council made up of old members, whose term of office had expired, performed before the declaration of the election of the new members, would be valid. Ib. [Decided January 15, 1878.]

NEW YORK CITY.

Removal of subordinate employee of city without cause. The provision in section 28 of the charter of New York (Laws 1873, chap. 335) requiring that no regular clerk or head of a bureau shall be removed until he has been informed of the cause of his removal and allowed an opportunity to be heard, does not apply to subordinate ministerial officers, such as a surveyor in the bureau of combustibles, or an assistant to the fire marshal. These officers are not "clerks," and are removable at pleasure. Judgment below reversed. People ex rel. Royal v. Board of Fire Commissioners of New York. Opinion by Allen, J. [Decided April 23, 1878.]

NOTES OF RECENT DECISIONS.

ACTION: ON CONTRACT FOR PERSONAL SERVICES, WHEN IT ACCRUES.-- - Plaintiff agreed to work for defendant for one year at stipulated wages, and he was to be paid at the end of the term of service. He left before his term of service expired, and brought suit for the immediate recovery of the wages he had already earned. Held, he could not bring suit to recover, until his term of service had expired, according to the stipulation of the contract. Sup. Ct., Iowa, March, 1878. Powers v. Wilson.

CHATTEL MORTGAGE: WHEN NOT VALID.-A chattel mortgage to secure an antecedent debt on the present and after-acquired property of the mortgagor, and which authorizes him to sell the mortgaged chattels in the regular course of his business, and apply the proceeds to his own use, is void. U. S. Dist. Ct., New Jersey, March 5, 1878. Matter of Bloom.

CHATTEL MORTGAGE: WHEN VALID AND WHEN VOID. -Does the permission of the mortgagee to the mortgagor to retain possession of the mortgaged goods invalidate the mortgage? Held, that if the mortgaged property had consisted of household furniture, or of any property of a like character, where the right or privilege of using the same would not necessarily imply the right or privilege of selling and disposing of the same, then the permission to retain possession would not, of itself, vitiate the mortgage; but when, as in this case, the mortgage is given on a stock of men's and boys' clothing, etc., or a stock of goods or merchandise of any kind, and it is apparent that the only usual mode of using the same is to sell and dispose of such stock, and the mortgage contains no stipulation that the proceeds of such sale shall be applied to the payment of the mortgage debt, or the debt of any other creditor, such mortgage is, and ought to be, declared to be void on its face. Sup. Ct., Indiana, April 4, 1878. Mobley v. Letts (Chi. L. News).

CONSTITUTIONAL LAW: LAW IMPAIRING OBLIGATION OF CONTRACT: HOMESTEAD LAW.-A homestead is not exempt from the payment of a debt contracted before the passage of the Homestead Law, although the debt has been barred by the Statute of Limitation, and a new promise is made subsequently thereto. The statute does not extinguish the debt, but only bars the remedy. Sup. Ct., Tennessee, Dec., 1877. Woodlie v. Towles (Memphis L. J.).

CONTRACT: ACTION ON CONTRACT NOT FULLY PER

FORMED: EVIDENCE: PREVENTING Performance :

WHAT IS NOT: WHAT IS.-Where an express contract has not been fully performed and an action upon an implied contract to pay the reasonable value of what has been done is maintainable, the express contract may ordinarily be introduced as evidence of value. Where the plaintiffs sue for being prevented from performing a contract, the action is on the contract; and unless prevention is proved and found, plaintiffs are not entitled to recover any thing on such contract. Mere failure or refusal to pay an installment, as it becomes due, does not amount to prevention; and, therefore, does not authorize the party to abandon the work and recover the benefit he would have received had he fully performed. The fact that defendant failed to make such payments, "well knowing that plaintiffs had to rely on the money received from him,” does not change the result. But if the defendant knew at the time the contract was entered into, that plaintiffs relied entirely on his payments to them, or that such reliance was an inducement to the contract on their part, it might be otherwise. So, if defendant had notified plaintiffs that he would pay none of the installments as they should become due, it might amount to prevention. Sup. Ct., California, April 5, 1878. Cox v. McLaughlin (Pac. C. L. J.)

