See also Brough v. Higgins, 2 Gratt. 408. In Wyman v. Wyman, 26 N. Y. 253, the court held that when the policy runs to the assured, his executors, [or] administrators, the personal representative may maintain au action as trustee for those beneficially interested in the real estate, and that the damages recovered stand in his hands not as general personal assets, but as realty, subject to dower and to the lien of creditors by judgment, before distribution among the heirs at law. The court takes the position, that the proceeds of the policy belong to those beneficially interested in the property, and that the only theory upon which the personal representative can maintain an action upon the policy is that he is trustee for those beneficially interested in the property at the time of the loss. The same doctrine is again laid down by the same court in Herkimer v. Rice, 27 N. Y. 163, and has never since been questioned in that State. Minnesota Supreme Ct., July 19, 1882. Culbertson v. Cox. Opinion by Mitchell, J.

CORRESPONDENCE.

TAXING APPEALS.

Editor of the Albany Law Journal:

On the first of October last we took an appeal from the decree of our chancellor, to our Supreme Court. On the 9th day of February thereafter we submitted the cause. On the 23d day ofFebruary thereafter the Legislature passed a law taxing the unsuccessful party in each decision of the Supreme Court thereafter rendered upon appeal $6, which was to be appropriated as a library tax.

It is clearly unjust, and we think unconstitutional. But we have been unable to find any reported case decided under similar circumstances. The law is retroactive, but our Constitution does not inhibit such. It provides that all property must be taxed ad valorem, and provides for a poll tax for school purposes. There is nothing said about taxing any thing else. The other restriction on taxation has nothing to do with the point. It has the ordinary "Bill of Rights."

It is not a tax on a profession. By reference to the act you will see that the $6 is to be taxed as costs. It may be taxed as costs but it is not costs. It can't be said to be an ex post-facto law, unless it can be construed to be a penalty. But could it be an ex postfacto law within the meaning of the Constitution not being in a criminal proceeding? Our statute declares that the law of costs is penal, and must be so construed.

It does not impair the obligation of contracts unless it can be said that the law under which the party taxed entered into the appeal was a part of the conThe appellant was the unsuccessful party in the Supreme Court. The condition of his appeal bond was to pay such judgment as the Supreme Court might render in case he was unsuccessful.

tract.

deem sufficient." The statement is incorrect, such has not been the law here for ten years. Our divorce law is now quite rigorous, and a bona fide residence of two years in the State must be proven by two resident free-holders and house-holders before the court can entertain jurisdiction of the cause. As a conse quence, we are not now overrun by New Yorkers desir ing to obtain divorces on flimsy grounds and a week's residence. L. T. MICHENER

SHELBYVILLE, IND., May 28, 1883.

THE

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COURT OF APPEALS DECISIONS.

