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cover from the customer for the loss sustained

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through the negligence of the latter. Possibly therefore, it was to prevent circuity of action that the banker was allowed to set up the negligence of his customer as a defense in an action by the customer to recover the amount. Or, as was said by Cleasby, B., in delivering the judgment of the Court of Exchequer in Halifax Union v. Wheelwright (L. R. 10 Ex. p. 192), the conclusion in Young v. Grote "is perhaps only an application of one of those general principles which do not belong to the municipal law of any particular country, but which we can not help giving effect to in the administration of justice-namely, that a man not take advantage of his own wrong, a man can not complain of the consequence of his own default against a person who was misled by that default without any fault of his own." The matter may also be put upon the ground that, whenever one of two innocent parties must suffer by the act of a third person, he who has enabled such third person to occasion the loss must sustain it. (Lickbarrow v. Mason, 2 T. R., p 70; cf. Arnold v. Cheque Bank, 1 C. P. D., p. 587). In Baxendale v. Bennett, 3 Q. B. D. 525. Lord Esher, then Brett, L. J., said that the observations made by the House of Lords in the case of Bank of Ireland v. Trustees of Evans' Charities, supra, had taken Young v. Grote, as an authority, but, as was pointed out by Charles J., in the present case (38 Solicitors' Journal 619), the remark seems to be erroneous. Lord Cransworth, indeed, expressly said that the case appeared to have been well decided. In the view of Charles J., the case above cited showed that a person who signs a negotiable instrument, with the intention that it shall be delivered to a series of holders, does incur a duty to those persons not to be guilty of negligence with reference to the form of the instrument. But even if this is so, Lord Esher was of opinion that, under circumstances such as those in Young v. Grote, and in the present case, the loss is due, not to the negligence, but to the subsequent crime of the person who fraudulently fills up or alters the instrument, and he seems to have thought that the doctrine of implied authority afforded a safer ground for supporting the decision in Young v. Grote. This, however, was not the ground on which that case was decided, and Lord Esher intimated that it ought no longer to be cited as an authority. At the same time the decision itself has been received with general approval, and, if the principle underlying it is not of general application, it is necessary to discover some special ground for limiting it to the case of banker and customer, or rather of principal and agent. This is the course suggested by the judgment of Rigby, L. J.-Solicitors' Journal.

DEATH OF JUDGE THEODORE MILLER.

Minutes of Court of Appeals.

HE death of Theodore Miller, late one of the Associate judges of this court, reminds us once more of the inevitable end which awaits us all, and imposes the duty of manifesting that respect for his memory which his long service with us deserves. He died on the 18th day of August last, during our summer recess, and to most of us unexpectedly and without warning: and we are left to that remembrance of him which naturally and surely flows from his constant love for his brethren and his patient and faithful discharge of official duty.

He was elected to a seat in this court November 7,

1874, and began his services with us at the beginning of the next year. He came to his new work with a valuable experience behind him, for he had been a district attorney for his county when the anti-rent troubles tested the nerve and courage of the officers of the law; then, for many years, a justice of the Supreme Court, and for some time presiding judge of the General Term, third department.

He had filled these positions with an ability and industry and learning which easily led to his election to the court of last resort. Upon our bench he developed the same vigorous and useful qualities. His chief characteristic, and indeed the one to which his success in life was largely due, was an untiring industry. Few men possessed in greater degree the capacity for patient and laborious study, for deliberative and exhaustive investigation. His opinions exhibited a familiarity with all that had been decided bearing upon the case before him, and a capacity for supplying it logically and with discrimination to the problem awaiting solution. quence, he was firm and courageous in his convictions, adhering to them with some persistence, defending them warmly and yet open to all just arguments, and ready to yield when satisfied that duty required it.

