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Such temporary stenographer shall, before acting, his duty to see that they properly perform their take the oath of office. He shall be paid by the duties. He shall report to the Appellate Division official stenographer whose place he takes, and his of the Supreme Court any one of such attendants services shall not be a charge upon the city or county who fails to attend and perform the duties required of New York.

of him or who in any way misconducts himself, Rule III.

He shall attend at each session of the Appellate It shall be the duty of the librarian to take

Division of the Supreme Court and shall open and charge of the library of the Appellate Division of adjourn said court except when his attendance is the Supreme Court; to attend in the room of such dispensed with by the Presiding Justice. He shall library each day during the sessions of the Court, make a report each month to the Appellate Diviswhen the court is in session; and when not in ses

ion of any violation of any of the rules of the sion from ten o'clock in the morning until four

court of which he is cognizant, and shall perform o'clock in the afternoon, or as much longer as he such other duties as the Presiding Justice or the shall be required by either of the Justices of the Appellate Division shall require. Appellate Division, and to perform generally such The assistant to the said crier shall attend at the duties in relation to such library as either of the County Court House in the City of New York, on said Justices shall require. He shall be responsible each day from ten o'clock in the morning until four for all the books in the library, and shall see to it o'clock in the afternoon, and as much longer as that all books removed from the library to the his attendance shall be required by any of the JusCourt room, or elsewhere, are returned to the li

tices of the court, or while any branch of the court brary, and shall be responsible generally for the is in session. In the absence of the crier he shall safe keeping and proper condition of the books and perform all the duties of the crier, and shall perfurniture in the library room. The assistant to the

form such other duties as any Justice of the Sulibrarian shall bave charge of the library for the use

preme Court, or the crier shall require. The assistant of the Justices of the Supreme Court. He shall at

crier shall wear while in court, or in the discharge tend at the County Court House from ten o'clock in

of his duties, a uniform such as is now established the morning until four o'clock in the afternoon, and for the crier of the Supreme Court. as much longer as any Justice of the Supreme Court shall require, and he shall be responsible for

Rule VI. the safety and condition of the books in the library The attendants shall each day attend the various and of the furniture in the library room, and for branches or terms of the court to which they are the return of all books taken to the Court rooms or assigned by the crier from ten o'clock in the mornelsewhere. No books appertaining to that library ing until four o'clock in the afternoon, or so much shall, under any circumstances, be removed from longer as the court is in session or as a Justice of the County Court House, and the assistant librarian the Supreme Court requires them to attend. They shall enforce all orders in regard to the safe keeping shall report to the clerk of the parts to which they and preservation of such books as shall be made are assigned the hour of their arrival and before from time to time by a Justice of the Supreme they leave. They shall wear the uniform now preCourt.

scribed for the attendants of the Supreme Court. Rule IV.

In addition to their ordinary duties in court they The interpreters shall attend on each day, except shall perform such other duties as may be required on Sundays and legal holidays, from ten o'clock in of them by a Justice of the Supreme Court, by the the morning until four o'clock in the afternoon, and special deputy clerk of the part to which they are as much later as any bravch of the Court is in ses- assigned, or by the crier or assistant to the crier. sion, and shall hold themselves subject at all times to a call from any Justice of the Court, whether in


PROMOTERS.Court or out of Court, to render such services as in

Where several persons associate themselves for the terpreter as shall be required. On their arrival on each morning they must report their arrival to the purpose of promoting and organizing a corporation

for the pecuniary profit of its members, and, after crier, or assistant crier, and upon their departure

contracts have been made for and in the name of in the afternoon they shall report in like manner.

the proposed corporation, they voluntarily abandon Rule V.

their purpose, their relation one to the other, as to The crier of the Appellate Division of the Su. third parties, if not that of partners, is that of agent preme Court shall assign the attendants to the and principal, and each will be liable upon all the Appellate Division and to the various Special and contracts of the association he has directly or inTrial Terms of the Supreme Court. He shall have directly authorized or ratified. (Roberts Manuf'g general charge of all the attendants and it shall be Co. v. Schlick [Minn.), 64 N. W. Rep. 826.)

