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into with the intestate. It is provided by statute (Laws 1859, chap. 302), that a board of assessors should pass upon work of this kind, and report the assessment made therefor to the common council, who should confirm the same or send it back to the board of assessment for revision, who should report again, when the same proceeding might be had. By Laws 1861, chap. 308, and 1872, chap. 580, the duties and powers of the common council were devolved upon a "board of revision and correction." Held, that before an action could be maintained against the city for the work done by intestate, it was necessary that the assessment therefor be confirmed according to the statute, and a neglect or refusal of the authorities to act thereon, or improper action thereon, even though for invalid reasons, would not give a right of action. The remedy of the party aggrieved, in such case, was by certiorari or mandamus to review or compel action. Judgment below affirmed. Tone, Administrator, v. Mayor of New York. Opinion by Earl, J.

2. Construction of contract: effect of statute upon terms of: estoppel.-The fact that, at the time, the power of the common council to confirm the assessment did not exist, did not do away with a necessity for confirmation. The contract must be held to require confirmation by competent authority. The fact that the confirmation of the assessment was an act to be performed by the agents of the defendant did not estop it from setting up the want of confirmation as a defense. In the discharge of duties imposed by the legislature the boards mentioned were not agents of the city, but independent public officers. Ib. [Decided June 12, 1877.]

SHIPPING.

1. When general owner of chartered ship liable to third party shipping by.-M. & Co. of San Francisco were charterers of a ship of defendant for a voyage from that port to New York, but they had nothing to do with the victualing, manning or sailing of the ship, but this was done by defendant, and at his expense. Held, that the defendant, as general owner, was liable for the safe carriage of a trunk belonging to plaintiff, a third party, received by the master of the ship for carriage from San Francisco to New York. Judgment reversed and new trial granted. Robinson v. Chittenden. Opinion by Folger, J.

2. Delivery to charterer: when general owner not liable. - Plaintiff delivered his trunk in San Francisco to the clerk of the charterers, who gave him a receipt. This clerk delivered the trunk to the master of the vessel, but there was nothing said or done at the time to distinguish it, nor was it distinguished from other goods put on board by the charterers. Held, that delivery of the trunk to the consignees of the charterer in New York in the same manner that other goods shipped was delivered, would absolve defendant from liability to plaintiff. Ib.

[Decided May 22, 1877. Reported below, 7 Hun, 133.]

SURROGATE.

1. Commitment for contempt by non-payment by executor of money ordered paid by surrogate: how orders of, enforced. Respondent was committed to jail by a surrogate, the commitment directing that he be committed to the common jail of the county of R., there to remain, charged with the contempt mentioned in said order, until he should have paid the fine therein imposed upon him for his misconduct, amounting to the sum of $5,876.58, with interest, and commanded

the sheriff to take the prisoner and "keep him safely and closely in his custody until he shall have paid the fine," etc. The contempt consisted in neglecting and refusing to pay over to parties entitled to it certain sums which the surrogate had ordered him, as executor, to pay. Held, that the order of commitment was unauthorized and invalid. The act of the respondent was not a contempt, and could not be punished as such. Appeal dismissed. Matter of Watson v. Nelson. Opinion by Rapallo, J.

2. How decrees of, enforced: final decree: interlocutory order. A decree of the nature of that made by the surrogate for the payment of a sum of money generally, is capable of enforcement by execution against the body, but not by proceedings for contempt. For non-payment of a sum adjudged by a final decree, upon which the defendant is liable to imprisonment, the proper process is an execution against the body in the form prescribed by the court of chancery. For non-compliance with an interlocutory order, a precept of commitment, such as was used in that court under 2 R. S. 535, § 4, or an execution under Laws 1837, chap. 460, would be proper. [Decided May 22, 1877.]

WILL.

