prescribed by law." Held, that the intent of the legislature was by this to provide for two clerks for each court, who were in all respects equal as to office, powers and duties. The salary was made the same, and upon no ground could the term of these two offices, differing only in name, be held to be different. People ex rel. Dolan v. Lane et al. Opinion by Ingraham, P. J. Also, see Mortgages.

SURETIES. See Payment.

TRUSTS.

1. Trusts created in foreign State.- Action to restrain defendant, a resident of Philadelphia, from selling certain premises in New York held by him as trustee, appointed by the orphans' court in Pennsylvania, under a certain post-nuptial contract made in that State in 1833. The referee assumed that the contract was wholly void under our statute, and the legal and equitable estate in the premises was vested in the plaintiff; that defendant might be made liable for a breach of trust, if not allowed to sell and take the proceeds to Pennsylvania; that equity will intervene for defendant's protection, and treating his ignorance of the law of this State as a mistake of fact will compel the plaintiff to unite in a conveyance of the premises. It is conceded that the trust deed is valid in Pennsylvania, where it was created, and where the trust estate was situated at the time of its creation. The investment here was made at plaintiff's solicitation. Held, that the order should be affirmed, unless the plaintiff apply within thirty days to the proper authority in Pennsylvania for an order on the subject of this controversy. The courts of that State will exercise control over the trustee and the estate, and can set at rest all questions as to his personal responsibility. Chase v. Chase, 2 Allen, 104; Bingham's Appeal, 64 Penn. 346, cited. Hull v. Mitcheson. Opinion by Brady, J.

USURY. See Evidence.

WAIVER.

Conversion: brokers. On the 21st of December, 1869, plaintiffs, who were stock-brokers, sold certain Virginia bonds of defendants without authority. On December 28th plaintiffs wrote defendants of this sale, and further notified them that unless the bonds were paid for by January 6th, they would be sold at the Exchange for plaintiffs' account, in default of proper margin. That notice was received by defendants on 31st December. On January 6th plaintiffs sold the bonds and realized two per cent more than at the first sale, which had gone to defendants' credit. Held, the sale of December 21st would have been a conversion within Markham v. Jaudon (41 N. Y. 235), but for the facts subsequently occurring. Defendants should either have accepted or repudiated the sale. They did neither, though they were bound to take their ground at the time. The case is within Stewart v. Drake, 46 N. Y. 449. Hoyt et al. v. Cubbidge et al. Opinion by Davis, J.

Also, see Evidence.

THIRD DEPARTMENT, SEPTEMBER TERM, 1873.

EVIDENCE.

It is in the discretion of the court to permit a witness to be interrogated, by the party calling him, as to occurrences or transactions had, or statements made by him on former occasions, with a view to refreshing his recollection. 2 Phil. Ev. 891; Reg. v. Murphy, 8 C. & P. 306; Reg. v. Chapman, id. 558; Bank of North

ern Liberties v. Davis, 6 Watts & Serg. 288; Cowden v. Reynolds, 12 Serg. & Rawle, 283; 1 Greenl. Ev., § 444. Flynn v. The People. Opinion by P. Potter, J.

INSURANCE.

Plaintiff's wife, two days after their marriage, in consideration of her indebtedness to him before their marriage, executed to him the following paper: "I do hereby certify that I owe to John Rohrback the sum of $700, and also $25 for each and every month from August 14, 1863, and for every month he may live with me henceforth without any deduction whatever, which amount shall be a lien upon property." The wife owned a house; plaintiff effected an insurance upon the house, showing the above paper to the agent. The wife died, and afterward the house was destroyed by fire. In a suit upon a policy, plaintiff had a verdict. Held, by the general term, that the wife's prior indebtedness was not extinguished by their marriage, but formed a sufficient equitable consideration for her obligation, and that plaintiff had an insurable interest. Lucena v. Crawford, 3 B. & P. 301; Chase v. Washington Mutual Ins. Co., 12 Barb. 600; Elna Ins. Co. v. Tyler, 16 W. R. 385; McGivney v. Phænix Fire Ins. Co., 1 id. 85; De Frest v. Fulton Fire Ins. Co., 1 Hall, 84; 2 Sandf. 495; Wells v. Phil. Fire Ins. Co., 9 Serg. & Rawle, 103; Carpenter v. Providence Ins. Co., 16 Pet. 495-501; Russell v. Union Ins. Co., 4 Dallas, 421; Phillips on Ins., §§ 290, 292, 181; Grevemyer v. Southern Ins. Co., 62 Penn. St. 340; Ruth's Appeal, 4 P. F. Smith, 173; Seymour v. Can. & N. F. R. R. Co., 25 Barb. 284; Herkimer v. Rice, 27 N. Y. 173; Lyon v. Brockway, 2 J. C. R. 51. Judgment affirmed. Rohrback v. Ætna Ins. Co. Opinion by P. Potter, J., Miller, P. J., and Parker, J., concurring.

