ply the want of consideration. It is assumed in argument that the statements of the petition show only the consideration of love and affection on the part of the appellee for the execution of the obligation for the benefit of their sister-in-law, Mrs. Parker; and that such a consideration, where the relation is so remote, or where none in fact existed except such as sprung from the marital relation that existed between their deceased brother and his wife, will not support the agreement to pay. If the facts alleged authorized the conclusion reached by counsel and the court below, there would be less difficulty in determining the question involved. This court has heretofore held in several cases that a voluntary agreement to provide for a collateral relative will not be specifically enforced. The obligation to provide for a wife or a child constitutes such a meritorious consideration as will authorize a court ot equity to enforce it. But as said in Buford v. McKee, 1 Dana, 107: "The whole foundation of the principle which turns mere gratuitous engagements and voluntary promises of bounty and munificence into contracts of obligatory efficacy is of such doubtful equity that we feel no disposition to carry it further than it has already gone." That was a case where Henry Paulding had executed a covenant to Buford, his nephew, for the conveyance of a tract of land at his (Paulding's) death, and on a bill to enforce the covenant the relief was denied." See McIntyre v. Hughes, 4 Bibb, 187; Stovall v. Barnett, 4 Litt. 207; Ford v. Ellingwood, 3 Metc. (Ky.) 359, and Arnold v. Park, 8 Bush, 3. Graves v. Graves, 7 B. Mon. 213, distinguished. In Mark v. Clark, 11 B. Mon. 44, the court, in alluding to the case of Graves v. Graves, supra, said: "The mutual promise of each, and the fulfillment of the promise by the most of them, was held (in that case) to constitute a sufficient and valuable consideration for the promise of the defendant. It is not settled in that case, or in any other of which we have any knowledge, either that the affection of an uncle for his niece, or an agreement by one heir, under no legal obligations whatever to his co-heir, to make that co-heir equal to the advancements made to himself or to others, does form such a consideration as will make enforceable a note or bond to pay a sum of money for that purpose. It seems to us that such is not the law." If the consideration expressed of love and affection is the only consideration, the obligation created no legal liability. Ky. Ct. App., Jan. 6, 1887. Cotton v. Graham. Opinion by Pryor, C. J.

CORPORATION-STOCK

sub

SUBSCRIPTIONS STATUTE OF LIMITATIONS - ESTOPPEL. - - A. and B. scribed to certain shares of increased capital stock of a corporation upon condition that the full amount should be subscribed before it should be binding on them. It was also stated by the president that the increase would be used as working capital, and was not to be called in until the furnace of the company was put in blast by it. This was never done, but the blast was leased to C. Held, that the subscriptions constituted a trust fund for the benefit of creditors, and that therefore they were not within the statute of limitations; that A., who had paid part of the subscription, was estopped by that act; and that as all the subscribers knew that it was proposed to lease the furnace, the leasing was not a violation of the parol condition under which they subscribed. Penn. Sup. Ct., Oct. 4, 1886. Appeal of Muck. Opinion by Trunkey, J.

SUBSCRIPTION TO STOCK-CONDITION PRECEDENT SUBSCRIPTIONS BY MARRIED WOMEN.-A. subscribed to certain shares of increased capital stock of a corporation, upon condition that the subscription should not become binding unless the full amount of the increase were subscribed. Among the

subscriptions were two by married women, which of course were void and were never paid. Held, that as to one who had not by any act waived this defect, the condition had not been complied with. Penn. Sup. Ct., Oct. 4, 1886. Appeal of Hahn. Opinion by Trunkey, J.

TO

CRIMINAL LAW-TRIAL-REMARKS OF JUDGE COUNSEL.-Defendant complains of remarks made by the trial judge to counsel, during the progress of a trial, in the presence of the jury, expressing an opinion upon the weight of some portions of the evidence. The record shows that certain remarks were made, which if the jury had not been warned against, we should hold were error. But the court said to the jury that those remarks were made to counsel, and were not intended to be heard or regarded by them, and that the jury should disregard them, and determine the case solely upon the evidence, and the instructions of law thereafter to be given them. This caution and warning, we think, robbed the remarks of their objectionable character. To hold otherwise would be to subject the administration of justice to the peril of being obstructed by every unguarded utterance made during the progress of a trial, even though it was withdrawn, as in this case, at once, and its effect removed by prompt and proper admonition to the jury to ignore it. But counsel say that while the record may disclose the language used, it cannot give the tone of voice nor portray the manner in which it was said, nor its effect upon the jury. This argument is not new. It was used as long ago as 1829. In Com. v. Child, 10 Pick. 253, Parker, C. J., in answering it said: "It is said the tendency of the judge's remarks was to affect the jury unfavorably to the defendant's side of the case. The next step will be to move for a new trial on account of the expression of countenance of the judge. These things, if evils, are unavoidable. Confidence must be reposed in the integrity of the judge. If an unjust partiality is shown the remedy must be in one of the modes pointed out in the Constitution. Though an undue influence may be exerted upon the jury by the manner of the judge, yet the law presumes intelligence in the jury; and if they perceive any improper attempt of the kind, they will be more likely to find a verdict against the opinion of the judge than in accordance with it. * * If the evidence in such case does not sustain the verdict a new trial will be granted. New Mex. Sup. Ct. Jan. 27, 1887. Territory v. O'Donnell. Opinion by Brinker, J.

