Such temporary stenographer shall, before acting, take the oath of office. He shall be paid by the official stenographer whose place he takes, and his services shall not be a charge upon the city or county of New York. Rule III. It shall be the duty of the librarian to take charge of the library of the Appellate Division of the Supreme Court; to attend in the room of such library each day during the sessions of the Court, when the court is in session; and when not in session from ten o'clock in the morning until four o'clock in the afternoon, or as much longer as he shall be required by either of the Justices of the Appellate Division, and to perform generally such duties in relation to such library as either of the said Justices shall require. He shall be responsible for all the books in the library, and shall see to it that all books removed from the library to the Court room, or elsewhere, are returned to the library, and shall be responsible generally for the safe keeping and proper condition of the books and furniture in the library room. The assistant to the librarian shall have charge of the library for the use of the Justices of the Supreme Court. He shall attend at the County Court House from ten o'clock in the morning until four o'clock in the afternoon, and as much longer as any Justice of the Supreme Court shall require, and he shall be responsible for the safety and condition of the books in the library and of the furniture in the library room, and for the return of all books taken to the Court rooms or elsewhere. No books appertaining to that library shall, under any circumstances, be removed from the County Court House, and the assistant librarian shall enforce all orders in regard to the safe keeping and preservation of such books as shall be made from time to time by a Justice of the Supreme Court. Rule IV. The interpreters shall attend on each day, except on Sundays and legal holidays, from ten o'clock in the morning until four o'clock in the afternoon, and as much later as any branch of the Court is in session, and shall hold themselves subject at all times to a call from any Justice of the Court, whether in Court or out of Court, to render such services as interpreter as shall be required. On their arrival on each morning they must report their arrival to the crier, or assistant crier, and upon their departure in the afternoon they shall report in like manner. Rule V. The crier of the Appellate Division of the Supreme Court shall assign the attendants to the Appellate Division and to the various Special and Trial Terms of the Supreme Court. He shall have general charge of all the attendants and it shall be his duty to see that they properly perform their duties. He shall report to the Appellate Division of the Supreme Court any one of such attendants who fails to attend and perform the duties required of him or who in any way misconducts himself. He shall attend at each session of the Appellate Division of the Supreme Court and shall open and adjourn said court except when his attendance is dispensed with by the Presiding Justice. He shall make a report each month to the Appellate Division of any violation of any of the rules of the court of which he is cognizant, and shall perform such other duties as the Presiding Justice or the Appellate Division shall require. The assistant to the said crier shall attend at the County Court House in the City of New York, on each day from ten o'clock in the morning until four o'clock in the afternoon, and as much longer as his attendance shall be required by any of the Justices of the court, or while any branch of the court is in session. In the absence of the crier he shall perform all the duties of the crier, and shall perform such other duties as any Justice of the Supreme Court, or the crier shall require. The assistant crier shall wear while in court, or in the discharge of his duties, a uniform such as is now established for the crier of the Supreme Court. Rule VI. The attendants shall each day attend the various branches or terms of the court to which they are assigned by the crier from ten o'clock in the morning until four o'clock in the afternoon, or so much longer as the court is in session or as a Justice of the Supreme Court requires them to attend. They shall report to the clerk of the parts to which they are assigned the hour of their arrival and before they leave. They shall wear the uniform now prescribed for the attendants of the Supreme Court. In addition to their ordinary duties in court they shall perform such other duties as may be required of them by a Justice of the Supreme Court, by the special deputy clerk of the part to which they are assigned, or by the crier or assistant to the crier. CORPORATIONS Where several persons associate themselves for the purpose of promoting and organizing a corporation for the pecuniary profit of its members, and, after contracts have been made for and in the name of the proposed corporation, they voluntarily abandon their purpose, their relation one to the other, as to third parties, if not that of partners, is that of agent and principal, and each will be liable upon all the contracts of the association he has directly or indirectly authorized or ratified. (Roberts Manuf'g Co. v. Schlick [Minn.], 64 N. W. Rep. 826.) LIABILITY OF PROMOTERS. Abstracts of Recent Decisions. bridge" to be built thereon over a ravine running through the tract includes the right to a passageway for stock under the bridge. (Agne v. Seitsinger [Iowa], 64 N. W. Rep. 836.) EQUITY JURISDICTION.