book on the subject of each chapter in the Code. The following extracts show the main points of the plan of annotation, and convey an idea of their labor-saving utility to the busy lawyer and judge:

"In the references to the American Decisions and American Reports, special attention has been paid to the valuable notes found in each series, and which sometimes amounts to treatises on topics not covered by any text-book. Georgia cases reported in the American Reports are cited because of the notes which frequently accompany them, and to show the approval such cases have met with in other jurisdictions. * * * Books of Leading Cases (Smith's, White & Tudor's, Ross', Hare & Wallace's) have been thoroughly annotated because of the well known value of the discussions in them, and because there is nothing in their titles to show specifically what topics are treated. ** * In regard to text-books, the plan has been to select one leading text-book on each subject upon which the Code contains a Chapter or Article." Frequently the text-books discuss topics which it is believed are not fairly, certainly not obviously suggested by their titles, and such discussions have been carefully cited.

*

An examination of the work reveals the anomaly that the first State to adopt a complete codification of law is not a "Code State;" for the system of Code Procedure adopted in 1848 in New York and imitated in so many States of the Union, as well as in England, is not part of the Codes of Georgia. Law and equity jurisdictions though vested in the same court are separately administered. A suitor may be driven from equity because he has an adequate remedy at law (§ 3095), although a suitor may sue at law upon an

1883, will be Nos. 1, 2, 3, 189, 4, 5, 6, 7. Tuesday, January 16, 1883, will be a regular motion day. The motion calendar will consist of the following "appeals from orders entitled to be heard as motions": No. 576, Owens v. Bloomer; 577, City of Brooklyn v. The Mayor of New York; 578, People ex rel. Westchester Fire Insurance Company v. Davenport; 579, Sarvent v. Hesdra; 580; Quinby v. Catlin; 581, Dold v. Haggerty; 582, In re Attorney General v. Guardian Mutual Life Insurance Company-Tucker appellant; 583, Catlin v. Ricketts; 584, McKenna v. Edmundstone; 585, People ex rel. Cavanagh v. McAdam: 586, People ex rel. American Fire Insurance Company v. Commissioners of Taxes; 587, New v. Bernheimer; 588, In re Dissosway v. Bartlett; 589, Bernheimer v. Ricketts; 590, Pomeroy v. Ricketts; 591, Village of Lansingburgh v. Cohoes and Lansingburgh Bridge Company; 592, In re Church, for opening Ninety-second street; 593, Ramsden v. Ramsden; 594, Langdon v. Guy; 595 and 596, Metropolitan Concert Company v. Abbey; 597, Foster v. City of Buffalo; 598, Conaughty v. Saratoga County Bank; 599, Snyder v. Higgins; 600, Manning v. Port Henry Iron Ore Company; 601, Freel v. Buckley; 602, In re Schnitzler v. Andrews; 603, Veeder v. Judson; and such other appeals from orders, in which the returns and notices of argument, with proof of service, shall be filed in the clerk's office, on or before January 13, 1883.

NOTES.

defense (§ 3082). Such survivals of the unfit show that men will keep "an ancient form, through which the spirit breathes no more."

COURT OF APPEALS DECISIONS.

THE Court of Appeals will meet on Tuesday, Jan. 106,

1883, at the old capitol, in this city. The following are the first fifty causes on the calendar for 1883:

No. 1, People v. Petrea; 2, People v. Petraa; 3, People v. McGloin; 4, Hynes v. McDermott; 5, In re Will of Pepoon; 6, In re Will of Hewitt; 7, In re Will of Hancock; 8, In re Will of O'Neill; 9, Shields v. Ingram; 10, Toles v. Adee; 11, Kochler v. Adler; 12, Candee v. Smith; 13, Vanderbilt v. Schreyer; 14, Sheehan v. New York Central and Hudson River Railroad Company; 15, Bradley v. Mirick; 16, O'Day v. Syracuse, etc., Railroad Company; 17, Mahoney v. City of Buffalo; 18, Willis v. Smyth; 19, Youmans v. Edgerton: 20, Parker v. Conner; 21, Semel v. New York, New Haven, etc., Railroad Company; 22, Wood v. Mitcham; 23, Raberg v. L. S. & M. S. R. R. Co.; 24, McGuire v. Spence; 25, Noyes v. Bailey; 26, Onderdonk v. Ackerman; 27, Carrol v. Diemel; 28, Fellows v. Longyer; 29, Waggoner v. Walrath; 30, Cobb v. Young; 31, Cramer v. De La Verge; 32, Holman v. De Noyelles; 33, Reed v. McCruin; 34, Phillips v. Mackellar; 35, Murray v. Troy and West Troy Bridge Company; 36, Post v. Mason; 37, Crosby v. Moses; 38, Mack v. Phelan ; 39, Metzger v. Herman; 40, Harris v. Hiscock; 41, Johnson v. Cornwall; 42, Manning v. Port Henry Iron Ore Company; 43, Mann v. Delaware and Hudson Canal Company; 44, Buckingham v. Corning; 45, Fowler v. Hayne 46, Wendall v. New York Central and Hudson River Railroad Company; 47, In re Accounting of Gray and ors.; 48, Wyncoop v. Niagara Fire Insurance Company; 49, Scott v. Stebbins; 50, Knapp v. Knapp.

The Regular Day calendar for Tuesday, January 16,

index to the ALBANY LAW JOURNAL which has recently been published, and is such a valuable aid in referring to the stores of legal authority contained in that library of the law, has an ideal advantage in being divided into two indexes, but for many readers a practical inconvenience. He who vaguely remembers a point of law in search of which he looks, very likely does not remember whether it was decided in a case reported or quoted in an article. Those who are studying the preparation of new facilities for research would do well to consider the question whether a single alphabet is not in almost every case preferable to a divided index."--The Canada Legal News, speaking of a Frenchman named Toussaint Labonté, who coming to Canada commenced calling himself All Saints Goodone, and was blamed therefor by certain French, remarks: "We fail to see why M. Toussaint Labonté shonld be found fault with. With true French politeness he has sought to make things pleasant for his new friends. He has only been unfortunate in his translation. 'Goodman and Goodbody,' are common enough English names, and either of them would have answered his purpose. The 'Toussaint' is more difficult to render into vulgar English. had settled in New England 'Perfect Goodman' might do; or if he had recourse to an Eastern townships name, he might have called himself 'Noble Goodman;' or he might have borrowed from old English literature and dubbed himself 'Allworthy Goodman;' or lastly, if of æsthetic tastes, he might have become 'Too, too Goodman."", -The New York Times says: "The Penal Code makes an attempt to commit suicide a misdemeanor punishable," etc. We know the enemies of the Code are trying to kill it, but we did not know it was attempting to commit suicide. The Times' phrase shows the latent ambiguities of the English language.Soule & Bugbee's Legal Bibliography recently inquired the meaning of the citation, "Asp. Law Jour." A waggish Boston lawyer replies that it obviously means, "Asperities of the Law Journals."

If he

resorted to for the more successful and safe accomplishment of the theft. The evidence shows the wheel to have been of very great weight, probably considerably over two thousand pounds. Its removal therefore to the place where the prisoners sold it was a somewhat difficult task, but was effected the more easily, and with less chances of detection, by destroying its character and identity. They therefore resorted to the scheme of breaking it in pieces. Now there is no rule of criminal law that we are aware of by which such destruction of the article stolen can advantage the thief, if fortunately he chance to be discovered. It ought really to be held to aggravate the crime, for although the owner may discover and regain the material of which the article was composed, its chief value to him is forever gone. Counsel would have us say, that although it is true that when the prisoners set upon this property with the felonious design of converting it to their own use, it was a shapely mass of iron-in form a wheel-and as such worth $150, yet inasmuch as in order to enable them the more successfully to carry out that design they changed entirely its form, and in doing this reduced its value to that of old iron merely, and less than $35, they must either go entirely acquit, or suffer only the comparatively mild penalty provided for petit larceny. That such a ruling as this would be a most striking travesty upon the criminal jurisprudence of a State could well be imagined. Let us see for a moment how such a rule would operate as to another kind of property. For instance, a thief enters a jewelry store, and seeing an opportunity to steal a valuable watch, worth say $100, resolves to do so, but reflecting that because of its value the crime might be grand larceny, he hesitates. Soliloquizing, he says: 'Now, although I am resolved to deprive the jeweler of that watch, and am quite willing to take the risk of a conviction for petit larceny in doing so, still I am a little uneasy in the thought that perhaps its value may be such as to give me a term at hard labor in the penitentiary if I am found out.' But a happy thought comes to his relief and he says: 'Now, the chief value of this watch is not so much in the materials of which it is composed as in its complex and beautiful mechanism, the curious and perfect adjustment of its various parts, its form; therefore, if I but first deprive it of these qualities, there will be no danger of the greater penalty, for its reduced value will surely bring my offense below the grade of grand larceny.' Thereupon he seizes the delicate article, crushes it into a shapeless mass, deprives it of its form and value as a watch, makes off with it, and by a sale for what it will bring as old metal converts it to his own use. Under such circumstances would not a conviction of the thief of the crime of grand larceny for stealing the watch be proper? As the law really is we think it would, but not if the law were as we are requested to declare it to be. Nor is the case of the prisoners here different in character from that of the supposed thief. The destruction of the wheel, like that of the watch, was a part of the act of taking, and was