Construction of: intention of testator: construction sustaining will preferred to one destroying it.— A trust created by a will was for the preservation of the estate, and the payment of the net income from the rents and profits to the widow of testator, with this clause added, "until all of my living children shall be of full age." Held, that under the rule that if a will, or any clause of a will, is susceptible of two interpretations, that shall be adopted which will validate the provision and give effect to the disposition, rather than that which will destroy it (2 Jarm. on Wills, 743, Rule XVI), the meaning of the testator should be construed to be that the widow should be entitled to receive the income of his estate as long as she should live, unless all his living children should, during her life, attain their majority, and in such case the provision was not in conflict with the law against perpetuities. Judgment below affirmed. Provost v. Provost. Opinion by Allen, J. [Decided June 12, 1877. Reported below, 7 Hun, 81.]

RECENT AMERICAN DECISIONS.

SUPREME COURT OF NEW JERSEY. COURT OF ERRORS AND APPEALS, NEW JERSEY.* BAILMENT.

Bailee converting goods: trover for conversion: lien for labor on goods.-A bailee, converting goods on which he has bestowed labor and acquired a lien, may, in an action of trover brought by the owner, set up his lien-claim in reduction of damages. Longstreet v. Phile.

BREACH OF PROMISE.

Promise to marry while wife living, void.—A promise of a married man to marry when a divorce should be decreed between himself and his wife, in a suit then pending, is contrary to public policy, and void. Noice v. Brown (Court of Errors and Appeals).

DEMURRAGE.

Belongs to master only of vessel: when not due.-C. was master of a vessel, under a charter-party made in 1864, which contracted for a voyage from Philadelphia to Beaufort. He put A. in charge, who sailed the ves

* To appear in 10 Vroom's (39 N. J. Law) Reports.

sel to Beaufort. On arriving at Beaufort, A. was ordered, by the party in command, to sail to Charleston. The original charter-party was indorsed 'fulfilled' by said officer, and a new one drawn, with A. as master, for the voyage from Beaufort to Charleston. A claim for demurrage having arisen against the government, on this latter voyage, and the same having been paid by the government, it was held, (1) that the master of the vessel alone, ou the voyage from Beaufort to Charleston, had the right to receive this demurrage, and on his death, such right would go to his personal representatives. (2) C. was not the master on the said voyage. The forcible act of the government utterly destroyed the relationship existing between C., as master, and the owners of the vessel, and created a new relationship between the government and the owners, to which C. was not a party. Hill v. Stetson.

EVIDENCE.

Proof of partnership: reputation not sufficient.-In an action against persons as partners, mere reputation of partnership is incompetent. The plaintiff cannot make out a prima facie case so as to shift the burden of proof by showing reputation simply, and not connected with facts evincing that the reputation existed by the authority, assent, connivance or negligence of the person sought to be charged. Taylor v. Webster.

MASTER AND SERVANT.

Master not liable to servant for negligence of fellowservant.-A master is not liable to a servant for the negligence of a fellow-servant, while the two are engaged in the same common employment, unless for negligence in the selection of the servant in fault, or in retaining him after notice of his incompetency. A fellow-servant is any one who serves and is controlled by the same master; common employment is service of such kind that, in the exercise of ordinary sagacity, all who engage in it may be able to foresee, when accepting it, that through the negligence of fellow-servants, it may probably expose them to injury. McAndrews v. Burns, adm'x (Court of Errors and Appeals).

MUNICIPAL CORPORATION.

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Invalid ordinance, by: what is such ordinance.-The board of aldermen of Jersey City, acting under the charter of 1871 (Pamph. L., 1871, p. 1094), passed the following ordinance: Section 1. No person or persons shall drive, or cause to be driven, any drove or droves of horned cattle (except milch cows), through any of the streets, avenues, etc., in Jersey City. Section 2. That any person, etc., that shall violate the provisions of this ordinance, shall, for every such offense, forfeit and pay the sum not exceeding $50." Section 24, pl. 5, of the charter, authorized the board to pass ordinances to regulate and control the driving of cattle, etc., through the streets, etc., of the city. Held, (1) That the ordinance in question is not bad for uncertainty in the penalty. (2) That it is bad for vagueness and uncertainty in the thing forbiddden. (3) That if the effect of it is effectually to prohibit, etc., it is void, for the additional reason that the board had, by their charter, no authority to make such an ordinance. McConvill v. Mayor of Jersey City; Snowden v. Same.