CORPORATION: CHURCH CORPORATION: BORROWING MONEY TO BUILD MEETING HOUSE NOT ULTRA VIRES.-The charter of a corporation declared that its object is inter alia, the building of a meeting house, etc., and providing for the payment of expenses from pew rents. The amount thus realized being inadequate, the trustees borrowed money on their individual notes. The society resisted the payment of this borrowed money because the charter made no provision therefor. Held, that the object of the corporation could not be carried out without a meeting house. If it hired laborers, bought materials, or borrowed money for the consummation of that purpose, it was liable. The evidence tending to show how the business was conducted and settled, ratified by a partial payment, was sufficient to submit to the jury, to find that the money was used in rebuilding the church. Sup. Ct., Pennsylvania, Jan. 9, 1878. First Baptist Church of Erie v. Neeley's Administrator (Pittsb. L. J.).

ILLEGAL CONTRACT: NOTE GIVEN FOR DISEASED SHEEP SOLD IN VIOLATION OF statute.—The selling or disposing of any sheep, knowing them to be affected with a contagious disease, is a misdemeanor under Code, § 4055, and a note given in payment for such sheep is void, even when the purchaser has knowledge of the diseased condition of the sheep purchased. Such contract cannot be enforced. But if the plaintiff did not know the sheep were affected with a contagious disease, he violated no law, and he may enforce his contract whether the defendant had such knowledge or not. Sup. Ct., Iowa, March, 1878. Caldwell v. Budall.

JUDGMENT: OF U. S. CIRCUIT COURT: FOOTING OF.— A judgment rendered by the Circuit Court of the United States for the District of Minnesota occupies the same footing as a domestic judgment of a superior court of record of this State. Its validity cannot be impeached in a collateral proceeding by parol proof showing that no jurisdiction was ever in fact acquired over the person of the defendant therein. Jurisdiction is exclusively presumed unless the contrary af

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, May 28, 1878:

Wood v. Tunnicliff, Kellogg v. Norman, Wilkinson v. Gill, McNamee v. Wilson, judgment affirmed, with costs. Howe Machine Co. v. Pettibone, Jones r. Ludlum, appeal dismissed, with costs. Struppman v. Muller, motion to dismiss appeal granted, with costs. Motion to compel the attorney to pay costs personally must be made in the court below after the judgment has been there entered. National Bank of Schuylerville v. Lasher, Same v. Vanderwerker, motion to dismiss appeal denied. Motion to file amended return granted, without costs to either party.- German American Bank v. Pittston and Elmira Coal Co., Same v. Morris Run Coal Co., appeals dismissed, with costs of one appeal only in this court. -Potts v. Mayer, Clark v. Dickinson, judgment reversed and new trial granted, costs to abide event. -Smith v. Bodine, judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulate to reduce the recovery by deducting $194.76, with interest thereon from December 31, 1866, in which event judgment as so modified affirmed, without costs to either party in this court.-Mix v. Andes Insurance Co., judgment reversed, with costs to the defendant after appearance in action on ground that cause was removed to Circuit Court of the United States.

NEW BOOKS AND NEW EDITIONS.

KANSAS REPORTS, VOLUME XVIII.

Reports of cases argued and determined in the Supreme Court of the State of Kansas. W. C. Webb, official Reporter. Volume XVIII. Containing cases decided at the January and July terms, 1877. Topeka, Kansas: Geo. W. Martin, 1878.

THE present volume conta Matter of Pryor, 1. 12. THE present volume contains among others these A statement by an attorney that a ruling made by the judge is contrary to every principle of law, and he desires that it shall not stand unreversed in any court he practices in, held to be a contempt of court. State v. Rogers, p. 78: A man indicted for murder cannot justify on the ground of self-defense, the act being committed in a quarrel he had himself provoked. Missouri Valley Ins. Co. v. Sturges, p. 93: A person

statements of fact being clear and as brief as is consistent with a full history of the case.

