trade-mark is acquired by its use, which the law does not require shall be continued for any prescribed time. The trade-mark is often intended to indicate the quality of the goods, and it is unlawful to appropriate it to indicate goods of a quality equal to those manufactured or sold by its proprietor. Taylor v. Carpenter, 11 Pai. 292; Coats v. Holbrook, 2 Sandf. Ch. 586. The use of a trade-mark, ignorantly or innocently, with no intention to defraud or deceive the proprietor or the public, will be restrained by chancery. Millington v. Fox, 3 My. & C. 338; Cartier v. Carlisle, 31 Beav. 292. In order to authorize the interference of chancery it is not necessary that the trademark should be copied with the fullest accuracy. An imitation which varies from the original in some respects will be restrained. The rule is that if the imitation is calculated to deceive and may be taken for the original, its use will be restrained. Filley v. Fassett, 44 Mo. 173; Boardman v. Meriden Brittania Co., 35 Conn. 402; Falkenburg v. Lacy, 35 Cal. 52; Woodward v. Lazer, 21 id. 448; Sexe v. Provezende, L. R., 1 Ch. App. 192; Wotherspoon v. Currie, L. R., 5 Eng. & Ir. App. 58; Bradley v. Norton, 33 Conn. 157; Davis v. Kendall, 2 R. I. 566. See, also, 2 Hill. on Torts, 62; 2 Story's Eq. Jur. (11th ed.), § 951; High on Injunc., ch. 16; Addison on Torts (4th ed.), 874. Shaver v. Shaver. Opinion by Beck, J.

MICHIGAN SUPREME COURT ABSTRACT.

JUNE, 23, 1880.

RECORD -MISTAKE OF REGISTER IN RECORDING DOES NOT PREJUDICE MORTGAGEE.- The statutes of Michigan held to provide that a mortgage is considered recorded when received by the register of deeds for record. This officer is required to keep an entry book of mortgages in which are set forth the date of reception of the instrument, the names of the mortgagors and mortgagees, township, where lands are situated, etc. Afterward the instrument is to be recorded at length in a book kept for the purpose. A mortgage was received and the proper entries made by the register in the entry book. In copying the same at length in the proper book the name of the mortgagee was omitted. Held, that the mortgage was recorded so as to affect a subsequent purchaser with notice. Under a New York statute, which provided that no mortgage should "defeat or prejudice the title of any bona fide purchaser, unless the same shall have been duly registered," Chancellor Kent held that "the registry is notice of the contents of it and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the register. It is the business of the mortgagee; and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser." The statute, he adds, intended the registry as the correct and sufficient source of information; and it would be a doctrine productive] of immense mischief to oblige the purchaser to look at his peril to the contents of every mortgage, and to be bound by them, when different from the contents as declared by the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy of the statute." Frost v. Beekman, 1 Johns. Ch. 288, 298. The mistake in the record in that case consisted in a misrecital of the amount secured. The case has been often followed. In Sanger v. Coague, 10 Vt. 555, the error consisted in misdescribing the land. In Jennings v.

Wood, 20 Ohio, 26, the name of the grantor in a deed was incorrectly given. In Parrett v. Shaubhut, 5 Minn. 323, the mistake consisted in the omission of one of the subscribing witnesses, whereby the deed was made to appear insufficiently executed. In Shepherd v. Brubhalter, 13 Ga. 443, the name of the mortgagor was not appended to the mortgage as recorded. In Sawyer v. Adams, 8 Vt. 172, the deed was recorded in an unused book and not indexed. Terrell v. Andrew Co., 44 Mo. 309, was another case of error in giving in the record the amount of the mortgage, and the following are cases in which the thing conveyed was misdescribed: Chamberlain v. Bell, 7 Cal. 292; Miller v. Bradford, 12 Iowa, 14; Baldwin v. Marshall, 2 Humph. 116; Brydon v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, 269; Gwinn v. Turner, 18 id. 1. This court has also held that a sheriff's notice of attachment was ineffectual where by mistake it failed to describe the land attached. Barnard v. Campau, 29 Mich. 162. On the other hand, it has been held in Illinois, under a statute which gave a deed effect as against subsequent bona fide purchasers from the time it was filed for record, that the grantee was not affected by errors in recording, he having done all that the law required of him when he had filed his deed with the recorder. Merrick v. Wallace, 19 Ill. 486; Polk v. Cosgrove, 4 Biss. 437; Riggs v. Boyland, 4 id. 445. So, in Alabama, under a statute which made a conveyance "operative as a record" from the time it was left for registration, it was decided that a mortgage was a valid lien for the whole amount, though incorrectly recorded as for a smaller sum. Mims v. Mims, 5 Ala. 23. The following are cases which recognize the rule that filing a deed for record gives it effect as a record. Dubose v. Young, 10 Ala. 365; Bank of Kentucy v. Hagan, 1 A. K. Marsh. 306. The different conclusions in these cases are the result, in the main, of differences in the statutes under which the records have been made or attempted, and perhaps if all the statutes had been alike, all the decisions would have been harmonious. Sinclair v. Slawson. Opinion by Cooley, J.

