uncertainty," now, as in the days of divine William. Perhaps "the most deserving poor" of New Britain would do well to move down to Patterson. Yours respectfully, HARTFORD, Conn., Dec. 27, 1882. NEW BOOKS AND NEW EDITIONS. BURRILL ON ASSIGNMENTS. A Treatise on the Law and Practice of Voluntary Assignments for the benefit of creditors; adapted to the laws of the various States. With an appendix of Forms. By Alexander M. Burrill. Third edition, revised and enlarged by James L. Bishop. Fourth edition, by George L. Sterling. New York: Baker, Voorhis & Co., 1882. Pp. xlvi, 825. Judgment affirmed with costs - Homer v. Everett, Brooks v. Harrison, Bowne v. Bowne, Robins v. Ackerly, Bank of British North America v. Merchants National Bank of New York, Frank v. Lanier.— Judgment affirmed-Bork v. The People.-Judgment reversed, new trial granted, costs to abide eventCoates v. First National Bank of Emporia, Bank of Oswego v. Doyle, Urquhart v. City of Ogdensburg.Judgment affirmed and judgment absolute ordered on the stipulation, with costs-Payne v. Freer.-Judg ment reversed and new trial granted, unless plaintiff stipulates to reduce judgment to an amount equal to $19,000, with interest from November 10, 1874, to the This work has long been recognized as the most ex- date of verdict, and costs in the court below, in which case It has been SO the judgment modified cellent on the subject of which it treats. is affirmed, without costs to this court universally cited by judges. The editor seems to have either party in brought it abreast with the times, and thus to have Corn Exchange Bank v. Nassau Bank. Orders increased its usefulness. It may safely be pronounced of General and Special Terms reversed and indispensable to every practitioner. The book is well application denied, with costs to be paid by the deprinted. fendant, Lewis--In re Syracuse, Chenango & New York Railroad Company v. Lewis.- Appeal dismissed by Cole v. Knickerbocker Life Insurance Company. Order affirmed-In re Attorney-General v. The North American Life Insurance Company.— -Order of General Term reversed and that of Special Term affirmed, with costs-In re Blodgett, to vacate.— Order affirmed, with costs Ruger v. Belden.— Reargument ordered - Vogel v. The Mayor & ors. of New York. Motion for reargument denied, with $10 costs-McIntyre, etc.- Motion for reargument deCommonwealth Life Insurace Company v. Bow VAN SANTVOORD'S LIVES OF THE CHIEF JUSTICES. ume. The author of this work was one of the most brilliant lawyers and one of the most elegant scholars who has adorned our bar. Cut off by accident in the prime of life, he has left worthy monuments of his various abilities, in his work on Pleading and the present volThe present work is well known to our profession and to the public. It is engaging in style, candid in spirit, and generally judicious in conclusions and reflections. Mr. Scott has completed the life of Taney, who died since Mr. Van Santvoord wrote, and added sketches of Chase and Waite who subsequently came on the bench, and he has done his work very well indeed. The book is handsomely printed. SUTHERLAND ON DAMAGES. A Treatise on the Law of Damages, embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort. By J. G. Sutherland. Vols. 1 and 2. Chicago: Callahan & Co., 1882. Pp. lxxxvii, 885; lix. 661. Our remark in regard to apparent superfluousness, made above upon Dr. Wharton's book, may be repeated in regard to this, without any of the favorable presumption arising from an author's celebrity. Within two years we have had new editions of the great works of Mayne and Sedgwick, the former with notes by Mr. Wood. It seems difficult to believe that these can be superseded for many years, or that any author writing at present can hope to be more striking in treatment or fuller in citation. It is not quite fair to an author to issue or criticize his book in an incomplete form, and Mr. Sutherland promises another volume. He therefore does not imitate or at all events does not succeed in following Dr. Wharton's example of unusual conciseness on a great but familiar subject. So far as we can judge of this work in its incomplete state, we must say that it is characterized by excellent arrangement, by copious and judicious citations, and by a clear style. We are inclined to believe that so far as accessibility of the matter is concerned it has no superior. The volumes are well printed. consent nied. man. NOTES. THE American Law Register for December has an article on Receivers for Cotenants, by James P. Oliver, and the following cases in full: London and County Bank v. Groome (Eng.), on laches in presenting checks for payment, with note by Edmund H. Bennett; Flagg v. Manhattan R. Co. (U. S. Circ.), on guaranty by corporation of dividends on stock of another, with note by Morton P. Henry; Auerbach v. N. Y. Cent., etc., R. Co. (N. Y.), on rights of passenger on railway ticket to be used before a day certain, with note by Henry Wade Rogers; Sanborn v. Royce (Mass.), on levy on partnership chattels for private debt of one partner, with note by M. D. Ewell.