NOTES.

N the Wandsworth (England) County Court in the

it is held that a post-office order is a negotiable instrument, and an innocent purchaser for value from a wrong-doer is protected against liability.-Judge Blatchford has been requested, by the members of the bar who have practiced before him in the United States District Court for the Southern District of New York, to sit for his portrait, which is to be hung on the walls of the District Court room, and has consented to do so.-The Bar Association of Chicago have been, for a year past, through a committee appointed for that purpose, investigating the workings of the bankrupt law in that city. Of course the results are very unsatisfactory, the various fees and expenses, as a rule, nearly or quite exhausting the estates of the bankrupts.

Over

Few nations are so fond of litigation as the Mexicans; and there is a story which pertinently illustrates the propensity of the Dons for going to law with each other. Don Rafael has been suing Don Esteban for at least ten years in all the courts of the Republic. and over again he has lost his cause, and as often has he appealed from the court below to the court above. One day the plaintiff meets the defendant in the Calle San Francisco, Mexico. The adversaries bow stiffly to one another. "How is it, Dou Rafael," asks Don Esteban, "that you have not yet carried before the Supreme Court your appeal against the Court of Guadalajara, which, if you remember, was adverse to you?" "Of a truth," replies Don Rafael," I shall appeal no more, and abandon my claim. I am sick and tired of the whole affair; and, moreover, I have not a single dollar left to pay costs withal." "Is that so, caballero?" quickly returns Don Esteban, pulling out his purse. "Pray do me the honor to accept the loan It of fifty dollars, and give notice of appeal at once. would be a shame and a scandal to let such a fine lawsuit die."

PUBLISHERS' NOTICE.

or take by assignment an insurance policy on such life. Frilwell v. City of Troy, p. 271: The Legislature may confer on a municipality the power to tax employments as well as property. New York Life Ins. Co. v. McGowan, p. 300: An insurance company is liable to a third person in a civil suit for the frauds, deceits and concealments of its general agent, committed while acting in the apparent scope of his authority, though the company did not authorize or justify the acts. Seaton v. Scovill, p. 433: A note, otherwise negotiable, is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting, including reasonable attorney's fees, if suit be instituted thereon. Whitford v. Horn, p. 455: A title by gift is sufficient to maintain replevin against the administrator of donor. Greeno v. Barnard, p. 521: There is no homestead exemption law as against the purchasemoney of the homestead. The reporting, as is usual In this series, is carefully done, the head-notes stating accurately and concisely the points decided, and the

intends to sail for Rio Janeiro, Brazil, by the July steamer of the new direct line, returning in September, and will attend to such professional business as may be intrusted to him. Address No. 99 Nassau St., New York city.

FEARLESS RAILWAY THRESHING MACHINE.

We call the attention of farmers and threshermen to the advertisement of the Fearless Horse-Power and Thresher and Cleaner, elsewhere in this number of our paper. This machine is the only one that received an award on both Horse-Power and Thresher and Cleaner at the Centennial Exhibition, Philadelphia, and ranks as best of its class. An ex-President of the New York State Agricultural Society said of Harder's Machines, 'they are the best ever made," and the same testimony has been borne by equally good authority time and again.

66

For further information send to Minard Harder, Cobleskill, N. Y.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law
Law Journal.

A

ALBANY, JUNE 8, 1878.

CURRENT TOPICS.
FTER considerable discussion, the United States

Senate on the 31st ult. passed a bill providing for the appointment of an additional Circuit judge for the Seventh Judicial Circuit, composed of the States of Illinois and Indiana. That this judge is needed is evident from the fact stated by Mr. Thurman, that there are thirty-six hundred suitors whose cases are in waiting in the circuit.

