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question is one as to what sort of promises to accept the plaintiffs had outstanding at the time of the revocation of the letter of credit, which bound them to go on and accept, notwithstanding such revocation, that question is to be solved by the authority they had given, and with reference to which dealers with Rodewald & Co. may be assumed to have acted.

I think the evidence offered by defendant should have been received, to show that the drafts were not of the kind which plaintiffs were bound to accept. That the defendant was clearly entitled to a verdict in respect of the five $5,000 drafts drawn on the 7th of February, on the evidence which was received, showing the purpose for which these drafts were given. There should be a new trial, with costs to abide the event.

Ingraham, P. J., concurs.

of cases more speedily, it also imposes a considerable expense, as they are required to pay for the same matter over again with each succeeding edition.

One very excellent feature about Mr. Brightly as a digester is his power of compression-his abstracts are exceedingly concise and yet generally sufficiently clear and intelligible. This enables him to give in a comparatively small space what others would spread over pages. The digest includes not only the cases in the regular reports, but also those published in the numerous periodicals and papers.

CORRESPONDENCE.

BOOK NOTICES.

A Manual of Medical Jurisprudence, by Alfred S. Taylor, M. D.. F. R. S., Fellow of the Royal College of Physicians, and Professor of Medical Jurisprudence and Chemistry in Grey's Hospital, Seventh American Edition, revised from the author's latest notes and edited with additional notes and references, by John J. Reese, M. D., Professor of Medical Jurisprudence and Toxicology in the University of Pennsylvania, Fellow of the College of Physicians of Philadelphia, and Honorary Member of the New York Medico-Legal Society. Philadelphia, Henry C. Lea, 1873.

Taylor's Medical Jurisprudence had previously passed through six editions in this country, and has long been recognized, both in England and in this country, as the standard English work upon the subject. Those who wish to go farther into the various subjects of course prefer the larger work of Mr. Taylor, in two volumes, which has just been reprinted in this country by Mr. Henry C. Lea, the publisher of the Manual before us. The work opens with a dissertation upon the duties of physicians and surgeons in acting as witnesses, with rules as to the examination of experts, which to any physician or lawyer is worth the price of the volume. It would be useless for us to attempt to speak of the merits of Dr. Taylor's work. It is so widely and so well known to both the medical and the legal professions that nothing from us could add to the estimation in which it is held by both. It is what it was designed to be, par excellence, the hand book for daily and constant use, and as an authority stands as high as any which has ever been written upon the subject. A book purely American usually fails to give us a comprehensive view of the condition of medical jurisprudence in England, while one purely English does not furnish much desirable information upon the subject from an American stand-point. The present work combines both. To Dr. Taylor's eminent labors in England are added those of Dr. Hartshorne, Dr. Penrose and Dr. Reese, all eminent in their profession here. Considering its cost and size it is one of the most valuable works on the subject ever published in this country.

Brightly's Federal Digest, vol. II, second edition. Philadelphia, Kay & Brothers, 1873.

This volume contains a digest of the decisions from 1868 to and including a portion of the current year. The first edition contained the cases up to 1870, and covered about 230 pages. The same matter is, of course, repeated in this issue, and about the same number of pages have been added. While this method of building up a volume enables the profession to obtain the notes