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Abstracts of Recent Decisions. bridge” to be built thereon over a ravine running

through the tract includes the right to a passageway ADMIRALTY—SHIPPING-BREACH OF CONTRACT. —

for stock under the bridge. (Agne v. Seitsinger Where the owner of a ship, who has chartered out

[Iowa], 64 N. W. Rep. 836.) the hold, retains control of the navigation of the vessel, and bills of lading for goods consigned

EQUITY_JURISDICTION. -Where plaintiff claims therein, which themselves contain the contract of under deeds the right to build over defendant's lot affreightment, are issued by the master, at the in at a certain height from the ground, and defendant stance of the charterer, to consignors, the owner is in possession, having a wall which prevented such bound directly to the consignors for the perform-construction, denies the right, the remedy is not in ance of the contract of affreightment as contained equity, but at law. (Saunders v. Racquet Club in the bills of lading, and the consignors are not [Penn. ], 33 Atl. Rep. 79.) affected by provisions of the charter party incon FEDERAL COURTS-COURT OF APPEALS-JUDGsistent with such contract. (Robinson v. Holst MENT. —The applicability of Act March 3, 1891, § 6, [Ga.), 23 S. E. Rep. 76.)

making judgments or decrees of the Circuit Court

of Appeals final when the jurisdiction is dependent ASSIGNMENT OF CLAIM-RIGHT Where goods are conditionally sold on assignment upon the parties being citizens of different States,

by the of the claim for the price, the security follows the

summons and statement of claim or declaration; debt. (Ross-Meehan Brake-Shoe Foundry Co. v.

and the fact that another ground for supporting the Pasca-Goula Ice Co. [Miss.), 18 South. Rep. 364.)

jurisdiction of the Circuit Court was developed in BANKS-DEPOSIT.—Where a bank knows that

the course of subsequent proceedings is immaterial. money deposited with it to the general credit of a (Borgmeyer v. Idler (U. S. 9. C.), 16 S. C. Rep. 34.) depositor is held in trust by such depositor, the bank has no right to apply such deposit to the payment

FRAUDULENT CONVEYANCES-CHATTEL MORTGAGE. of a note due to it from the depositor. (Clemmer

Where a chattel mortgage is executed in good v. Drovers' Nat. Bank [Ill.], 41 N. E. Rep. 728.)

faith for a valuable consideration, and not for the

purpose of defrauding creditors of the mortgagor, CONTRACT-RECISSION—FALSE REPRESENTATIONS.

the fact that it was given to secure a larger sum than -False representations, knowingly made by a ven

is actually due does not affect its validity, but such dor to a vendee previous to the sale, as to the char

overstatement of the debt secured, unexplained, inacter, condition, and value of the property, are pre-dicates fraud, and the burden is upon the mortgagee sumed to have influenced the mind of the purchaser, claiming under the mortgage as against creditors to even though he had full opportunity to observe and explain the overstatement, and establish the bona know the actual truth, and the burden is on the fides of his mortgage. (Heim v. Chapel (Minn.], 64 vendor to prove clearly that such false representa- | N. W. Rep. 825.) tions did not influence the vendee in making the


WELLS. -An oil sale. (Turner v. Houpt [N. J.], 33 Atl. Rep. 28.)

lease, the term of which is for “three years, or as CORPORATION—TRUST COMBINATIONS.—An agree-much longer thereafter as oil or gas might be found ment to form a trust in the business of manufactur in paying quantities,” extends only for three years, ing and selling preserves, by having trustees hold unless gas or oil is found in paying quantities before the stock in certain existing corporations, and in their expiration. (Shellar v. Shivers [Penn.), 33 others to be formed, and having such corporations Atl. Rep. 95.) wholly controlled by such trustees is void as con

MANDAMUS—WHEN DENIED. — Where, at the time trary to public policy, in creating a monopoly, and an application for mandamus was heard by the judge in providing for a partnership between corporations of the Supreme Court, the time had passed within (Bishop v. American Preservers Co. [I11.], 41 N. E.

which the official duty, the performance of which Rep. 765.)

was sought to be compelled, could be performed, DEDICATION

-A husband the court properly denied a mandamus absolute. without the concurrence of his wife, has power to Mandamus will not be granted when it is manisest dedicate a part of the community homestead to a that the writ would, for any cause, be nugatory or city for a street, if it does not materially interfere | fruitless. (Stacy v. Hammond (Ga.), 23 S. E. Rep. with the wife's use of the homestead. (Orrick v. 77.) City of Ft. Worth [Tex.], 32 S. W. Rep. 443.)