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handed down at HE following decisions were Saratoga Springs, Tuesday, June 5, 1883. Judgment affirmed with costs Carter v. Holahan; Hun v. Van Dyck, receiver; Moore v. Hegaman; Julliard, receiver, v. Chaffee, trustee; Onderdonk v. Ackerman; Hurlinger v. New York Central and Hudson River Railroad Company; Bridges v. Board of Supervisors of Sullivan County; Moore v. Tracy; Dickens v. Mayor, ete., of New York; Andrews v. Etna Life Insurance Company of Hartford; Doran v. Franklin Fire Insurance Company; Mayor, etc., of New York v. Da venport; Kearney v. Mayor, etc. of New York; Potts v. Mayor; Palmer v. Dearing. Judgment affirmed with costs. No opinion, all concur Breed v. Pled gett.Judgment affirmed on opinion of General Term People v. Smith.-Judgment affirmed by default with costs People ex rel. Freelig v Matsell.—Judg. ment affirmed--People v. Boas.-Judgment affirmed and case remitted to General Term - People v. Har vey. Judgment affirmed with costs-People v. New York Floating Dry Dock Company; People v. Laplatu Mining and Smelting Company.-Judgment of General Term affirmed with costs to respondents, executors and next of kin to be paid out of the estateStephenson v. Short. Order affirmed and judgment absolute ordered for plaintiff on stipulation with costs Coleman v. Burr. Judgment reversed and new trial granted, costs to abide event Becht v. Corbin O'Leary v. Board of Education; Monroe v. Godsden; Stedman v. Davis. Decree of surrogate and judg ment of General Term reversed, and case remitted to surrogate for an accounting upon principles stated in opinion, with costs to be paid out of the estate-Purdy v. Hoyt. Judgment reversed with costs ·People v. Albany Insurance Company.Judgments of General and Special Terms reversed, new trial ordered, costs to abide event-Smith v. City of Rochester; Pray v. Hegeman.-Order affirmed, and judgment absolute rendered in favor of plaintiff upon stipulation, with costs-Wolfhart v. Beckest. Judgment of General Term reversed, and that of referee affirmed with costs - Fishkill Savings Institute v. Bostwick.---Judgment absolute ordered against plaintiff, with Hart v. Mayor, etc. of New York and others. · Order affirmed with five dollars costs and disbursement-In re Clements v. Jackson.-Order affirmed and judgment absolute ordered against plaintiff with costs-Lamson v. Hogan.--Judgment reversed and proceedings dismissed with costs-People v. Mutual Endowment and Accident Association. Order affirmed and judgment absolute ordered for defendant, dismissing complaint without costs; judgment sustaining demurrer to second and third counts affirmed with costs, and order reversing judgment of Special Term and granting new trial affirmed, judgment absolute, same as above-Potter v. Town of Greenwich.---Conviction for murder is affirmed and the case sent back to the General Term to resentence prisoner-People v. Hovey.

costs

The Albany Law Journal.

ALBANY, JUNE 16, 1883.

CURRENT TOPICS.

THE "star route" trial seems drawing to a conclusion, and it is quite probable that it will result in a disagreement. A disagreement in a political case seems as likely as an acquittal in a case of injured honor." If the seven months' investigation in this case shall result in any purification of our political system, the time and the money will have been well spent, but we have little hope of that. The investigation will simply serve to convince the people of what they were morally certain before that many rascals have fattened on the public treasury, and that such is their power that they not only escape punish⚫ment, but may continue to have similar opportunities. We long since lost all heart in this prosecution. The evidences of indifference or complicity on the part of the public prosecutors were too strong to justify a hope of any conviction. Undoubtedly some engaged in the trial have been acting in good faith. Mr. Merrick has added to his reputation as a lawyer of great power, learning, and honesty. Col. Ingersoll may possibly believe his client innocent, for we doubt that he knows the difference between right and wrong, although himself incapable of deliberate wrong. It is fortunate for these defendants that their chief advocate disbelieves in a future state of rewards and punishment, and it will be still more fortunate for them if he should happen to be right.

By the death of Addison Gardiner our State has lost an old public servant, who although long since retired from the public service, and in some measure forgotten by this generation, has deserved well of the State. He was one of the four original judges of our Court of Appeals formed under the Constitution of 1846, and served one term in that court, until January 1st, 1856, being chief judge a portion of the time.

His original associates were Jewett, Bronson, and Ruggles, and afterward he sat with Denio and Johnson. This was always a strong court, and Judge Gardiner's sound sense, large learning, and lofty views made him a conspicuous figure in the early days of the new Constitution. Previous to that time he had served with distinction a term as Lieutenant-Governor, and was called from the presidency of the senate and the court for the correction of errors to the new Court of Appeals. The competency of the people to select judges was evinced by this continuance of Judge Gardiner in judicial station, and by the transfer of Judges Bronson and Jewett from the old Supreme Court to the new court. For reasons best known to himself Judge Gardiner has for many years preferred the private station, but it was his choice, and he has always led a useful and an honored life. The tribute of the Court of Appeals to his memory is well deserved, and was happily phrased by Chief Judge Ruger. VOL. 27-No. 24.