TOWN BOND SUITS AND ATTORNEY'S FEES. The large amount of bonds issued by the several towns of this State, in aid of railroads, is likely to produce serious litigations by the towns to get rid of those bonds. In several cases litigations have already commenced. The question then arises, what are the rights of counsel employed by the supervisors to bring or defend such suits? In the case of Brady v. The Supervisors of New York, 10 N. Y. 260, it was held that an attorney and counsel was obliged to present his bills to the supervisors and take what they allowed. Does that rule now apply to towns? Under the provisions of the Revised Statutes it did not, but since then the statute has been amended, and the provisions now in relation to towns are substantially the same as they then were in relation to towns. The Laws of 1835, page 311, chapter 271, changed that rule as to the towns in several counties, and making it the duty of the board of town auditors to audit all charges and claims payable by their respective towns, thus placing accounts against the towns in those counties, on the same condition as claims against the county. In 1840 (see Laws of 1840, page 251, chap. 305), the same rule was made applicable to all the towns in the State. This is a matter of some importance just now to the legal profession, and one worthy of their attention. There does not seem to be any escape from the conclusion, that attorneys and counselors for towns must take for their services just what an interested town board of auditors may allow. Mr. Isaac Grant Thompson, in his Supervisors' Manual, at page 44, in speaking of town charges, says: "Where no fixed and definite sum is prescribed as a compensation for services, the board (board of town auditors) have a discretion, and may allow such sum as they may deem just. In auditing and allowing this class of accounts, they act judicially, and no proceedings can be had against them, or against the town, for an erroneous determination." A.

COURT OF APPEALS.

The following rule was handed down in the court of appeals on the 13th inst.:

Ordered, Motions for re-argument will only be heard on notice to the adverse party, stating briefly the ground upon which a re-argument is asked, and such motions must be submitted on printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court, with proper references to the particular portion of the case, and the authorities relied upon, and counsel will not be heard orally.

COURT OF APPEALS DECISIONS.

The following decisions were announced in the court of appeals on Tuesday, the 18th inst.:

Judgments affirmed with costs-Fullerton v. McCurdy, Root v. The Great Western Railway Company, Voorhees v. Burchard, Voorhees v. Henderhan. Judgment reversed and new trial granted - Coleman v. The People, etc. Order of general term reversed

and order of special term affirmed with costs - Hathaway v. Johnston. Order reversed and proceedings remitted for rehearing on further proofs, costs to abide the final decision of the court as to costs - Wilderming & Mount v. Fowler. Appeals dismissed with costs -The Board of Education of Cohocton v. Wait, Costello v. The Syracuse, Binghamton and New York Railroad Company. Appeal dismissed without costsPeople ex rel. Akin v. Hughitt. Appeal dismissed - People ex rel. Green v. Smith.. Motion granted Fellows v. Heemans.. Ordered that motion stand over and be heard in commission of appeals - Miller v. Eggest. -Motion denied with $10 costs-People ex rel. Dilcher v. German United Evangelical St. Stephen Church of Buffalo.

NOTES.

There is occasionally a little humor-grim humorabout our excellent contemporary, the London Law Times. A long while since we took the liberty to correct the statement of the Times to the effect that Philadelphia was in Illinois, or did some other equally rash thing, whereupon the Times suggested whether it would "not be expedient to consider the advantage to be derived from encouraging fires on the premises of the printers" of the Albany Law Journal. Now it is indulging itself in making fun of the practice of American lawyers of meeting on the occasion of the death of a brother lawyer and passing resolutions and making speeches " commemorative of the virtues of the deceased." The Times calls it a "high-minded weakness." Whether the Times does not believe in speaking well of anybody living or dead, or whether it does not believe that American lawyers have any virtues to commemorate, it does not say. But it has been suggested to us that perhaps the Times is actuated by a spirit of retaliation induced by the fact that we omitted the remarks of the Times' editor from our report of the "Proceedings and resolutions of a meeting of the attorneys and solicitors of London upon the death of Sampson Brass, Esq.," published in 3 A. L. J. 165. If this be so, we would assure the Times that the omission was purely accidental.