NEGLIGENCE-OBSTRUCTION IN STREET. — Where DEED-RESERVATION.—A reservation, in a grant earth removed from defendant's cellar was thrown for a county road of land which is being used as a in a pile on the street, and defendant placed a light pasture, of the right “to attach a fence to the thereon at night sufficient to warn travelers of the






danger, and the light was removed without fault of volume is especially valuable in the collection of defendant, and plaintiff was injured before defend- decisions in regard to subjects mentioned above ant, in the exercise of ordinary care, could have dis- and contains over 800 pages of printed matter. The covered such removal and replaced the light, de decisions are well arranged, with a foot-note to each fendant was not liable. (Raymond v. Keseberg showing where it appears in the West series. The [Wis.], 64 N. W. Rep. 861.)

number of cases reported in this volume is quite PRINCIPAL AND SURETY

large and the index is prepared with great care and

judgment. Published by E. B. Myers & Company, Where a bond was executed for the faithful per

Chicago, Ill. formance of the duties of a public officer during his second term, but said officer failed to take the oath

The King's PEACE. By F. A. Inderwick, Q.O. prescribed by statute at the inception of his second term, his sureties will be estopped from asserting Author of “Side-Lights on the Stuarts,” “The Inthat he did not hold by virtue of his second election terregnum,” etc.; with fifteen illustrations. but held over from his first term, in an action on the This is a most entertaining and clever book hond for a defalcation occurring after the first term

divided into six chapters on the Anglo-Saxon period, had expired. (People v. Hammond [Cal.], 42 Pac. Curia Regis, from the accession of Edward I to the • Rep. 36.)

death of Richard III, the Courts of the Forest, from

the Accession of Henry VII to the Restoration of SALE-CONDITIONAL SALES. :- A contract by which

the Monarchy, and from the Restoration to the erecproperty is “leased” on condition that title shall

tion of the Supreme Court of Judicature. The illuspass to the lessee when certain payments of “ rent” trations in this book are particularly entertaining, are made, constitutes a conditional sale that is void showing the great seal of the Confessor, Westminster as to third persons if not recorded. (Clark v. Hill

Hall, Court of King's Bench, Seals of the Forest, [N. Car.], 23 S. E. Rep. 91.)

Sir Edward Coke, and many other illustrations of SET-OFF-JUDGMENT. Where a vendee, who has particular interest to lawyers. The history conassumed the payment of certain notes of his vendor, tained in this book is brief but is full of interesting before maturity thereof, assigned to a stranger a points which undoubtedly required great iabor and one-half interest in a demand he held against such skill on the part of the author to compile. The vendor, which demand was subsequently, in a suit facts are presented in a clear and concise manner, by him and the stranger, reduced to judgment, the thus rendering the work pleasing either as a first vendor is not entitled to set off against the stranger's reading or else as a review of periods of English interest in the judgment the demand accuring history. The work is bound in cloth. Price $1.50. against the vendee on the maturity of the notes.

Published by MacMillian & Co., 66 Fifth avenue, (Ellis v. Kerr [Tex.], 32 S. W. Rep. 444.)


THE TRIAL OF SIR JOHN FALSTAFF, wherein the to a trustee to dispose of the property among Fat Knight is permitted to answer for himself con“charitable and benevolent institutions or corpora- cerning the charges laid against him, and to attorney tions in the city of Rochester, as he shall choose,

his own case. By A. M. F. Randolph. and such sums and proportions as he shall deem

This is a small book of about 300 pages in which proper,” is void for uncertainty as to the beneficiaries. (People v. Powers (N. Y.], 41 N. E. Rep.

the author has attempted to give the words of 432.)