A correspondent reopens the everlasting old question of "interest after maturity," in another column. For ourselves, we think our correspondent is wrong in point of fact and as matter of reason in his concluding statement. The statement is made in a note, 30 American Reports, 49, that "England, the United States Courts, Maine, Rhode Island, Connecticut, Pennsylvania, South Carolina and Alabama have decided in favor of the contract rate. Massachusetts, Virginia, Mississippi, Texas, Illinois, Wisconsin, and Iowa have decided in favor of the contract rate." And that "it remains with us an open question." This we think a correct statement so far as it goes. We might add however on the side of the statutory rate Arkansas (Newton v. Kennerly, 31 Ark. 626; S. C., 25 Am. Rep. 592); Kansas (Robinson v. Kinney, 2 Kans. 184); Lash v. Lambert, 15 Minn. 416; S. C., 2 Am. Rep. 142); Kentucky (Rilling v. Thompson, 12 Bush, 310); and in favor of the contract rate, Tennessee (Overton v. Bolton, 9 Heisk. 762; S. C., 24 Am. Rep. 367); New Jersey (Jersey City v. O'Callaghan, 12 Vroom, 349); Ohio (Monnett v. Sturges, 25 Ohio St. 384); McLane v. Abrams, 2 Nev. 199; Warner v. Juif, 38 Mich. 662. In support of our correspondent's views, twelve States; opposed, ten States, England, and the Supreme Court of the United States. We do not see here a "decided preponderance of authority" in favor of the contract rate. The latest expressions on the subject, perhaps, are Union Institution for Savings v. City of Boston, 129 Mass. 82; S. C., 37 Am. Rep. 305; and Goodchap v. Roberts, Eng. Ct. App. 42 L. T. (N. S.) 666. As to our own case of Hamilton v. Van Rennselaer, we think our correspondent is right in arguing that it is not decisive of the point in question. The matter seems still to be open in this State, and he recent conflicting decisions of our lower courts have rendered the question still more doubtful.

We live in a lively country that is to say, those of us do who are not prematurely shuffled off by the reckless processes of the disorderly classes, or by the summary injustice of private revenge or lynch law. We have often promised ourselves to chronicle the murders, murderous and violent assaults, and lynchings reported by the daily press for one week, but have never found that we could afford the space One day's doings are generally too much for us. The items of prize-fights and wife-beatings alone would make a large exhibit. But omitting these two comparatively venial offenses, let us for once take a single day, say June 6th, before the heats of midsummer may be presumed to have exasperated the popular blood. On that day, at Louisville, Ky., a physician (probably a subscriber to the CourierJournal) dangerously and probably fatally shoots his wife's brother, who "called" to expostulate about his treatment of the sister. In Pittsburg, Pa., a school-master undertakes to correct an editor, and the latter is only prevented from shooting him by the interference of by-standers. In Watertown, N. Y., a man dissolves his partnership by drowning his partner. In Hopewell, N. C., a man deliberately

shoots another for having seduced and refusing to marry his sister. (We believe the sister denies the seduction.) At Burnsville, Ala., a railway passenger when asked for his fare seriously cuts the conductor's throat, and the two exchange ten pistol shots ineffectually, but greatly to the annoyance of the other passengers. In New Mexico, our old acquaintance, Mr. Curry, formerly of Texas, the gentleman who murdered Porter, the actor, and was acquitted by an admiring jury of his peers, had a misunderstanding with his bar-tender, and the latter fired 62 shots into the saloon from the outside, wounding several people, including Mr. Curry, but we fear not killing him. This is a quite moderate catalogue of law-breaking for one day, but let us see how the lawmakers were behaving themselves on the same day. While the Pennsylvania House of Representatives

was in its last hours, the honorable members amused themselves, among other sportive demonstrations, by projecting books and files of bills at the temporary speaker, and finally crushing him with a matress dropped from a gallery overhead, and emptying a pitcher of water down his back. The speaker thereupon tried to bite off the thumb of the playful | Aquarius. Thus tragedy and comedy go hand-inhand in human life, and fortunately so, for were it not for the considerate jocoseness of such people as the Pennslyvania legislators the community would be in danger of growing serious over the daily chronicle of crimes.