THE NEW SOLICITOR-GENERAL OF ENGLAND.-Mr. Henry James, Q. C., M. P., who has just been appointed successor to the Right Honorable Sir George Jessel in the office of Her Majesty's Soliciter-General, is the youngest son of Mr. Philip Turner James, of Hereford, by Frances Gertrude, third daughter of Mr. John Bodenham, of the Grove, Presteign, Radnorshire. He was born at Hereford in the year 1820, and was educated at Cheltenham College. He was called to the bar in the Middle Temple in Hilary Term, 1852, aud went the Oxford Circuit. He had already distinguished himself in the legal profession, having been Lecturer's Prizeman at the Inner Temple in 1850, and again in 1851. Mr. James was appointed a Queen's Counsel in 1869, in the early part of which year he ob

tained a seat in Parliament as one of the members for Taunton, unseating, on a scrutiny, his opponent, Mr. Sergeant Cox, who had been returned at the general election of the previous December. In 1867 he was nominated to the ancient office of "Postman of the Court of Exchequer."

THE PEOPLE AND THE CONSTABULARY FORCE. - It is shown by the special returns lately issued, that the total police and constabulary force consists of 27,999 constables, of whom 7,818 are constables of boroughs, 9,678 county constables, 9,798 metropolitan police constables, including the dock-yards and 705 constables of the city of London. The borough constables are in the proportion of one for every 770 of the population; the county constabulary, of one for every 1,323 of the population; the metropolitan (deducting the dockyards), of one for every 414 of the population of the metropolitan police district; and the city of London, of one for every 106 of the city population.

LEGAL NEWS.

It is thought probable that ex-United States Senator Lyman Trumbull will be appointed corporation counsel for Chicago.

Judge Alex. G. Miller, of the United States district court of Wisconsin, who was appointed to the bench in 1838 by President Van Buren, has tendered his resignation under the act of April 15, 1869, authorizing any United States judge to be retired from active service after reaching the age of seventy.

The New Jersey constitutional commission has adopted a proposition to establish courts with original jurisdiction over all cases of condemnation of lands and assessments for improvements, and also an amendment providing for the appointment of a vice-chancellor, the appointment to be made by the chancellor, and the term of office seven years.

In the case of the libel of the scow General Cass for tonnage, in the United States district court for Michigan, to test the question whether water craft of her size are subject to the navigation laws, Judge Longyear has decided that the scows and similar craft, even though having no means of propulsion of their own, are treated as vessels in the various acts of congress, and are therefore subject to the navigation laws of the United States and its enrollment and license, or if not so enrolled and licensed are liable to vessel tonnage tax.

Mr. Spofford, librarian of congress, having submitted to Solicitor Spence, of the post-office department, the question whether the first paragraph of the copyright act, approved July 8, 1870, requiring postmasters to give receipts for copyright matter for transmission through the mails, has been repealed by the act abolishing the franking privilege, that officer has rendered an opinion deciding in the negative, and says: "The first paragraph of the 96th section is a well-devised security to the proprietor of the copyright to protect him in case of accidents in the mail from the penalties imposed by the 94th section." The 94th section imposes a penalty of $25 for not mailing a copy of the book, photograph, or whatever the article copyrighted may be, to the librarian of congress. Postmasters are to be governed by this, and give receipts for all copyright matter received.

The Albany Law Journal.

ALBANY, NOVEMBER 29, 1873.

RECENT TELEGRAPH CASES.

In view of the important part that the telegraph has come to take in the business transactions of the age, it is of considerable moment that the relative rights and duties of the senders of messages and the telegraph companies should be definitely determined by the courts; and it is alike a matter of public poliey and of public necessity that the companies should not be permitted too easily to escape from the reasonable demands of the business in which they have engaged. The earlier cases seem to treat the sending of messages by telegraph as largely a matter of chance, and to regard errors in transmission as presumptively the result of causes beyond the power of human agency to control. They held the most sweeping regulations of the company "reasonable," and discharged them from liability for errors which were clearly the result of their agents' negligence. The later cases have been a little more guarded, but in most of them the company has practically had its own way. The fruits of these decisions are already being gathered in increasing carelessness on the part of the companies, and in increased litigation in the courts.

That there are causes tending occasionally to produce errors in the transmission of messages, and which are beyond our present means of control, is very likely true, but that most of the mistakes which have given rise to litigation were the results of sheer carelessness is more than probable. That atmospheric or other uncontrollable causes could substitute "Southampton" for "Hull," as was done in the MacAndrews Case (17 C. B. 3), or "hundred " for "hand," as in the Trysburgh Case (35 Penn. St. 298), or "175" for "125," as in the Ellis Case (13 Allen, 226), or "700" for "7000," as in the Breese Case (48 N. Y. 132; 8 Am. R. 526), or could drop out six words from the message, as in the Sweetland Case (27 Iowa, 432; 1 Am. R. 285), and all this without any negligence on the part of the operators, will hardly be believed by any one familiar with telegraphy. Such errors and omissions are, and ought to be held by the courts to be, prima facie evidence of negligence, and if the company seeks to shield itself under the plea of "the infirmities of telegraphing." the burden of proving that the mistake occurred through such infirmities, and not through negligence, should be cast upon it. The courts have, however, in a number of the cases, held quite the reverse, and have placed the burden of proving negligence on the sender of the message when the message was unrepeated.

The true and reasonable rule as to the relative rights and duties of the public and the companies was laid down in the recent decision of the Supreme

Court of Illinois, in the case of Tyler v. The Western Union Telegraph Co., ante, p. 181, and the decision is one which we hope to see followed in all subsequent cases. That rule is, that the usual regulations exempting companies from liability for errors in unrepeated messages exempts them only for errors arising from causes beyond their own control, and that the inaccuracy of the message being proved, the onus of relieving themselves from the presumption of negligence thereby raised is upon the companies. The opinion of Mr. Justice Breese in that case is one of the ablest and most sensible that has been rendered on the subject of telegraphy. While it pays all due deference to the precedent decisions, it indicates very clearly a conviction that telegraphy has reached such a degree of perfection and of mercantile importance as neither requires, on the one hand, nor justifies on the other, any further judicial swaddling.

The courts have quite uniformly held that regulations requiring messages to be repeated were "reasonable." The usual pretext for such regulations is "to guard against and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy." The real object of these regulations is to increase the revenue of the companies. With complete apparatus, skilled and careful operators, mistakes in messages will very rarely occur. On this point Judge Breese said:

"We have carefully read and considered all that has been written on the subject of the art of telegraphy, which our library can furnish, and we are not satisfied with the grounds on which a majority of the decisions of respectable courts are placed.

"In the first place, modern telegraphy is not now an infant art. It sprang into existence from the teeming brain of one now no more, who had the boldness to attempt to render subservient to the wants of man the most subtle element of nature, and, by its mysterious potency, convey ideas, wants and wishes to the farthest limits of civilization, and with the speed of its kindred element. In its infancy it scarcely ever failed to perform its office.

"Thirty years have witnessed vast improvements in the art, a higher knowledge of the subtle agent called into use more finished instruments and almost perfect skill in those who operate them, so that, setting aside atmospheric causes, which have not yet been provided against, it may be asserted as an incontestible truth that, given a line of wire properly established, the most perfect instruments, and skilled operators, who exercise their skill with proper care, a message started at Chicago for New York is as sure to reach its destination, exactly in the words and figures in which it was started, as the lightning is sure to strike the object which attracts it. Intelligent and skillful operators all admit this. There is no reason, the atmosphere being right, and all else right, why a message, correctly started, should not be correctly transmitted along the line to the end of the line, no

matter how many hundred miles asunder may be the point of its departure from the point of its reception. If this be so, then the efforts made by the courts to excuse those who undertake this business should not be imitated or encouraged by this court."

On the question as to whether the regulations requiring messages to be repeated, printed on the blank on which a message is written, is a contract, the learned judge expressed a very decided opinion that it was not a contract binding in law, for the reason that the law imposed upon the companies duties to perform to the public, for the performance of which they are entitled to a reasonable compensation. That, among these duties, was that of correctly transmitting messages. The tariff paid is the consideration for the performance of its duty in each particular case, and, when paid, the duty of the company begins. Their duty being to correctly transmit the messages, there is no consideration for any contract requiring the sender to repeat the message. Speaking of the regulation in the case, the judge said: "It is a sham and a delusion, and an imposition upon the public, who are compelled to resort to this agency in the transaction of their business."

That regulations exempting the company from liability for its own negligence are void for want of consideration, was also held by the Supreme Court of Wisconsin, in Candee v. Western Union Telegraph Co., ante, p. 293. Chief Justice Dixon, delivering the opinion of the court, said: "Aside from the objections resting on the grounds of public policy, and which forbid the company from stipulating for immunity from the consequences of its own wrongful acts, it seems very clear tó us that there can be no consideration for such stipulation on the part of the sender of the message, and that, so far as he is concerned, it is void for that reason, although exacted by the company and fully assented to by him. Either the company enters into a contract with him and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason, and what all must assume to be the intention of the parties, to say that no contract whatever is made between them, and nobody, not even the officers or representatives of the company, asserts such a doctrine. It would seem utterly absurd to assert it. Holding itself out as ready and willing and able to perform the service for whosoever comes and pays the consideration itself has fixed and declared to be sufficient, and actually receiving such consideration, it cannot be denied, we think, that a legal obligation arises and duty exists, on the part of the company, to transmit the message with reasonable care and diligence, according to the request of the sender. Such being the attitude of the company and the obligation which it assumes by accepting the payment, the question arising is, whether it can at the same time, and as part of the very act of creating the obligation, exact

and receive from the other party to the contract a release from it. The regulations under consideration, if looked upon as reasonable and valid, completely nullify the contract by absolving the company from all obligations to perform it, and the party delivering the message gets nothing in return for the price of transmission paid by him. Is it possible for the company, or for any other party entering into a contract for a valuable consideration received, to promise and not to promise, or to create and not to create, an obligation or duty at one and the same moment, and by one and the same act? The inconsistency and impossibility of such things are obvious. But if there were no such difficulties, or if the occasion or circumstances were such that a valid release might be executed and it be regarded in that light, still the objection exists that there is no consideration whatever to support it, and it must be held void on that ground."

In Manville v. The Western Union Telegraph Co., 7 Western Jurist, 611, the Supreme Court of Iowa held that while a regulation as to repeating messages is reasonable, it will only absolve the company from liability for mistakes caused by uncontrollable causes, such as atmospheric electricity, and that notwithstanding such a regulation a company was bound to employ skillful operators, use proper instruments, and to exercise reasonable and ordinary care in the transmission and delivery of messages.

These decisions are so far satisfactory, and if the courts will go one step further, following the lead of the Supreme Court of Illinois, and make an error in the transmission of a message prima facie evidence of negligence, thereby throwing the burden of proof upon the company, the results will be beneficial to the public and in no wise unjust to the companies.

CURRENT TOPICS.

On Saturday week Dr. Woolsey took occasion, în the course of his lecture on international law, to the Yale Law Class, to give his views of the Virginius affair. He looked upon it as an extreme case, which the ordinary law of nations does not meet. The offense was not piracy, for there was no animus furandi. It was not breach of blockade, for there was no blockade. It was not technically carrying contraband of war, for there was not, technically, any war. The vessel, although nominally American, seems to have belonged to Cubans. The concluding remarks were as follows: "You will see that this is in some respects a peculiar case. There is no war in Cuba, and yet there is war. The Virginius was an American vessel, and yet not an American vessel. All the defenses of the vessel rested on a sham, and the state of things in Cuba was in one sense a sham. The only reality about the matter was the terrible one that broke through the sham that said, "This vessel means war, and we mean to take it for what it is. Would you have us give up our

right of self-defense against war for a sham?" There is a conflict in the case between unjust law and unlawful justice. A weak nation must be very careful how it breaks through the fine net-work of what is lawful; but a strong nation will do it and take the consequences. Suppose a part of Ireland to be in a state of armed insurrection, and an American vessel to be engaged in carrying from some port in Spain important Irish leaders, as well as ammunition and money, does any one believe for a moment that the government of Great Britain would hesitate to arrest the vessel before it had got into British waters, when there was great risk that a half-extinguished rebellion would be lighted up again by the arrival of the new means of war and the new sympathizers? I impute more solid sense to Great Britain."