-Where plaintiff claims under deeds the right to build over defendant's lot at a certain height from the ground, and defendant in possession, having a wall which prevented such ADMIRALTY-SHIPPING-BREACH OF CONTRACT.Where the owner of a ship, who has chartered out the hold, retains control of the navigation of the vessel, and bills of lading for goods consigned therein, which themselves contain the contract of affreightment, are issued by the master, at the instance of the charterer, to consignors, the owner is 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 in the bills of lading, and the consignors are not affected by provisions of the charter party inconsistent with such contract. (Robinson v. Holst [Ga.], 23 S. E. Rep. 76.) ASSIGNMENT OF CLAIM-RIGHT TO SECURITY. Where goods are conditionally sold on assignment of the claim for the price, the security follows the debt. (Ross-Meehan Brake-Shoe Foundry Co. v. Pasca-Goula Ice Co. [Miss.], 18 South. Rep. 364.) equity, but at law. (Saunders v. Racquet Club [Penn.], 33 Atl. Rep. 79.) FEDERAL COURTS-COURT OF APPEALS-JUDGMENT.-The applicability of Act March 3, 1891, § 6, making judgments or decrees of the Circuit Court of Appeals final when the jurisdiction is dependent is to be determined by the showing made by the upon the parties being citizens of different States, summons and statement of claim or declaration; and the fact that another ground for supporting the jurisdiction of the Circuit Court was developed in the course of subsequent proceedings is immaterial. (Borgmeyer v. Idler [U. S. S. C.], 16 S. C. Rep. 34.) FRAUDULENT CONVEYANCES-CHATTEL MORTGAGE. —Where a chattel mortgage is executed in good faith for a valuable consideration, and not for the purpose of defrauding creditors of the mortgagor, the fact that it was given to secure a larger sum than is actually due does not affect its validity, but such overstatement of the debt secured, unexplained, in BANKS-DEPOSIT.-Where a bank knows that money deposited with it to the general credit of a depositor is held in trust by such depositor, the bank has no right to apply such deposit to the payment of a note due to it from the depositor. (Clemmer v. Drovers' Nat. Bank [Ill.], 41 N. E. Rep. 728.) CONTRACT-RECISSION-FALSE REPRESENTATIONS. -False representations, knowingly made by a vendor to a vendee previous to the sale, as to the character, 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, even though he had full opportunity to observe and know the actual truth, and the burden is on the 16 vendor to prove clearly that such false representations did not influence the vendee in making the sale. (Turner v. Houpt [N. J.], 33 Atl. Rep. 28.) CORPORATION-TRUST COMBINATIONS.-An agreement to form a trust in the business of manufacturing and selling preserves, by having trustees hold the stock in certain existing corporations, and in others to be formed, and having such corporations wholly controlled by such trustees is void as contrary to public policy, in creating a monopoly, and in providing for a partnership between corporations. (Bishop v. American Preservers Co. [Ill.], 41 N. E. Rep. 765.) DEDICATION-COMMUNITY PROPERTY.— -A husband without the concurrence of his wife, has power to dedicate a part of the community homestead to a city for a street, if it does not materially interfere with the wife's use of the homestead. (Orrick v. City of Ft. Worth [Tex.], 32 S. W. Rep. 443.) DEED-RESERVATION.-A reservation, in a grant for a county road of land which is being used as a pasture, of the right "to attach a fence to the claiming under the mortgage as against creditors to explain the overstatement, and establish the bona fides of his mortgage. (Heim v. Chapel [Minn.], 64 N. W. Rep. 825.) LANDLORD AND TENANT-OIL WELLS.-An oil lease, the term of which is for "three years, or as much longer thereafter as oil or gas might be found in paying quantities," extends only for three years, unless gas or oil is found in paying quantities before their expiration. (Shellar v. Shivers [Penn.], 33 Atl. Rep. 95.) MANDAMUS-WHEN DENIED.-Where, at the time an application for mandamus was heard by the judge of the Supreme Court, the time had passed within which the official duty, the performance of which was sought to be compelled, could be performed, the court properly denied a mandamus absolute. Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless. (Stacy v. Hammond [Ga.], 23 S. E. Rep. 77.) NEGLIGENCE-OBSTRUCTION IN STREET.