Shakespeare's famous character and to bring out the witty and humorous side of his character. The

critics also have their place in the work in the quoNew Books and New Editions.

tations which are made from many of the leading

authors and critics of Shakespeare. The work is AMERICAN RAILROAD AND CORPORATION REPORTS

certain to receive welcome from the public, and Vol. II. Annotated and edited by John Lewis, especially from lawyers who desire in their few leisauthor of a Treatise on Eminent Domain in the

ure moments to devote their time to the reading of United States.

extracts and reviews rather than a mass of literature This is the latest volume of the collection of cur which may or may not be entertaining to them. rent decisions in the courts of last resort in the This access to books has become more and more United States pertaining to the law of Railroads, recognized and enables individuals to select with Private and Municipal Corporations, Insurance, greater ease what works they shall carefully read and Banking, Carriers, Telegraph and Telephone Com-study. This book is attractively bound in cloth. panies, Building and Loan Associations, etc. This | Published by G. P. Putnam's Sons, New York city.

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prisoner. Thereupon a writ of habeas corpus The Albany Law Journal.

was sued out on his behalf commanding the

United States marshal to produce the prisoner ALBANY, DECEMBER 21, 1895.

before a commissioner of the State of Wiscon

sin on the ground that "the said imprisonment Current Lopics.

and restraint are illegal and contrary to law, [All communications intended for the Editor should be ad

for the reason that if any offense has been comdressed simply to the Editor of ThE ALBANY LAW JOURNAL,

mitted by the petitioner (Kelly) it was in the All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW town of Wauwatosa, and that jurisdiction of it JOURNAL COMPANY.]

is vested “exclusively in the State courts and E publish in this issue of the Law Jour- examining magistrates of the State of Wiscon

NAL the first part of the report of the sin, and not within the courts or judicial officers statutory revision commission appointed under of the United States." chapter 1036 of the Laws of 1895, to suggest

The United States marshal who held the amendments to the Code of Civil Procedure. prisoner, on his return to the writ, simply cerIt has just been possible to get part of the re- tified that he held the petitioner Kelly in his port ready for the JOURNAL this week and we custody as marshal of the United States for the have not been able to thoroughly review the eastern district, by virtue of the writ or warrant matter which we publish so as to comment in- issued by United States Commissioner Bloodtelligently on the work of the commissioners, good, and that he was obliged by virtue of his but from a cursory review of the report we feel office to retain the custody of Kelly as in the that it is one which entitles the Messrs. Lin warrant commanded. coln, Northrup and Johnson, the commission

Who has jurisdiction over this crime? The ers on statutory revision, to the greatest praise United States or the State of Wisconsin ? for their admirable work in presenting to the

The argument in the habeas corpus proceedpublic and to the legislature so many interestings came on before Commissioner Ryan. The ing historical facts in regard to legal procedure. district attorney for the United States, Mr. WigThe work may be said to be the intelligent

man, contends that the power of the Federal basis from which may be seen what the advance

courts is supreme and that its officers are not during many years has been, and is a ground required to obey the writs of State courts; therework for the Code revision which we have for fore, since the return shows that the respondent so many years advocated.

It does not seem

is a marshal of the United States and has said possible that the members of the statutory re

Kelly in his custody as such marshal, the provision, who have so many important duties to ceedings before the commissioner must be disattend to, could have found time to prepare missed. In support of this argument he cites such an elaborate treatise as they have given, the cases of Ableman v. Booth, 21 Howard, and we commend their careful study and scien- 506, and Tarbel's Case, 13 Wallace, 397. In tific presentation of the history of legal pro- the former case, Chief Justice Haney holds that cedure, together with the review of legal prac- when a writ of habeas corpus is served on a martice in every State in the Union, as well as of shal or other person, having a prisoner in his many foreign States.