As a conse

Without seeking to recall the important cases in which he framed the judgment of the court and reasoned out its conclusions, it is due to him to say that his brethren, as they look back upon his opinions in the progress of their own duty, have gained an added respect for the sound judgment and careful study which characterized his judicial work. Near the close of his official career, his health somewhat failed and his sight grew dim, but he surmounted all difficulties with his characteristic courage and patience, and with such success that those who read his opinions are little likely to suspect how much of energy and unflinching will went to their preparation. He retired from the bench at the close of 1886, under the constitutional provision which somewhat abridged his term; but at his

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home at Hudson, surrounded by his family and friends, he still followed the action of the court, retaining his interest in its labors, and added to the rest and quiet of his retirement a constant thought of the burdens no longer his.

The end came peacefully at last, and he went to his reward. With respect for his successful labors, for the unbroken friendship of so many years, for his long and able and honorable judicial career, we order this tribute to his memory to be entered upon the records of the court, and that a copy be sent to his surviving family.

Abstracts of Recent Decisions.

DEED TO WIFE-CONSIDERATION.-When persons live together for many years on the mistaken belief that they are husband and wife, a deed from the man to the woman for the consideration of love and

affection is not void for fraud or undue influence. (Edwards v. Thomas [Penn]., 32 Atl. Rep. 580.)

FEDERAL OFFENSE-INTERSTATE COMMERCE LAW.

-The act of February 4, 1887, forbidding certain preferences, means preferences in transportation of persons or property. An indictment alleging only the issue of a free written pass, but not alleging any use of the pass, or of transportation under it, is fatally defective in substance, and therefore not a sufficient basis for removal under section 1014, Rev. St. (In re Huntington U. S. D. C. [N. Y.], 68 Fed. Rep. 881.)

JUDGMENTS PRIORITY OVER MORTGAGES.-Under the North Carolina Code, which provides, in section 685, that conveyances by corporations, whether absolute or by way of mortgage, shall be void as to existing creditors and torts previously committed, provided such creditors or persons injured shall commence suit within sixty days after the registration of the deed; and, in section 1255, that mortgages by corporations shall not exempt their property from executions on judgments for labor or materials furnished, or for torts by which any person is killed or person or property injureda judgment against a railroad company for a tort causing injury to the person, is superior to a mortgage executed after the tort was committed, though the action was not brought within sixty days from the registration of the mortgage. (Boston Safe-Deposit and Trust Co. v. Hudson, [U. S. C. C. App.], 68 Fed. Rep. 758).

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them on the books of the corporation, and who participate actively in the management of such corporation, are so far stockholders as to be privies to the judgment, and estopped to attack it in a collateral proceeding. (National Foundry & Pipe Works v. Oconto Water Co., U. S. D. C. [Wis.], 68 Fed. Rep. 1006.)

MECHANICS' LIENS WASHINGTON STATUTE.The lien law of Washington (1 Hill's Ann. Code, § 1663) provides that every person performing labor or furnishing materials for the construction of any building, railroad, or other structure has a lien upon the same for such labor or materials, and (section 1665) that the land upon which any building, improvement, or structure is constructed, or the interest therein of the person who caused such building, etc., to be constructed, shall be subject to the lien: Held, following the decisions of the Supreme Court of Washington, that a material-man

who furnishes materials for the construction of a street railway can obtain no lien upon the structure in the streets of a city. (Pacific Rolling Mills Co. v. James Street Const. Co., U, S. C. C. of App., 68 Fed. Rep. 966.)

MINES AND MINING.

favor of the validity of a placer patent as against a -The presumptions are all in lode claim located subsequent to its issuance upon part of the same ground, and, where the patentee files an adverse claim against the application for patent to the lode, and brings an action in support thereof, the burden is upon the lode claimants to overcome these presumptions and to show by clear and convincing proofs that the vein on which the lode claim was located, was a known vein at the time of the application for the placer patent. (Montana Cent. Ry. Co. v. Migeon, U. S. C. C. [Mont.], 68 Fed. Rep. 811.)