The stock exchange case of Baker v. Drake, which we print in another columu, is one of great importance, and especially so in view of the fact that the recent financial crisis has given rise to a large number of similar cases. In Markham v. Jaudon, 41 N. Y. 235, the question as to the measure of damages was disposed of in a very summary manner, although Judge Grover, in his dissenting opinion, pointed out very clearly the total inapplicability of the ordinary rule of damages for the conversion of property, to a case where the plaintiff did not own the property, and had but a contingent or speculative interest in it. The opinion of Judge Rapallo presents a very full and able consideration of the rule as to damages in this particular class of cases.

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In actions against masters to recover damages for injuries occasioned by the negligence of servants, the courts of this State have sometimes adopted a narrow rule as to the scope of servants' employment. somewhat more liberal rule was adopted by the Court of Common Pleas (England), in the recent case of Burns v. Poulson, 29 L. T. R. 329. In that case the defendant was employed to remove some iron rails from the place where they were stacked to a vessel in the Liverpool docks. It was the duty of the consignor to bring the rails to a particular spot, from which the defendant was to ship them. The defendant's men

having removed all the rails delivered, his foreman got upon a wagon which was waiting to deliver more rails, and in unloading it threw one upon the plaintiff. In an action against the defendant to recover damages for the injury received through the negligence of the defendant's servants, the judge nonsuited the plaintiff. Held, that the defendant's foreman was acting within the scope of his employment, and that there was therefore evidence to go to the jury. Brett, J., dissenting, thought that the act of the foreman was done antecedent to the commencement of his duty, and that the nonsuit was right.

In Schryver v. Hawkes, 22 Ohio St. 308, it was held that where a note is signed in blank, with marginal figures indicating the amount for which it is to be filled up, and the party to whom it is intrusted for filling up and negotiation alters the figures and fills up and negotiates the note for a larger amount, this is no forgery of the note, and the simple fact of alteration does not of itself and necessarily vitiate the note, although the party so signing in blank is surety, and known to the payee to have signed as such. This decision was put upon the ground that the figures in the margin were no part of the note-for there was no note. The paper signed in blank was a mere power of attorney, and the figures operated only as private instructions to the agent. And as it is the business of the principal to give notice to parties dealing with the agent of the fact of private instructions, if the means adopted to do so prove ineffectual through the fault of his agent, the principal must suffer the loss. Of course, if the plaintiff had received the note with knowledge, or with reason to believe that the alteration had been made, he could not have recovered.

SUING UPON AN ADVERTISEMENT OF AN

AUCTION.

A novel attempt was made in Harris v. Nickerson (21 W. R. 635, L. R. 8 Q. B. 286) to fix an auctioneer with liability for withdrawing from a sale certain goods

which had been included in the advertisement. It is difficult to see how the plaintiff in that case could have possibly recovered damages, for he had bought other things at the sale, so that the expenses of attending the sale, in respect of which he claimed, were not incurred solely for the sake of the articles withdrawn. But on principle the action was really without grounds. To support it, it must have been held that an auctioneer by advertising goods for sale contracts with any one and every one who comes to the sale to sell them. To have held so would certainly have been inconsistent in principle with Spencer v. Harding (19 W. R. 48, L. R. 5 C. P. 561), where the defendant who had offered goods for sale by tender, was held not to have contracted with the highest bidder to sell to him. In the case of Harris v. Nickerson, however, there was even less to bring the plaintiff into privity with the defendant than in Spencer v. Harding, for in the last-named case the plaintiff had at least made a bid, and so had brought himself into a position of apparent analogy with that

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