— -Where earth removed from defendant's cellar was thrown in a pile on the street, and defendant placed a light thereon at night sufficient to warn travelers of the danger, and the light was removed without fault of defendant, and plaintiff was injured before defendant, in the exercise of ordinary care, could have discovered such removal and replaced the light, defendant was not liable. (Raymond v. Keseberg [Wis.], 64 N. W. Rep. 861.) ESTOPPEL. PRINCIPAL AND SURETY - BOND Where a bond was executed for the faithful performance of the duties of a public officer during his second term, but said officer failed to take the oath prescribed by statute at the inception of his second term, his sureties will be estopped from asserting that he did not hold by virtue of his second election but held over from his first term, in an action on the bond for a defalcation occurring after the first term had expired. (People v. Hammond [Cal.], 42 Pac. Rep. 36.) SALE-CONDITIONAL SALES.- A contract by which property is "leased" on condition that title shall pass to the lessee when certain payments of " rent" are made, constitutes a conditional sale that is void as to third persons if not recorded. (Clark v. Hill [N. Car.], 23 S. E. Rep. 91.) SET-OFF-JUDGMENT.-Where a vendee, who has assumed the payment of certain notes of his vendor, before maturity thereof, assigned to a stranger a one-half interest in a demand he held against such vendor, which demand was subsequently, in a suit by him and the stranger, reduced to judgment, the vendor is not entitled to set off against the stranger's interest in the judgment the demand accuring against the vendee on the maturity of the notes. (Ellis v. Kerr [Tex.], 32 S. W. Rep. 444.) WILL-BEQUEST TO CHARITABLE USE.-A devise to a trustee to dispose of the property among "charitable and benevolent institutions or corporations in the city of Rochester, as he shall choose, and such sums and proportions as he shall deem proper," is void for uncertainty as to the beneficiaries. (People v. Powers [N. Y.], 41 N. E. Rep. 432.) volume is especially valuable in the collection of decisions in regard to subjects mentioned above and contains over 800 pages of printed matter. The decisions are well arranged, with a foot-note to each showing where it appears in the West series. The number of cases reported in this volume is quite large and the index is prepared with great care and judgment. Published by E. B. Myers & Company, Chicago, Ill. THE KING'S PEACE. By F. A. Inderwick, Q. C. Author of "Side-Lights on the Stuarts," "The Interregnum," etc.; with fifteen illustrations. This is a most entertaining and clever book divided into six chapters on the Anglo-Saxon period, Curia Regis, from the accession of Edward I to the death of Richard III, the Courts of the Forest, from the Accession of Henry VII to the Restoration of the Monarchy, and from the Restoration to the erection of the Supreme Court of Judicature. The illus trations in this book are particularly entertaining, showing the great seal of the Confessor, Westminster Hall, Court of King's Bench, Seals of the Forest, Sir Edward Coke, and many other illustrations of particular interest to lawyers. The history contained in this book is brief but is full of interesting points which undoubtedly required great labor and skill on the part of the author to compile. The facts are presented in a clear and concise manner, thus rendering the work pleasing either as a first reading or else as a review of periods of English The work is bound in cloth. history. Price $1.50. Published by MacMillian & Co., 66 Fifth avenue, New York city. THE TRIAL OF SIR JOHN FALSTAFF, wherein the Fat Knight is permitted to answer for himself concerning the charges laid against him, and to attorney his own case. By A. M. F. Randolph. This is a small book of about 300 pages in which the author has attempted to give the words of 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 quotations which are made from many of the leading authors and critics of Shakespeare. The work is certain to receive welcome from the public, and VOL. II. Annotated and edited by John Lewis, especially from lawyers who desire in their few leis New Books and New Editions. AMERICAN RAILROAD AND CORPORATION REPORTS author of a Treatise on Eminent Domain in the United States. This is the latest volume of the collection of current decisions in the courts of last resort in the United States pertaining to the law of Railroads, Private and Municipal Corporations, Insurance, Banking, Carriers, Telegraph and Telephone Companies, Building and Loan Associations, etc. This ure moments to devote their time to the reading of extracts and reviews rather than a mass of literature which may or may not be entertaining to them. This access to books has become more and more recognized and enables individuals to select with greater ease what works they shall carefully read and study. This book is attractively bound in cloth. Published by G. P. Putnam's Sons, New York city. V [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 Star of En of the All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] town of Wauwatosa, and that jurisdiction of it is vested "exclusively in the State courts and E publish in this issue of the Law JOUR- examining magistrates of the State of Wiscon of the United States." The United States marshal who held the prisoner, on his return to the writ, simply certified that he held the petitioner Kelly in his