-The current number of the Southern Law Review contains the following leading articles: Province of the judge in a criminal trial, by Samuel Maxwell; National common law, by Percy Werner; Wrongful dismissal of servants -their duty-action-defense-evidence, by W. W. Thornton; Decisions of the Federal courts on questions of State law, by William M. Meigs.-The 54th volume of Vermont Reports, by Edwin F. Palmer, comes down to March, 1882. The reporter's work is well done, and many of the cases are interesting. We have particularly called attention to a number of them. -The reprint of Post's (Michigan) Reports, annotated by John L. Stoddard, is going on, the 4th volume (26 Mich.) being now issued. We have before spoken of the admirable character of the publication. The present volume is in every way equal to the preceding. The Albany Law Journal. A ALBANY, JANUARY 27, 1883. CURRENT TOPICS. CORRESPONDENT in another column very temperately takes us to task for doubting a recent assertion to the effect that "the southern people are not in the habit of going armed." He accuses us of bias against the south, of assuming superiority, denies the implication in question, doubts our knowledge upon the subject, and denominates the matter "politics." We have no particular bias against the south. It has been and still is too much the childish habit of the southern people to accuse the northern people of assuming superiority over them, whereas the northern people have always thought the southern people assumed superiority over them. We have no more bias against the south than against the northern mining territories or any other northern locality where human life is less safe than in the older northern communities. Nor do we consider the matter political. It is purely a question of the observance of law, the administration of criminal justice, and the compara tive safety of human life in different communities. If a northern governor had pardoned a Cox, our correspondent would have found our voice raised against him just the same. So much for bias, superiority, and politics. Now as to our means of knowledge and the fact in question. Let us see what we said. We said: "We observe that The Nation has a southern correspondent who asserts that it is not the habit of the southern people to go armed. This will be news to northern people, and to the surviving relatives of many southern people who have been murdered. We know it is the habit of a great number of northern people to go armed, and judging from results we infer that the habit prevails to a great extent in the south." It will be observed that we predicated our knowledge solely on the results, and that we did not spare the northern people from similar blame. We were trying to account for the prevalence of homicide in the south, unquestionably greater than in the north among the better classes, by naturally attributing it to the habit of going armed. In denying the habit we think our correspondent does not improve the case for our southern countrymen. It is certainly much less heinous for a man to pull out a pistol and shoot another in the heat of passion, than not being armed to go and get arms, and kill his enemy after "cooling time." We do not think so badly of our southern brethren as our correspondent unconsciously would have us do. We do not believe there is any such peculiarly murderous spirit among them, Speaking of the better classes in both communities, we merely believe that the southerner has hotter blood than the northerner, and being provoked is more apt to resort to means at hand for venting his VOL. 27 — No. 4. passion. As to the fact of going armed, of course we have no personal knowledge; we can judge only by the results. But a significant bit of statistics comes to us, through The Nation, from the report of the auditor-general of Alabama, showing that the total valuation of mechanical and agricultural implements in that State, above the exemption of $25 for every family, is about $50,000 less than that of the guns, pistols, and dirks! The incident narrated by our correspondent may possibly only prove that southern gentlemen on coming north deem it unnecessary to bring their pistols. Meantime The Nation is publishing many letters from southerners, corroborating its statements and approving its sen timents. An acute correspondent writes us: "Will you not favor us with a full report of Clapp v. Boston, noted in your last number, p. 38? My interest in it is indeed rather scientific than professional, because I am burning with longing to know how to 'erect a well.' And in such case does the truth, which is at the bottom of it, 'go up' with it?" But has not our correspondent heard of petroleum wells that have "gone up?" The reversal by the General Term of the Supreme Court of the First Department of Justice Haight's dismissal of the mandamus proceedings instituted by the attorney-general on behalf of the people to compel certain railway companies to forward freight with diligence, confirms the opinion that we expressed on the subject while it was pending below. Presiding Judge Davis writes the opinion, and admirably expresses the gist of the matter as follows: "We cannot bring our minds to entertain a doubt that a railway company is compellable by mandamus to exercise its duties as a carrier of freight and passengers, and that the power so to compel it rests on the ground that that duty is a public trust, which having been conferred by the State and accepted by the company, may be enforced for the public benefit. It is said the State is not injured and has no interest in the question whether or not the company performs the duty. The State may suffer no direct injury, but that is no test of the power or duty of the State in the matter. The sovereignty of the State is injured whenever any public function vested by it in any person for the public good is not used or is misused, and it is not bound to inquire whether some individual citizen has not received some special injury for which he may recover damages in a private suit. Such an injury wounds the sovereignty of the State. The State in such a case as this has no other adequate remedy, for the remedy of dissolving the corporation is not adequate. The fact that private persons may have private remedies for the damages they have sustained by the neglect of the company to perform its duty does not preclude the State from its remedy by mandamus. The courts may exercise their discretion as to granting a mandamus to compel a railway corporation to perform its duty as a common carrier, but the right to grant a mandamus is not to be doubted. Where the injury sustained by an individual is of such a nature as not to affect the public generally, the courts have refused to grant a mandamus." Of course this question will go to the Court of Appeals, but until that court shall declare the contrary we shall believe that the State which creates corporations for public purposes, and may regulate them, and unmake them in certain contingencies, may also compel them to perform the duties for which they were created, although the particular individuals of the public who are aggrieved by the refusal may also have a particular and individual remedy in damages. first of May and wintered, twelve dozen fresh eggs, one good maid-servant to wait upon them; said rent payable, to wit: the wheat, ten bushels at Christmas, and the remainder in February, the oats, thirty bushels, at Michaelmas, and the remainder in January, the potatoes and peas at Michaelmas, the hay during the haying season, the pig, the salt, pepper, candles and soap, on the twenty-second of December, the eggs when required; also to have the survivor of the said Jean Baptiste Vermette, senior, and his wife, interred with a service of a cost of thirty-six livres, ancien cours," etc. This sentence is so longwinded that it is not quite certain whom the maidservant is to wait upon the old man and old woman, the pig, the cow, or the eggs. In another case the rent reserved is as follows: "Twenty bushels of dry wheat, clean, good and merchantable, ground and delivered at their residence, eighteen cords of wood, three feet long from one point to the other, soft wood, except three cords which are to be of tamarac or ash, chopped in the spring, cut and split for the stove and delivered in their house, a fat pig weighing two hundred pounds with the caul, two bushels of fine cooking peas, twenty-five pounds of maple sugar, one bushel of salt, one pound of good tea, six dozen of eggs, a pair of The recommendation of the senate judiciary committee, that the Penal Code should be amended so as to authorize the local authorities of towns, villages and cities to judge as to what kinds of business should be permitted on Sunday, strikes us as very unwise. It would be very unjust to submit the observance of Sunday to "local option." A rumdrinking community might prefer every facility for getting drunk on Sunday, but it would be hard on the few just men in Sodom. Besides, we have a suspicion that it would be unconstitutional, for example, to allow beer-selling and to prohibit book-hens, twelve pounds of soap, six pounds of candles, selling on Sunday. If the local option is to regulate as to business, why not as to sports? On this principle a prize-fighting, a horse-racing, or a cockfighting community, ought to be allowed their particular favorite amusement on the Lord's day. As to