WAIVER-APPEARANCE IN JUSTICE'S COURT.-In an action in a justice's court the court had lost jurisdiction on account of an adjournment from time to time in the absence of defendant. Upon an adjourned day the defendant's attorney answered to the case and applied for a postponement to a later hour the same day. The plaintiff's attorney objected and the application was denied. The defendant's attorney then stated that he appeared specially to object to further proceedings. Held, that the defect in jurisdiction was waived by the acts of defendant's attorney. If he had appeared specially and for the purpose of assisting the suit on account of previous irregularities, there would have been no waiver. But if the appearance was for an other purpose, and with the view to prolong the pendency of the action, and it contemplated a step adapted to a case regularly on foot, it was a waiver of the prior defects. Falkner v. Beers, 2 Doug. 117; Clapp v. Graves, 26 N. Y. 418; Briggs v. Humphrey, 1 Allen, 371; Rittenauer v. McCausland, 5 Black, 540; Heeron v. Beckwith, 1 Wis. 17; State v. Messmore, 14 id. 115; U. M. T. Co. v. Whittaker, 16 id. 220; Baizer v. Larch, 28 id. 268; Abbott v. Sample, 25 Ill. 107; Swift v. Lee, 65 id. 336; Ulmer v. Hiatt, 4 Greene, 439; Clark v. Blackwell, id. 441; Deshler v. Foster, 1 Morris, 403. The motion for a continuance was a step in the cause, and one which meant that the action should be presently kept on foot, and there was nothing to qualify it. The subsequent explanation did not abate its effect. It was not made until the motion was denied, and at that time the representation of the parties had become complete, and the irregularities were waived. Lane v. Leach. Opinion by Graves, J.

INSURANCE LAW.

BY INSURANCE COMPANY

FIRE POLICY ACTION AGAINST ONE NEGLIGENTLY CAUSING FIREJOINDER OF PARTIES.-The law is well established that an insurance company which has been compelled to pay, or has paid, a loss covered by its policy, has, after such payment, a right of action against the person who wrongfully caused the fire and loss to the amount such insurance company paid even without any formal assignment by the assured of his claim against the party primarily liable. And the courts have likewise been very firm in supporting the right of the insurance company to bring an action in the name of the assured, and will not allow the latter to defeat such action even by a release or discharge of the person by whose act the damage was occasioned. Hart v. Western R. Co., 13 Metc. 99; Monmouth County Fire Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Connecticut Fire Ins. Co. v. Railway Co., 73 N. Y. 399. These authorities distinctly affirm this position on the ground that the assured, by accepting payment of the insurer, subrogates the latter to his rights, giving such insurer full authority to sue the party causing the loss in his name. And where the right to maintain an action for a loss by fire through defendant's negligence is assigned to several insurance companies jointly, such companies may maintain the action jointly. Wisconsin Sup. Ct., June, 1880. Swarthout v. Chicago & North-western Railroad Co. Opinion by Cole, J.