MASTER AND SERVANT.

Action after dismissal from employment by the defendant, a national bank, to recover salary for the unexpired term of such employment. Plaintiff had a verdict, and the exceptions were ordered to be heard in the first instance at the general term.

Held, by the general term that a servant may be dismissed by his master, for misconduct, before the expiration of the time for which he was hired, although the discharge is not made at the precise time of the misconduct nor the grounds stated. Rithwins v. Steinner, 11 Mees. & Wels. 161; Ridgway v. Hungerford Market Co., 3 A. & E. 171; 4 Nev. & Man. 797; Bailie v. Kelb, 4 Bing. 651, that a national bank cannot hire one of its officers for a specified time; that knowledge, without objection, by defendants' directors; that plaintiff was acting in its employ was not a ratification of the details of a contract by its president for his employment, unless they knew of such details. New trial ordered, costs to abide event. Harrington v. First National Bank of Chittenango. Opinion by P. Potter, J., Miller, P. J., and Parker, J., concurring in the result.

NEGLIGENCE.

Action for damages for causing death of plaintiff's intestate. One L had entered into a contract with defendant to build a brick arch 150 feet long, by the terms of which defendant was to furnish materials, centers, etc. The centers were frames of wood, four feet high and fifteen feet long, used to support the arch while building, and until the mortar had set. Defendant furnished four centers. The brick work was built upon them, and then they were moved on

for use elsewhere. Plaintiff's intestate was in the employ of defendant, and, under the personal direction of its head carpenter, was engaged in removing one of the centers, over which the brick work had been built, partially, on that day, when the bricks fell upon him and killed him. There was evidence tending to show that it fell because the mortar was not sufficiently | set. A similar arch had been built before with these centers, but that was of new brick, while those furnished in this case by defendant were partly old brick, upon which the mortar requires longer to set. The center was being taken out because it was wanted elsewhere. The day before L had applied to defendant for more centers, but they had not been furnished, though they were afterward. Plaintiff had a verdict, and the exceptions were ordered to be heard, in the first instance, at the general term.

Held, by the general term, that there was evidence of defendant's negligence to go to the jury. Bricker v. N. Y. C. & l. R. R. Co., 2 Lans. 506; Laning v. N. Y. C. & H. R. R. Co., 49 N. Y. 521. Judgment on the verdict, with costs. Hoffnagle v. N. Y. C. & H. R. R. Co. Opinion by P. Potter, J., Miller, P. J., and Parker, J., concurring.

SCHOOL DISTRICTS.

1. A county school commissioner, desiring to make an alteration in school districts Nos. 5 and 7, in town of T., and No. 13 in town of B., made an order accordingly with the consent of the trustees of districts 7 and 13, but without the consent of trustee of No. 5— to take effect immediately as to districts 7 and 13, but not for four months as to No. 5. Fourteen days after another order was made reciting that "at request of the trustee of No. 5," the supervisor and town clerk of the town of T. met the school commissioner to consider the propriety of making the proposed alterations, and, after hearing both parties, that such alterations be made. The supervisor and town clerk of the town of B., and the trustees of Nos. 7 and 13, were not notified and did not attend. The trustee of No. 5 did not have a week's notice, but he attended. The alteration, if valid, transferred plaintiffs from No. 5 to No. 13. On an action by them against a trustee of No. 13, elected subsequent to the alleged alteration, to recover a tax assessed against them as residents of No. 13, they had a judgment in the court of a justice of the peace. This was reversed by the county court on appeal.

Held, by the general term, that the orders, if irregular, could not be impeached in a collateral action. Laws 1864, p. 1237; Williams v. Larkins, 3 Den. 114; Bennett v. Bender, 1 id. 141; 8 N. Y. 58; Doughty v. Hope, 3 Den. 252; 25 W. R. 693; 6 Hill, 646; Jackson v. Young, 5 Conn.; Striker v. Kelly, 7 Hill, 24; People v. Cook, 8 N. Y. 89; Dwarris on Statutes, Amer. ed. p. 222. Judgment affirmed with costs. Rawson v. Van Riper. Opinion by P. Potter, J.