STATE.

Suit against: attaching money in State treasurer's hands.-A State cannot be sued in its own courts without its consent, and, therefore, money in the hands of

the State's treasurer, due to a non-resident debtor, cannot be attached at the suit of a creditor. No other property being attached, the writ is quashed. Lodor v. Baker.

SURETYSHIP.

What will discharge surety.-A valid agreement to give time on a promissory note to the principal will discharge the surety. Thompson v. Bowne.

USURY.

Recovery back of money paid usuriously.-Money paid usuriously may be recovered back. The rule is not changed by the present usury act. Brown v. Mc Intosh.

WAIVER.

Of statutory provisions.-Statutory provisions designed for the benefit of individuals may be waived. The statute of limitations may be waived by those who assent in legal form, and when acted upon, such waiver becomes an estoppel to plead the statute. Quick v. Corlies, adm'x, etc.

SUPREME COURT COMMISSION OF OHIO. SUPREME COURT OF OHIO.*

CONSTITUTIONAL LAW.

1. Corporation citizen of State where created.-Under the clause of the constitution of the United States, extending the judicial power of the United States to controversies between citizens of different States, a corporation, in respect to the jurisdiction of the Federal courts, is regarded as a citizen of the State where it was created. Baltimore and Ohio R. R. Co. v. Cary (Commission).

2. Foreign railroad corporation.-A foreign railroad corporation, by merely leasing, possessing and operating in this State the property of a domestic railroad corporation, does not thereby become an Ohio corporation, nor such citizen of the State. Ib.

3. Act requiring corporation to waive citizenship unconstitutional.-The proviso of the 24th section of the act for the creation and regulation of incorporated companies in Ohio, as amended March 19, 1869 (66 Ohio L. 32), so far as it provides that the leasing, purchasing or operating a railroad in this State by a railroad company of another State shall be regarded as a waiver of the right of such foreign company to remove cases brought against it in the State courts to those of the United States, is repugnant to the constitution and laws of the United States, and is, therefore, ineffective as a statutory waiver of the right of such removal. Ib.

4. Removal of cause.-When a corporation of another State, not being a citizen of Ohio, is sued by a citizen of the State, in the State court, it is entitled to have the case, under the 12th section of the judiciary act of Congress of 1789, removed from the State court to a United States court. Ib.

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rescission when executed. Hooker v. De Palos (Commission).

2. Part performance: revocation.-When such contract has been partially performed by both parties, so that the evil purpose of the contract has been in part effected by the co-operation of both parties, as where the vendor has withdrawn the land from market, and for some months subjected it to the control of the vendee for the purposes of the lottery, and the vendee has paid part of the purchase-money, and has, with the aid of the vendor, set the enterprise on foot, and issued and sold a number of lottery tickets, then, as to such part performance, the condition of the parties is the same as though the contract had been fully executed. The parties are in pari delicto, and the law will aid neither of them in enforcing further performance, or in undoing what has been unlawfully done. Hence, under such circumstances, the vendee cannot maintain an action to recover from the vendor the money paid on the contract. Ib.

CRIMINAL EVIDENCE.

Homicide: opinion as to danger to life.-In a criminal prosecution where the defendant seeks to justify, on the ground of self-defense, it is not competent to give in evidence the opinion of a witness as to the existence of danger to life, or of great bodily harm, or that such danger might have been reasonably apprehended by the defendant. The State of Ohio v. Isaac Rhoads.

EXECUTOR AND ADMINISTRATOR.

