v. Keane, 41 L. T. Rep. (N. S.) 335; L. Rep., 11 Ch. Div. 353; and Labouchere v. Earl of Wharncliffe, 41 L. T. Rep. (N. S.) 638. Ch. Div., Feb. 6, 1880. Russell v. Russell. Opinion by Jessel, M. R., 42 L. T. Rep. (N. S.) 112.

CORRESPONDENCE.

DEMURRERS.

To the Editor of the Albany Law Journal:

I do not think your correspondent, X, is quite accurate on the subject of demurrers. Before the old Code, the action of a court upon a demurrer was a judgment. 1 Burr. Prac. 208, 249. Although it was a judgment, still the court often allowed a party to withdraw the demurrer and plead, etc., on payment of costs. This judgment was interlocutory, if damages were assessed; final, if not. And on this judgment, a judgment record or judgment roll was made up. Id. 253.

The old Code also spoke of a judgment as an issue of law, section 278. But in section 349, sub. 2, it spoke of an order, sustaining or overruling a demurrer. I think that is the first introduction into law terms of the word "order," as applied to the action of a court upon an issue of law.

Mr. Throop's Code has restored the former phraseology by speaking of a judgment upon a demurrer. § 1021. Now it is not quite accurate to speak of an order for a judgment. An order is the adjudication of the court upon a motion. A judgment is the adjudication upon a trial, or on a failure to answer, etc. For instance, if a motion to change the place of trial be made, and the court orally grants it, the entry in the clerk's records of that adjudication is an order. If a demurrer to a complaint is argued and the court orally declares that the demurrer is not well taken, the entry in the clerk's records of that adjudication is a judgment for the plaintiff. Very often clerks make only memoranda in their minutes, waiting until the successful attorney drafts the proper order or judgment as it may be. But the true name of the entry is not thereby changed.

According to your correspondent's idea, when there is an adjudication on a demurrer, there should be first, the oral or written announcement of the opinion of the court; second, an order entered in the records of the court; third, a judgment entered in the same records; and, fourth, a judgment roll thereon. And some attorneys practice in this manner, so that the judgment roll contains apparently two adjudications by the court; one denominated an order, the other a judgment.

Your correspondent says that the clerk enters up judgment. But a judgment on a demurrer is the adjudication of the court. The clerk's business is simply clerical; to record what the court does. And what the court does is to adjudge, that on the demurrer, the plaintiff or the defendant recover.

I am pleased to hear that your correspondent cannot make judges or opponents understand that his course is the one to be pursued. My own observation has been that too many lawyers pursue it. A.

CONTRACTS TO SATISFACTION."

To the Editor of the Albany Law Journal:

The statement in your JOURNAL of June 12th, in an interesting article on "Contracts to Satisfaction," to the effect that a Connecticut court, in the 45th Conn.,

which we are justly proud and which you indirectly question, I take the liberty of explaining. The case in the 45th Conn. unfortunately has not reversed the principle established in the previous volume. It is still the law under which we live here, that the ipse dixit, "not satisfactory," is amply sufficient to absolve any contracting party, in that class of cases, from all pecuniary obligation. A coat, for instance, ordered to be made out of blue cloth, may, by the use of this magic talisman, with impunity be thrown in the tailor's face, and the author of all evil be left to pay for it. The reasons which underlie the purchaser's dissatisfaction and which prompt such vigorous assertion thereof may never be known. Courts and juries cannot pry into this secret. It may be that since being measured, the purchaser has undergone a mental, not to mention a physical change, and now prefers a coat of a delicate pea-green as well as one of ampler dimensions. Perhaps when ordering the coat in question, he was laboring under the misapprehension that a blue coat, if artistically constructed, would have all the effect of any other colored coat. Perhaps, too, at the time, he had extravagant notions as to the possibilities of coats in general, and innocently supposed that that garment alone would suffice for a full suit-as to-day doth the untutored savage of the plains-and on awakening from his illusion, exclaims, not less truthfully than modestly, non satis est." Any or all of these good reasons and to him, what better?- he may keep locked forever within his unsatiated breast, and no process of the common law can force him to divulge

them.