OF FAMILY NOT.- By a condition in a fire policy on a dwelling it became void if the house should "become vacant or unoccupied without the assent of the company. The insured used the premises as his own dwelling. About ten days before a fire by which it was destroyed he received a dispatch summoning him to the bedside of his dying daughter, in another State, and with his wife left the house alone, and did not return until after the fire. A son who lived near by, under the direction of insured, visited the house daily during his absence to look after the premises and stock thereon. Held, that the house was not "vacant or unoccupied, within the terms of the policy. It would not convey to an ordinary mind the idea that a house is vacant or unoccupied when it has an inhabitant who intends to remain in it as his residence, and who has left it for a temporary purpose. If the phrases were used in their strict legal sense no one would imagine that the tenant was not such an occupant as would be liable to the responsibilities attached by law to occupants, or that there was such a vacancy of possession as would suspend possessory rights. It would be burglary to feloniously break and enter the house, and arson to maliciously burn it. There may be less occasion to care for a house in which no one lives, than for one tenanted, but a person temporarily absent will usually take some pains to have his premises kept under oversight, and in the present case such provision was made for the domestic animals, as well as for the house itself. It would be regarded as singular doctrine to hold that families leaving their houses on excursions or other temporary occasions, cease to occupy them. In Cummins v. Agricultural Ins. Co., 67 N. Y. 260, it was held that a removal by a son and his family to his father's house, in the neighborhood of his own, to remain with his mother in his father's house while she needed their company, but with the intention of returning to his own house, which was not dismantled, was not a vacating by removal of the son's house, although the absence actually continued about three mouths. It was also held in Whitney v. Black River Ins. Co., 72 N. Y. 118, that a saw-mill, lying idle for several weeks for lack of water or logs, did not thereby cease to be occupied during the intervals, and in dis

cussing the meaning of the terms reference was made to a school-house in vacation as not ceasing to be occu-, pied for school purposes. Michigan Sup. Ct., April 211880. Stupetzki v. Transatlantic Fire Insurance Co. Opinion by Campbell, J.

TOTAL LOSS WHAT IS.- - In an action on a policy which had a provision for an appraisement of "damage to property not totally destroyed" there was a dispute as to whether there was a total or a partial loss. Held, that a charge to this effect was not error: "A total loss does not mean an absolute extinction. The question is whether all the parts and material composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls was left standing, and some of the iron work still attached thereto, still if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property was totally destroyed within the meaning of the policy." In Nave v. Home Mutual Ins. Co., 37 Mo. 430, it was held that a policy of insurance upon a building is an insurance upon the building as such, and not upon the material of which it is composed. See, also, Huck v. Globe Ins. Co. (Mass.) Ins. L. J., Dec. 1879. In Insurance Co. v. Fogarty, 19 Wall. 644, which was an action on a policy of marine insurance, the Supreme Court of the United States held that the doctrine of an absolute extinction of the thing insured is not the truo doctrine, even in that class of cases where the rule is stricter than in cases like the present. In the course of the opinion, in speaking of the case of Hogg v. Augusta Ins. Co., 7 How. 595, where there was an insurance of jerked beef of 400 tons, part of which was thrown into the sea, and part of the remainder so seriously damaged that the authorities of the city of Nassau refused to allow more than 150 tons of it to be landed, the court say: "It will be observed that in this case, as in the case of Morcardier v. Chesapeake Ins. Co., 8 Cranch, 47, the destruction spoken of is destruction as to species, and not mere physical extinction. Indeed, philosophically speaking, there can be no such thing as absolute extinction. That of which the thing insured was composed must remain in its parts, though destroyed as to its specific identity. In the case of the jerked beef, for instance, it might remain as a viscid mass of putrid flesh, but it would no longer be either beef or jerked beef. The case of Judah v. Randall, 2 Cai. Cas. 324, where a carriage was insured and all lost but the wheels, is another illustration of the principle. A part of the carriage— namely, the wheels, a very important part was saved; but the court held that the thing insured-to wit, the carriage -was lost; that it was a total loss. Its specific character as a carriage was gone." California Sup. Ct., March 29, 1880. Williams v. Hartford Fire Insurance Co. Opinion by Ross, J.

RECENT ENGLISH DECISIONS.