The necessity of additional judges in two of the Federal Circuits was strongly made evident in a discussion in the Senate last week, of a bill to provide an additional Circuit judge in the Second Circuit. Senator Davis stated that at the April term of the Circuit Court in New York which is now in session, 444 jury cases were set down for hearing; on the Equity Calendar there were 116 cases. There were also 59 appeals in Admiralty and 40 motions noticed. In Chicago it was still worse. There were 3500 cases on the docket other than bankruptcy cases, which, with admiralty business, employ all the time of the District Court at that place. It was suggested by a Senator that the repeal of the bankrupt law might tend to diminish the business of the Federal courts, but Senator Davis stated that while the District Courts might be somewhat relieved, the business of the Circuit Courts would be

increased. That the repeal of the bankrupt law will very largely increase general law business cannot be doubted, and this must have its effect upon the Federal courts, both District and Circuit.

The Supreme Court of the United States in Matter of Jackson reported on another page, declare in emphatic terms that letters sent by mail shall not be opened by the postal officials without due process of law. By section 3894 of the Federal Revised Statutes, the sending of lottery circulars by mail, is made a penal offense. The law is proper enough, but not easily enforceable where the circulars are sent as letters, unless the letters can be opened and examined while in the mails. The Supreme Court, however, says that this cannot be done, and Congress has no power to authorize it to be, except by virtue of a warrant which can only be issued on an VOL. 17.- No. 23.

affidavit particularly describing the thing to be seized as is required when papers are subjected to search in one's household. The court further says, that regulations against the transportation in the mail of printed matter which is open to examination cannot be enforced so as to interfere with the freedom of the press. Liberty of circulating is essential to that freedom. When, therefore, printed matter is excluded from the mails, its transportation in any other way cannot be forbidden by Congress. The court very properly concludes that laws prohibiting the transmission of improper matter in the mails must be enforced upon competent evidence of their violation procured in some other way than by the unlawful inspection of letters and sealed packages. The decision will undoubtedly interfere somewhat with the prosecution of offenders, under the act forbidding the sending of obscene literature through but it secures the inviolability of private correspondthe mails as well as that forbidding lottery circulars, ence which is of paramount importance.

The House Committee on the revision of the laws the Federal Revised Statutes which relates to the has reported favorably a bill to repeal that section of sending of obscene literature through the mails. As the decision above noticed renders the statute of little practical value, its repeal would be proper.

We would call attention to the article on marriage by Isaac Van Winkle, Esq., appearing in our present number. The rules governing this relation under the various systems of jurisprudence, ancient and modern, are fully set forth and explained. The article is well worthy the careful consideration of every reader.

The death of Hon. William F. Allen, which took place on Monday last, removes from the bench of the Court of Appeals one of the ablest jurists of our State. Of the seven judges who formed the court at its reorganization, under the amended judiciary article of the Constitution, three have been removed by death - Judges Peckham, Grover and Allen. Judge Johnson, who was appointed to fill a vacant place upon the bench, and who performed judicial duties for nearly a year, has also died. None of these were what could be called old men, not one of them having passed the constitutional limit of age for the judicial office. There is no doubt that the physical constitution of every one of these judges was broken down by overwork in the performance of official duties, and that, except in the case of Judge Peckham, their deaths resulted from this cause. We see, however, at present, no means of relieving the court from the pressure of business before it. The address of Chief Judge Church at the first meeting of the court after the death of Judge Allen and a brief sketch of the life of the deceased judge will be found elsewhere.

NOTES OF CASES.

N the case of Hersey v. Elliot, 67 Me. 526, it is

I held that if a bankrupt, who is the payce of a negotiable bill or note, sells the same without indorsement before and indorses it after bankruptcy, such indorsement will enable the holder of the note to maintain an action upon it in his own name. The decision is in harmony with a well-settled rule sustained by many authorities. See Smith v. Pickering, Peake (N. P. C.), 50; Anonymous, 1 Camp. 492,

ings. It is stated that after an exhaustive investigation it has been found that seven and one-half per cent of the solicitors of England have become bankrupt or insolvent. What is the proportion among merchants is not stated, but we are confident that three-quarters of those who go into trade fail to pay their indebtedness in full. The profession has nothing to fear from any investigation that can be

made.