That excellent lawyer, ex-judge and ex-police commissioner Bosworth, of the city of New York, seems to be entitled to a new trial on the ground of surprise. On the 28th of March last, on the 76th anniversary of his birthday, a number of lawyers gave him an example of that purely American institution, a surprise-party," on which occasion they read to him poems, and letters, and made him speeches, and we suspect drank a good deal of wine to his health, in the endeavor to "make him as robust as possible," as Artemas Ward phrased it. Of this precious occasion we have received an exact memorial in the shape of a pamphlet report. We know from personal experience that the speeches on such occasions always read well after the stenographer has corrected the grammar and the speaker has put in the good things which in the hurry and confusion of the moment he forgot, and accordingly this pamphlet scintillates with wit and is warm with good fellowship from the lips of judges, lawyers and at least one ex-Governor and one ex-police commissioner. From the mass of sentiments uttered or read on this occasion we select the following as expressing our own: "Had Ithe creation of a world I would put in it a great many Judge Bosworths " (Dr. Willard Parker); "Judge Bosworth well deserves every token of respect that his professional brethren can confer upon him" (Judge Noah Davis).

Speaking of toasts, the committee of arrangements for the approaching meeting of our State Bar

Association may perhaps get some useful suggestions from the unique subjects of the toasts to be responded to at the banquet of the Kentucky Bar Association, to be held on the 29th inst., as reported in the Kentucky Law Journal and Reporter. Among them we note the following: "The average Kentucky lawyer;" "the Kentucky lawyer at large" (we sincerely hope, not with a shot-gun); "the intelligent jury;" "the real trouble between the plaintiff and the defendant;" "the nature and uses of the fee;" "how to explain to your client why you lost his case;" "what will probably become of the lawyer."

N

NOTES OF CASES.

Avery v. City of Syracuse, to appear in 29th an action for injury sustained by

falling on a defective sidewalk, the court say: "The point made that it was error to allow evidence that other persons had tumbled down upon and been injured upon the sidewalk in question while out of repair was decided against the appellant's views in Quinlan v. City of Utica, 11 Hun, 218, by this court, and that decision was affirmed in 74 New York, 603. We follow that case, nothwithstanding several cases are found on the other side of the question. See Hudson v. Chicago & N. W. R. Co., 27 Alb. Law. Jour. 115, and cases there cited; Blair v. Pelham, 118 Mass. 420." This ruling seems to be in harmony with Darling v. Westmoreland, 52 N. H. 401; S. C., 13 Am. Rep. 55; and District of Columbia v. Arms, post; and opposed to Parker v. Portland Publishing Co., 69 Me. 173; S. C., 31 Am. Rep. 262.

"The

In Mack v. Austin, to appear in 29th Hun, it is held that there can be no personal judgment for a deficiency on the foreclosure of a mortgage executed by a married woman, where there was no covenant to pay the mortgage debt, and no charge of her separate estate in the mortgage. The court said: argument of the appellant, that the words of the mortgage import an intent on the part of the mortgagor to charge her estate generally with the debt, in this law action upon the terms of the mortgage, does not aid the appellant, as none of the words of the mortgage contain a promise or covenant to pay the sum named in the mortgage. Had the action been to recover an indebtedness, created or existing independent of the mortgage, a different question would have been presented. Then the authority of Elder v. Rouse, 15 Wend. 218, as approved by Hurlbut, J., in Culver v. Sisson, 3 N. Y. 264, would apply. In the latter case it was held that an action would not lie upon a chattel mortgage which does not contain an 'express promise to pay or a distinct acknowledgment of an existing debt.' We have not the case of an action on the original debt, with the mortgage used as evidence of it, or as evidence that the mortgagor, being a married woman, intended to charge her separate estate with the payment of such debt; but a complaint in which the

that there was error in the refusal of the court to set aside the verdict upon this ground."

EVIDENCE OF CUSTOM, TO EXPLAIN CONTRACT.

The Supreme Court of Tennessee in Sweeney v. Thomason, 9 Lea, 359; S. C., 42 Am. Rep. 676. held, that in an action upon a contract "to pay eight dollars per thousand for brick in the wall," evidence of custom, short of a general custom, to ascertain the number by measurement rather than by count, is inadmissible. The court observed: "The words and terms used in the contract prima facie, at least, are not terms of art having any special signification or meaning, different from their ordinary or popular meaning. The words 'per thousand brick in the wall' will be readily understood to mean literally what the words imply. There is no ambiguity or uncertainty in the meaning, nor is there any word used not readily understood without interpretation by experts.