AGENCY-SALE ON CREDIT TO AGENT BELIEVED TO BE A PRINCIPAL.- Although a seller, who has given credit to an agent, believing him to be a principal, cannot have recourse against the undisclosed principal, if the principal has bona fide paid the agent at a time when the seller still gave credit to the agent, nevertheless if at the time of dealing in the goods the seller was informed that the person who came to buy was buying for a principal, but was not told who that principal was, he may afterward have recourse to the undisclosed principal, who will be liable even after payment to his agent, unless he has been reasonably led to infer that the debt has been paid by the agent, or that the seller elects to look to the agent alone for payment. On 10th March, 1879, defendants gave to C. & Co. an

order to buy certain oil. On 12th March C. & Co. purchased the oil from plaintiffs, stating that it was for a principal in the country, but not giving his name. Part of the oil was delivered on 13th, and the remainder on 15th March. On the latter date defendant paid C. & Co. for the oil by their acceptances. On 17th or 18th March plaintiffs applied to C. & Co. for payment; other applications were made to C. & Co. between 21st and 25th March. C. & Co. stopped payment on 27th March, and on 28th March application was for the first time made to defendants for payment of the price of the oil. Defendants repudiated all liability, whereupon this action was brought to recover the amount. Held, that as no such delay had intervened from the purchase of the oil as to lead defendants reasonably to infer that plaintiffs looked no longer to their credit, or that they looked to the agent alone, plaintiffs were entitled to recover. Cases referred to: Thompson v. Davenport, 9 B. & C. 78; Heald v. Kenworthy, 10 Ex. 739; Armstrong v. Stokes, L. R., 7 Q. B. 598; Smyth v. Anderson, 7 C. B. 21. Ct. Appeal, June 11, 1880. Irvine & Co v. Watson & Sons. Opinions by Bramwell, Baggallay, and Brett, L. JJ., 42 L. T. Rep. (N. S.) 800.

FIRE INSURANCE A policy of fire insurance is a contract of indemnity. Premises were held under lease containing a covenant to repair, under which the tenant was liable to repair injury by gas. An explosion of gas damaged the premises. The tenant recovered compensation from the party who caused the explosion, and repaired the premises. The landlord had received payment under a fire policy, and the insurer, on discovering that the premises had been repaired, sued for the return of the money so paid. Held, (reversing the judgment of Lush J.), that the plaintiff was entitled to recover. North British Ins. Co. v. London, Liverpool, etc., Ins. Co., 37 L. T. Rep. (N. S.) 629. Ct. Appeal, May 12, 1880. Darrell v. Tibbetts. Opinion by Brett, Cotton, and Thesiger, L. JJ.

-CONTRACT OF INDEMNITY ONLY.

LEASE COVENANT TO PAY TAXES AND ASSESSMENTS -WHAT IS AN ASSESSMENT.- Plaintiffs, as owners of certain premises, were summoned by the urban sanitary authority for not complying with a notice to abate a nuisance thereon occasioned by defective sewerage, and for that purpose to make drainage communication with the common sewer. On the hearing of this summons a magistrate's order was made under section 96 of the Public Health Act, 1875 (38 and 39 Vict., ch. 55), directing plaintiffs to execute the works in question, which they accordingly did. Defendant was tenant of the premises under a lease, by which he covenanted to "bear, pay, and discharge" certain specified taxes and rates, "and all other taxes, rates, duties, and assessments taxed, charged, rated, assessed, or imposed on the said demised premises or any part thereof, or upon the landlords or tenants in respect thereof." Held, by Bramwell and Baggallay, L. JJ. (Brett, L. J., dissenting), that under this covenant plaintiffs were entitled to recover from defendant the costs of executing the above works. Judgment of Grove, J., affirmed. Cases referred to: Tidswell v. Whitworth, L. R., 2 C. P. 326; Thompson v. Lapworth, L. R., 3 C. P. 149; Crosse v. Raw, L. R., 9 Exch. 209; Rawlins v. Briggs, L. R., 3 C. P. D. 368; Hartley v. Hudson, L. R., 4 C. P. D. 367; Sweet v. Seager, 2 C. B. (N. S.) 119; Payne v. Burridge, 12 M. & W. 727. Ct. Appeal, June 23, 1880. Budd v. Marshall, 42 L. T. Rep. (N. S.) 793.

MARITIME LAW-CARRIER -STOPPAGE IN TRANSITU. Where the master of a ship has still the character of carrier and retains a lien for freight upon the cargo, the fact of a subsale and handing over of a delivery order for the cargo to the sub-purchaser, and actual receipt by him of part, does not put an end to the transitus so as to defeat the unpaid vendor's right

to stop the surplus proceeds payable by the sub-purchaser, after discharging intermediate equities. Ex; parte Golding, Davis & Co., re Knight & Son, 42 L. T. Rep. (N. S.) 270; 13 Ch. Div. 628, followed. Ct. Appeal, May 13, 1880. Ex parte Falk; re Keill. Opinions by James, Baggallay and Bramwell, L. JJ., 42 L. T. Rep. (N. S.) 780.

THIS

NEW BOOKS AND NEW EDITIONS.

32D NEW JERSEY EQUITY REPORTS. Reports of Cases decided in the Court of Chancery, the Prerogative Court, and on appeal in the Court of Errors and Appeals, of the State of New Jersey. John H. Stewart, Reporter. Vol. V. Trenton, N. J., 1880. Pp. xxvi, 907. HIS volume of this most admirable series is full of interest. The following cases are annotated in the most thorough manner by the reporter: Cray v. Cray, p. 25.- A denial of a marriage de jure, because complainant had another husband living when she married defendant, accompanied by an admission of a marriage de facto, presents a proper case for alimony pendente lite. Smillie v. Titus, p. 51. A mortgage executed by a prisoner, while under arrest on a charge of appropriating gold intrusted to him to be refined, the prisoner confessing the crime, is not void for duress. Central R. R. of N. J. v. West Line R. R. Co., p. 67. A complainant must elect between his suit pending in the State court and his suit for the same cause pending in the Federal court. Homœopathic M. L. Ins. Co. v. Marshall, p. 103.-In the absence of fraud or duress a married woman cannot contradict her acknowledgment of a deed. Williams v. Vreeland, P. 135.-Specific performance will be decreed of an oral promise by A to B, in consideration of a legacy from B, to pay C a part thereof. Hedges v. Norris, p. 192.The statute of limitations does not bar a suit in

equity for the recovery of a legacy payable only out of the personalty. Cooper v. Bloodgood, p. 209.— A riparian owner granted lands, including the water front between high and low-water mark, with the usual covenants of title, and procured for the grantee a wharf license, by virtue of which the grantee built a wharf on the granted premises. Subsequently, without notice to the grantor, the grantee obtained from the State a riparian lease of the premises. Held, that the necessity for such lease was under the circumstances in equity not tantamount to an eviction. Bussom v. Forsythe, p. 277.- The legitimacy of a heir may be contested, notwithstanding the intestate's recognition of his legitimacy by entries in his family bible, and in other ways, and notwithstanding it was never questioned until after the death of all the ancestry, and just as distribution was to be made. Parker v. Reynolds, p. 290.- General creditors of a testator are not "aggrieved," within the meaning of the Constitution, so as to have a right of appeal from an order of the orphan's court directing the sale of lands to pay debts of the estate. Palys v. Jewett, p. 302. - A receiver, appointed by an equity court, can be sued at law for a tort, but only by leave of the equity court. American Dock, etc., Co., v. Trustees of Public Schools, p. 428.A State cannot be sued without its own consent, or a constitutional provision or special enactment to the contrary. Johnston v. Hyde, p. 446.-One who has granted lands, reserving a right to maintain an open raceway over them, is not estopped, by his acquiescence in the substitution of a small wooden trunk, from insisting on the restoration of the raceway. Cook v. Cook, p. 475.-Communication of a venereal disease by husband to wife is "extreme cruelty," for which a divorce will be granted. Yorston v. Yorston, p. 495. — Acquiescence by a wife, for seven years, in a divorce obtained by her husband, irregularly, as she avers, the husband having married again and had two