1. Executor continuing business of deceased: liability of estate. Where the executor of an estate, who is not authorized to do so, takes the personal assets of his testator, and uses them in carrying on the former trade and business of the testator for a series of years, for the purpose of making money to be used in paying the debts and supporting the family of the testator, consisting of a widow and minor children, and also for the purpose of keeping up the business for the minor sons when they should be old enough to take charge of it, and in so doing, pays off all the debts of the tesator. Held, that the general assets of the testator in the hands of an administrator de bonis non, is not liable for money borrowed by the executor for, and used in carrying on such trade and business, though the executor acted in good faith. Lucht, adm'r, v. Behrens (Commission).

2. Estate not subject to liabilities incurred in prosecution of business by executor.-The general estate, real and personal, of the testator, not embarked in such business, cannot be subjected to the liabilities incurred in its prosecution in the absence of clear and explicit authority conferred by the will, even though the executor acted in good faith. When by the will all the estate, real and personal, is devised subject only to the payment of debts, the devisees, as well as the creditors, have an interest in the estate, that cannot be defeated or incumbered by debts contracted by the executor, not authorized by the will. Ib.

MUNICIPAL CORPORATION.

Street improvements: abutting property, what is.What constitutes abutting property liable under the municipal code to be assessed for the improvement of a street, is to be determined by the situation of the property at the time of the passage of the ordinance directing the improvement, and prescribing the mode of making the assessment; and such liability is not

affected by subsequent changes in the title to the property. Douglass v. City of Cincinnati.

RAILROAD.

Damages for ejection from car for refusal to pay illegal fare.-In an action by a passenger against a railroad company for being wrongfully ejected from the cars by the conductor, it appeared that the rates of fare fixed by the company, and which by its established rules it was made the duty of the conductor to demand, were higher than those allowed by law. The plaintiff tendered what he claimed to be, and what was ultimately held to be, the legal rates, and, upon refusal to pay more, was ejected from the cars, but without any rudeness or unnecessary violence. It also appeared that the plaintiff, at the time he took passage, knew the established rates, and expected to be ejected from the cars, intending to bring an action for such ejection, in order to test the right of the company to charge the established rates. Held, that the plaintiff was only entitled to compensatory damages, and that it was competent for the company, for the purpose of mitigating damages, or preventing the recovery of exemplary damages, to give in evidence subsequent declarations of the plaintiff, tending to prove that his object in taking passage on the cars was to make money by bringing suits against the company for demanding or receiving their established rates of fare. Cincinnati, Ham. and Dayton R. R. Co. v. Cole.

RECENT ENGLISH DECISIONS.

CASES RELATING TO WILLS.

Executor according to the tenor.-A testatrix appointed the executors to her will as follows: "I appoint my said sister my executrix, only requesting that my nephews, F. P. and J. A. B., will kindly act for or with this dear sister." Held, that F. P. and J. A. B. were executors according to the tenor. Prob. Div. and Adm. Div., Feb. 27, 1877. In the Goods of Brown, 36 L. T. Rep. (N. S.) 519.

Identity: illegitimate child described as legitimate: settlement between trustee and cestui que trust: when trustee chargeable with fraud.-A legatee in a will was described as "J. E., the son of S. E., by M. J., or M., or E., his wife." There being no doubt as to the identity of the person intended, the question, whether he was the son born in lawful wedlock or not, was utterly immaterial, for he was the person designated as the legatee. If on the footing of a supposed illegitimacy the title of the cestui que trust to the legacy is disputed and denied by the trustee, and the former is thereby induced to accept from the trustee a smaller sum than that to which he is entitled under the will, and by deed to release the trustee from the payment of the legacy, equity will not permit such a transaction to stand. Even without any evidence of fraud, such a transaction is null and void. A trustee who, on untenable grounds, withholds trust money from his cestui que trust may commit what in equity may be considered a fraud, without being chargeable with personal fraud. A legacy was given on an express trust in 1807; it was not paid to the original legatee. He became insolvent, released the legacy, and died. His only child came of age in 1849. Litigation on matters connected with the legacy, but not upon a direct claim to it, was going on in 1865. A. took an assignment of the legacy, and also became the administrator of the original legatee's estate, and the as

signee under his insolvency; in 1872 he filed a bill to enforce payment of the legacy with interest. He was held entitled to the assistance of a court of equity in respect of it. Thompson v. Eastwood, L. R., 2 App. Cas. H. L. (I.) 215.