custody as marshal of the United States for the eastern district, by virtue of the writ or warrant issued by United States Commissioner Bloodgood, and that he was obliged by virtue of his office to retain the custody of Kelly as in the warrant commanded. statutory revision commission appointed under chapter 1036 of the Laws of 1895, to suggest amendments to the Code of Civil Procedure. It has just been possible to get part of the report ready for the JOURNAL this week and we have not been able to thoroughly review the matter which we publish so as to comment intelligently on the work of the commissioners, but from a cursory review of the report we feel that it is one which entitles the Messrs. LinTacoln, Northrup and Johnson, the commissionWho has jurisdiction over this crime? The fil d 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 interest-ings 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 possible that the members of the statutory revision, who have so many important duties to attend to, could have found time to prepare such an elaborate treatise as they have given, and we commend their careful study and scientific presentation of the history of legal procedure, together with the review of legal practice in every State in the Union, as well as of many foreign States. It will be with great pleasure that we will be enabled to comment in our next issue upon this admirable report. A curious case is now progressing in Wisconsin arising from a conflict of the jurisdiction of the United States, State courts of an inmate of the Wisconsin Soldiers' Home, who is charged with assault with an intent to kill. One Kelly assaulted a fellow soldier, was arrested by a United States marshal and held as VOL. 52 — No. 25. is a marshal of the United States and has said In Kelly in his custody as such marshal, the pro- In Tarbel's case a writ of habeas corpus was issued to a recruiting officer of the United States to inquire into the legality of the restraint by him of a young man who had enlisted in the army, alleging that he was under the age of eighteen years and therefore could not have legally enlisted according to the statutes of the United States. Tarbel was discharged by the Supreme Court of the State, and Mr. Justice Paine in his opinion (25 Wis. 390), first quotes the opinion of the learned Chief Justice Taney, who said: "But after the return of the writ is made, and the State court or judge judiciously apprised that the party is in custody under the authority of the United States, they can proceed no farther;" concerning which statement, Judge Paine remarks that "the fair interpretation of this language would require a legal authority to be shown. For unless there is a legal authority, there is none at all. There is surely a distinction between the authority under the United States and a mere claim of such authority." suspicion of imposition or oppression on his part." State Commissioner Ryan, before whom the argument on the habeas corpus proceedings was had, claimed that in order to give the Federal authorities jurisdiction over the petitioner, Kelly, in this matter it is essential that he not only should have committed the offense charged, but that it should have been committed upon territory within the exclusive jurisdiction of the United States. There seems to be no Federal statute providing the penalty for an assault with intent to murder, committed with a dangerous weapon. In this case, therefore, the Federal authorities have availed themselves of section 5391, which reads as follows: "If any offense be committed in any place which has been or may hereafter be, ceded to 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 for it says: 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 of that 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 authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held, be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release." And again in the same opinion we find this language: "If it do not appear that the prisoner is held by authority or color of authority, judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority or claim and color of the authority, of the United States, and to exclude the This section was orginally passed in 1825. But after the Federal courts had construed it as being limited in its application, first to the State laws in existence at the time of its passage, and, secondly, to territoritory ceded to the United States prior to its passage, it was amended in 1866 so as to make it apply to jurisdiction ceded or thereafter to be ceded to the United States and to State penal laws then in force, even though they should subsequently be repealed. It needs no argument to demonstrate that no criminal prosecution by the United States can be conducted under this section unless the alleged crime was committed upon property ceded to and within the exclusive jurisdiction of the United States. Was the place where this crime was committed within the exclusive jurisdiction of the United States? The eighth section of the first article of the Federal Constitution is devoted to an enumeration of certain powers granted to Congress, and |