children by the second wife, is fatal to her application for a divorce. Bailey v. Ross, p. 544.- An intestate died without issue, wife, or father, and never having had any brother or sister of the whole or half blood. His mother survived, and was entitled to his lands for life. His nearest relatives were two brothers of his father, and a sister of his mother, and several children of deceased uncles and aunts. After his death, and during the life of his mother, the two uncles and the aunt died, leaving children. Held, that the last took to the exclusion of the uncles and aunts who died in his life-time. Gilmore v. Tuttle, p. 611.- A case concerning the proper exercise of a trustee's discretion in making investments. Fort v. Edwards, p. 641. — A testator bequeathed his wife $5,000, “to be paid to her, as far as can be, out of the insurance money coming to my estate from the insurance on my life." He had three policies on his life, amounting to $2,500, all payable to his wife, on which he always paid the premiums, which he always kept in his possession, and which he delivered to his executor. He had no other life insurance. Held, that the amount of these policies, received by the widow, must be credited on the legacy. English v. English, p. 738.-In 1875 a wife left her husband, on account of his abuse of marital rights, taking with her their two children, a boy and girl, then aged six and four years respectively. She sued for a divorce, but this was denied on his promise of conjugal kindness. She refused to return to him, notwithstanding his entreaties. Held, that this was not such "misconduct" as should deprive her of the custody of the children, she being capable and willing to maintain and educate them, the boy being of a delicate constitution and they preferring to remain with her, although the father was sober, moral, industrious, and of pecuniary ability. We also note the following: Kuhn v. Jewett, p. 647.-Owing to defendant's negligence, petroleum being carried on a railway train, burst its tanks, was set on fire, flowed into a brook, and was carried by the water to and ignited the complainant's barn, at a considerable distance. Held, that defendant was liable. Thornton v. Ogden, p. 723.- A conveyance executed for a very inadequate consideration, by an unmarried sister to her brother, in whose house she was an inmate, in confidence that he would deal justly by her, set aside. Laible v. Ferry, p. 791.-Where executors, carrying on business under a will, had, without authority, used the proceeds to improve the lands of the testator, not subjected to the risks of trade, aud which under the will belonged in remainder to married women and infauts, held, that this would not justify the court in charging the estate of the remaindermen, to any extent, with the trade debts. Mayer v. AttorneyGeneral, p. 815.- In an insolvent mutual life insurance company, the holders of matured policies are preferred creditors, and the holders of running policies are members of the corporation, and the former cannot be called on to share, pro rata, losses occurring after their claims matured; but where, at the date of the insolvency, the risk on endowment policies had not been terminated, the holders of such policies are not creditors, although all the premiums liable to be called for had been paid.

CORRESPONDENCE.

'CERTIORARI FROM COURTS-MARTIAL. Editor of the Albany Law Journal:

A case, which may be of interest to the readers of the JOURNAL, is now pending in the Supreme Court in this county. Until quite recently, Jacob Spahn, Esq., of the city of Rochester, was major and engineer of the 12th Brigade, 7th Division, N. G. S. N. Y., on the staff of Brig.-Gen. Wm. H. Briggs, commanding said brigade. He was also editor of a military column

in the Rochester Democrat and Chronicle. In this column there appeared from time to time comments on the militia, which were not entirely of a complimentary nature. Similar comments appeared in some of the other papers of that city. Now, had the author of these comments been simply and solely an editor, outraged military honor might have made its grievances known by some irreligious remarks, but it certainly would not have made them known in any other way. The fact that the author held a commission in the militia was the burden which sat heavy upon the souls of his comrades in arms.

Wherefore Col. S. S. Eddy, commanding the 54th regiment of the 12th brigade, preferred charges against Major Spahn, alleging that he had been guilty of conduct unbecoming an officer and a gentleman, and conduct prejudicial to good order and discipline, in causing and procuring to be published the comments before mentioned. Thereupon a court-martial was convened, which, on or about the 18th day of June, 1880, found Major Spahn guilty of the charges and sentenced him to be cashiered. This sentence was approved by Maj.-Gen. Henry Brinker, July 3d, 1880. On the 31st day of July, after the time within which an appeal to the commander-in-chief could be taken had expired, Major Spahu obtained a writ of certiorari at a Special Term of the Supreme Court, held by Hon. F. A. Macomber, returnable at a Special Term to be held in the city of Rochester on the last Monday in August, 1880. This writ was directed to and served upon the members of the court-martial and AdjutantGeneral Frederick Townsend.