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MORTGAGE-FORECLOSURE-CONCLUSIVENESS OF DECREE. Where an administrator was regularly before the court in a foreclosure suit, his successors cannot, in ejectment by him against the purchaser at the foreclosure sale, claim that the foreclosure decree is invalid because the administrator failed to answer, and no decree pro confesso was taken against him. (Hunter v. Shelby Iron Co. [Ala.], 18 South. Rep. 107.)

PARTNERSHIP OR LEASE. -Where an hotel is leased for a certain fixed rental, and the contract further provides that the lessee shall give his undivided attention to the business and that the lessor shall have free access to the premises, and that in addition to the rent, he shall have a share of the net profits, and that a person appointed by him shall keep the books and act as the cashier, it constitutes a partnership, and not a lease. (Merrall v. Dobbins, Penn., 32 Atl. Rep. 578.)

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"That in all cases tried by the jury, the court shall, at the request of either party, in writing, made before the introduction of any evidence, direct such jury to return a special verdict upon any or all the issues of such case. Such special verdict shall be prepared by the counsel on either side of such cause and submitted to the court, and be subject to change and modifications of the court. The same shall be in the form of interrogatories so framed that the jury will be required to find one single fact in answering each of such interrogatories; the jury on retiring, shall take all the pleadings in the case, including the instructions of the court, if in writing, and the interrogatories as approved by the court, and shall answer each of the interrogatories submitted to them."

Under our former practice the courts were required to order the jury to render a special verdict at the request of either party. If no special verdict was required the courts were required to order the jury to answer special interrogatories on request of either party. If the general verdict was not in harmony with the answers to the interrogatories, judgment might be rendered upon the answers to the interrogatories and against the party in whose favor the general verdict was rendered.

This law repeals the law allowing special interrogatories to be propounded, and the only form we now have is the general verdict or special verdict prepared according to the above statute. Each of the Superior Courts and the Circuit Court of this county has had special verdicts rendered under this statute, and the change from the old statute is thought to be very satisfactory, especially in cases where a jury might be more affected by sympathy than by the facts proved.

The practice under this new statute is, after proper request by either party, for counsel on each side to prepare a special verdict in the form of interrogatories. The court takes these forms as prepared and has a new draft made embodying anything pertinent in either form submitted and adding any other interrogatory that seems to be necessary for a finding upon all the facts. This is submitted to the jury as coming from the Court, and they have no intimation as to which side prepared any particular interrogatory. The conclusion of the verdict is in the usual form, that if, upon the above findings, the law is with the plaintiff, then, we find for the plaintiff and assess his damages at dollars; and if the law is for the defendant, we find for the defendant.

So vital a change in the form of special verdicts can not but attract the attention of the profession at large, and if it should prove satisfactory, other States may be inclined to profit by the example. Until this statute was enacted instructions of the Court were not allowed to be taken by the jury to the jury room. JOHN A. FINCH.

INDIANAPOLIS, Nov. 4, 1895.

Mr. Finch published in issue of Nov. 2. [The above is published as correction of letter of Several

serious errors were in that letter.]

New Books and New Editions.

WALKER'S AMERICAN LAW, by Timothy Walker, LL. D., late professor of law in Cinciunati college. Tenth edition, revised by Clement Bates of the Ohio Bar.

In this, the tenth edition of this celebrated work, it is apparent that only a few new sections have been added to the text, and some minor alterations and additions appear throughout the work. Since the last edition, in 1887, it is quite apparent that considerable additions to the notes had to be made, as is the case, and it was a difficult performance on the part of the author to keep the volume within the number of pages which it now contains. This has been accomplished by rearrangement throughout, All the citations of importance have been added to date, though, as the author properly states, they have been confined to general principles with such brief notice of any striking applications or theories of the last few years that do not savor of particular. izing. The scope of the work is practically the same as in the former edition, and the book is divided into seven parts with various lectures for each part. The first is on Preliminary Considerations, the second is on Constitutional Law, the third on the Law of Persons, the fourth on the Law of Property, the fifth on the Law of Crimes, the sixth on the Law of Procedure, and the seventh is on International Law. The work is well bound, contains a copious index perfectly adequate to such a work, and comprises 900 pages.