"It would hardly be admissible to prove that by custom or usage of brick-masons '1,000' bricks means '500,' or any number less than 1,000.' Where it is not practicable to ascertain the number by actual count, there can be no objection to adopting as the best means of approximating the number, estimates based upon measurement. But such estimates ought ordinarily to be based upon some rule calculated to ascertain the actual number. That is to say, if by actual count a lineal foot of a wa!! be found to contain a given number of bricks, this rule may be adopted as to the remainder of the wall. But why arbitrarily assume that a lineal foot of the wall contains a number of bricks that it is conceded it does not contain? Clearly this cannot be done unless as contended in behalf of the complainants. The words 'per thousand brick in the wall,' mean not actually 6 per thousand,' but 'per thousand' as ascertained by the rule of brick-masons above referred to.

"Conceding for the argument, that such a rule or usage might be established, and the meaning of a written contract, otherwise plain and unambiguous, made to conform thereto - a concession only made for the argument, still we think the proof in this case is insufficient for the purpose. Courts must construe written contracts according to the intention of the parties to be gathered from the language, and interpreted in the light of the accompanying circumstances. If at the time and place the contract was made the usage and custom in question had become so general and well-established as to afford a presumption that it was known to the defendant, and the contract entered into in reference thereto, then it might be sufficient. But the proof of the complainant only is that he has always adopted the rule, and he cannot say that there is any other, or that he knows of no other, and the proof of the other witness is substantially to the same effect. We see no reason why contracts shall not be made to express what is really intended. If the complainant meant to stipulate that 1,000 bricks should mean any thing

less than 1,000, it would have been easy to so express it upon the face of the contract, and then no one would be deceived or misled."

There is no doubt of the doctrine dubiously admitted by the court under a "perhaps," in the last paragraph.

In the leading case of Smith v. Wilson, 3 B. & Adol. 728, parol evidence was held admissible to show that by custom the word "thousand," used in a lease in respect to rabbits, denoted twelve hundred.

In Miller v. Stevens, 100 Mass. 515, parol evidence was admitted to show that by custom "barrel” meant a vessel of a certain capacity, and not the statute measure of capacity.

In Sorther v. Kellerman, 18 Mo. 509, proof of custom was admitted to show that two packs of shingles were regarded as 1,000, without regard to the actual quantity.

In Merrick v. McNally, 26 Mich. 374, proof of a custom to reject fractions of a foot in measurement was admitted.

In Heald v. Cooper, 8 Me. 32, where logs were sold at a certain price for so much lumber as they are "estimated to make, parol evidence of the general mode of estimation was held admissible.

In Humphreysville Copper Co. v. Vermont Copper Mining Co., 33 Vt. 92, where five hundred tons of copper ore were sold, "the moisture to be deducted as usual from the weight of the ore," parol evidence was held admissible to show whether the custom was to deduct for moisture before or after the weighing. In Brooks v. Brooks, 25 Penn. St. 210, where lumber was sold by "the thousand feet," proof of custom was admitted to show that this meant linear

measure.

In Barton v. McKelway, 22 N. J. 165, where young trees were sold, "not to be less than one foot high," evidence was admitted to show a custom to measure only to the top of the ripe of the ripe wood, rejecting the green tops.

In Jordan v. Meredith, 3 Yeates, 318, the case of a contract to pay for plastering by the square yard, evidence to show a custom to include in the measurement one-half of the space occupied by the windows was held inadmissible, on the ground that it was unreasonable. But in Pittsburg v. O'Neill, 1 Penn. St. 343, it was held that the number of bricks laid in a pavement might by custom be computed by allowing a certain number to the square yard.

In Ford v. Tirrell, 9 Gray, 401, the case of a contract to build an octangular cellar-way, at a given rate per foot, evidence of a custom to measure cellar walls in a certain way was held competent.

In Lowe v. Lehman, 15 Ohio St. 179, the case of a contract to furnish and lay brick at a certain price per thousand, evidence was held competent to show a custom to estimate the quantity by measurement of the walls on a rule based on the size of the brick, making slight additions for extra work and cartage, deducting openings in the walls, but not for chimneys nor jambs. The court said: "We are unable to see any thing unreasonable in the custom. The workman was to furnish the bricks and materials