Now the idea of having the matter brought before the civil tribunals was utterly repulsive to the militia; and so it came to pass that a motion was made at the August Special Term, in behalf of the adjutant-general, to have the writ of certiorari “annulled, vacated, and set aside," on the following grounds: 1. That the writ should have been directed to the commander-inchief instead of the adjutant-general, and 2d, that Major Spahn had made no attempt to take the appeal to the commander-in chief, provided by section 195 of the Military Code, as amended by chap. 275 of the Laws of 1878. The motion was argued by George Raines, Esq., for the respondent and R. E. White, Esq., for the relator. The first ground was soon abandoned; but in support of the second ground the respondent's counsel cited the cases of The People ex rel. Gray v. Phillips, 67 N. Y. 582, and The People ex rel. Corwin et al. v. Walter, 68 id. 403. The principal case cited by the relator's counsel was that of The People ex rel. Garling v. Van Allen, 55 N. Y. 31, and as it was directly in point, it was decisive. The motion was denied, and it was ordered that the adjutant-general prepare and file with the clerk of Monroe county a copy of all the record and proceedings directed by the writ to be returned, on or before the last Monday of September, either party having the right to notice the writ for argument at the Special Term to be held at the city of Rochester, September 27, 1880. "So there the thing remains;" and it now devolves upon the civil courts to determine to what extent an entrance upon the arduous and dangerous duties appertaining to the life of a militiaman debars a citizen from carrying on his business or exercising his profession. Sept. 13, 1880.

APPARENTLY INCONSISTENT DICTA. Editor of the Albany Law Journal:

H.

In the case of Armstrong v. Henry M. Cummings and Charles D. Ingersoll, 20 Hun, 313, Mr. Justice Barrett observes (Davis, P. J., concurring), the case being one concerning the jurisdiction in summary proceedings of a civil justice in the city of New York, whose power in such proceedings extends only over certain wards of

the city, "It is insisted that the justice was without jurisdiction. If that were so it should have been proved as a matter of fact that the premises were not situated in either the nineteenth or the twenty-second ward. ** * ** It is proper to say that the courts will take judicial notice of the statute creating these wards, and so we find the premises in question within their boundaries." P. 314.

In the case of The People ex rel. Duchardt v. William H. Kelly, 20 Hun, 549, the statement is made per Curiam (Davis, P. J., Brady and Barrett, JJ.), this being a certiorari to review a summary proceeding had before the justice of the sixth judicial District Court in the city of New York, "the case was tried upon the assumption on both sides that the premises were in fact in the sixth judicial district. Although that fact is within our personal knowledge, we cannot take judicial cognizance of it." P. 551.

Why the court may not take judicial cognizance of the sixth judicial district if it may take notice of the wards of the city does not appear entirely evident.

From what source the members of the court derived their knowledge concerning that district, although not stated, is a matter of necessary inference. Knowledge concerning its boundaries could have been derived only from Laws of 1860, chap. 300, where the wards composing the district are mentioned.

Does not the court take notice of this public statute? Does not settled practice as well as the doubtful virtue" of consistency require the court to do so? NEW YORK, Sept. 9, 1880.

C. W. S.

COOLEY'S AMERICAN CONSTITUTIONAL LAW. Editor of the Albany Law Journal:

Judge Cooley, in his manual of American Constitutional Law (Student's Series), after stating that the jurisdiction of the Federal courts in cases of prize is exclusive, goes on to say (p. 114): “But it is also exclusive in all cases of maritime torts and contracts, and liens for maritime services, though suits in personam in the same cases, whether authorized by the principles of the common law or by State statutes, are cognizable only in the State courts."