In the Supplement accompanying this number are given acts of the Legislature upon these subjects: Amending Laws 1875, chap.482, § 26, relating to the powers of supervisors; amending Laws 1873, chap. 833, regulating the fees of coroners; relieving auctioneers selling farm property from giving bond or filing semi-annual account; amending 2 R. S, 690, § 2, relating to attempts to extort; facilitating the proof of previous imprisonment and discharge in trials for second offenses; amending 2 R. S. 309, § 37, relating to granting new trials in actions of ejectment; legalizing acts of surrogates on granting letters of administration upon petitions verified before other officers, and allowing the issue of letters upon such petitions; amending section 870 of the Code of Civil Procedure, authorizing married women to execute powers of attorney; forbidding non-residents to gather clams in the waters of the State; relating to the property of absconding persons; providing for mechanics' and laborers' liens, under contracts with municipalities; amending section 2 of the general corporation act; amending the general assignment act of 1877; amending what is known as the "temporary act" of 1876, relating to the Code; amending Laws of 1872, chap. 680, relating to the record of the probate of wills in other States; amending 2 R. S. 731, § 76, 78, relating to the removal of indictments; requiring all stock, fire, and marine insurance companies to have capital of $200,000. The governor has, up to the time of our going to press, signed 395 acts.

By chapter 367 of the Laws of this State, of the present year, chapter 107 also of this year, requiring justices of the peace to give bonds, is amended so as to require the town clerk of any town wherein the justice is also supervisor, to approve of the bond.

ex parte, 1 Jac. & Wal. 428; Watkins v. Maule, 2 id. 237; Greening, ex parte, 13 Ves. 206; Wallace v. Hardacre, 1 Camp. 46; Smoot v. Morehouse, 8 Ala. (N S.) 370; Valentine v. Holloman, 63 N. C. 475. The reasons given for the rule appear to be satisfactory and conclusive. The indorsement in such case is but a mere form. The property in the note passe s by the sale. The bankrupt has no actual interest in it afterward. At most, he is to be regarded as merely a trustee of the legal title for the benefit of the vendee. In general, only such right, title and interest, as the bankrupt himself has in law and equity in any estate or property, passes by bankruptcy to the assignee. That the assignee does not take a beneficial interest therein belonging to another person is well settled in the cases cited and many more. Sawtelle v. Rollins, 23 Me. 196; Smith v. Chandler, 3 Gray, 392; Nichols v. Bellows, 22 Vt. 581; Streeter v. Sumner, 31 N. H. 542; Mitchell v. Winslow, 2 Story, 630; Goss v. Coffin, 66 Me. 432. The principle has been applied also in analogous cases, in proceedings under State insolvent laws. Norcross v. Pease, 5 Allen, 331. And in case of the death or marriage of the payee, a negotiable note, transferred by the payee before his death by delivery only, may be indorsed by his administrator with the same effect as if done by himself in his life-time. Malbon v. Southard, 36 Me. 147. When a woman assigns by delivery a note payable to her order, and afterward marries the maker, her indorsement of the note after such marriage transfers the legal title. Guptill v. Horne, 63 Me. 405.

The Supreme Judicial Court of Maine, in the case of Eaton v. Boissonnault, 67 Me. 540, holds that a note payable at a future day with interest greater or less than the legal rate, in which nothing is said about the rate of interest after maturity, will draw the stipulated rate till maturity only, and after that the legal rate. This is in accordance with the weight of authority, both English and American. Ludwick v. Huntzinger, 5 W. & S. 51; Brewster v. Wakefield, 22 How. (U. S.) 118; Burnhisel v. Firman, 22 Wall. 170; Cook v. Fowler, L. R., 7 H. L. 27. The reason given in the case last cited, is that interest for the delay of payment, post diem, is not given on the principle of implied contract, but as damages for a breach of contract; that while it might be