business, communities would differ; some would allow one business, and others another, and so all over the State we should find a different kind of observance, and this in itself would be unconstitutional as giving unequal privileges among the same class of tradesmen. In short, the scheme seems to us a mere sop thrown to Cerberus. We hope the bill will be unceremoniously dismissed. If it should chance to pass, the Governor would probably veto it, for we believe him to be a very discreet and decent man. A Canadian correspondent sends us a printed list of advertisements, in French and English, of sheriffs' sales of lands, containing a reference to the survival of an old French custom, by which, when the père de famille desires to retire from active management of his farm, he makes a donation inter vivos to the eldest son, stipulating for certain continued benefits to himself and his wife. The minuteness of provision for these benefits is sometimes very amusing. For example, in one case, the rent reserved is as follows: "Twenty bushels of wheat, dry, clean, good and merchantable, sixty bushels of good fine oats, four bushels of split peas, fifty bushels of good potatoes, two hundred bushels of hay, timothy and clover, one pig weighing two hundred pounds with the suet, one bushel of salt, one pound of pepper, twelve pounds of candles, twelve pounds of good soap, one good milch cow that calved in the spring, to be replaced in case of death, delivered on the twelve bundles of good hay, four gallons of whisky, two pairs of men's Canadian leather boots, and two pairs of woman's Canadian leather boots, one quart of lamp oil, one pound of pepper, one fat lamb, five ells of home-made cloth every two years, nine ells of home-made linen every two years, and six ells of home-made flannel every two years; which said articles shall be delivered as follows: ten bushels of wheat in March, ten bushels at Christmas after, the wood at the first snowing, the fat pig, peas, salt, tea, soap, candles, whisky, oil and pepper at Christmas, the sugar in the month of April, the eggs in the month of May, the hens at All Saints, the fat lamb in the course of October, the cloth and flannel, at Saint Catharine's, and the linen in the month of June, the hay on demand. Moreover, to furnish them a cow after calving, every year, on the first of May up to All Saints, wintered and pastured, to provide them with a horse harnessed to a suitable vehicle, whenever they require, except in the sowing or ploughing time, to allow them pasturage for a horse," etc. In the latter case the good man and woman apparently were accustomed to wait on themselves and one another, and were indifferent about the funerals, but seemed much more exacting of creature comforts, especially in the matter of whisky. It is noteworthy that the pig in each case must weigh two hundred pounds. We should suppose that it would be difficult to fix "the first snowing" in a country where as we are given to understand it snows all the year round. NOTES OF CASES. N Walker v. Fletcher, 74 Me. 142, an action of damages for negligently burning "ash lumber," an amendment of the declaration, at trial, substituting "birch" for "ash" was held to be properly allowed. Counsel ingeniously argued: "It is true that trees are all different varieties of the vegetable kingdom. So are all our domestic animals different varieties of the animal kingdom. But when the defendant is sued for an injury to a horse an amendment could not be allowed showing an injury to a cow. There are different varieties of ash and of birch, but ash and birch are of different species. | An amendment may be allowable changing from one variety to another, but not from one species to another. Thus an amendment substituting brown ash for white ash may be allowable, but not to substitute birch. Just as you may amend by substituting a Jersey or Hereford for a Durham cow, but not by subtituting a horse." But the court said: "The charge in either case is for burning lumber, and whether ash or birch, is mere matter of description. The subject-matter remains the same. The lumber is lumber still, and in this case the same that was destroyed. The horse is not turned to a cow as contended in the argument, but only from a black horse to a white one. The change in principle is the same as that involved in the allowance of an amendment changing the description of a contract, or a judgment declared upon, which is clearly allowable." In Shaw v. Rigby, Indiana Supreme Court, November 27, 1882, 15 Rep. 46, the cause of action was a mortgage with a note, payable one day after date, to order, with ten per cent interest. The legal rate of interest was six per cent, but the court held that the contract rate prevailed after maturity, because such was the evident intention. Burns v. Anderson, 68 Ind. 202; S. C., 34 Am. Rep. 