But to give the explanation. The case in the 45th Conn. did not touch on any of these interesting points. It did not appear by the record there whether the facts on the second trial were the same as those on the first or not. No presumption existed that they were the same. On the contrary, the court enforced the presumption that sufficient facts must have appeared in evidence to sustain the judgment below-there having been no separate finding of fact on the second trial and the only point discussed and passed upon was whether the finding of facts on the first trial was still existing as res adjudicata, or was destroyed by the order for the new trial. The court took the latter T. C. I.

position.

WE

NOTES.

E have received the first number of a new law magazine, the Kentucky Law Reporter, a monthly, published at Frankfort, under the editorial charge of Messrs. J. C. and Frank L. Wells. This number makes a very respectable showing, contaming among other things an article on Rights of Purchasers at Execution Sales, and the case of Vanmeter v. Estill, concerning fraudulent sales, with a note. We welcome the new-comer, although, like the father of a large and rapidly increasing family, we cannot avoid some anxious conjectures as to the support of the last arrival. Kentucky, however, needs a representative law magazine, and we trust that its bar will take care of the promising publication.

The June number of the American Law Register contains, among other matter, an article on Riparian and other rights in non-navigable water, by Arthur Biddle; the case of Sturges v. Bridgman, on easement, with a note by Edmund H. Bennett; the case of

iff, after having reversed a similar judgment on precisely the same testimony, is scarcely accurate. And as the article referred to suggests that the counsel in that case may "perhaps inform us" how so happy yet inconceivable a result was effected by legal processes, in the interest of that stability in our decisions of

rata

in a will, with a note by C. H. Wood; and the case of Knaggs v. Green, concerning avoidance of an infant's contract, with a note by Marshall D. Ewell.

The subject of the prize essay of the New York State Bar Association for 1880 is the following: "What National legislation, if any, should be had to regulate commercial intercourse between the States?"

trary right to be dissatisfied, the case of Lesser V. Sherwood, lately tried at the New York Circuit of the Supreme Court, has some significance. Lesser, a dentist, sued Sherwood for the price agreed upon for a set of teeth he had manufactured for him. Upon the trial he proved the manufacture, almost complete, of the teeth, according to his contract. All that was necessary to finish the job was the presence of the defendant in the plaintiff's office for the purpose of fitting the teeth properly in the mouth. Defendant repeatedly promised to call, but invariably failed to do so. The court dismissed the complaint. The General Term reversed the judgment upon appeal. Judge Barrett, in his opinion, concurred in by Davis, P. J., says plaintiff "did all that he was bound to do or could do, and the defendant was liable for such proper damages as resulted from the breach." If, however, the contract had been that Lesser should take his chances of Sherwood's attending to have the teeth fitted, we suppose the holding would have been the reverse. A somewhat analogous case is Moore v. Robinson, 92 Ill. 491. A person having been indicted for an alleged offense, his brother paid to an attorney-at-law a sum of money, and also gave him his promissory note for a further sum, upon the agreement that the attorney should defend the person so indicted, and procure his acquittal and discharge at a certain specified term of the court in which the indictment was pending, and if the accused should not be released at the time mentioned, the attorney was to return the money and the note. The accused failed to appear at the term specified to answer to the indictment, so the attorney, without any fault on his part, was unable to proceed with the trial or to procure the discharge of the accused. Held, that the contingency upon which the attorney was to be entitled to retain the money and to collect the note, not having occurred, he was liable to an action for the money, and could not recover upon the note; but was entitled to compensation quantum meruit for his services, and could retain such amount out of the money he had received.