2. The statute requiring a school trustee to make an assessment within thirty days after the tax is voted, is directory, and an assesment may be legally made after the expiration of that period. Thomas v. Clap, 20 Barb. 165. Ib.

WITNESS.

One named as executor in a will may be a witness before the surrogate at its probate; and one to whom a legacy is left thereby may also be a witness. Harper v. Harper. Opinion by P. Potter, J., Miller, P. J., and Parker, J., concurring.

STOCK EXCHANGE CASES IN ENGLAND. The Stock Exchange has ever since the downfall of Overend, Gurney & Co. (limited) usurped a large share of judicial attention. Previous to "Black Friday" the cases in the books on the sale and transfer of stocks and shares, on the relative positions of seller and buyer, of broker and jobber, of broker and principal, were few, and the doctrines taught in those cases covered but a small portion of the daily and hourly transactions of capel court. Now the pages of our reports exhibit as in a mirror the dealings, customs, rules, and even the "slang" of that mart, which is the true practical realization of El Dorado. The latest installments of legal instruction on the relations of broker and principal appear in the October number of the Law Journal reports; and as one of the cases to which we refer was before the Lords Justices, and the other before the Court of Exchequer Chamber, the authority of the decisions is beyond dispute. The case before the Lords Justices (Lacy v. Hill, Scrimgeour's claim, 42 Law J. Rep. [N. S.] Chanc. 657) arose out of the disastrous speculations of the late Sir Robert Harvey. Such a case as this affords a terrible revelation of the dangers which beset all customers of private banks; for such persons are at the mercy of a man who, being to all outward appearance, an honest man of business, may indulge behind the scenes in a class of gambling compared with which the turf and the table are child's play. Thus, we find that Sir Robert Harvey, some short time before the fatal July 15, 1870, was speculating through his brokers on the Stock Exchange, to an extent which, if known in Norwich, would have driven every customer off the bank books in twenty-four hours. He had, before July 15, become the purchaser of £150,000 Italian stock, and £204,000 Spanish stock; of course, in the desperate hope of retrieving at one grand coup his previous losses. These stocks had been bought for him by Messrs. Scrimgeour and had been paid for by the latter firm. As the market was not favorable for a sale, these transactions were "continued; " that is to say, the brokers found the money, and the stocks were considered as the property of the brokers until the transactions should be closed. The brokers, in this instance, had borrowed the necessary funds for this purpose of their own bankers, and had deposited the stocks in the usual way as security for the loan. In the ordinary course of things, if nothing had occurred to call for a different line of action, the brokers would have kept the transactions open to the next account day, July 28. But Sir Robert died on July 15, and the banking firm of Harveys & Hudsons closed its doors on July 16. Thereupon the brokers proceeded to dispose of the stocks as rapidly as they could, and succeeded, on July 16, 18 and 19, in selling the whole quantity on hand. By the account day the stocks had fallen below the prices at which Messrs. Scrimgeour had sold. The prices at which the stocks were actually sold were, of course, less than the prices at which they had been bought, and Messrs. Scrimgeour claimed the differences as against the estate of Sir Robert Harvey. Evidence was given that, according to the rules of the Stock Exchange, a broker is at liberty to close his principal's account when, upon the death or insolvency of the principal, no one appears to take up the responsibility of pending transactions by selling or buying equivalent stocks, as the case may be. This rule is manifestly just and reasonable, and was pronounced so to be by Lord Justice Mellish. But, independently of any Stock Exchange rule, the claim was good, because,

as a simple case of principal and agent, the principal was bound to indemnify the agent on these transactions. Indeed, the only contention against the claim rested on the theory of an absolute contract between the parties to purchase for the particular account day, and of non-performance of such contract. But the lords justices were clearly of opinion that it was a case of principal and agent, and not of such a contract as was suggested. If the stocks had suddenly risen after the sales, and before the account day, the claim of the brokers would have been liable to be defeated pro tanto by a set-off. But as in this instance the stocks continued to fall, no such counter-claim could be made.

The other case to which we would refer is Duncan and another v. Hill, Same v. Beeson, 42 Law J. Rep. (N. S.) Exch. 179. In that case-for although there were two actions, the point in the two was precisely the same, and arose out of the same incident - the defendants had employed the plaintiffs as brokers to carry over certain transactions on the Stock Exchange from July 15 to the account day, July 27. On a day intermediate between these two dates, namely, on July 18, the plaintiffs, owing not to any default on the part of the defendants, but by the failure of third parties, strangers to the defendants, to carry out their engagements, became and were proclaimed in the customary way "defaulters" on the Stock Exchange. Thereupon the official assignees, appointed under the Stock Exchange rules, "fixed the prices" at which the several transactions of the defaulting brokers should be closed, and the result of closing the transactions of the two defendants was, that as against the defendant Hill there was a deficit of upwards of 4,000l., and as against Beeson of 4251.; and it was to recover these amounts that the actions were respectively brought by the plaintiffs. The Court of Exchequer was of opinion that the plaintiffs were entitled to succeed; but in the Court of Exchequer Chamber this judgment was reversed. Now, as was explained in the Chancery case of Lacey v. Hill, on which we have commented, such actions or claims as these are in contemplation of law founded upon allegations that the agents have suffered loss by reason of having acted as such for their principals, and should be indemnified accordingly. Applying this principle, can we say that the brokers in this instance were subjected to loss by reason of the transactions which they had entered into for and on behalf of their principals? Surely not. The loss was occasioned by a default of their own; that is to say, by reason of their inability to meet other obligations, in consequence of which inability they were compelled to submit to the premature closing of all their transactions. As the court said, it was content with the facts of the case that the brokers wonld have become insolvent at the precise time at which they did, if they had never done business at all for the defendants. In point of date the judgment in Duncan v. Hill was delivered by the Court of Exchequer Chamber some few days before that of the Lords Justices concerning the claim of Messrs. Scrimgeour, and was approved by the Lords Justices. But it is obvious that the logical order of the cases was inversely as their order in point of time, and that both become more intelligible by the transposition which we have ventured to make.-Law Journal.

Hon. W. K. McAllister, Associate Judge of the Supreme Court of Illinois, has resigned his position to accept the office of Corporation Counsel of Chicago.

COURT OF APPEALS DECISIONS. The following decisions were announced in the court of appeals on the 25th inst.:

Judgment affirmed with costs-Mitchell v. West, Zogbaum v. Parker, Pope v. Cole, Falkenam v. Fargo, Fabbri v. The Phoenix Insurance Co., Wells v. Blair, Cook v. Whipple, Emmons v. Bames.- - Judgment reversed and new trial granted, costs to abide event Putnam v. The Broadway and Seventh Avenue R. R. Co. -Judgment of supreme court reversed and proceedings and order of county judge affirmed - The People ex rel. Green v. Smith.. -Judgment affirmed - Boyce v. The People. Order affirmed, except as to the extra allowance, and so much of the order as grants the respondent an extra allowance of $1,000, reversed, without costs of this appeal to either partyIn the matter of the Rensselaer and Saratoga Railroad Co. v. Davis. Order reversed and motion Appeal disdenied, with costs-Mills v. Bliss. missed with costs-Scroggs v. Palmer.

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LEGAL NEWS.

Yale College Law School has forty-five students, an increase of nine since last year.

Richmond is the only county in this State which gave a majority in favor of appointing the judges. Miss Artie Wallace has been appointed deputy circuit clerk of Boone county, Ky.

The annual report of Attorney-General Williams is nearly completed, and will be in type in a few days.

On Wednesday last the Court of Appeals adjourned to the 2d of December.

Ex-President Woolsey is lecturing on international law before the Yale College Law School.

The New Jersey Constitutional Commission has concluded its work, and adjourned until the fourth Tuesday in December for final revision.

Hon. James S. Fraser, of Indiana, late of the Mixed Commission under the Treaty of Washington, has been appointed by the Secretary of the Treasury to aid in the adjustment and decision of claims for payment for cotton arising under the act of Congress of May 18, 1872.

The Freetown correspondent of the Times refers to a singular and objectionable practice prevalent there. It appears that many of the large mercantile houses and wealthier residents are in the habit of retaining all the barristers in the settlement. The local bar accept a yearly retaining fee of £10. For this sum they are bound not to appear against those who retain them in any suit or action that may be brought against them during the entire year, although in any particular case no brief may have been sent to them by those who have retained them. A native who may have suffered some serious wrong from an European, when he endeavors to obtain redress finds that it is impossible to obtain an advocate. If he is rash enough to try and himself obtain justice in the supreme court, a demurrer or a motion to set aside his declaration, or to do something or other which is absolutely unintelligible to him, soon convinces him that if he believes justice is open to all in an English settlement he is greatly mistaken.- Solicitors' Journal.