It will be with great custody under authority of the United States, pleasure that we will be enabled to comment it is his duty, by a proper return, to make in our next issue upon this admirable report.

known to the State judge or court, the author

ity by which he holds him. But, at the same A curious case is now progressing in Wis- time, it is his duty not to obey the process of consin arising from a conflict of the juris- the State authority, but to obey the process of diction of the United States, State courts of an the United States. inmate of the Wisconsin Soldiers' Home, who In Tarbel's case a writ of habeas corpus was is charged with assault with an intent to kill. issued to a recruiting officer of the United

One Kelly assaulted a fellow soldier, was ar- States to inquire into the legality of the restraint rested by a United States marshal and held as I by him of a young man who had enlisted in the

VOL. 52 No. 25.

for it says:

army, alleging that he was under the age of suspicion of imposition or oppression on his
eighteen years and therefore could not have le- part."
gally enlisted according to the statutes of the State Commissioner Ryan, before whom the
United States. Tarbel was discharged by the argument on the habeas corpus proceedings was
Supreme Court of the State, and Mr. Justice had, claimed that in order to give the Federal
Paine in his opinion (25 Wis. 390), first quotes authorities jurisdiction over the petitioner,
the opinion of the learned Chief Justice Taney, Kelly, in this matter it is essential that he not
who said: “But after the return of the writ is only should have committed the offense charged,
made, and the State court or judge judiciously but that it should have been committed upon
apprised that the party is in custody under the territory within the exclusive jurisdiction of the
authority of the United States, they can pro- United States. There seems to be no Federal
ceed no farther;" concerning which statement, statute providing the penalty for an assault with
Judge Paine remarks that “the fair interpreta- intent to murder, committed with a dangerous
tion of this language would require a legal au- weapon. In this case, therefore, the Federal
thority to be shown. For unless there is a legal | authorities have availed themselves of section
authority, there is none at all. There is surely 5391, which reads as follows:
a distinction between the authority under the

"If any offense be committed in any place United States and a mere claim of such author- which has been or may hereafter be, ceded to ity."

and under the jurisdiction of the United States, This case of Tarbel's was carried to the Fed- which offense is not prohibited, or the punisheral Supreme Court. The opinion of the court ment thereof is not specially provided for, by was delivered by Justice Field, and goes even any law of the United States, such offense shall further than that in Ableman v. Booth, supra, be liable to, and receive, the same punishment

as the laws of the State in which such place is “All that is meant by the language used is, situated, now in force, provide for the like ofthat the State judge or State court should pro- fense when committed within the jurisdiction ceed no further when it appears, from the ap- of such State; and no subsequent repeal of any plication of the party, or the return made, that such State law shall affect any prosecution for the prisoner is held by an officer of the United such offense in any court of the United States." States under what, in truth, purports to be the This section was orginally passed in 1825. authority of the United States; that is, an au But after the Federal courts had construed it as thority, the validity of which is to be determined being limited in its application, first to the State by the Constitution and laws of the United laws in existence at the time of its passage, and, States. If a party thus held, be illegally im- secondly, to territoritory ceded to the United prisoned it is for the courts or judicial officers States prior to its passage, it was amended in of the United States, and those courts or offi- 1866 so as to make it apply to jurisdiction ceded cers alone, to grant him release.”

or thereafter to be ceded to the United States And again in the same opinion we find this and to State penal laws then in force, even language: “If it do not appear that the priso- though they should subsequently be repealed. ner is held by authority or color of authority, It needs no argument to demonstrate that no judge or court issuing the writ has a right to criminal prosecution by the United States can inquire into the cause of imprisonment, and as- be conducted under this section unless the alcertain by what authority the person is held leged crime was committed upon property within the limits of the State; and it is the duty ceded to and within the exclusive jurisdiction of the marshal, or other officer having the cus

of the United States. tody of the prisoner, to give, by a proper re

Was the place where this crime was comturn, information in this respect. His return mitted within the exclusive jurisdiction of the should be sufficient, in its detail of facts, to United States? show distinctly that the imprisonment is under The eighth section of the first article of the the authority or claim and color of the author- Federal Constitution is devoted to an enumeraity, of the United States, and to exclude the tion of certain powers granted to Congress, and

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