The opinion of Attorney-General Ward upon the novel question whether telegraph poles are to be assessed as real estate will probably find general acceptance. The learned attorney-general says: "It is entirely clear to my mind that these telegraph structures are 'articles erected upon and affixed to the land,' so as to create an interest therein, and are, to the extent of the value thereof, land of the telegraph company erecting them, and as such liable to taxation. And it is the duty of the assessors of the VOL. 22.- No. 2.

several towns and wards of this State to assess the same as land to the value thereof, so far as any of their lines extend through their respective assessment districts. I have given the question which you have presented careful consideration, for the reason, that as far as I have been able to discover, no decision upon the precise question before us has been made by any of the courts of this State, and the question therefore is a new one. I am greatly aided, however, in reaching this conclusion by the opinion of the Court of Appeals in People ex rel., etc., v. Cassity, 46 N. Y. 46, which holds in this language: 'The term lands' as used in the statute in relation to assessment and taxation (1 R. S. 360, §§ 1, 2), includes such an interest in real estate as will protect the erection, or affixing, and possession of buildings and fixtures thereon, though unaccompanied by the fee, and such interest with the buildings and fixtures may be assessed to the owner thereof.' See, also, 74 N. Y. 365, and 52 Barb. 105. It is also held in People ex rel. New York Elevated Railway Company v. Commissioners of Taxes, decided by General Term, First Department, and reported in 19 Hun, 460, that 'foundations for piers or columns placed in a public street by an elevated railroad by legislative authority, whether standing alone or with columus and the superstructure thereon are properly taxable as real estate.' If the piers and columns of an elevated railway, as in the last case cited, and the stringers, ties and rails of a horse railroad, as decided in the case of People v. Cassity, supra, are land' and taxable as such, though in neither case did the company own the fee of the land upon which these structures stood, it would seem that telegraph posts, piers and abutments and lines are also land and taxable as such. It would seem also from the case of People v. Cassity, supra, and People v. Barker, 48 N. Y. 70, and indeed from the statute itself, that in all cases the premises are to be assessed in the name of, and to the company owning the line and not in any case as 'non-resident.""

The recent decision of the Indiana Supreme Court, holding that the constitutional amendments voted upon at the election last April in that State were not adopted by a legal majority, involves a very interesting question, namely, what constitutes "a majority of the said electors of the State." The amendments in question were voted upon at town elections, and although they received a majority of the votes cast upon the particular questions, they did not receive a majority of all the votes cast at the same time for town officers. The majority of the court held that they must at least receive a majority of all the votes cast at the same election. This view is supported by decisions of the Missouri and Minnesota Supreme Courts, but is opposed by a decision of the Supreme Court of Wisconsin. We shall soon take occasion to review these decisions with the care which the question deserves.

In view of this conflict of judicial opinion, the ambiguity of the language in question, the charac

John Bull and Britannia," and the former publisher of "The Britannia" began to publish "The True Britannia;" Prowett v. Mortimer, 4 W. R. 419; 2 Jur. (N. S.) 414. In Clement v. Maddick, 1 Giff. 98, the plaintiff's newspaper was called "Bell's Life in London," and the defendants' "The Penny Bell's Life and Sporting News." The "London Daily Journal" was too near to the "London Journal;" Ingram v. Stiff, 5 Jur. (N. S.) 947. So "The United States Police Gazette" to "The National Police Gazette," commonly known as "The Police Gazette;" Matsell v. Flanagan, 2 Abb. Pr. (N. S.) 459. So "The Bedfordshire Express and General Advertiser for the County" to "The Bedfordshire Express and General Advertiser for the Counties of Cambridge, Hertfordshire, Huntingdonshire, and Middlesex;" Chance v. Sheppard, V. C. M., July 30, 1869. In Clowes v. Hogg, W. N., 1870, p. 268; 1871, p. 40, the former proprietor of "London Society" began to publish "English Society," and was restrained. Again, in Mack v. Petter, 20 W. R. 964; L. R., 14 Eq. 431, the plaintiff's book was called "The Birthday Scripture Text Book," and the defendant's "The Children's Birthday Text Book." In Corns v. Griffiths, W. N., 1873, p. 93, the plaintiff's paper was called "The Iron Trade Circular (Rylands")," and the defendant's "The Iron Trade Circular (Edited by Samuel Griffiths)." In Metzler v. Wood, 26 W. R. 577; L. R., 8 Ch. D. 606, the plaintiff's book was called Henry's Royal Modern Tutor for the Pianoforte," and the defendant's "Henry's New and Revised Edition of Jousse's Royal Standard Pianoforte;" and lastly, in Weldon v. Dicks, the tale was in each case styled "Trial and Triumph." In all the above cases the infringement was restrained. In the following cases the remedy sought was refused: In Spottiswoode v. Clarke, 2 Ph. 184, the question was between "The Pictorial Almanack" and "Old Moore's Pictorial Almanack;" in Snowden v. Noah, Hopk. 347, between "The National Advocate" and "The New York National Advocate; in Bell v. Locke, 8 Paige, 75, between "The Democratic Republican New Era" and "The New Era;" in Stephens v. De Couto, 30 N. Y. Sup. Ct. 343, between "La Cronica" and "El Cronista." "Punch" was the property of the plaintiffs in Bradbury v. Beeton, 18 W. R. 33, and "Punch and Judy" of the defendant; in Tallcot v. Moore, 13 N. Y. Sup. Ct. 106, the plaintiff's book was "The Little Red Book, New Series, 1875," and the defendant's "The Red and White Book;" and The American Grocer Publishing Association v. Grocer Publishing Company, 51 How. Pr. 402, was a similar case. Ledger v. Ray, Ct. of App., May 3, 1877, was a somewhat peculiar case, as the question was not confined to the two titles, "The Era" and "Touchstone," or "The New Era," but Touchstone was also the name of a well-known writer in the plaintiff's paper. And again in Kelly v. Byles, 46 L. T. (N. S.) 623, the plaintiff's compilation was called "The Post Office Directory of the West Riding of Yorkshirė," and the defendant's, "The Post Office Bradford Directory." See, also, 21 Alb. L. J. 446.