250; and Richards v. McPherson, 74 Ind. 158, were overruled. The court said: "In the recent case of Union Institution, etc., v. Boston, 129 Mass. 82; S. C., 37 Am. Rep. 305, upon the question we are now considering, Gray, C. J., said that the interest after the breach of the contract, though not strictly recoverable as part of the debt, but rather as damages, is ordinarily to be measured according to the intention manifested by the contract, by the standard thereby established.' This view of the question meets our full approval. In this case the intention of the parties to the contract is clearly shown by the record. Although the note in suit was made payable one day after date, yet the execution of the mortgage by the appellants and the recording of the mortgage by the appellee, as it seems to us, clearly indicate that it was not the intention nor the expectation of the parties to the note that it should be paid at maturity, or if not then paid, that it should bear a less rate of interest than the stipulated rate of ten per cent. The interest on the note at ten per cent, for one day only, would not pay the one-half of the ordinary expenses of the parties in the drafting, acknowledgment, and record of the mortgage. It is evident, we think, that it was the intention of all the parties that the debt, evidenced * * * by the note and secured by the mortgage, should be allowed to stand for an indefinite period of time, perhaps for years, as a debt secured and bearing interest at the rate of ten per cent per annum. If the intention of the parties as shown by their contract should be regarded, as in our opinion it should be, as the proper standard for the measurement of the appellee's damages, after the maturity of the note in suit, then it is clear that the trial court committed no error in this case in its assessment of the amount of appellee's recovery. The rule declared in Kilgore v. Powers, supra, and which we now reassert and declare to be the proper rule for the measurement of the plaintiff's damages in such suits as the one at bar, has been approved by the decisions of the courts of last resort in many of the States of the Union. Brannon v. Hursell, 112 Mass. 63; Corcoran v. Doll, 32 Cal. 82; Hopkins v. Crittenden, 10 Tex. 189; Wilson v. Marsh, 2 Beasley, 289; Heartt v. Rhodes, 66 Ill. 351; Spencer v. Maxfield, 16 Wis. 541; Pruyn v. Milwaukie, 18 id. 367; Hand v. Armstrong, 18 Iowa, 324; Thompson v. Pickel, 20 id. 490; McLane v. Abrams, 2 Nev. 199; Overton v. Bolton, 9 Heisk. 762; S. C., 24 Am. Rep. 367; Monnett v. Sturges, 25 Ohio St. 384; Marietta Iron Works v. Lottimer, 25 id. 621; Warner v. Juif, 38 Mich. 662; Cecil v. Hicks, 29 Gratt. 1; S. C., 26 Am. Rep. 391; Entyre v. McDaniel, 28 Ill. 201." See note, 34 Am. Rep. 253. In Melvin v. Melvin, 58 N. H. 569, it is held that the subjecting of the wife by the husband to excessive sexual intercourse is ground for divorce, and the fact may be shown by the wife's testimony, and such testimony will not be excluded on grounds of public policy or decency. The court distinguished the exclusion of testimony of non-access (the reporter, very curiously, prints it non-excess), observing that the exclusion is based on the ground of the public impolicy of allowing parties to bastardize their own issue, and not on the ground of indecency. The court further say: "Prior to the passage of our statute making the husband and wife witnesses for and against each other in all cases civil and criminal, it was the uniform practice to admit both parties as witnesses in divorce cases, in the same manner as they have been since. This was done on the ground of necessity. The aid of the testimony of the parties to the court in judging of their troubles and the cause of the same was so important that it was a necessity that they should testify; and hence the testimony came within the exception to the rule. There was no limitation to this practice when the causes assigned for a divorce were impotency, adultery, or refusal to cohabit. In all these instances the parties were witnesses in chief. In such causes the common-law rule, excluding the wife from being a witness where the character or interest of her husband was involved, needed to be applied more than in any other case, if it was to be applied to any divorce case. case the causes assigned are extreme cruelty, and In this treatment such as seriously injured health and endangered reason; and the wife is a competent witness to testify to the cruel treatment which she received, whatever it may have been, both under the admitted practice in this State, and as coming within the exception of necessity to the ancient common-law rule. Such evidence will not be exIcluded if the ends of justice will be best subserved by receiving it. 2 Bish. on Mar. and Div., § 287; Abernathy v. Abernathy, 8 Fla. 243, 