ma

CONSPIRACY MALICE. On the trial of an information under a statute providing that "if two or more persons shall willfully and liciously combine and conspire together to obstruct * * *the business of any corporation, * ** such persons shall, on conviction, be punished," etc., malice need not he shown against the owners of the business, but the act itself may furnish presumption of malice; and it appearing that the defendant knew that the acts would obstruct the business charged to have been obstructed, and went upon the ground with a force prepared to overcome all objection, in the night-time, and acted in utter recklessness of the rights of others, the jury were warranted in finding malice. It would seem that if the offense named in this statute could be classed under the head of malicious mischief, which I do not admit, it would still not be necessary, in order to convict, to establish a specific malice against the owner of the business impeded, or his property, but only the general malice of the common law, as the statute is not certainly a mere affirmance of the common law, but undertakes to create an offense and punish acts known to the common law as malicious mischief. If as heretofore said the intent be

to obstruct and impede the business, the relations between the perpetrators of the acts and the owner of the business may be immaterial. If the intent be to do it unlawfully, it makes no difference whether it be from spite or revenge, or in the hope of gain and profit. The malice in either case will be presumed. Malice is best defined, in my opinion, as "a wicked intent to do an injury." And it is not necessary that the malice be directed against any particular person; it may be deduced from an intent generally to injure. It is a general rule governing the law of malice, that when a man commits an act, unaccompanied by any circumstances justifying its commission, the law presumes that he has acted advisedly, and with an intent to produce the consequences which have ensued. The malice required by this statute need only be directed against the business injured, and there is no necessity under it of showing any particular ill will, spite or revenge against the owner or owners of the business. And the malice against the business is presumed, in the absence of any explanation of the motive, from the acts and means used, and their natural consequences, as in any other offense. Nor does it matter if the primary purpose of the acts and means is not the obstruction or injury of the business of another; yet if in the accomplishment of that primary purpose, the intent is to make such obstruction or harm an incident of such primary purpose, if necessary to accomplish it, then the malice follows, and is established by such intent, and the statute is violated. State г. Malloy, 34 N. J. L. 410. Mich. Sup. Ct., Jan. 20, 1887. People v. Petheran. Opinion by Morse, J. Campbell, C. J., dissenting.

MUNICIPAL CORPORATION-NEGLIGENCE OF INSURANCE PATROL-RESPONDEAT SUPERIOR.-The Insurance Patrol of the City of Philadelphia, an incorporated body acting as a salvage corps in conjunction with the regular city fire department, sent A. and B., two of its employees, to take away a number of tarpaulins left on the upper floor of a building that had been damaged by fire. They took with them a patrol wagon, which A., the driver, backed against the curb in front of the injured building, then stationing himself at the horse's head. B. in the meanwhile went up to throw the tarpaulins out of the windows to the sidewalk. Whilst engaged in throwing them out in bundles, one lot struck a passer-by, and caused such bodily injury as to result in his death, whereupon his widow and child brought suit apainst the insurance patrol and A. and B. to recover damages. On the trial there was no evidence that A. had been stationed below to give notice of the danger to passers-by, or that A. and B. had divided the danger between them. Neither was there any proof that the insurance patro] had been invested with a public function which it exercised for the public good as a public agent, and not for private gain. The lower court entered a nonsuit as to A., and also as to the insurance patrol, and the jury rendered a verdict against B. The court refused to take off the nonsuits entered. Held, on appeal, the lower court was right in refusing the motion as to A. It has been repeatedly decided that as a general rule a municipality, in the performance of certain public functions, delegated to it by the sovereignty of the State, is an agent of the government, and is not liable for the malfeasance or negligence of its officers or employees. The officers of the municipality have been held to be quasi civil officers of the government, although appointed by the corporation; they are themselves personally liable for their misfeasance or nonfeasance in office, but for neither is the corporation responsible. The corporation appoints them to office, but does not in that act sanction their official delinquencies or render itself liable for their official mis