Upon the question of damages in actions for wrongfully mining and carrying away coal, to which we have recently alluded, 21 Alb. L. J. 442, and ante, 2, we note the case of Illinois, etc., R. R. Co. v. Ogle, 92 Ill. 353. The parties seem the same as in the case in 82 Ill. 627; S. C., 25 Am. Rep. 342. In the latter case the element of innocent mistake in the mining entered, and was held to make no difference. In the present case, however, the court say, "it is moreover evident that this trespass was not the result of mere mistake, but was knowingly and willfully done," and the court hold, as in the former case, "the measure of damages to be the value of the coal at the mouth of the pit, less the cost of carrying it there from the place where it was dug, allowing the defendant nothing for digging." But upon this theory, we would ask, why allow the wrong-doer any thing for the carriage of the coal to the mouth of the pit; or if that is allowed for, why must we not allow for the digging? The rule seems inconsistent with its own theory.

In Davis v. Dudley, 70 Me. 236, it was held that a minor's deed of land not appearing upon its face to be prejudicial to him, is not void but voidable. To avoid it or ratify it, there must be some act on the part of the minor, after becoming of age, indicative of that intention. Mere delay on the part of the minor is not sufficient evidence; but delay coupled with the neglect of the minor, after becoming of age, and having knowledge that the other party is intending to, and does make valuable improvements, to make known his intention to avoid his deed in season to prevent such expenditure, is a sufficient ratification. The court said: "As the deed is voidable at the election of the minor, it follows that until that election is in some way made manifest there is neither a ratification nor an avoidance. Without the one or the other the deed must still remain in force but as a defeasible instrument. This manifestation must be shown by some positive and clear act, intended for that purpose. What that act shall be, or what is sufficient for that purpose, must necessarily depend upon the circumstances of each case. It therefore follows that mere delay within the time allowed by the statute of limitations, uncoupled with any acts expressive of an intent to confirm, would not be sufficient for that purpose; and this may now be considered as well-settled law; though some decisions may be found holding that unless the deed is repudiated within a reasonable time, ratification will result. 3 Wash. R. Prop. (3d ed.) 226; Boody v. McKenney, 23 Me. 523-4; Jackson v. Carpenter, 11 Johns. 539; Tucker v. Moreland, 10 Pet. 75-6. While mere acquiescence for any length of time within the statute of limitations is no proof of intention to ratify, when coupled with acts or even omissions when duty requires action, it may become not only pertinent, but satisfactory proof of such intention." "In this case the land was sold late in the fall. The grantor became of age in the spring following. The inference is that nearly or quite all the improvements