The Albany Law Journal.

ALBANY, DECEMBER 6, 1873.

THE STATUTE TO LEGALIZE THE ADOPTION OF MINOR CHILDREN.

It may be accepted as a truism that except in very recently organized States, or on an unforseen and imperative emergency, legislation on a subject theretofore left to usage is of comparatively rare occurrence. "Legis virtus hæc est, vetare, imperare, permittere, punire." The office of a statute is to command, forbid, permit, or to punish. When nothing is to be either commanded, forbidden, allowed or punished, law is unnecessary. To take up a matter and legislate unnecessarily is different from new enactments improving the existing law. Ours is a democratic and republican system of government, or as near to it as Montesquieu would have one, and our people are a progressive people. Such changes as are needed — I mean actually and not speculatively or theoretically needful - should be promptly made for tempora mutantur et nos mutumar in illis, and changes or ameliorations can be presumed to be founded on the wants of the people, although a new statute is frequently based on prior judicial action. What, in this respect, is the character of the recent statute of this State "to legalize the adoption of minor children by adult persons" (N. Y. Sess. Laws, 1873, ch. 830, pp. 1243, et seq.). The subject-matter of this act, expressed in its title, is to "legalize" the adoption of minor children. Had this theretofore been unlawful? What is the definition of the word "adoption " in respect to such purpose as a law term in this State? I assert that there is no such definition in any previous statute, or in the published opinions of our courts, and that no one can maintain that the matter intended to be legalized was ever an illegal transaction. Indeed, the thirteenth section of this statute provides that "nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to ANY method practiced in this State, from being received in evidence, nor such adoption from taking the effect of an adoption hereunder." What was meant by adoption before this statute? "ADOPTION a taking of another's child as one's own, not recognized in English or American law, but still regulated by law in Germany and France as it was in Rome (Appleton's American Encyclopedia, vol. 1, p. 132, tit. Adoption).

What facts are necessary to be proved as constituting adoption? The best expression of the popular understanding of what it is proposed to accomplish by the adoption of a child is to say it is to provide a home, to care for, educate and befriend a minor child so as to better its future condition in life. "If you trust the dear child to me, said Mrs. Boffin, with a face inviting trust, he shall have the best of homes, the best of care, the best of education, the best of

friends; please God, I will be a good, true mother to him" (Dickens' Our Mutual Friend, vol. 1, ch. 16). But Ch. J. Merrick, in Vidal v. Commagere, 13 La. Ann. Rep. p. 516, construing the legal effect of the term in a case arising not under the general laws of Louisiana, of which an abstract will be found hereafter, but under a special statute providing only and no more than that certain parties were "authorized to adopt, by a notarial act, a certain child as their own," in delivering the opinion of the court holds that by such an adoption, and without any further words, the adopted child becomes to all intents, and for the purposes of descent, as if a legitimate child born in wedlock to the parties adopting. Our New York statute, however, in most positive terms debars the person adopted from the right of inheritance by descent (§§ 10, 13), and as to property, real, or personal, or trusts, or devises, etc., "said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting." To complete the act of adoption requires at least two parties, the person adopting and the adopted, and when completed is the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor (§ 1). The child is thenceforth to be regarded and treated in all respects as the child of the person adopting (§ 9), and when adopted is to take the name of the person adopting, and the two henceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, excepting, respecting the minor, the right of inheritance (§ 10).

What rights are conferred on the adult party in regard to the person and property of the minor? In regard to property, a father can inherit real estate from his child (1 N. Y. Stat. at Large, Edmonds' Ed., p. 702, § 1), and take personalty, as next of kin, under the statute of distribution (2 id. p. 199, § 70). Will the adopted father take instead of the "natural" heirs, or next of kin, of the adopted? Though by section 12 the parents of an adopted child are relieved from all responsibility for its acts, and are to have no rights over it, yet as this provision is evidently confined to the person, how is it with the property? As to the rights over the person, there is a perhaps well-founded notion that they are illusory. Ever since the decision of Mercein v. The People ex rel. Barry, 25 Wend. 64, many of our best lawyers have advised that in this State a child of an age to allow of any degree of discrimination can select a home for itself, and will not be restored to its father on habeas corpus, and as to infants of tender years, requiring nurture and maternal care, a mother, or party claiming from the mother, has the right to deprive the father of the custody of his child. The father's supposed common-law right to the person of the child is considered contingent on his social station, pecuniary ability, regularity of habits, evenness of temper, etc. Many of the readers