a mode of converting it to their own use. The felonious intent, which is the gist of the offense, was present prompting the act; and whether the property were taken carefully, so as to preserve its form and value intact, or violently, so as to destroy or greatly injure it in respect to these qualities, can make no sort of difference as to the character of the offense. The article as it was at the inception of the taking must govern in determining the degree of criminality that attaches to the act."

The question of administration upon the estate of a living person has again risen, this time in California, where the Supreme Court, in Stephenson v. Superior Court, November 15, 1882, 10 Pac. C. L. J. 479, have held that it is a nullity. The court, by Ross, J., said: "Administration may lawfully be had upon the estate of a dead man, but not upon that of one in life. Until death occurs there is no 'subject-matter' over which it is possible for any court to exercise jurisdiction. It is true that the court of probate, before issuing letters of administration, must first determine affirmatively the question of death. But notwithstanding such determination, the fact that the supposed intestate is alive may still be shown, and when shown, establishes the nullity of the entire proceedings. The authorities in support of this proposition are numerous. Williams on Executors (American Notes, by Perkins), 632, and notes to page 631; 7 Rob. Prac. 324; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; Fisk v. Newell, 9 Tex. 12; Duncan v. Stewart, 23 Ala. 484; Allen v. Dundas, 3 T. R. 125; Griffith v. Frazier, 8 Cr. 23." Myrick, J., concurring, said: "Administration of the estate of a living person is void ab initio and throughout. The only jurisdiction a probate court has in respect to the administration of estates is over the estates of dead persons. It has no jurisdiction whatever to administer the estates of living persons as if they were dead. Cases in support of these plain propositions abound in the books. For it has often happened that many 'Enoch Ardens' have had to assert in the courts their right to property of which they have been, in their absence, unlawfully deprived by void proceedings against them in probate courts. In addition to those cited by Mr. Justice Ross, the cases of McPherson v. Cauliff, 11 S. & R. 422; Appeal of Peebles, 15 id. 42; Wales v. Willard, 2 Mass. 120; Smith v. Rice, 13 id. 507; Bolton v. Jacks, 6 Root, 166; Morgan v. Dodge, 44 N. H. 255; Melia v. Simmons, 45 Wis. 334; S. C., 30 Am. Rep. 746; and D'Arusment v. Jones, 4 Lea, 251; S. C., 40 Am. Rep. 12, will be found instructive and conclusive upon the question involved in the present case. I know of no case opposed to the doctrine of those cases, except it be the case of Roderigas v. East River Savings Institution, 62 N. Y. 460; S. C., 20 Am. Rep. 555. In that case the Supreme Court of New York held that money paid to the administrator of a supposed decedent could not be recovered back, although it appeared that at the time of issuing the letters of administration the party was not dead.

But in Lavin v. Emigrant Industrial Savings Bank, 18 Blatch. 1, in the Circuit Court of the United States for the State of New York, it was decided that that case had no support elsewhere in the authorities of the English or American courts. A living person, says the court, cannot be concluded by a surrogate's decision that he is dead. As to him such a decree is absolutely void, and he may claim his property as taken from him without due process of law."" See 26 Alb. L. Jour. 524.

