extend it so as to include a check of the debtor which is not intended to represent the debt or taken as security for the debt, but was merely in this case a false token taken in place of money. (2) The fact that the note was transferred in Massachusetts would not alter the rule though the law may be different there, it not being shown at trial that it is different. The court cannot take judicial notice that the law of another State differs from our own. McBride v. Farmers' Bank, 26 N. Y. 450; Leavenworth v. Brockway, 2 Hill, 201. Order reversed. Phanix Insurance Co. v. Church, appellant. Opinion by Andrews, J.

[Decided June 1, 1880.]

USURY -MUST BE PROVED..-B. and O. were lawyers occupying the same office. Defendant negotiated a loan on mortgage to him from B., O. acting in the transaction as the attorney for B. Defendant paid O. a bonus for the loan, no part of which was shown to have gone to B., and B. denied that he received any part, and O. and another witness testified that B. knew nothing of the payment of the bonus which O. stated that he retained it entirely for his own benefit. Held, not to establish the taking of usury on the part of B. Usury must be established like any other defense by proof of a satisfactory character, and a party cannot be made liable for the act of an agent intrusted with money to invest, who exacted a bonus for himself as a condition of making the loan, without the knowledge or assent of his principal. Guardian Mut. Ins. Co. v. Kashaw, 66 N. Y. 544; Condit v. Baldwin, 21 id. 219. Judgment affirmed. Van Wyck et al. v. Walters et al., appellants. Opinion by Miller, J. [Decided June 8, 1880.]

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

JANUARY, 1880.

EASEMENT-HOW ACQUIRED-USE HAVING ORIGIN IN PAROL. An easement may be acquired by a use of land, the use being continued long enough, having its origin and continuance in a parol gift or grant. Any occupation or enjoyment of the land of another under a claim of ownership is in a legal sense an usurpation of the right of the true owner, constituting an adverse possession. The principle is concisely and clearly stated and illustrated in Sumner v. Stevens, 6 Metc. 337, where it was held, that if a son enters upon land under a parol gift thereof from his father, who owned the land, and has the sole and exclusive possession for twenty years, he acquires title thereby. Shaw, C. J., says: "Had the tenaut simply shown an adverse and exclusive possession for twenty years, he would have shown that the owner had no right of entry, and that would have been a good defense to this action. Is it less so that the tenant entered under color of title? A grant, sale, or gift of land by parol is void by the statute. But when accompanied by an actual entry and possession, it manifests the intent of the donor to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor, that the possession is so taken. Such a possession is adverse. The doctrine that a parol demise and exclusive occupation under it by the grantee may amount to an adverse possession that would transfer the title to land, was approved and applied in the case of Webster v. Holland, 58 Me. 168. So a person may, by gift or sale, dispose of an easement by parol, and the donee or vendee obtain a prescription thereby after the lapse of sufficient time. It must appear that the privilege was not used under a letting, or license, or in any way in subordination to the title of the legal owner. In Arbuckle v. Ward, 29 Vt. 43, it was held that the use of *To appear in 70 Maine Reports.

land originating in permission will not prevent it becoming a right by prescription, if continued long enough, if the permission was of a "perpetual or unlimited character." See, also, Ashley v. Ashley, 4 Gray, 197; Ripley v. Bates, 110 Mass. 161; Washb. on Eas., § 4. Jewett v. Hussey. Opinion by Peters, J.

FIXTURES -ERECTED BY ONE IN POSSESSION UNDER CONTRACT OF PURCHASE-REAL ESTATE.-Where a person entered into possession of a tract of land without the payment of rent therefor, and to use and occupy it as his own in accordance with the terms of a contract for its purchase, and erected large and substantial buildings thereon with engines and machinery for the manufacture of an extract of bark for tanning purposes, and then failed to perform the conditions of the contract on his part and thereby acquire the title, the erections, engines and machinery are a part of the realty and cannot be sold as personal property as against the owner of the land. Fixtures attached to premises by one in possession under a contract of purchase, where he fails to perform on his part and thereby to acquire a title, become a part of the realty, like fixtures annexed by a vendor or mortgagor, and may not be removed by him. See McRea v. Bank, 66 N. Y. 490; Symonds v. Harris, 51 Me. 20; Strickland v. Parker, 54 id. 266; Elwell on Fixt. 22, 273; Cooley on Torts, 429; 1 Washb. on Real Prop. 6. The rule holds in Massachusetts. Eastman v. Foster, 8 Metc. 19, 26; McLaughlin v. Nash, 14 Allen, 138; Oakman v. Ins. Co., 98 Mass. 57; Poor v. Oakman, 104 id. 309, 318; Madigan v. McCarthy, 108 id. 376. In Richtmyer v. Morss, 3 Keyes, 350, it was held, that except in cases where the relation of landlord and tenant exists one claiming the building as personal property must prove that it was erected upon an agreement between the builder and the owner of the fee of the land that it was to be considered strictly a personal chattel; which is in effect the Massachusetts rule. See, also, Smith v. Benson, 1 Hill, 176. The same point was expressly decided in Ogden v. Stock, 34 Ill. 526, and the court says, "if the party making the improvement, as between himself and the owner of the soil, has no right to erect the same as property separate and distinct from the freehold, an intention so to do, no matter how clearly manifested, is of no avail." Perkins v. Swank, 43 Miss. 349, and Leland v. Gassett, 17 Vt. 403, are to the same effect, and Christian v. Dripps, 28 Penn. St. 271, indicates that the same would be held in that State. See, also, Yates v. Mullen, 24 Ind. 278; Rines v. Bachelder, 62 Me. 95; Osgood v. Howard, 6 id. 453; Fuller v. Faber, 39 id. 519; The cases Russell v. Richards, 10 id. 429; S. C., 11 id. 371; Pullen v. Bell, 40 id. 314, distinguished. Hinkley & Egery Iron Co. v. Black. Opinion by Symonds, J