Published by Little, Brown & Co., Boston, Mass.

HAWAIIAN REPORTS, Volume IX.

This volume of the reports is published in Honolulu, and contains decisions for the years 1893-94. It is impossible to give all the cases decided, or in fact to pick out any which one would consider of especial interest, because there are many which we would like to comment upon were we not restrained by the small space of this review. The volume concludes with a copy of the rules of the Circuit Courts, of the Supreme Court, and of the Constitution of the Republic of Hawaii. It also contains a memoriam of the resolutions adopted on the death of Charles Lunt Carter, who was very highly esteemed by members of the Bar.

Published by Robert Grieve, Honolulu.

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The Albany Law Journal.

ALBANY, NOVEMBER 16, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

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would-be-statesmen at the capitol in Albany not only to regard the opinion of some of their friends, but to take active measures to aid in crushing out this yearly disease of surplusage of statutory enactments. The article we have referred to is as follows:

"It has recently been forcibly remarked that 'it is a public scandal that in our State the Legislature has made misdemeanors by the

WE publish in this issue of the Law Journal hundreds out of facts perfectly innocent in

part of the address of the Hon. James C. Carter before the American Bar Association, and will complete the article in the next issue. Like all the articles from his pen it is replete with knowledge and gives a careful review of the legislation of the different States during the year. It also contains a large number of suggestions which will be of more than passing interest to the members of the legal profession. We notice with pleasure that Mr. Carter has very properly suggested that certain steps should be taken to promote uniformity of State laws. A number of the leading periodicals and many of the most influential lawyers have recently enthusiastically supported the idea of having many of the laws of the different States so amended as to conform to each other and to the decisions of the United States courts. It will indeed be an achievement for any body of men to bring about such a result, and it is becoming more and more recognized each day that such a reform is essentially necessary. Perhaps the most noticeable feature of Mr. Carter's address is the thoroughness with which he reviews State legislation. It is really sad to reflect that so many unnecessary and improper statutes are yearly added in every State.

In perfect accord with what we have written on the subject of too much legislation is an article in the New York Law Journal on "Universal Criminality" which, at least from one phase of the subject, gives an idea of the vast amount of unimportant and useless statutes which are yearly passed with no apparent object. With the large increase of the Legislature this year it will necessarily mean a greater number of those anxious to introduce measures and forward them to success. We must, therefore, be prepared to see an increase in the number of laws passed by the next Legislature. It would not be unprofitable for some of the VOL. 52 No. 20.

themselves, and often, if not generally, done in complete ignorance of the legal prohibition. Probably no active business man, however painstaking and scrupulous, has reached middle life in this State without rendering himself technically liable to criminal prosecution and to imprisonment under several of these statutes.'

Occasionally at a mass meeting or other unofficial assemblage a resolution is offered, not that any definite action be taken, but merely expressing the sentiment of the body upon some question before it. It would seem that legislatures sometimes create crimes with no more serious end in view than expressing "the sense of the meeting." This practice is objectionable upon many grounds, two of which may be quite specifically formulated. First. It tends to make the average citizen indifferent to, and even contemptuous of all criminal law, if the statute book create large numbers of nominal crimes for many of which he knows no prosecution would ever be attempted—inherently innocent and vicious acts being indiscriminately ranked together. It must tend to increase the temptations of weak persons, and those of naturally vicious inclinations, to get the impression that the penal policy of the State consists largely of bark with very little bite.

