ordered upon the verdict. Ellis v. The Albany City Ins. Co. Opinion by Parker, J.

APPRAISAL OF RAILROAD DAMAGES.

This is an appeal from the report of commissioners appointed to appraise and determine the compensation to be made for real estate taken by the Rondout and Oswego R. R. Co. Held, that the testimony which was taken on the hearing and is annexed to the report must be considered as a part of the report, and, in reviewing the proceedings, it is proper to examine the questions which are presented thereby in connection with the report.

No objection was made to appointment of the commissioners. There was no appearance by the appellant. As to the value of the land, but one witness was examined before the commissioners. He testified that he lived in the vicinity, and knew, from what

others said, the value of the land there. This was competent evidence. It was not hearsay, but the expression of an opinion derived from knowledge as well as information from others.

The testimony of witnesses as to value in proceedings of this character is not controlling; the commissioners must decide according to their own judgment. An award without testimony is regular.

The evidence given by the engineer was properly admitted as to the intended use of the land, the circumstances under which it was taken, etc., as a part of the res gesta. There is nothing to show that it affected the commissioners in awarding the damages.

There is no force in the objection that the proceedings are void, because the last section of the act of 1866, chapter 648, under which the original petition was framed, embraces two subjects, one of which is not expressed in its title. This section relates to the same subject-matter, and there is no such discrepancy between this and the other purposes of the act as would authorize this court to hold that the act or any portion of it was void and in violation of the constitution.

The order appealed from, affirmed, with $10 costs of appeal. R. & O. R. R. Co. v. Deyo et al. Opinion by Miller, P. J.

BOUNDARY LINE.

In an action concerning a boundary line between adjoining owners, held, that, where an actual settlement of a boundary line has been made between adjoining owners, and they have acquiesced in such location for a considerable length of time, the boundary thus established shall remain undisputed. Twenty years is not essential. The time is not so important, if the proof be clear. Decker v. Haner. Opinion by Miller, P. J.

COMPLAINT.

1. In an action against the trustees of a school district, on an appeal from justices' court to the county court, held, that the complaint was insufficient, as it contained no averment that defendants were trustees, nor that plaintiff claimed to recover against them as such. As the powers of the defendants as trustees were limited, the complaint should have stated that they were authorized by a vote of the district, or in proper form, to make the contract on account of which the action was brought.

2. An application to amend was properly denied, as the amendment proposed would have entirely changed the cause of action from the one tried before the justice. Shuler v. Meyers et al. Opinion by Miller, P. J.

CONTRACT CONSTRUED.

The defendant delivered to one D. a pair of steers under the following contract: "This day, received a pair of two-year-old steers of J. K., and the said G. D. agrees to pay the sum of $77.50, and interest, or return the steers when they are six years old. And the said D. has no right to let them out, or hire them out, or trade them, or dispose of them in any way, till the said K. has his full pay and interest. And the said D. agrees to keep them well at all times, and run all risk; and, if they are disposed of, the said K. has the right to take possession of said cattle at any time."

D. kept them about two years, and then sold them to the plaintiff, not having paid the $77.50 and interest, or any part thereof. The defendant thereupon took them from the plaintiff's possession. Subsequently the plaintiff tendered to the defendant the $77.50 and interest, and $5 for his trouble, and demanded the cattle.

The defendant having refused to take the money and deliver up the oxen, the plaintiff brought this suit to recover their value. Held, that, by the contract, the title to the cattle did not pass to D., nor did the plaintiff acquire any title to them under D.'s sale to him, nor was there an executory contract of sale to D. He made no promise to purchase. He had only the option to purchase at any time within the four years. And this must be regarded-in view of defendant's right reserved to take possession of them at any time, if disposed of by D.- -as conditioned upon D.'s fulfilling his undertaking not to dispose of them. Defendant, therefore, was under no obligation to take the money tendered by plaintiff and return the cattle to him.. The plaintiff having recovered at the circuit, and judgment having been entered upon the verdict, the judgment was reversed and a new trial granted. Smith v. Kinnicutt. Opinion by Parker, J.

CRIMINAL STATUTE-CONSTRUCTION OF.

F. was indicted under the statute of 1864 (chapter 544, section 1), which provides as follows: "Any person or persons who shall knowingly sell or exchange, or expose for sale or exchange, any impure, adulterated or unwholesome milk, shall be deemed guilty of a misdemeanor." By section 4 of the act, the addition of water to the milk, offered for sale or exchange, is declared an adulteration.

The defendant, with others, took his milk, which had been so adulterated with water, to a cheese factory to have it manufactured into cheese. The milk of defendant and the other "patrons" of the factory, was, as it was delivered from day to day after being weighed, put into a commou vat and made up into cheese; an agent was appointed to sell it, and after the sale, the money which it brought was apportioned among the "patrons," according to the amount of milk each had delivered, after deducting the expense of making and selling. Held, that this was no sale or exchange of the milk, within the statute. The defendant having been convicted in the sessions, the conviction was reversed, the verdict set aside and a new trial ordered in the sessions. Flander v. The People. Opinion by Parker, J.

DIVORCE.

The parties were married in this State, and, after they had for some years cohabited together in this State, the plaintiff left and went to reside in the State of Iowa. There he instituted a suit in a court of that State for a divorce a vinculo matrimonii, on the ground of cruel and inhuman treatment, and final desertion by defendant of the plaintiff while the parties were domiciled in this State, and before the plaintiff became a resident of the State of Iowa, the defendant never having resided there. The only service of process or notice, upon the defendant in that suit, was at Columbus in this State, and no appearance was put in by or for her in the suit. That suit proceeded to judgment against the defendant by default, and judgment of divorce a vinculo matrimonii was perfected. Afterward, the plaintiff returned to this State and commenced this suit, for a vinculo matrimonii, against the defendant, on the ground of her adultery committed since the obtaining of the Iowa judgment. The defendant set up the proceedings and judgment in that suit as a bar. To this answer of the defendant the plaintiff demurred, and at special term the demurrer was overruled.