VIRGINIA SUPREME COURT OF APPEALS

ABSTRACT. FEBRUARY, 1880.*

FIXTURES -WHEN MACHINERY IN FACTORY FIXTURE AS BETWEEN VENDOR AND VENDEE. — Where the machinery in a factory is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty, and passes with the building; and whatever is essential to the purposes for which the building is used will be considered as a fixture, although the connection between them may be such that it may be severed without physical or lasting injury to either. See Green v. Phillips, 6 Gratt. 752. B., to secure a debt of $3,000 for money lent to him by S., conveyed to C., in trust, a lot of land in the town of F., described as containing one acre of land on which B. has erected a planing mill and spoke fac*To appear in 32 Grattan's Reports.

tory; and by the same deed he conveyed and assigned to C. a policy of insurance he had taken out on the said planing mill, spoke factory and machinery, and covenanted to keep the policy in full force until the debt was paid. The lot and building independent of the machinery was not worth more than $1,000. Held, that the machinery in the building passed under the deed. Shelton v. Ficklin. Opinion by Christian, J.; Burks and Staples, JJ., dissented.

LIMITATIONS-STATUTE OF ACKNOWLEDGMENT OF DEBT-TO PERSON OTHER THAN CREDITOR. -A deposition of the maker of a note given and signed by him, in a case in which the obligee was not a party, for the purpose of obtaining a credit for the note as to be paid by him, and for which he was allowed such a credit in that case, is such an acknowledgment of the debt by him as will defeat the plea of the statute of limitations in an action on the note by the obligee against him. The creditor is bound to prove a promise, but he is not required to prove an express promise. It is sufficient for him, under the statute, to establish an acknowledgment in writing, from which a promise of payment might be implied. Such acknowledgment, to be effectual, must not consist of equivocal, vague and indeterminate expressions; but ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable for and willing to pay. Bell v. Morrison, 1 Pet. 351, 362. The same rule is laid down, with some variety of expression, in other cases. A distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay. Linsell v. Bonsor, 2 Bingh. N. Cas. 241 (29 Eng. C. L. 319). If an acknowledgment is relied on it ought to be a direct and unqualified admission of a present subsisting debt, from which a promise to pay would naturally and irresistibly be implied. Sutton v. Burruss, 9 Leigh, 381. If there be an unequivocal admission that the debt is still due and unpaid, unaccompanied by an expression, declaration or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise is then present, and the party is bound by it. Young v. Monpoey, 2 Bailey (S. C.), 278. See, also, Bangs v. Hall, 2 Pick. 368; Bailey v. Crane, 21 id. 323; Russell v. Copp, 5 N. H, 154; Head v. Manners, 5 J. J. Marshall, 255; Peebles v. Mason, 2 Dev. 367; Aylett v. Robinson, 9 Leigh, 45;

that he had purchased it as genuine, and had no knowledge or cause to suspect that it was not so. In Commonwealth v. Mash, 7 Metc. 472, which was the case of a woman marrying after her husband had been absent for several years, in the honest belief that he was dead; such defense was disallowed. The question appertains to the department of statutory construction, and to introduce into the act the requisite of a guilty mind, it must appear that such was the intent of the lawmaker. In this case the duty prescribed being a simple one and easily performed, held, that there was no ground on which the court could import into the act a requirement that to constitute guilt an intentional violation of the law must be shown. New Jersey Court of Errors. Halsted v. State. Opinion by Beasley, C. J. (Appearing in 12 Vroom's Reports.)

INTOXICATION MAY BE SHOWN IN ORDER TO DETERMINE DEGREE OF CRIME. — - Whilst voluntary intoxication is no defense to the fact of guilt, yet where the question of intent or premeditation is involved, evidence of it is admissible for the purpose of determining the precise degree of the crime. And in all cases where the question is between murder in the first and second degree, the fact of the prisoner's drunkenness may be proved to shed light on mental status, and thereby enable the jury to determine whether the killing was from a premeditated purpose, or from passion excited from inadequate provocation. But caution is necessary in the application of the doctrine, as there may be many cases of premeditated murder, in which the prisoner previously nerves himself for the deed by liquor. In such cases as these, drunkenness is entitled to no consideration in favor of the prisoner in determining the degree of his crime, but on the contrary, tends to elevate the offense to murder in the first degree. Commonwealth v. Jones, 1 Leigh, 598; Pirtle v. State, 9 Humph. 663; Swan v. State, 4 id. 136; Boswell v. Commonwealth, 20 Gratt. 860. Virginia Supreme Court of Appeals. Willis v. Commonwealth. Opinion by Anderson, J. (To appear in 32 Grattan's Reports.)

PROCEEDINGS OF THE AMERICAN BAR ASSOCIATION.

519; Bell v. Crawford, 8 Gratt. 110. Dinguid v. Schoolfield. Opinion by Burks, J.

CRIMINAL LAW.

INTENTWhen an act, in general terms, is made indictable, a criminal intent need not be shown, unless, from the language or effects of the laws, a purpose to require the existence of such intent can be discovered. It has been many times decided, and indeed is the admitted general rule, that ignorance of the law is no defense against a criminal charge. Mr. Wharton, in 19 Alb. L. J. 34, says "that ignorance of law is no defense is generally admitted." In State v. Goodenow, 65 Me. 30, it was decided, on an indictment for adultery, that the defendant could not defend on the plea that she believed that she had been legally divorced. And in like manner, it is easy to cite cases establishing the doctrine beyond dispute or cavil, that in many cases an honest mistake in regard to a state of facts will not exculpate when the prohibition of a statute has been violated. In Reg. v. Woodrow, 15 M. & W. 404, which was an information against a retailer of tobacco, for having in his possession adulterated tobacco, it was held that he was punishable, although it was shown

WHEN NOT NECESSARY TO PROVE IT. —

Association at its convention at Saratogo last week were the following: President Bristow read his annual report, communicating the most noteworthy changes in statutory law on points of general interest made in the several States and by Congress during the year. The fact that twenty-five States have only biennial sessions, and the past year having been the off year in twenty of these, has not left so much to report as last year. The Chinese have been attacked vigorously, but laws against them have been declared unconstitutional in the United States courts, as fast as taken there. Railroads have been attacked by laws in California and Georgia. In Georgia a commission is named to fix rates. Maine has a law to prevent railroad employees from striking and stopping trains. Connecticut has a law to examine men for color-blindness and prevent their employment on railroads. Severe laws against robbing graves have been enacted in Iowa, Ohio, and Maine. New York has a law against sending annoying letters, predicated on thos e sent to the Rev. Dr. Dix, which might be construed t reach many business letters. California and Georgija have laws which provide for appointing judges po tem.. by consent of parties. California legalizes warrants of arrest sent by telegraph. Connecticut exempts property to the value of $1,000, belonging pensioners, from taxation. The laws of inheritance have been changed in Massachusetts, giving husband

tp

to

BARBOUR'S NEW YORK DIGEST.

Digest of the Decisions of the Supreme Court of the State of New York, as reported in Barbour's Reports, now complete in 67 volumes, 1847 to 1877. Omitting cases reversed or overruled. By Oliver L. Barbour, LL. D., the Reporter. Vols. 1, 2. Albany: W. C. Little & Co. 1880.

Pp. xvii, 1101, xvi, 1208.

We had fondly hoped that we had heard the last of Mr. Barbour as a reporter, and of his reports, except in the sense in which we hear of a graveyard and peruse its inscriptions. His reports, with Howard's, have long been the bugbear of the legal profession of our State, and the object of satire among the profession elsewhere. Some of this is due to the inseparable defects of a new system, with eight branches of the same court, and some to inexcusable carelessness and dullness of the reporter. The publishers in their circular say:

This is a valuable series of reports, commencing with the organization of the present Supreme Court, under the Constitution of 1847, with an elective judiciary, and general jurisdiction in both law and equity. It covers a period of nearly thirty years, and embraces over five thousand seven hundred and seventy cases. It contains opinions written by some of the ablest judges who have ever adorned the bench, and decisions upon a great variety of new subjects and questions arising from the sweeping changes made in our judiciary system by the new Constitution, the Judiciary Act of May 12, 1847, and the Code of Procedure. Out of the chaos and confusion produced by those radical changes, the judges have striven to establish order, system and harmony. And certainly the cases decided by the court during this formative period will never be less valuable than those of any other portion of time of equal length."