The word "only" in the above extract is probably a misprint for "also." It is not likely that the author overlooked common law remedies in the Circuit Courts of the United States, as well as libels in personam in the District Courts, the less so, as in Leon v. Galceran, 11 Wall. 187, one of the cases cited by him, the opinion of the court begins thus:

is

"Mariners, in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in rem against the ship or ship and freight, at their election. Where the suit is in rem against the ship or ship and freight, the original jurisdiction of the controversy exclusive in the District Courts, as provided by the ninth section of the Judiciary Act, but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the District Court, or he may, at his election, proceed in an action at law either in the Circuit Court, if he and his debtor are citizens of different States, or in a State court as in other causes of action cognizable in the State and Federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act."

66

To the same effect are The Belfast, 7 Wall. 624, also cited by the author, and numerous other cases which explain the meaning and operation of the reservation in the ninth section of the Judiciary Act of 1789, ing to suitors in all cases the right of a common-law remedy, where the common law is competent to give it."

sav

In Steamboat Co. v. Chase, 16 Wall. 552, the court (per

Clifford, J.), say: "Properly construed a party under that provision may proceed in rem in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into into admiralty at all, and may resort to his common-law remedy in the State courts, or in the Circuit Courts of the United States, if he can make proper parties to give the Circuit Court jurisdiction of his case.'

It is submitted, however, that even after the text has been corrected as above suggested the author's account of the jurisdiction in admiralty and maritime cases is not entirely satisfactory. BALTIMORE.

LAW REPORTS.

Editor of the Albany Law Journal:

T. B. M.

While fully concurring with what you say on page 142 of your present volume in reference to brevity in law reporting, I think no report should be considered complete that does not contain a memorandum of all authorities cited by counsel. When this is omitted there is no way of knowing whether or not prior cases in point were overlooked. Besides, the collection of authorities is an immense saving of labor to counsel looking up any similar question. Yours, etc., B. F. LEE.

NEW YORK, Sept. 14, 1880.

NEW YORK COURT OF APPEALS DECISIONS.

THE

IE following decisions were handed down Tuesday,
Sept. 21, 1880:

Judgment affirmed with costs - Thornton v. Wabash Railroad Co.; Bommer v. American Spiral Spring Co.; Remington Paper Co. v. O'Dougherty; O'Dougherty v. Remington Paper Co.; Wayne County Savings Bank v. Low; Harris v. White; Simmons v. Cloonan; Thompson v. Bank of British North America; Taylor v. Mayor, etc., of New York; Hynes v. McDermott; Henlein v. Powers; Reynolds v. Robinson; James v. Burchell; Harrington v. Clark; McCombs v. Allen; Howe Machine Co. v. Harrington. Judgment affirmed

with costs. Appeal from order granting a new trial as to defendant Smith, dismissed with costs - Hun v. Cary. Judgment reversed and new trial granted, costs to abide event - Ponvert v. Belmont; Crispen v. Babbitt; Burnett v. Snyder (two cases); Carr v. Breese; Bray v. Farwell; Thompson v. MacGregor; Halstead v. Seaman; Viele v. Judson; Waring v. Somborn; Mansfield v. Beard. Judgment modified by striking out the affirmative relief as to parcels eight and nine and as so modified affirmed, without costs in this court to either party - Remington Paper Co. v. O'Dougherty. Order affirmed with costs- In the matter of opening of Eleventh avenue, People ex rel. Thurston v. Town Auditors of Elmira; Woodmansee v. Rogers, in re Manhattan Savings Institution.—Order of General Term reversed and judgment on verdict affirmed with costs · Brill v. Tuttle. Orders of General Term and Special Term reversed without costs The People ex rel. Egan v. The Justices of the Marine Court of the City of New York. Order of General Term reversed and that of Special Term affirmed without costs. Motion to dismiss appeal denied with $10 costs-Sheridan v. Andrews. Order of General Term reversed, and that of Special Term affirmed with costs In re Robbins to vacate, etc.; In re New York Episcopal Public School to vacate. Order affirmed and judgment absolute for respondent on stipulation with costs - Lafond v. Deems; Gerould v. Wilson. Order of General Term reversed and judgment of Special Term affirmed with costs - Conger v. Conger. Order reversed in so far as it di