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from sharing with her next of kin, but had not excluded the widow of his son, A. was entitled to share with her husband's next of kin. Ch. Div., April 13, 1877. Re Collins' Trusts, 36 L. T. Rep. (N. S.) 437.

Power: exclusive or non-exclusive power.-A testatrix, after giving a life estate to a daughter in a cer

and among (the testatrix's) other children or their issue in such parts, shares and proportions, manner and form as her said daughter * * * should, by deed or will, appoint. Held (affirming the decision of Jessel, M. R.), that this was an exclusive power and was well exercised by an appointment to one only of its objects to the exclusion of the rest. Garthwaite v. Robinson, 2 Sim. 43, disapproved of, and Stolworthy v. Sancroft, 10 L. T. Rep. (N. S.) 223; 10 Jur. (N. S.) 262, considered by the court below. Ct. App., April 23, 1877. Re Veale's Trusts, 36 L. T. Rep. (N. S.) 634.

Residuary clause: revocation by subsequent will: incomplete disposal of property: residue.-Where a testator dies leaving two wills, in the latter of which there is no express revocation of the earlier, and in which part of the property is not disposed of, the court will decree probate of the latter will, as being made in complete substitution for the earlier, and as being an expression of all the testamentary dispositions which the testator at the time of death intended. In considering cases of this description the whole of the circumstances of the case and the various dispositions in the two wills must be taken into account in order to judge whether the latter document shows on the face of it a revocation by implication of the earlier will. Prob. Div. and Adm. Div., Jan. 11, 1877. Dempsey v. Lawson, 36 L. T. Rep. (N. S.) 515; S. C., L. R., 2 P. D. 98.

Limitations, statute of: when it does not apply: express trust: allowance of interest.-The statute of lim-tain fund, gave her a power to appoint the fund, “to itations does not apply to an express trust for a legacy, yet where the beneficiary or his representative has allowed a very long time to elapse without attempting to enforce the trust, equity will, when enforcing it, apply as to interest on the legacy, the principle of the statute. A will, in 1807, began thus: "I hereby appoint my after-named executor, Charles E., my youngest brother, to be trustee for the following legacies." Several were then named, and the will went on, Considering that money will be more essential to my dear brother, Samuel E., than a distant possession of land, I bequeath to Samuel E. during his natural life the interest of £3,000, and after his death, to his eldest son, James E., by his last wife, Margaret J., or M., or E., till he attains twenty-one, and then to obtain the principal. I order that my youngest brother, Charles E., shall be liable to all my lawful debts of every description, and pay them as soon as he cau, and also pay my legacies when regularly due, and all expenses, etc.; and to enable him to do all this, I bequeath, unconditionally, to him all my estates and landed property, with all emoluments belonging to them, in the county of Armagh; I also bequeath to him, the said Charles, all my estates, etc., with all their emoluments, in the county of Louth, or elsewhere," etc. Held, that the will constituted an express trust, so as to prevent the statute of limitations applying to it. Payment of the legacy with interest was therefore directed. But, there having been no proceedings taken until 1872, with the direct purpose of enforcing payment of the legacy (though other proceedings connected with the will had been going on), and the estates having passed into the hands of the representatives of the original trustee, the interest on the legacy was, in the discretion of the House, directed to be calculated only from six years before the filing of the bill. The word " unconditionally," as used in this will, did not mean without any condition annexed to the payment of the legacies, but that the trustee was made absolute owner of the fee simple for the purpose of doing what the testator had ordered. Thompson v. Eastwood, L. R., 2 App. Cas. H. L. (I.) 215.

Lost will: copy: evidence.-Declaration of a deceased person, who has been in possession of property claiming a limited interest therein under a particular will, are admissible to prove the fact that such will had a legal existence, and also that certain persons were named executors therein. And where a copy of such will, the original not being forthcoming, is found in the possession or among the papers of the legal adviser of one of such executors, it is evidence of the contents of such will, and may be admitted as such. Sly v. Sly and Dredge, L. R., 2 P. D. 91.

Next of kin according to statute: exclusion of widow: intention.-Testator bequeathed a fund in trust for his daughter for life, with remainder to her next of kin according to the statute, but in exclusion of any husband. He also bequeathed a fund in trust for his son for life, with remainder to his next of kin according to the statute. The son died, leaving a widow, A., and brothers and sisters. Held, that as the testator had expressly excluded the husband of his daughter

Tenant in tail: common recovery: express trust: statute of limitations.-Testator, by a will made in 1779, devised freeholds unto his son A, and the heirs of his body, "upon special trust and confidence" that, in case he should leave no issue of his body, he would not do or suffer any act in law or otherwise to prevent the several following limitations of the estates from taking effect. And the testator devised (in case his son should die leaving no issue of his body) the said freeholds to trustees in trust (subject to certain prior limitations) for B (the plaintiff's grandfather) for life, with remainder to his eldest son (the plaintiff's father) in tail. A died, leaving no issue. The statement of claim alleged that, upon the death of B in 1852, the plaintiff's father became entitled, as tenant in tail, to the possession of the property. The defendant demurred, on the ground that the alleged trust contained in the will did not operate to prevent A from suffering a recovery; that the recovery suffered by A was valid to defeat the estates limited over in case A should die leaving no issue of his body; and "on other grounds sufficient in law to sustain this demurrer. Held, first, that the right to suffer a recovery was a necessary incident to a legal estate tail, not in the least interfered with by the expression of "trust and confidence" that the tenant in tail would not do so, and that the recovery, when suffered, defeated the limitations over contained in the will; and, secondly (assuming the limitations over to have taken effect), that, as on the plaintiff's own statement his title accrued more than twenty years ago, the statute of limitations was an absolute bar to his claim, and, as the demurrer stated "some ground of law," the defense of the statute was properly raised upon this demurrer.

Ch. Div., June 6, 1877. Dawkins v. Lord Penrhyn, 36 L. T. R. (N. S.) 680.

Uncertainty of description: alternative appointment. -A testator bequeathed by his will all his property to his three sisters, or to such one or other of them that survived him, and appointed "either one of my three sisters my sole executrix." Two of the three sisters predeceased the testator, and the court refused the appointment of executrix to the surviving sister, or probate to her of the will, on the ground that the appointment "either one of my three sisters," was void for uncertainty. Prob. Div. and Adm. Div., Feb. 6, 1877. In the Goods of Blackwell, 36 L. T. Rep. (N. S.) 413.

BOOK NOTICE.

KANSAS REPORTS, VOL. XVII.

Reports of Cases Argued and Determined in the Supreme Court of the State of Kansas. By W. C. Webb, Reporter. Vol. XVII. Containing cases decided at the July Term, 1876, and January Term, 1877. Topeka, Kansas: Geo. W. Martin, Kansas Publishing House, 1877.

THE

THESE reports are published with commendable promptness, and the work of the reporter upon them is as well done as is that of his cotemporaries who exercise greater moderation in issuing their volumes. In the present volume the cases are chiefly of local value, less than a dozen cases of general interest appearing. Among those of the latter kind, we notice the following: Powers v. Clarkson, p. 218. It is here held that wild grass growing on wild, unoccupied, uncultivated land is a part of the realty, and an attempted transfer of such grass by parol agreement, is roid under the statute of frauds. Kansas Pacific Railway v. Mihlman, p. 224. When A enters upon the land of B and digs a ditch thereon, it is a completed trespass, and the cause of action for all injuries resulting therefrom, commences to run at the time of the trespass. And the fact that A does not re-enter B's land and fill up the ditch does not make him a continuing wrong-doer and liable to repeated actions as long as the ditch remains unfilled. Kansas Pacific Railway Co. v. Reynolds, p. 251. Where, in order to procure the carrying by a railway of goods at the regular rate, a shipper who is given the alternative of having his goods, which have been accepted for carriage, unloaded or signing an agreement which attempts to limit the liability of the company as to such goods, held that the agreement is without consideration and void. State v. Winner, p. 298. In a criminal prosecution, and even in murder in the first decree, the corpus delicti may be proved by circumstantial evidence. Moonlight v. Bond, p. 351. It was here held that the fact that a candidate for an elective office paid money to a third person for the purpose of furnishing spirituous liquors for voters generally, with the intent to facilitate his election, was not ground for ousting him from the office to which he was elected. Britchett v. Mitchell, p. 355. The plea of usury is a personal privilege, and if the debtor declines to avail himself of it, no stranger to the transaction can. Accordingly a second mortgagee cannot plead usury in a prior mortgage, either to defeat or postpone its lien. Glass v. Alt, p. 444. A note given for intoxicating liquors sold in violation of the laws of Kansas is void in the hands of the person making such sale. This volume contains a fair index, a table of cases cited, and is well printed and bound.

CORRESPONDENCE.

THE NEW CODE.

To the Editor of the Albany Law Journal:

SIR-I have been disposed to give the New Code a fair trial and to pass judgment upon it only after the light of experience should have been cast upon it. It has become necessary for me to commence to familiarize myself with its provisions in preparation for practice under it after the first of next September. After a partial reading I am convinced that it is not necessary to wait for a single day's practice before feeling justified in condemning certain parts. Particularly do I wish to call your attention to the provisions relating to the service of a summons by publication. All the provisions of the existing Code, requiring proof that the party sought to be served cannot be found within the State or served within the State, are entirely left out of the New Code. It is only necessary to show that the action comes within the provisions of section 438. For instance take the fourth subdivision. The summons may be served by publication, "where the defendant is a resident of the State and the complaint demands judgment annulling a marriage, or for a divorce, or a separation." Is not this a provision that a summons may be served by publication in the very case of all others where it should be personally served? Is it not correct practice to serve by publication in an action for a divorce upon a defendant who may be resident in the same village or city as the plaintiff's attorney and every day seen by him? And after final judgment the defendant caunot be let in to defend. Vide section 445.

I have turned upside down and read crosswise the above sections and all their context, and I can make nothing else out of it. It may be that my different editions of the new law are all unauthorized and none of them correct. If my reading and construction are correct, and I see no escape from the conclusions I have drawn, will it not be well to refrain from criticism upon the loose legislation of other States upon the subject of divorce? Is there another State whose laws expressly provide that a decree of divorce can be had without personal notice to a defendant who is actually and notoriously present in the State, to the full knowledge of the plaintiff, his attorneys, and, perhaps, the presiding judge of the court? In these days of reform is it not possible that there may be some virtue in being AN OLD FOGY. TROY, July 20, 1877.

NOTES.

ABOUT a year ago Dr. H. B. Wilbur made a report

to the State Board of Charities on the management of the insane in Great Britain. The edition then published having been exhausted without supplying the demand for the report, a second edition has been issued which contains additional matter of interest upon the subject therein treated. The present edition contains an introduction, in which the author replies to criticisms made on his report; the report itself, and an appendix, wherein matters incidentally mentioned in the report are more fully treated. The pamphlet is worthy the attention of all interested in the subject of insanity and the treatment of the in

sane.

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