Except the word "valuable," all this is true down to but not including the last sentence. Barbour's Reports | have lost great part of their usefulness, and their usefulness decreases every year. Their authority in this State is small; in other States almost nothing. Nearly every principle has been settled for us by our Court of Appeals. While Johnson, Wendell, Hill, Denio and Paige continue to be highly respectable authorities, here and throughout this country, Barbour is rarely cited, in our ultimate court, except by ingenious counsel to maintain some untenable position. We have so often dwelt on the annoying blunders and deficiencies of Mr. Barbour as a reporter, especially in his later volumes, that we do not now purpose to spend time on the unpleasant subject. The question now is, what is the necessity for a digest of a particular series of old reports of an inferior court, during an unsettled and formative period, to extend to three volumes and to cost the purchaser $16.50? The publisher's circular admits that "many of the cases may be found in other digests," but says they "are so buried out of sight under a mass of other matter, that they are not easily found." We have never experienced any difficulty in finding any decision by resort to Abbott's Digest, where the cases in Barbour are placed with those in the other reports, under appropriate heads; and we do not now see the benefit of compelling the practitioner to turn over an additional and partial digest. The publishers say, "this set of reports contains a great mass of valuable live law." True; but most of that which is alive has had its life breathed into it by the Court of Appeals, or is better decided by the earlier courts. The publishers promise a list of reversed and overruled cases in the last volume. If faithfully executed this will prove a long list, and if they should add a list of cases in which the principles involved have been settled by the Court of Appeals, or by the old Supreme Court, Court of Chancery, or Court of Errors, the small residuum would represent the true value of Barbour's Reports. The foregoing is written on the

assumption that the digest is intelligently executed. Of this we cannot well judge until the work is completed, and then indeed only partially. Our criticism is based on the utter absence of any excuse or demand for any such work. An artificial demand may be created by the fact of publishing. But publishers and book-makers owe it to the legal profession not to bind useless and heavy burdens on their backs. The volumes before us are badly printed.

CORRESPONDENCE.

VENTILATION.

To the Editor of the Albany Law Journal:

I heartily concur with the ideas you express in the second editorial on "Current Topics" in your issue of the 14th inst., in relation to the ventilation of court rooms, and further in regard to the trouble that lawyers experience in the way of “ nervousness, headache," etc., but after all, if one of our profession desires to go to the extreme length of finding out by experience just how much the human system can stand, let him go into a justice's office in the country in the summer, and have his client and his client's friends stand at his back as he attempts to try the cause, and he will feel as though the average Supreme Court room was heaven when placed in comparison. Very truly yours, JAMES GIBSON, JR.

SALEM, N. Y., Aug. 17, 1880.

UNIFORM INDEXES.

To the Editor of the Albany Law Journal:

The suggestion you have republished from the Daily Register-that reporters might well take the classifications of the U. S. Digest and Am. Rep. Digests as a basis for a somewhat uniform system of indexing might be aided by a brief explanation of the principle followed. If you think so, perhaps you will add to these lines some explanation of the American Reports' method and pass the matter along to the other journals.

The same list of titles could not be used in indexing all the reports, for contents of books differ. Federal reports are largely complementary to State reports; one class needs titles that the other omits. Equity reports and criminal must use different heads. Louisiana has many peculiar terms and almost every State has some. But there might perhaps be some common adoption of a principle.

The classification of the United States Digest is founded on a principle or theorem condensible thus - I must not try to give it in full or pursue the subject in detail.

Law is the effort of society to protect PERSONS, including CORPORATIONS, in their rights and relations, to guard them in their PROPERTY, enforce their CONVEYANCES and CONTRACTS, and redress or punish their WRONGS and CRIMES, by means of judicial REMEDIES, founded upon EVIDENCE, and administered by the civil arm of GOVERNMENT.

The words in capitals form ten categories roughly designating ten large fields or classes in which most propositions easily fall. But further subdivision is needed. That is obtained by considering each as including distinct species, and by making a separate title for each species, to include whatever is peculiar to it, while what is applicable to all, or to a species having no alphabetic name, remains under the broad title.

Thus we have a broad title PERSONS, for whatever applies to all persons in common (such matters as birth, age, death, etc.), and a specific title for each kind of persons and each personal relation distinctively