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Such laws have been sustained as simply requiring a periodical cessation from labor-the power to pass them resting upon the right of the Legislature to pass laws for the preservation of health and the promotion of good morals. I do not deem it necessary, in this place, to assent to the proposition, that a law which enforces, under penalty of fine and imprisonment, a cessation from labor upon Sunday by one whose religious belief has imposed upon him the duty of taking his rest on Saturday, in no degree discriminates against his "religious profession." But admitting the constitutionality of general laws prohibiting all labor on Sunday, or upon any other day, I think the act of April 16, 1880, is a "special law," within the meaning of those terms as employed in section 25, article IV, of the present Constitution. The act does not declare the business of "baking," as ordinarily conducted, to be a nuisance; nor does it contain any intimation that the business of baking may tend to interrupt divine worship by any class of sectaries, or can otherwise interfere with the rights or privileges of any citizen. The baking of bread is not only lawful and necessary, but we will take notice that there is nothing so peculiar in the occupation as that those engaged in it require-as a sanitary measure or for the protection of their morals a period of rest not required by those engaged in many other employments.

A general law must include within its sanction all who come within its purpose and scope. It must be as broad as its object. If it is to be made a crime not to refrain from labor during the whole or during any portion of any given day of the week, it must be made equally a crime as to all persons who do not so refrain; or the prohibitory law must be made applicable to all of a class, the members of which for reasons apparent upon mention of the class, may at least require, for the benefit of their health or morals, a period of rest not beneficial to any other class or individual. We might perhaps take notice that there are controlling reasons why clergymen should not be prohibited from pursuing their pious labors on the Christian Sabbath, and that a law might still be general which included all others, although it excluded them. So we might perhaps hold that there are other special classes who might be permitted to pursue their avocations, notwithstanding a law which prohibited labor by the rest of the community, because of the fact that their peculiar pursuits involved "works of necessity," and placed them beyond the benefits of the law which would compel an enforced cessation of labor by others. But there can be no rule which will permit the prohibition of a particular kind of labor in itself innocent and beneficial to the public. There is no reason, and can be no reason, why bakers should be forced to rest from their labors periodically, which is not applicable to many other classes of artisans and workmen. To say that every law is "general within the meaning of the Constitution, which bears equally upon all to whom it is applicable, is to say that there cau be no special laws.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

JULY AND SEPTEMBER, 1880.

INSURANCE- FIRE POLICY INSURANCE OF GOODS SOLD BUT NOT DELIVERED-INSURANCE FOR ANOTHER'S BENEFIT.-Defendants, who were commission merchants, effected insurance in their own name to the amount of $165,000, upon merchandise contained in their warehouse in Boston. It was described in the policies of insurance as "merchandise, principally hide and leather, their own, or held by them in trust, or on commission, or sold, but not removed from the

building." The warehouse with its contents was totally destroyed by fire in November, 1872. At the time of the loss, it contained goods belonging to the defendants and goods consigned to them for sale amounting in value to $174.073, and goods sold but not removed of the value of $30,551. Among the goods sold, but not removed, were certain goods of the plaintiffs, which they had purchased of the defendants. The insurers settled as for a total loss for $165,000. Some of the insurance companies became insolvent so that defendants received but sixty-three per cent of this amount, which was not enough to pay the value of the goods owned by and consigned to defendants. It appeared that if the goods sold and not removed were not included in the adjustment of loss, there would have been no difference in the amount allowed for insurance. Defendants were bound by contract to insure all their consignments, and had applied the sum received to indemnify themselves and their consignors, and no portion of it was applied for the benefit of plaintiffs. It was usual for those engaged in this business to take insurance on goods sold and not delivered or removed, but there was no custom to insure for the benefit of purchasers; and there was no contract, to insure for the plaintiffs' benefit the goods thus purchased by them. Plaintiffs brought this action to recover an aliquot portion of the insurance moneys secured to apply on their goods lost. Held, that they were not entitled to recover on the ground that it was the duty of the defendants to insure their goods not removed from the warehouse, nor could they on the ground that the defendants, having voluntarily insured the plaintiffs' goods, and received from the insurers money on account of the same, are bound in equity to pay it over. The defendants received no money on account of the goods of the plaintiffs. The money that they received was not sufficient to pay for their own goods and those of their consignors destroyed by the fire; and there was no equity, as between them and the plaintiffs, which required them to pay over to the plaintiffs any portion of the money so received. And even if plaintiffs' goods were included in the statement of loss, that could not of itself give any rights to the plaintiffs which they did not otherwise possess. The defendants were under no obligations to include these goods in their statement of loss.. If they had been omitted from the statement, the defendants would have been entitled to receive the same amount; and they did not actually receive any more because they were included. Martineau v. Kitching, L. R. 7 Q. B. 436; Stilwell v. Staples, 19 N. Y. 401. Reitenbach v. Johnson. Opinion by Endicott, J.

MERGER OF MORTGAGE SECURING NOTE.-Defendant made his note payable to the order of plaintiff and secured the same by mortgage upon certain premises owned by him. These premises defendant conveyed to W., who assumed the mortgage. W. conveyed the premises to plaintiff, subject to the mortgage, which was recited to form part of the consideration. Plaintiff afterwards conveyed the premises to D. and brought this action on the note. Held, that there was a merger of the mortgage, and defendant was not liable on tho note. Dickerson v. Williams. Opinion by Ames, J.

TAXATION OF LANDS HELD BY RELIGIOUS CORPORATION. - Plaintiffs, a religious incorporated society, purchased by one deed a tract of land through which was a well-defined right of way. On the east of the way were buildings occupied for the purposes of the society. On the west side of the way there was no building, but it was intended by the society to construct a building to be used for school purposes On this land, which was suited for cultivation, there had been vegetables raised, part of which were used by the society for its own purposes and the remainder given away to the poor. The society leased no part of the

land and derived no profit from it. Held, that the land upon the west side of the way was not exempt from taxation under a statute exempting houses of religious worship from taxation. Under that statute it has been decided that the land on which such houses stand is included in the exemption. Trinity Church v. Boston, 118 Mass. 164. Real estate held by a religious society, not more than sufficient in extent to meet its reasonable requirements in this respect, and devoted by such society in good faith to the erection of a church edifice, is entitled to the exemption given by the statute. But it is the appropriation of the property to the sacred uses contemplated which secures this privilege. The lot of land on the west side of the way was not so appropriated. No church edifice had been erected upon it; and it did not appear that any such edifice was intended to be erected upon it. Held, also, that it was not exempt under a provision exempting real estate of literary, benevolent, charitable and scientific institutions occupied by them for the purposes for which they were incorporated. It did not appear that the lot of land in question was occupied for the purposes for which the society was incorporated. The most that could be said is that the society intended that it shall be so occupied at some time, but to all appearance, the time of such occupation was left wholly indefinite, and there was nothing to prevent the society from changing its plans and alienating the property whenever it pleased. The exemption, instead of being absolute, is conditional; and at the date of the tax in controversy, the condition had not been fulfilled. Boston Society of Re.demptorist Fathers v. City of Boston. Opinion by Ames, J.

MICHIGAN SUPREME COURT ABSTRACT.

OCTOBER, 1880.

CRIMINAL CONVERSATION - ACTION FOR, NOT dePENDENT ON WIFE'S CONSENT- EVIDENCE-HUSBAND AND WIFE NOT COMPETENT TO PROVE WANT OF SEXUAL

INTERCOURSE PRESUMPTION OF LEGITIMACY. (1) The common law, in giving the action for criminal conversation, instead of making the husband's right of action depend on his wife's having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force; and the action has been sustained just the same whether as matter of fact her will concurred or she was outraged by actual violence. Bac. Ab. Mar. and Div. 551-553; 3 Bl. Com. 139; 1 Chitty Pl. (7th Eng., 16th Am. ed.), 140, 188; Broom Com. 847; 2 Hilliard on Torts, 592; Forsyth v. State, 6 Ohio 23. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elevate it to the public offense of rape, the private remedy is thereby either taken away or suspended. Cooley on Torts, 86. It is not reasonable to convert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt recognized the principle that both remedies were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a third proceeding to be carried on in the bishop's court, he said: "If a man solicit a woman and go gently to work with her at first, and when he finds that will not do he proceeds to force, it is all one continued act, beginning with insinuation and ending with force. Rigant v. Gallisard, 7 Mod. 78. (2) According to an ancient rulo of the common law the evidence of neither husband nor wife will be received to disprove the fact of sexual intercourse. Rex v. Rook, 1 Wils. 310. And Lord Mansfield declares that it was founded in decency,

morality and policy (Goodnight v. Moss, Cowper, 591), and no judge or author has ever dissented from his strong approval. And changes in the statute have left this rule of the common law untouched. Tioga County v. South Creek Township, 75 Penn. St. 436; Boykin v. Boykin, 70 N. C. 262; Chamberlain v. People, 23 N. Y. 88; People v. Overseers of Ontario, 15 Barb. 286; Hemmingway v. Towner. 1 Allen, 209; Parsons v. People, 21 Mich. 509. (3) Where there was no proof of inability or of the certain want of opportunity for intercourse, and a child was born eight months after an alleged criminal conversation, held, that the testimony of the husband and wife that they had had no intercourse would not overcome the presumption of legitimacy of the child. It was a maxim of the Roman law, and which the common law copied, that the presumption is always in favor of legitimacy (Co. Litt. 126a), and that he is the father whom the marriage indicates (Co. Litt. 123; Domat. Pt. 1, B. 3, 76, § 5); and Montesquieu, alluding to it, observed that the "wickeduess of mankind makes it necessary for the laws to suppose them better than they are. Thus we judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if she was chastity itself." B. 6, ch. 17, Sp. of S. And D'Aguesseau laid it down that "whilst the birth of children can be ascribed to a legitimate source, the law will not suffer criminality." Greenleaf says that when the husband and wife cohabit together as such, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same time guilty of infidelity. 1 Ev. § 28. The warrant of authority is in favor of qualifying this statement, and instead of regarding the presumption as conclusive, to require it to apply with great force, but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary. Morris v. Davis, 5 Cl. & Finn. 163; Wharton's Ev., § 1298; Best's Ev. (Wood's ed.) 426; Stephen's Ev., art. 98. In the case of Banbury Peerage, the House of Lords dealt with the presumption, and the degree of evidence necessary to overcome it, in this language: "In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves to the satisfaction of those who are to decide the question that such sexual intercourse did not take place at any time when, by such intercourse, the husband could, according to the laws of nature, be the father of such child." 1 Sim. & S. 155. And in Bury v. Philpot, the Master of the Rolls ruled that when opportunity existed for sexual intercourse within such period that the child in question might have been begotten by the husband, mere probabilities can havo no weight against the legal inference. 2 Myl. & K. 349; and see Kliner v. Ehlers, 38 Penn. St. 439; Dennison v. Page, 29 id. 426; Hargrave v. Hargrave, 9 Beav. 552; Head v. Head, 1 Sim. & S. 150; Patterson v. Gaines, 6 How. 550; Stigall v. Stigall, 2 Broch. 256; Sullivan v. Kelly, 3 Allen, 148; Phillips v. Allen, 2 id. 453; Cross v. Cross, 3 Paige 139. Egbert v. Greenwalt. Opinion by Graves, J.

TAXATION-COLLECTOR OF TAX NOT LIABLE FOR ENFORCEMENT OF TAX-WARRANT VALID ON ITS FACE.

-If tax proceedings on their face are fatally defective. a suit will lie to recover back money paid under them. Smith v. Nat. Bank, 17 Mich. 479; Grand Rapids v. Blakeley, 40 id. 367; Wattles v. Lapeer, id. 624. But a tax assessment is in the nature of a judgment, and the authorities are numerous that it cannot be assailed for fraud or irregularity in a suit against an officer who holds process fair on its face for enforcing a tax based upon it. Holden v. Easton, 8 Pick. 436; Lincoln v.

Worcester, 8 Cush. 55; Cheever v. Merritt, 5 Allen, 563; Hubbard v. Garfield, 102 Mass. 72; Savacool v. Boughton, 5 Wend. 171; Howell v. Tripp, 61 Me. 426; Cunningham v. Mitchell, 67 Penn. St. 78; Greene v. Mumford, 4 R. I. 313; Glascon v. Rouze, 43 Me. 479; Erskine v. Hohnback, 14 Wend. 613; Bird v. Perkins, 33 Mich. 28. There are numerous decisions which extend a like immunity to the assessing officer, and which do not suffer his assessment, when regular on its face, to be impeached in a suit against him, and there are none which support an action at the suit of an individual except on the ground of fraud or malice. Moss v. Cummins. Opinion by Cooley, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

OCTOBER, 1880.

ACTION-CONSTITUTIONAL PROVISION TO BE SUPPLEMENTED BY LEGISLATION. A constitutional provision that in cases of death resulting from injuries "the right of action shall survive, and the general assembly shall prescribe for whose benefit such actions shall be prosecuted," held not to give an administrator of one dying from injuries, a right of action in the absence of legislative enactment upon the subject. The provision of the Constitution coupled, as it is in the same sentence, with the direction that the Legislature shall declare who shall exercise the right, would be conclusive that the right itself is a limited one, to be put in force for certain persons to be prescribed only by the legislative body. Hence, the inference is not warranted that the right of action is a general one, to exist independently of or without the appropriate legislation. In the case of Mann v. Weiand, 4 W. N. C. 6 the court held that the right of action for damages from death by negligence never existed in the deceased, that it was given to and first existed in the widow, and hence the defendant was a competent witness in his own behalf in an action against him by the widow. The same principle applies here. Brooks v. Burrough of Danville. Opinion by Green, J.

MARRIED WOMAN - DIVESTED OF TITLE TO REAL ESTATE ONLY IN STAUTORY MODE - ESTOPPEL. Where

the statute provides the manner in which a married woman may divest herself of title to real estate she cannot divest herself in any other way; consequently when she made an agreement to sell land she cannot by such acts as waiving a forfeiture or receiving purchase-money estop herself from asserting her title where the statutory provisions have not been complied with. Hepsel v. Gefser, 2 Grant, 84; Rumfet v. Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. F. Smith, 400; Dunham v. Wright, 3 id. 167; Graham v. Long, 15 d. 383; Brown v. Bennet, 25 id. 420. The fact that she may have a part or the whole of the purchase-money in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate where the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate. Thorndale v. Morson, 1 Casey, 326: Richards v. McClelland, 5 id. 385; Pellet v. Fritz's Executors, 9 id. 118. The doctrine of estoppel cannot be invoked to enforce an agreement for the sale of her land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent representation, so as to create an estoppel in the act to which the incapacity relates. Hence it was held in Keen v. Coleman, 3 Wright, 299, that a married woman who falsely and fraudulently represented that she was

single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture as a defense to a recovery on the bond. And where as in the present can the purchaser know the woman to be married he was not deceived and had no reason to complain of her subsequent refusal to relieve him of the consequences of his foolish conduct. Alexander v. Kew, 2 Drawle, 90; Cress v. Jack, 3 Watts, 238; Carr v. Wallace, 7 id. 394: McAninch v. Loughlin, 1 Harris, 371; Hill v. Epply, 7 Casey, 333. Innis v. Templeton. Opinion by Mer

cur, J.

SET-OFF-IN ACTION BY HUSBAND AND WIFE-Debt OWED BY ONE ONLY. In a suit on a promissory note made by defendant below to plaintiffs below, who were husband and wife as joint payees; held that B. .could not interpose as a set-off a debt against one of the plaintiffs. As a general rule, set-off is admissible only were it is in the same right and between the same parties. Milliken & Co. v. Gardner, 1 Wright, 456. To this rule there are some exceptions. Among them may be stated where suit is brought by a surviving partner a set-off against the late firm is allowable. So those sued jointly may set off a debt due by the plaintiff to one of them. Chilbertson v. Harmony, 9 S. & R. 68. This may be done unless there be some superior equity in the third person. Stewart v. Coulter, 12 id. 252. But a defendant cannot set off a debt due him by one of several plaintiffs. 1 Pars. Cont. 739; Henderson v. Lervis, 9 S. & R. 379; Watson v. Hunsell, 7 Watts, 344; Archer v. Dunn, 2 W. & S. 361; Norcross v. Benton, 2 Wright, 217. The fact that the defendants in error are husband and wife does not change the rule. She may hold, use and enjoy her separate property to the exclusion of her husband, and of all other persons. Bentz v. Bentz. Opinion by Mercur, J.

FINANCIAL LAW.

MORTGAGE ACCOMPANYING NEGOTIABLE NOTE NOT LIABLE TO EQUITIES.-Where a negotiable note secured by a mortgage is with the mortgage transferred in Indiana to a bona fide purchaser for value without notice, before maturity, he takes the mortgage free from the equities between the parties. The court say in 1 Jones on Mortgages, § 11: "In equity a mortgage of land is regarded as a mere security for a debt or obligation, which is considered as the principal thing, and the mortgage only as the accessory. The legal title vests in the mortgagee merely for the protection of his interest, and in order to give him the full benefit of the security; but for other purposes the mortgage is a mere security for the debt." This rule, as to the essential qualities of a mortgage, has been fully recognized and accepted in this State. Fletcher v. Holmes, 32 Ind. 497. With us the debt secured is the principal thing and the mortgage is but the incident. Samples v. Rowe, 24 Ind. 208; Garrett v. Pickett, 15 id. 485. It follows that in this State the indorsee of a negotiable note, secured by mortgage, takes the mortgage discharged from all the equities to which the note may have been subject in the hands of the payee, to the same extent as the note itself is discharged from such

equities. In that respect the indorsee takes the mortgage as he takes the note. Carpenter v. Lougan, 16 Wall. (U. S.) 271; Logan v. Smith, 62 Mo. 455. Indiana Sup. Ct., May 25, 1880. Gabbert v. Schwartz. Opinion by Niblack, J.

NEGOTIABLE INSTRUMENT-UNREASONABLE DELAY TO PRESENT BILL DISCHARGES DRAWER.-Unreasonable delay of a payee of a draft to present it to the drawer, or to notify the drawer of its non-acceptance or nonpayment, or to return it to him as refused by the

payee, makes the paper the payee's own and discharges the drawer. In this case E., being indebted to A., proposed to give him an order on X., and A. refused to receive it, giving no reason, except that he wanted the money. E. then promised to send A. a 60-day draft, which A. understood to be on a bank. Six weeks thereafter A. wrote to E. asking the latter to send him a 60-day draft for the amount due, and E. sent him a 60-day draft on X. Without presenting this draft to

NEW BOOKS AND NEW EDITIONS.

MCCRARY ON ELECTIONS.

A Treatise on the American Law of Elections. By George W.
McCrary, Judge of the U. S. Circuit Court, etc. Second
Edition. Revised, Enlarged and Improved. Chicago:
E. B. Myers, 1880. Pp. 545.

X., returning it to E., or making any objection to it, ON,

A. kept it about a year and then offered to return it, but E. refused to receive it. It does not appear that X. was unable to pay the draft at any time, or that E. suffered any loss by the delay in presenting or returning it. Held, that these facts are not sufficient in law to relieve A. from the operation of the rule above stated, in the absence of any finding by the jury that E. acted in bad faith in sending the draft to A. under the circumstances. Millberg v. Fisher, 24 Wis. 607; Webster v. Studdin, 14 id. 277; Ford v. Mitchell, 15 id. 204; Lindsley v. McLelland, 18 id. 481; Phoenix Ins. Co. v. Shoales, 20 id. 35. Wisconsin Sup. Ct., Sept. 21, 1880. Allan v. Eldred. Opinion by Orton, J.

N the appearance of the first edition of this work. in 1875, we spoke in terms of commendation of it. See 12 Alb. L. J. 381. There is no equally careful, comprehensive and orderly treatise on this topic, within our knowledge. It is of value not only to lawyers but to election officers. Among the new matter is a chapter on statutes regulating the conduct of elections, which was originally published by the author in the North American Review.

THOMPSON'S CHARGING THE JURY. Charging the Jury. A Monograph. By Seymour D. Thompson. St. Louis: William H. Stevens, 1880. Pp. xxvii, 196.

This work is divided as follows: Questions of law for the court; power to order a nonsuit or direct a verdict; invading the province of the jury; the elements of the charge; requests, exceptions, and the manner of giving the charge; statutes requiring instructions to be in writing; principles which govern courts of error in granting or refusing new trials for misdirection or non-direction. Mr. Thompson has hit upon a fresh subject, and has treated it in an excellent manner. The book is an admirable manual for every person who is "studying to be a judge," and for every judge to have at his right hand, in every trial, with Abbott's "Trial Evidence." The lawyer will find it not only instructive as a book of reference, but very interesting for consecutive perusal. There is a table of cases cited. We have commented in another place on the author's estimate of the jury system. He has not allowed his dislike of the system to color his work. On the contrary, he urges the policy of allowing verdicts to stand on the merits, disregarding immaterial technicalities.

3D WOOD'S REPORTS.

NEGOTIABLE INSTRUMENT - RECEIVER'S CERTIFICATE NOT.-A receiver was authorized by order of the court to issue certificates payable to the payees named "or order." The receiver issued a certificate payable to the payee "or bearer." Held, that an innocent purchaser for value did not hold such certificate unindorsed by the payee free from the equities; first, because the receiver was not authorized to issue it in the form it was in, and second, because such a certificate is not commercial paper. In Dawks v. Loraine, 3 Wils. 207, in respect to such paper it is said, that a bill of exchange must carry with it a personal and certain credit given to the drawer not confined to credit upon any thing or fund. He to whom such a deed is made payable or indorsed takes it upon no particular event or contingency except the failure of the general personal credit of the persous drawing or negotiating the same. The courts of this country have, with great unanimity, given the same general definition of negotiable instruments. In Beard v. Underwood, 74 Ill. 176, it is said that it enters not into the definition of a promissory note that the money must be payable at all events, not depending on any contingency in regard to the event, or the fund out of which payment is to be made, or to the parties by or to whom payment is to be made. Husband v. Epling, 81 Ill. 172; Mills v. Kuykendall, 2 Black, 47; Haniman v. Sanborn, 43 Me. 128; West v. Fonner, 21 Ala. 400; Corbit v. State, 24 Ga. 287. Applying these principles, it is apparent that receivers' certificates, such as the one in issue, have none of the essential qualities of negotiable or commercial paper. They are of recent introduction in business transactions, and have not been the subject of much judicial construction. The most that can be predicated of them is that they are evidence in the hands of the holder that he is entitled to receive from the fund under the control of the court, that author-curity, allowing a transfer of the stock to himself on ized its officers to issue them, the amount specified, if the fund is sufficient to pay in full all holders of such certificates, or if it is not sufficient, then only a pro rata share with other holders. Nearly every quality essential to the negotiability of commercial paper is wanting in such certificates. In the first place they are not payable unconditionally out of any fund. Whether in any event they are payable in full depends on the question whether the fund under the control of the court is sufficient for that purpose. That fact cannot be known except upon inquiry into the amount of such certificates issued by the officer authorized to act, and as to the value of the fund to be administered. Illinois Sup. Ct.. May 18, 1880. Turner v. Peoria & Springfield Railroad Co. Opinion by Scott, J.

Cases Argued and Determined in the Circuit Courts of the
United States for the Fifth Judicial Circuit. Reported
by William B. Woods, the Circuit Judge. Vol. III.
Chicago: Callaghan & Co., 1880. Pp. xxiv, 800.

This volume contains cases arising in Louisiana, Texas, Florida, Georgia, Alabama and Mississippi. We note the following of general interest: Booth v. Smith, p. 19. The owner of a promissory note, who has voluntarily destroyed it, cannot recover upon it nor upon the original consideration. Moore v. Jones, p. 53.- A pledgee of National banking stock as collateral se

the bank books, becomes individually liable for the engagements of the bank. New Orleans v. Morris, p. 103.- A bazaar, owned by a city, and exclusively used for the sale of merchandise other than comestibles, is subject to sale under execution. Bertonneau v. Directors of City Schools, p. 177.— Public schools being provided for all children, the mere exclusion of colored children from the schools where white children attend is not unconstitutional. United States v. Goldman, p. 187.- The Federal statute making it a criminal offense to conspire forcibly to prevent any citizen entitled to vote from giving his support and advocacy in a legal manner in favor of a lawfully qualified candidate for Congress is constitutional. State Lottery Co. v. Fitzpatrick, p. 222.-A legislative act, repealing the charter

of a lottery company, granted for a term of years, upon payment of an annual license fee to the State, for the expressed purpose of providing a fund for educational and charitable objects for citizens of the State, which charter has been acted upon, is unconstitutional. Kidwell v. Houston & Great Northern Ry. Co., p. 313.In an action by a servant of a railway company against the company for an injury sustained by a defect in a car, notice of such defect to the car-inspector and master-mechanic of the company is not notice to the company. Ex parte Francois, p. 367.-A State statute prohibiting marriage between white persons and negroes, and imposing penalties for its violation upon such white persons, but none on negroes, is not unconstitutional. Jones v. Gray, p. 494.- An unmarried man, who lives (but does not keep house) in one town, and supports his mother and his unmarried sister, who board with his married sister in another town, is not the "head of a family."

CORRESPONDENCE.

THE "INDIAN SUMMER" PROBLEM.

Editor of the Albany Law Journal:

Since the "Indian Summer" problem has elicited no response, I suggest that although the chancellor seems to have fully answered the question in Guion v. Knapp, 6 Paige, 39, yet good lawyers differ as to the correct solution of the problem. D. M. W.

CAMBRIDGE, N. Y., October 25, 1880.

INJUNCTION AGAINST CUTTING PLAY.

Editor of the Albany Law Journal:

In your issue of the 23d instant, under the head of "Current Topics," you mention that "Miss Genevieve Ward, it seems, has bought from Messrs. Merrivale & Grove the privilege of acting for a term of years a play called 'Forget me not.' Miss Ward has seen fit, in putting the play upon the stage, to omit a single character. Messrs. Merrivale & Grove sued to restrain her from making this omission, and Lord Coleridge has denied the application." Permit me to say this is not precisely the state of facts. As you quote from the London News in support of the alleged refusal of Lord Coleridge, I think I cannot do better than transcribe the explanation given by the London Times of the decision of his Lordship, as well as the nature of the application made to the court. The Times of October 14th says: "The point of law has not been decided, and an injunction has not, properly speaking, been refused. The application was for an interim injunction, to take effect while the cause is waiting for a hearing. Lord Coleridge only decided that there were not sufficient reasons, at this stage of the case, for the issue of an injunction. But he gave no opinion whatever as to whether this contract between Mr. Merrivale and Miss Ward had been broken, nor whether, if it had, the injury inflicted on the author was of such a character as to be properly restrained by an injunction." The Times bases this assurance upon an "authoritative letter signed 'C,' published elsewhere." Upon turning to that letter, in another part of the paper, the internal evidence proclaims it to be a letter from Lord Coleridge himself, or ono written by his authority, and its concluding passago is as follows: "Nothing has been decided but that, in the opinion of a judge, there was not a prima facie case for a summary interference." The writer of the letter also says: "The only question before Lord Coleridge was as to the issuing of an interim injunction before the hearing of the cause, which still stands for hearing."

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As the writer of the articles on legal subjects in the Times is invariably a barrister of experience, I think we may take it for granted that he has rightly represented the case, and has been properly advised as to the authorship and authority of the letter referred to. Yours respectfully, HUGH WEIGHTMAN.

NEW YORK, October 27, 1880.

JUDICIAL NEPOTISM.

Editor of the Albany Law Journal:

I have seen no reply to the communication published in your JOURNAL under the head of "Judicial Nepotism," in vol. 22, at page 279, over the signature of "Lawyer," and dated at Providence, R. I., September 20, 1880. It would not surprise any one if the state of things in the administration of law and of justice in the State of Rhode Island, which "Lawyer" publishes, existed in a barbarous or semi-barbarous community. The trial-justice serves the writ for the plaintiff, who is his own brother, and renders judgment for him for the amount claimed and costs-the defendant protesting and other enormities. See his correspondence above referred to.

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Lawyer" asks: "Is there any law outside the statute which prohibits a judge from officiating as officer of and in his own court, or which prohibits a judge from sitting in a case in which he may have an interest except an immediate pecuniary interest?" Answer: I am not aware that there is any law outside of the statute which prohibits the joining of judicial with ministerial functions in the samo official, except the course and practice of the old common-law and equity courts; although it is obvious that they should be kept separate and distinct in a well-considered system of jurisprudence, or rather code of laws and of judicial procedure.

As to the other proposition involved in the question, I know of no common-law rule forbidding a judge from sitting in a case in which he may have an interest other than an immediate pecuniary interest. In the absence of such law, let me cite the remarks of the late Judge Cowen, in his celebrated treatise on "Justices' Courts." In vol. 2, page 977 (I quote from the second edition, which is by far the most valuable edition), he says: "A justice is not, like a juror, liable to be challenged for favor, partiality, or even corruption; though he would be subject to indictment for the latter. 12 Johns. 356. Thus, where the justice was the father-in-law of the plaintiff (13 id. 191); or where he was half-uncle to the plaintiff's wifo (17 id. 133); or where he had given an opinion in the cause (12 id. 356), this was held to be no cause of challenge. But there is a gross indecency in one's trying a cause, as justice, for a near relation, which should induce the Supreme Court, on certiorari, to scrutinize his proceedings with a jealous eye. 13 id. 191. And if the fact of relationship appear from the return, the judgment would be reversed. 21 Wend. 63. And it is the duty of a justice, where he has inadvertently issued process, or proceeded in the prosecution of a suit in which he is related to one of the parties by consanguinity or affinity, on his attention being called to the fact, to suspend all further proceedings and render no judgment whatever in the cause; he cannot, on that ground, render judgment of nonsuit, if the plaintiff be his relative; and if he does render such judgment it will be reversed. Id. The statute declares (2 R. S. 204, 82, 2d ed., N. Y.) that no judge of any court can sit, as such, in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. It is not denied that this applies to a justice. 21 Wend. 64. And therefore,

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