conduct. Prother v. City of Lexington, 13 B. Mon. 559. In order to charge a municipal corporation for negligence in the performance of a public work, the law must have imposed a duty on it, so as to make that neglect culpable. Elliott v. Philadelphia, 75 Penn. St. 347; S. C., 15 Am. Rep. 591. Thus the municipality is charged with the grading and repair of the highways, and the negligence of the officers of the municipality in this respect may be visited upon the municipality itself; but unless a duty has been thus imposed the corporation cannot be held. Therefore in Alcorn v. Philadelphia, 44 Peun. St. 348, it was held that the city was not responsible for the negligence of a district surveyor in locating the line of certain lots, by reason of which a lot holder was compelled to rebuild his house; in Elliott v. Philadelphia, 75 Penn. St. 347; S. C., 15 Am. Rep. 591, that the city was not responsible for the negligence of the police; and in Knight v. Philadelphia, 15 W. N. C. 307, that the city was not liable for injuries caused by negligent driving of a fire engine by an employee of the fire department. The same doctrine is declared in the courts of other States. Hafford v. New Bedford. 16 Gray, 297; Fisher v. City of Boston, 104 Mass. 87; S. C., 6 Am. Rep, 196; Jewett v. New Haven, 38 Conn. 373; City of Chicago v. Turner, 80 Ill. 419; Howard v. City of San Francisco, 51 Cal. 52, etc. It is also true, as a general rule, that a public officer is not liable for the negligence of his official subordinates, unless he commanded the negligent act to be done. Schoyer v. Lynch, 8 Watts, 453. The rule is founded in consideration of public policy (Sawyer v. Corse, 17 Gratt. 230), has been long recognized, and is one of general application. "The distinction generally turns upon the question whether the persons employed voluntarily or privately, paid by him, and responsible to him, or whether they are his official subordinates, nominated gerhaps by him, but officers of the government; in other words, whether the situation of the inferior is that of a public officer or private servant?" In the former case the official superior is not liable for the inferior's acts; in the latter he is. Am. Lead. Cas. 641. A subordinate officer, when he is an independent officer, must stand or fall by himself; and to him, unless otherwise provided by statute, the maxim respondeat superior does not apply. Whart. Neg. 289. The same rule, it is argued, must be extended to the case of persons acting in the capacity of public agents, engaged in the service of the public, and acting solely for the public benefit; though not strictly filling the character of officers or agents of the government; and also to public charitable institutions having no fund appropriated to the payment of such damages. The following cases, with others, are relied upon as supporting this view of the law: Russell v. Men. of Devon, 2 T. R. 672-3; Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 506; Riddle v. Proprietors, etc., 7 Mass. 187; McDonald v. General Hospital, 120 id. 432; S. C., 21 Am. Rep. 529. The general rule undoubtedly is that a master is liable for the negligence of his servant within the scope of his employment. If the Fire Insurance Patrol is to be exempt from the operation of this general rule of the law, it must exhibit and establish the ground of its exemption. The charter alone is, in our opinion, inadequate for the purpose. If it were shown, that al though the charter is silent on the subject, the corporation was in fact conducted as a public charity; that its services were gratuitously rendered to the public for the public good, then the question which has been so ably discussed in this case would be raised for our consideration. If it be true that the Insurance Patrol has been invested with a public function, which it exercises for the public good as a public agent, and not for private gain, or if it has been conducted as a public charitable institution, the facts should appear in the

proofs. Penn. Sup. Ct., Oct. 4, 1886. Boyd v. Insurance Patrol of Philadelphia. Opinion by Clark, J.

pellant's failure of duty requiring an extraordinary hazardous service from an inexperienced employee, without giving him warning of the peril attending the service required. The fact that one who sustains an

ing on the sidewalk in front of a building in process of construction by the defendants, in conversation with a companion in the cellar of the building, and holding in one hand a rope running over a wheel, and used for hoisting purposes, and was injured by the starting of the apparatus, which drew his hand over the wheel, and crushed it. The defendants were authorized to erect barriers, and exclude the public from that part of the street where the intestate was standing, but the evidence was conflicting whether the barrier was in fact erected, and as to the exact situation and condition of the wheel and rope referred to. Children were in the habit of playing about the premises, but against the protests of the defendants, and the intestate had been warned away. Held, a question for the jury. Mass. Sup.Jud. Ct., Jan. 7, 1887. Moynihan v. Whidden. Opinion by W. Allen, J.

SHIP AND SHIPPING-EXCEPTED PERILS-" DANGERS AND ACCIDENTS OF NAVIGATION " COLLISION.—A charter-party provided that the ship should load a cargo of coal and deliver the same at the port of discharge at a freight of so much per ton on the quantity delivered (the act of God, etc., and all and every other dangers and accidents of the seas, rivers and navigation always excepted, the freight to be paid twothirds in cash ten days after the vessel's sailing and the remainder in cash on the right and true delivery of the cargo agreeably to bills of lading, less cost of coal delivered short of bill of lading quantity. Held, that a collision attributable solely to the negligence of those in charge of the other vessel was a "danger or accident of navigation" within the meaning of the charter-party, and therefore that the ship-owners were not liable in respect of non-delivery of part of the cargo shipped caused by such a collision. Eng. Ct. App., 18 Q. B. Div. 17. Sailing Ship "Garston

Co., Limited, v. Hickie.

SUNDAY-ACTION FOR INJURY BY NEGLIGENCE IN LABOR ON.-The mere fact that one who sustains an injury by the negligent act of another may have been at the time of such injury acting in disobedience of the Sunday laws of the State, will not prevent a recovery from the party whose wrongful or negligent act was the proximate cause of such injury. It is contended that the recovery was not justified, because it appears from the complaint, was proven at the trial, and found by the jury, that the plaintiff was injured while engaged at common labor on the first day of the week, commonly called Sunday. It is said the appellee was engaged at such labor in pursuance of a contract with the railway company, and that because it was not shown that the labor in which he was engaged was a work of necessity, the law will refuse its intervention to secure compensation for the injury. It is undoubtedly true that where the right to recover depends upon the legality of a contract, either in respect to its execution or the consideration which supports it, if it appears that the contract was executed in violation of law, or that its performance necessarily involved the doing of that which was unlawful, a recovery on or for a breach of such contract will be denied. The contract in pursuance of which the plaintiff engaged in the appellant's service was not made on Sunday, nor was it to be performed on that day. It was therefore neither illegal in its inception, nor was it an engagement to do an unlawful act. Besides there was no relation, near or remote, between the violation of the Sunday law and the injury complained of. That the plaintiff may have been violating his obligation as a citizen to the State cannot be set off against the ap

may have been at the time of such injury, acting in disobedience of his collateral obligation to the State, which required of him the observance of the Sunday laws, will not prevent a recovery from one whose wrongful or negligent act or omission was the proximate cause of such injury. Patt. Ry. Acc. Law, 64, 65, and note; Beach Cont. Neg. 186, 187, 270, 278; Cooley Torts 155; Mohney v. Cook, 26 Penn. St. 342; Philadelphia, W., etc., Co. v. Philadelphia & H., etc., Co., 23 How. 209; Schmidt v. Humphrey, 48 Iowa, 652; Knowlton v. Milwaukee, etc.. Co., 59 Wis. 278; Wood Ry. Law, § 318; Wentworth v. Jefferson, 60 N. H. 158; Opsaal v. Judd, 30 Minn. 126: Carroll v. Staten Island R. Co., 58 N. Y. 126; Platz v. City of Cohoes, 89 id. 219; Stewart v. Davis, 31 Ark. 518; Tucker v. West, 29 id. 386; Baldwin v. Barney, 12 R. I. 392. Ind. Sup. Ct. Louisville, N. A. & C. Ry. Co. v. Frawley. Opinion by Mitchell, J.

TENTH ANNUAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION.

THEM

HE annual report of the New York State Bar Association for the year 1886, now being prepared for publication, will appear about the 1st of May next.

It will be a volume of much value and interest, containing the address of Governor Hill, listened to with such profound attention by a large audience. It will contain the annual oration of Hon. Henry Hitchcock, of St. Louis, a production replete with thought, learning and interest, on the subject of "American State Constitutions; "the address of Hon. Matthew Hale on "Legal Reform, and what Reforms are Needed," a paper that has commended itself largely to the legal profession and to the Legislature; the address of Hon. N. C. Moak, on the subject of "Expert Testimony," one of the ablest productions on that subject that has ever appeared; the admirable essay, discussing the question, "Is Boycotting Criminal?" by Tracey C. Becker, Esq., of Buffalo.

In addition to all this, the successful prize essay, by Le Roy Parker, will appear in the volume, with other interesting matter. The book will be sent to members of the association, by express, as soon as it is published.

NEW BOOKS AND NEW EDITIONS.

VON HOLST'S CONSTITUTIONAL LAW.

The Constitutional Law of the United States of America: By Dr. H. Von Holst, Privy Councilor and Professor in the University of Freiburg. Authorized edition translated by Alfred Bishop Mason, Chicago: Callahan & Co., 1887. 1 vol. pp. 369.

This is a concise treatise, of the dimensions and scope of an encyclopedic article written for Marquardsen's "Hand-buch des Oeffentlichen Rechts." The writer is the well known author of an extensive treatise on the history of constitutional law in the United States, and is undoubtedly the best prepared of any foreign writer, and perhaps as well as any native of this country, to write on this subject. His design has been to inform Europeans, and the treatment is consequently very simple and elementary. The writer makes an unnecessary apology, in the preface, based on the limitation of space and his absence from authorities. His work is quite admirable for the purpose for which it was designed, and will answer a useful purpose for young American students, and for American laymen as well.