tendered all the interests conveyed to them to defendant, and demanded back the money paid. A assigned his claim to plaintiff. The court below found that defendant had not fulfilled his contract, "but failed in every part thereof." Held, that the evidence justified the finding, and that plaintiff was entitled to recover the amounts paid upon the contracts. Lawrence v. Vandeventer. Opinion by Reynolds, C. CONTRIBUTORY NEGLIGENCE. York, and was there repaired in full at a cost of $4,547.71. Defendant paid $8,000. Plaintiffs claimed eight-tenths of the whole amount paid by them. Held, that defendant, in addition to the amount insured, was liable to pay, under the suing and laboring clause, eight-tenths of the $581.18, but was not liable under it for any portion of the excess of repairs. Nor was defendant made liable by its assent to the action of the assured and their agents in reference to repairs; that in expressing its assent "as underwriters" it limited such assent to its liability as such "underwriters," and only thereby waived all technical objections as to the place, extent and cost of the repairs. No liability for a single loss can exceed the amount insured, and such further expenses as may fall under the "suing and laboring" clause. The authorities construing the "suing and laboring" clause collated and discussed by Hunt, C. Alexandre et al. v. Sun Mut. Ins. Co. Opinion by Hunt, C. Action for damages for injuries received by plaintiff, an infant thirteen years of age, while attempting to get on to one of defendant's cars. Plaintiff was sent by his father on an errand; he hailed one of defendant's cars, and attempted to get on to the front platform; some one, whom he supposed to be the driver, ordered him to get on at the back end; he went back and stepped upon the step, when he was ordered in an authoritative way to go to the front end. A heavy snow had fallen which the defendant had removed from the track, leaving it sloping toward the track. It had become smooth, and on plaintiff's attempting to go to the front end of the car he fell and slipped under the car, one wheel of which passed over his leg and crushed it. Plaintiff was nonsuited on the ground of contribu-ing his boat across in front of the ferry slip. His wittory negligence on his part. Held, error; that the question of contributory negligence was one of fact for the jury. Also held (Johnson, C.), that the rule, requiring the absence of contributory negligence, was not established out of any tenderness for the negligent infliction of an injury, but to discourage carelessness, and that in determining whether the fault exists the condition of the person whose acts are in question should be considered, and that the old, the lame, the infirm or the young are entitled to have their condition and ability, mental and physical, considered in diminution of the degree of care exacted of them; that no greater degree of care was required than the capacity of the person would allow him to exert. Mowrey by Guardian, etc. v. The Central City R. R. Co. Opinions by Reynolds and Johnson, CC. DAMAGES. In an action to recover the possession of personal property, where the property has a usable value, the value of its use during the time of its detention is a proper item of damages. (Tiernan v. Swart, 4 Lans. 263, limited.) Allen v. Fox. Opinion by Earl, C. MARINE INSURANCE-"SUING AND LABORING" CLAUSE. Action upon a policy of insurance issued by defendant, upon plaintiff's brig, against the perils of the seas for $8,000. The brig sailed from Balize, and on the next day was driven on shore in a gale. She was taken back to Balize, unloaded and found seriously damaged. The proportion of general average of expenses incurred in taking the brig back, unloading her, and ascertaining the extent of injury for the brig to pay, was $581.18. The master wrote to plaintiffs in New York for instructions as to repairs, estimating temporary repairs at about $2,500. Plaintiffs wrote the master referring him to a friend at Balize with whom he was to consult, and stating whatsoever he and the friend referred to should decide was approved beforehand. Upon this leiter defendant indorsed that, as underwriters, they concurred therein. Temporary repairs were made at Balize, which cost $8,769.74. The brig went to New NEGLIGENCE. Action for damages for injuries to plaintiff's canal boat, caused by a collision with one of defendant's ferry boats, and occasioned by the alleged negligence of those in charge of the latter. Plaintiff was draw nesses testified that it was about sun-down; so light the ferry boat could be distinctly seen as it left the Brooklyn side, and, as it approached, the pilot could be seen so distinctly that the witness recognized him upon the street two days after. Plaintiff had no light upon his boat. He and his men called and beckoned to the pilot as the ferry boat approached, but no attention was paid, and the collision occurred. The principal question in the case was, as to plaintiff's contributory negligence in not having lights. Held, that the jury were justified in finding that those in charge of defendant's boat, in the exercise of common prudence, could have seen the canal boat without a light upon her, in time to have avoided the collision, and that its occurrence was not, in any way, attributable to the want of lights, and that there was, therefore, not contributory negligence. Delafield et al. v. Union Ferry Co. of Brooklyn. Opinion by Gray, C. RAILROAD. Liability of stockholders. - Action under the railroad act of 1850 (chapter 450, Laws of 1850), against defendant as a stockholder, holding unpaid stock of the Sackett's Harbor and Saratoga Railroad Company, to enforce the liability imposed by section 10 of said act (as amended, chapter 284, Laws of 1854). From October 15 to November 19, 1854, plaintiff, with his hired man and team, worked for the contractors, constructing one of the sections of the Sackett's Harbor and Saratoga Railroad. The contractors failed to pay for the services, and he brought an action against the company, and recovered judgment in March, 1857, which was affirmed by the general term and court of appeals. Executions were issued and returned unsatisfied. In October, 1854, certain shares of the stock of the company were transferred to the defendant upon the books of the company, by assignments absolute upon their face, but, in reality, executed as collateral security. At the request of the owner, and without consideration, defendant transferred a portion of the stock to a third person in November, 1854, and the residue in February, 1855. Plaintiff commenced this action against defendant, as a holder of said stock, in September, 1864. Held, that, if plaintiff's cause of action was based upon the original claim, he could not recover, as he was not a laborer for, or creditor of, the company; and even if the judgment against the company was conclusive, as to his position as a creditor, and of the existence of the debt, it must be treated either as conclusive evidence of a debt existing in 1854, or as itself a debt, constituting plaintiff a creditor at and from the time of the recovery. In the first view the action would be barred by the statute of limitations; in the second defendant would not be liable, as, at the time of the rendition of the judgment, he had ceased to be a stockholder. Also held (Gray and Hunt, CC.), that if the judgment against the company was prima facie evidence of what was contained therein — it appearing that an inseparable part of the judgment was for labor and services not performed by plaintiff himself - it was not a debt for which a stockholder is liable, and plaintiff, therefore, could not recover. Evidence on the part of defendant was proper to show that an assignment of stock, absolute upon its face, was, in fact, given to him as collateral security, and was held by him for that purpose only. Proof of a judgment against the company, in an action like this, is neither conclusive nor prima facie evidence of the existence of a debt against the corapany. (Lott, Ch. C., and Gray, C.; Hunt, C., dissenting.) The authorities upon the question collated and discussed in opinion of Gray, C. McMahon v. Tracy. Opinions by Earl and Gray, CC. TRADE-MARK. 1. Action for a perpetual injunction restraining defendants from the use of plaintiffs' trade-mark. Plaintiffs, and those whom they had succeeded, had been engaged for several years in manufacturing cement or water-lime from stone taken from quarries near Akron, in Erie county. They sold the same, and it was known in the market as "Akron Cement." Their barrels were labeled "Newman's Akron Cement Company, manufactured at Akron, N. Y. The Hydraulic Cement, known as Akron water-lime." There were other quarries at Akron not owned by plaintiffs. Defendants manufactured cement from stone quarries near Syracuse. Their barrels were labeled "Alvord's Onondaga Akron cement or water-lime, manufactured at Syracuse, N. Y." They used the word "Akron" to avail themselves of the reputation plaintiffs' cement had acquired. Held, that, as against defendants, plaintiffs had the right to the exclusive use of the word "Akron" as a trade-mark, and were entitled to an injunction restraining defendants from its use. The authorities upon the subject of trade-marks collated and discussed. Newman et al. v. Alvord et al. Opinion by Earl, C. 2. It seems that it is not necessary that the claimant of a trade-mark, in an action for its infringement, should show an exclusive right to it. The right must be exclusive as against defendant. The principle upon which relief is granted is, that defendant shall not be permitted, by the adoption of a trade-mark which is untrue and deceptive, to sell his own goods as those of plaintiff, thus injuring the latter and defrauding the public. The name of a place may be adopted and used as a trade-mark. Ib. Judge Black, of Quebec, died at Cacouna on the 16th inst. DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF INDIANA.* ATTORNEY. Set-off: agency. An attorney, when sued for money collected for the plaintiff, may set off a note held by him, executed by the plaintiff. There is nothing in the doctrine of agency that forbids such a defense. Noble v. Leary, 186. CARRIER. 1. Baggage: porter. - The price paid by a passenger on a steamboat usually includes the charge for the transportation of his baggage; and, as the carrier must provide some one to care for it, that person is the agent of the carrier, although he be not one of the crew or paid by the carrier, but a porter, who receives his compensation from the passenger. Perkins et al. v. Wright, 27. - 2. Negligence: liability. A common carrier cannot, by contract, relieve himself from liability for the loss of goods delivered to him for transportation, which has been occasioned by his own negligence, or that of his agents or servants, or where such negligence has, in any degree, contributed to such loss. A common carrier can no more stipulate for a slight degree of negligence than he can for gross negligence. The Mich. South. & North. Ind. R. R. Co. v. Heaton, 448. DRUNKENNESS. 1. Contract: ratification. In a suit upon a mortgage it is a good defense that the defendant was so intoxicated, at the time of signing the same, as to be incapable of executing it; and a reply that he retained the goods, for which the instrument was given, and used them, is bad, as the action is not on a claim for goods sold but on the written promise, and the reply shows no ratification of that act. Reinskopf et al. v. Rogge et al., 207. 1. Indorser: forged indorsement. - The acceptance in good faith from the maker, who is insolvent, of a note with a forged indorsement of the name of the payee, in discharge and payment of a note executed by the same maker, with the genuine indorsement of the same payee, known to the holder as an accommodation indorser, will not discharge such indorser on the original note. Allen v. Sharpe et al., 67. 2. Consideration paid by indorsee. — In an action on a promissory note, brought by an indorsee against his indorser, the complaint alleging the insolvency of the maker and the non-payment of the note, it is not necessary to state the amount paid for the purchase of the note, as, prima facie, the face of the note fixes the sum to be recovered. Lee v. Pile, 107. and then, at his request, and solely for the purpose of parting with any apparent title thereto, he indorsed the same, is no defense to the action, as it does not allege that the plaintiff agreed to take the note without indorsement. The additional averments that it was expressly agreed that the plaintiff should accept the note under the contract for the property delivered to the defendant, and should rely on the maker for payment, who was the owner of large property; and that the defendant, being ignorant of the law governing his liability, indorsed the note simply to transfer his ownership, and that it was no part of the agreement that he should be liable as an assignor thereof, and that the words "without recourse" were, by mistake, omitted in making said indorsement, are not sufficient to render the paragraph good, as they contradict the written contract of indorsement. Ib. 4. Pleading: no consideration. In a suit on a promissory note, by an assignee against the maker, an answer that the note was executed without any consideration is good. Johnson v. McCabe et al., 535. Parol promise to answer for debt of another. G. held a note against S., and J. held a note against G., and it was agreed between J. and H. that J. was to surrender to G. the note and mortgage and release him from that indebtedness, and take from him an assignment of the note which he held against S., and H. agreed by parol to pay to J. the latter note. J. accordingly did release the note and mortgage against G., and took an assignment from G. of the note against S. Held, that the contract was within the statute of frauds, which requires a special promise to answer for the debt of another to be in writing in order that an action may be maintained thereon. Crosby et al. v. Jeroloman, 264. LORD WESTBURY. It is with much regret that we have to record the death of Lord Westbury. Although he had arrived at the ripe age of seventy-three years, and had, for exactly half a century, been in the law and of the law, his talents can at this moment be as ill-spared to the country as at any part of his long and useful career. His experience and authority would have been of great value in carrying the administration of the law over the transition period of 1874, and in starting the work of the new court of appeal; while, in the single matter of the European arbitration, his death will cause much obstruction of business, and may give rise to more than one difficulty. The profession also takes a just pride in the ex-Lord Chancellors. They are the mighty and venerable oaks of the legal academus. Their po sition is surrounded with so much of honor, of respect, and of power in law and in politics; they so completely represent the ideal and the actual height to which professional success, under the constitution, can carry the barrister of fortune, that the fall of one of them appears to be a loss to every disciple of the law. Not the less does this feeling affect us, when we reflect that the old is passing away, that all things are becoming new, and that ex-Lord Chancellors are no longer to occupy the same position which they have hitherto enjoyed and adorned, but are to be put back to work in the court of appeal, as though they had risen directly from the ranks, and had never sat on the Woolsack or been custodians of the great seal. The epithet "clever" has been so much perverted from its proper sense that we scarcely like to apply it in eulogy. But the word exactly represents what Lord Westbury was. To matriculate at the age of fourteen years, to win a scholarship at college at the age of fifteen, and to obtain a first class in the classical and a second class in the mathematical schools at the age of eighteen, are peculiarly the feats of a clever lad and a clever man. His was no case of drudgery working up to ability; of experience supplying the want of talent; of luck and "backing" substituted for genius. He had as keen and bright an intellect as nature ever bestowed on man. Logical force, exquisite precision, abnormal memory, apt language-these were among the gifts or qualities which lifted Richard Bethell to the leadership of the bar, and gave Lord Westbury eminence as a judge. He was, as might be expected from the possession of such powers as these, a man of marvelous independence of thought and of judgment. He was the reverse of a slave to precedent. His judgments, indeed, are remarkable for their omission of reference to decided cases. In them broad principles and doctrines are asserted, and legal heresies are denounced in language bold, novel and uncompromising. His arguments at the bar were the forerunners of his judgments on the bench. Had he held the Lord-Chancellorship as long as Lord Eldon did, and been as thoroughly unchecked by other judges, he would have worked the law into new grooves, and changed much of the substance of our jurisprudence. From such results the law has been saved by the authority of other judges, and perhaps to the advantage of the law. But, as it is, Lord Westbury has left the impress of his almost revolutionary genius on the jurisprudence of the country, and has taught lawyers the rare art of thinking and judging for themselves. In parliament, in earlier days- both in the house of commons and in the house of lords- the oratory of Sir R. Bethell and of Lord Westbury could make itself felt. Unfortunately the possession of unrivaled powers of sarcasm, capable of being expressed in tones of voice and with a manner by no means calculated to alleviate its bitterness, tempted him into assaults which his victims were not likely to forget or to forgive. But during the last five or six years of his life, Lord Westbury was rather a popular character in the house of lords. Age had softened his disposition, and his speeches always contained a fund of wit and humor, while his conversational powers were an unfailing source of amusement and entertainment in the intervals of business. His sincere regard and friendship for Lord Cairns also drew him from any thing like strong partisanship in the house of lords, and he seemed to strive rather to act the judge than the advocate in the political questions before the house. To Lord Westbury is due the credit of some of the most important acts of parliament of modern times. The greatest marvel in accurate and ingenious legislation we mean the succession duty act- owed its passage through the house of commons to the acute and precise explanations of the bill, which he, as solicitor-general, gave in aid of the chancellor of the exchequer. He also had the care of the probate and divorce acts, and of the fraudulent trustees act of 1857. His bankruptcy act of 1861 can hardly be reckoned a success; but the working of the measure was ruined by the false policy of erasing from the bill the clauses constituting a chief judge in bankruptcy, contrary to the earnest advice of Sir. R. Bethell. His warnings proved true, and in 1869 parliament assented at last to what he had proposed eight years previously; and, although much injury has arisen from the persistent blunder of the government in not appropriating a judge to the court of bankruptcy, yet the injury would have been far greater if no judge at all had been appointed. We cannot close our criticism on the career of Lord Westbury without recalling his ardent and honorable exertions in establishing some system of education and examination for the bar. To his initiative is due the present activity of the inns of court, which bears a very marked contrast to the absolute inertia which prevailed before he interested himself in the question. - Law Journal. - FUNERAL ORATIONS. The Americans seem to appreciate their great men far more than we do. Possibly this arises from the circumstance that they have no Westminster Abbey. We lose a great lawyer, or a great novelist, a letter is written to the Times suggesting that he should be buried in Westminster Abbey. He is so buried (or isn't according to conditions not affecting his reputation), and his works are then taken out from the library shelves and criticised with a gentlemanly spite frequently surpassing any thing which appeared during his life-time. English lawyers might lose their brightest ornament, and they would never think of assembling together and saying what they thought of him. The American lawyers have no sooner lost an eminent member of their profession than they convene a solemn assembly and make funeral orations and pass resolutions. Chief Justice Chase has thus been honored, and the only part of the ceremony we don't quite understand is the passing of resolutions. A resolution is usually passed with a view of inducing somebody to do or not to do something. To say that a dead man was a great judge or a great statesman would seem sufficient, without "resolving" that he was. It appears, however, that the records of the American courts admit judicial epitaphs, for the last resolution passed in connection with the departed judge was this: "Resolved, That Joseph O. Glover, United States district attorney, be appointed to present the foregoing resolutions to the United States circuit court for the northern district of Illinois, at its next meeting, with a request that they be spread upon (sic) its records." It is probably owing to our defective education that we don't appreciate the pathos of this. A judge who, one of the funeral orators tells us, will never be forgotten, and will go on living forever in the memory of lawyers, hardly stood in need of having his virtues recorded in the books of a circuit court. However, we ought not to cavil, as we err con siderably in the wrong direction. Therefore, we add only one remark: Funeral orations are not altogether the kind of speeches which lawyers are called upon to make, but, for the benefit of those who may be so exercised, we quote the following from the speech of the Hon. Leonard Sweet: "In personal appearance he was a marked man, and of strong frame, commanding voice, and almost overshadowing presence; and few men have equaled him in clearness, logic and force. During thirty years of public life, although standing most conspicuously before the country, and in a leadership which called forth the deepest malevolence, no man can remember the occasion upon which his integrity in pecuniary affairs was questioned." A man of "almost overshadowing presence," who stood "most conspicuously before the country"—and that country America-for thirty years, and was never charged with want of "integrity in his pecuniary affairs," certainly deserves to have his virtues recorded in the circuit court for the northern district of Illinois. - Law Times. CORRESPONDENCE. THE REPORTER. OGDENSBURGH, Aug. 13, 1873. * Editor Albany Law Journal: SIR-We agree to the proposition of ** in the JOURNAL of the 9th, that you invite lawyers to unite in discontinuing some of the series of reports. The profession is overburdened by the charlatancy of "reporters," who seem anxious only to print and sell a certain number of pages of law reports, assuming that "a book's a book, although there's nothing in 't." Barbour and Howard are the chief sinners, and we vote to strike them off the list. BOOK NOTICE. X Reports of cases argued and determined in the superior court of Indianapolis. O. M. Wilson, Official Reporter. Indianapolis Journal Co., 1873. The superior court of Indianapolis was organized under an act of 1871, and consists of three judges, who sit severally at special term and collectively at general term. The reports of their decisions at general term are issued by Mr. Wilson, in quarterly numbers of about one hundred and thirty pages each, and, if we may judge from the opinions in the number before us, the court is entitled to much respect on the ground of ability, even if it is not a court of much technical authority. The reporter also has added much to the value of his reports by the excellent notes, collating the authorities which he has appended to most of the cases. It appears from a parliamentary return, says the London Law Times, that the Queen's proctor has, since the establishment of the divorce court, in 1861, intervened in seventy-two cases, and that in fifty-three of these cases the petitions have been dismissed or withdrawn. In most cases a decree nisi had been obtained, which was reversed on the intervention of the Queen's proctor. The total sum paid by the treasury as costs and fees in respect of these cases is £24,457 16s. 11d. The Albany Law Journal. ALBANY, AUGUST 30, 1873. THE LAW OF BLOCKADE.* The law of blockade does not differ in civil war from what it is in foreign war. Trade between foreigners and a port in possession of one of the parties to the contest, cannot be prevented by a municipal interdict of the other. During the revolutions of Spanish America, the mother country attempted to enforce against foreigners the exclusive system of her colonial laws, which was ever resisted by the United States. Mr. Monroe, secretary of State, in a note of the 20th of March, 1816, to the Spanish minister, having objected to the blockade of the Spanish coast in South America, from Santa Marta to the river Atrato, inclusive, and declared that it must be confined to particular ports, and an adequate force stationed at each to support it, Don Onis replied, March 25, 1816: "Not only that part of the coast lying between Santa Marta and the river Atrato, but the whole coast eastward and southward of those points, from the Orinoco to the territory of this Republic, belongs to the Spanish monarchy, and consequently any vessel whatever, found near it, or standing toward it, can have no other object than to carry on smuggling, or stir a civil war in the king's dominion. In either case the law of nations recognized the seizure of the vessels so employed." (American State Papers, Vol. IV, p. 156.) This view was not acquiesced in by the government of the United States, and by its instructions Mr. Erving, Minister at Madrid, declared to the Minister of Foreign Affairs of Spain, September 26, 1816: "The blockade of General Morillo is repugnant to the law of nations, because it extends over several hundred miles of coast, and to an indefinite distance from the shores. Of course it cannot be enforced as a blockade, but remains a bare pretext for spoliation. A blockade by sea, to be acknowledged as valid by the United States, must be confined to particular ports, each having a force stationed before it, sufficient to intercept the entry of vessels, and no vessel shall be seized, even in attempting to enter a port so blockaded, till she has been previously warned away from that port." (Ibid. p. 158.) "To this outrage upon all the rights of neutrality," Mr. Adams instructed Mr. Nelson, Minister at Madrid, 28th of April, 1823, "they have added the absurd pretension of interdicting the peaceable commerce of other nations with all the ports of the Spanish Main, upon the pretense that it had heretofore been forbid * From the argument of Mr. William Beach Lawrence, in the case of "The Circassian," before the British and American Mixed Claims Commission. den by the Spanish colonial laws; and on the strength of these two inadmissible principles, they have issued commissions at Porto Cabello, and in the island of Porto Rico, to a swarm of privateers, which have committed extensive and ruinous depredations upon the lawful commerce of the United States, as well as upon that of other nations, and particularly of Great Britain. "You will represent to the Spanish government the claims of all the citizens of the United States, whose vessels and other property have been captured by the privateers from Porto Rico and Porto Cabello, and condemned by the courts of those places for supposed breaches of the pretended blockade, or for trading with the South American Independents." Cong. Doc., accompanying President's Message, December, 1824, pp. 269–285. The British claims, growing out of these orders, and for which reprisals were ordered, were provided for by a convention, March 12, 1823. (Annual Register, 1823, p. 148.) In answer to an inquiry made of him, in the House of Commons, on the 27th of June, 1861, Lord John Russell said: "The government of New Grenada has announced, not a blockade, but that certain ports of New Grenada are to be closed. The opinion of Her Majesty's government, after taking legal advice, is, that it is perfectly competent to the government of a country in a state of tranquillity to say which ports shall be open to trade, and which shall be closed; but in the event of insurrection or civil war in that country, it is not competent for its government to close the ports that are de facto in the hands of the insurgents, as that would be a violation of international law with regard to blockades. Admiral Milne, acting on instructions from Her Majesty's government, has ordered the commanders of Her Majesty's ships not to recognize the closing of these ports." (Parliamentary Debates.) In a dispatch of Lord John Russell to Lord Lyons, July 19, 1861, after stating the principles laid down by Judge Dunlop, in the "Tropic Wind," said: "Her Majesty's government admits that a civil war exists; they admit that whether the Confederate States of the South are sovereign and independent or not, is the very point to be decided; but Her Majesty's government affirm, as the United States affirmed in the case of the South American Provinces, that the existence of this civil war gives to both parties the rights of war against each other. Arguing from these premises, it is impossible for Her Majesty's government to admit that the President or Congress of the United States can at one and the same time exercise the belligerent rights of blockade and the municipal right of closing the ports of the South. In the present case, Her Majesty's government do not intend to dispute the right of blockade on the part of the United States with regard to ports in possession of the Confederate States; but an assumed |