Second. If the community exist in a State of universal criminality, it must necessarily entail large discretionary power upon public prosecutors as to which statutes shall be enforced and which crimes ignored. This might very naturally lead to abuses and favoritism, a State's attorney excusing his supineness as to acts of real moral obliquity, committed by persons he wishes to screen, on the plea that duty requires his energies to be expended in suppressing other evils which in his judgment are

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more crying. The difficulty of enforcing penal civil penalty or disqualification could also be laws against acts which are not essentially devised, and it is to be hoped that the thoughtvicious, when public sentiment is not united, less accumulation of nominal misdemeanors was probably never more vividly realized than will be checked. at the present time. Of course the principle cannot be laid down universally that no act not involving intrinsic turpitude shall be pronounced a crime. But such should at least be the general rule, and in no case should penal laws be passed without a rational expectation that they can be enforced.

With regard to many acts involving no question of abstract morality but which public expediency requires to be performed or refrained from, the proper course is, if the effect of the violation of the law be essentially civil, to make the penalty civil also, and of such practical character as to suppress the evil aimed at in the particular case. The granting of actual pecuniary penalties, to be sued for by the aggrieved or damaged person, is measurably efficacious in some classes of cases, and could be made more so if the technical strictness in construction and procedure in the recovery of penalties were relaxed. In Swords v. Owens, 34 N. Y. Super. Ct. R., 277, it was held, under the act of 1833 prohibiting persons from transacting business under fictitious names, and making the violation thereof an offense punishable by fine, that contracts made by persons doing business under a firm name, when there were no actual parties to represent the " & Co.," were unenforcible. Decisions of this character are not strictly logical. From one point of view it is strongly argued that the parties may of course be prosecuted penally for the misdemeanor, but that the contract and civil rights thereunder cannot be impaired. What the civil tribunal does in such a case is to apply in a broad spirit a familiar equitable maxim, holding that a litigant may not come into any court without clean hands; that if he has disobeyed an express mandate of the law as to the conduct of his business, the instrumentalities of the law shall not be at his service in the affairs of such business. Express disqualification from bringing civil suits, unless a person has complied with certain statutory provisions for the public benefit, would in many classes of cases be much more effective to procure obedience to the law than perfunctory clauses containing criminal penalties. Other appropriate forms of

The Court of Appeals, in the case of Casola v. Vasquez, 147 N. Y. 258, have held that, though a statute of another State, under which an insolvent limited partnership was organized, declared void a transfer of its goods with intent to give preferences, such a transfer, when made in payment of a bona fide indebtedness,

would not authorize an attachment under sec

tion 636, subdivision 2, of the Code of Civil Procedure, on the ground that defendants had disposed of or secreted their property with intent to defraud their creditors. In writing the opinion of the court, Chief Justice Andrews

says:

"The application for the warrant of attachment was based on the ground that the defendants had assigned, disposed of, or secreted their property with intent to defraud their creditors.' The affidavits wholly failed to es tablish a case within this clause of the statute, They show simply that the firm of Kugelmann & Co., in violation of the Maryland statute regulating the formation of limited partnerships, being insolvent, sold and transferred to the defendant, Francisco Vasquez, or to the firm of Francisco Vasquez & Sons, effects of the firm, in payment of a valid debt owing by the firm to Vasquez, or Vasquez & Sons, with intent to give a preference to such creditors or firm. The bona fides of the debt is not questioned, nor is it claimed that the effects transferred exceeded in value the amount of the debt. The Maryland statute declares (sec. 13, art. 73, of the Public General Laws of Maryland) that a tranfer made by a limited partnership, under such circumstances, "shall be void as against the creditors of such partnership." Vasquez, having been at the time of the transfer a special partner in the firm of Kugelmann & Co., became, as is claimed, by accepting this transfer, liable, under the seventeenth section of the act, as general partner. The sale and transfer, although in violation of the limited partnership act, did not bring the case within the attachment law. It was void, but solely by force of the partnership statute. It was not a fraud at common law,

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