259; Da Costa v. Jones, 2 Cowp. 729, 734. Humanity demands that such complaints be heard. The wife protecting her life from the ungoverned lust of her husband by seeking a divorce, presents as strong a case of relief under the law as when she flees from his intolerable cruelty inflicted by brute force. Neither public policy nor morality requires the exclusion of her testimony, if such exclusion would protect him in impairing her health or endangering her life by degrees, whether the result is accomplished by the brutal gratification of his lustful passions, the continued infliction of physical force, or the administering of slow poisons." We may HABITUAL DRUNKENNESS. "Habitual drunkenness, or the degree or course of intemperance that amounts to it, cannot be exactly defined. however say in general terms, that one is addicted to habitual drunkenness who has a fixed habit of frequently getting drunk, and he may be so addicted though he may not oftener be drunk than sober, and may be sober for weeks. 2 Bish. on Mar. and Div., § 813; State v. Pratt, 34 Vt. 323; Ludwick v. Commonwealth, 18 Penn. St. 172; Commonwealth v. Whitney, 5 Gray, 85."— Brown v. Brown, 38 Ark. 324. LUMBER. "Lumber is timber sawed or split for use in building, and is material essential for building any kind of a house ordinarily used for business or by families."-Ward v. Kadel, 38 Ark. 174. INTERNAL IMPROVEMENT. A steam grist-mill is not a work of internal improvement within the meaning of a statute of Nebraska authorizing counties, cities and precincts of organized counties to issue bonds to aid in the construction of any railroad or other work of internal improvement.". 08borne v. County of Adams, U. S. Sup. Ct., October Term, 1882. GOODS, WARES, AND MERCHANDISE. Alcohol is embraced in any one of these terms. Bridges v. State, 37 Ark. 224. COFFEE-HOUSE. It seems that "coffee" does not include alcohol. "A coffee-house is defined by Worcester to be a house of entertainment where coffee is sold, sometimes used to denote a hotel or tavern.' We know no reason why any enlarged meaning should be put upon the term or why even in the absence of the statute, a license to keep a coffee-house should be construed to mean a license to vend spirituous liquors. The statute however is imperative. Under license to keep a coffee-house, whatever that term may mean, the privilege to sell spirituous liquors shall not be implied or embraced, unless such privilege is expressly specified in the license. Unless the statute be followed the license is without legal authority.". · Commonwealth v. Woods, Kentucky Superior Court, 1882. HEAD OF A FAMILY. A husband living as a boarder for seven years, separate from his wife and not contributing to her support, they having no children, is not the "head of a family," within a statute of exemption. Linton v. Crosby, 56 Iowa, -- 386; S. C., 41 Am. Rep. EARNINGS. Money due for board is "earnings" of the person furnishing. Jason v. Antone, 131 Mass. 534. REPAIR. This includes "restore," as to public bridges. So a county bound to "repair" bridges is bound to restore them when they are carried away or burned down. — State ex rel. v. Board of Commis sioners, 80 Ind. 478. NECESSARIES. A sewing-machine is a "necesSinger Manufacturing says: " for a married woman.sary Company v. Harned, 79 Ky. 279. MISSIONARY PURPOSES. The London Law Times "The frequenters of Exeter Hall in the last months of spring would be surprised to learn that the meaning of the term 'missionary purposes' is, from a legal point of view, unascertainable, and is in fact so vague that a trust for such purposes is incapable of execution, and void; yet so it has been decided by the Irish Master of the Rolls in Scott v. Brownrigg, L. R., 9 Ir. 246, a case of a solicitor's will, in which the misadventures of certain learned exchancellors with regard to their wills were repeated in the case of a lesser legal luminary. The testator gave his residuary estate to two legatees upon a secret trust which was stated in a letter to one of them to be for 'such missionary purposes in Ireland' as they should in their discretion think fit. The gift was held to fail on various grounds, and the Master of the Rolls stated his opinion to be, that if a trust for missionary purposes' had been actually inserted in the will itself, it would have been too vague and uncertain, and that the court could not carry it out. The line of reasoning followed by the learned judge was, that whether if the bequest had been to promote the preaching of the Christian religion, it would have been good or bad, the expression actually employed did not show whether the object to be promoted was to be the preaching of the Christian religion or of some other religion, and that it was, in fact, uncertain whether religious purposes were indicated by the term at all, since the |