In Coppin v. Greenlees & Ransom Co., 38 Ohio St. 275 (Mr. DeWitt's advance sheets), it is held that where the Constitution provides for individual liability of corporate stockholders, an executory agreement between a manufacturing corporation and one of its stockholders, for the purchase of the stock of such corporation, by the former from the latter, can not be enforced either by action for specific performance or for damages. The court said: "The power of a trading corporation to traffic in its own stock, where no authority to do so is conferred upon it by the terms of its charter, has been a subject of much discussion in the courts; and the conclusions reached by different courts have been conflicting. Of course, cases wherein the power is found to exist by express or implied grant in the charter furnish no aid in the solution of the question before us. * * * The sole object of the defendant organization was 'for manufacturing purposes;' and it can not be said, in any just sense, that the power to acquire or convey its own stock was either necessary or convenient for manufacturing purposes. The doctrine that corporations, when not prohibited by their charters, may buy and sell their own stocks, is supported by a line of authorities; and prominent among them may be mentioned the cases of Dupee v. Boston Water Power Co., 114 Mass. 37, and C. P. But and S. R. R. Co. v. Marsailles, 84 Ill. 145. nevertheless, we think the decided weight of authority both in England and in the United States is against the existence of the power unless conferred by express grant or clear implication. The foundation principle upon which these latter cases rest is, that a corporation possesses no powers except such as are conferred upon it by its charter, either by express grant or necessary implication; and this principle has been frequently declared by the Supreme Court of this State; and by no court more emphatically than by this court. It is true however that in most jurisdictions, where the right of a corporation to traffic in its own stock has been denied, an exception to the rule has been admitted to exist, whereby a corporation has been allowed to take its own stock in satisfaction of a debt due to it. This exception is supposed to rest on a necessity which arises in order to avoid loss; and was recognized in this State as early as Taylor v. Miami Exporting Co., 6 Ohio, 176, and has been incidentally referred to as an existing right since the adoption of our present Constitution. State v. Building Association, 35 Ohio St. 258. But however that may be, the right of a

corporation to traffic in its own stock, at pleasure, appears to us to be inconsistent with the principle of the provisions of the present Constitution, article 13, section 3, which reads as follows: 'Dues from corporations shall be secured by such individual liability of stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.' Now it is just as plain that a business or trading corporation cannot exist without stock and stockholders, as it is that the creditors of such corporations are entitled to the security named in the Constitution. State ex rel. Attorney-General v. Sherman, 22 Ohio St. 411. The corporation itself cannot be a stockholder of its own stock within the meaning of this provision of the Constitution. Nobody will deny this proposition. And if a corporation can buy one share of its stock at pleasure, why may it not buy every share? If the right of a corporation to purchase its own stock at pleasure exists and is limited, where is the provision intended for the benefit of creditors? This is not the security to which the Constitution invites the creditors of corporations. I am aware that the amount of stock required to be issued is not fixed by the Constitution or by statute, and also that provision is made by statute for the reduction of the capital stock of corporations; but of these matters creditors are bound to take notice. They have a right however to assume that stock once issued, and not called back in the manner provided by law, remains outstanding in the hands of stockholders liable to respond to creditors to the extent of the individual liability prescribed. In this view it matters not whether the stock purchased by the corporation that issued it becomes extinct or is held subject to be re-issued. It is enough to know that the corporation, as purchaser of its own stock, does not afford to creditors the security intended. And surely if the law forbids the organization of a corporation without stock because the required security is not furnished, it cannot be that having brought the corporation into existence it invests it with power to assume at pleasure the identical character or relation to the public that was an insurmountable objection to the giving of corporate existence in the first place."

TWO

INTERLOPERS ON RAILWAYS.

TWO recent Indiana cases on this subject are worthy of especial remark. In Everhart v. Terre Haute and Indianapolis Railroad Company, 78 Ind. 292, on the request of a railway employee, the plaintiff, not in the employ of the company, got on a slowly moving car on a switch and applied the brake, and while so occupied was injured by a collision with other cars, negligently produced by other servants of the company. Held, that he had no remedy against the company. The court said: