Action on an order in favor of the plaintiffs drawn by one S. on the defendants for $100. Defendants had funds of S. to that amount at the time, and the order was drawn by agreement between defendant and S. Defendants refused payment. Judgment for defendant.

Held, that an order upon a particular fund or upon particular money in the hands of the drawee not otherwise appropriated, with notice of such order, and particularly upon its presentment to the drawee for payment, is an equitable assignment of the money of the drawer in the hands of the drawee to the amount of the order. More particularly is this so when the order was drawn by agreement with the defendant. Lewis v. Berry. Opinion by Smith, J.

ELECTION- CONTRACT OF COUNTY COMMITTEE.

The defendants were members of the republican county committee of Erie county. Said committee in 1866 entered into a contract in and by which it was provided "that plaintiff, in consideration of $1,750, would act as agent for said committee until one week after the State election; that he would make a full and accurate list of reliable men in every district in said county to whom documents may be sent, or with whom the said committee may correspond, and who may be relied on to perfect local organizations, to attend the polls and get out voters; that he (plaintiff) shall also keep a record of his doings and a list of such names, and perform such other duties as the said committee may direct, and that he was to pay his own expenses. It was also made plaintiff's duty to try to make the party friends in every election district pay the expenses in that district," etc., etc. Plaintiff performed the duties and brings this action for the amount fixed in the contract. On trial plaintiff was nonsuited.

Held, that for all services performed under said contract not in contravention of the statute, plaintiff is entitled to recover. The statute forbids "the contribution of money for any purpose intended to promote the election of any particular person or ticket."

Held, that before there can be a violation of this statute there must be a ticket or candidate in the field. 2d. That plaintiff was also entitled to recover for such duties as he performed after the nomination of candidates as were provided for by the contract and not forbidden by the statute. 3d. That it was not a violation of the statute for plaintiff to keep a record of his doings, to make a list of suitable men to whom documents might be sent, and with whom the committee could correspond, and who might be relied on to perfect local organization. 4th. That services performed under that provision of the contract which provided "that the plaintiff should endeavor in every election district to make the party friends in each district bear the expense necessary to carry said election," were in violation of the statute, and plaintiff could not recover. 5th. That although plaintiff's contract was in terms with the committee, only the defendants who voted for the giving of such contract and who afterward ratified or agreed to it are liable. That the termination of their terms of office did not relieve them from liability. On the next trial it will be proper to submit to the jury the question whether it was not the inten

tion of the parties to evade the statute by enabling plaintiff to get pay for services that were wholly illegal, and should the jury so find, it will be for the court to determine what the effect will be on plaintiff's right to recover. A new trial granted. Siger v. Daniels. Opinion by Mullin, P. J.

EVIDENCE-CONTRIBUTORY NEGLIGENCE.

1. This action was brought to recover damages for negligent killing of a little girl, seven years of age, by defendant's employees. On the trial plaintiff gave evidence, tending to prove that the train could only be seen for about 200 feet from the place of the accident; and that the train was moving at the rate of 25 miles per hour. Plaintiff then offered to prove "that there was in use on most railroads a patent brake, and that it was not used on defendant's train, that caused the death." The court told plaintiff's counsel "that if defendant in its defense should give evidence as to distances and speed of train, so as to make use of the brake material, he would allow the plaintiff to recall the witness." Defendant did subsequently give evidence as to distance and speed of train, differing materially from that given by the plaintiff. Plaintiff then offered to prove that, with the patent brake then in use on most railroads, the train in question, running at the rate of eight miles per hour, could have been stopped before it reached the place of the accident. The evidence was rejected.

Held, that the fair construction of the language of the court in its request to plaintiff's counsel to postpone the evidence as to use, etc., of the patent brake, was that plaintiff might go into the whole subject, and not that he might recall a single witness. The rejection of the evidence must be held to be on the ground that it was immaterial, and so considering it the rejection of the evidence was erroneous. Judgment reversed on the ground of the rejection of the evidence as to the use of patent brakes. Costello v. The S. B. & N. Y. R. R. Co. Opinion by Mullin, P. J.

2. That it is the duty of a railroad company to use upon its road all improvements in machinery, etc., in the construction of cars, etc., commonly used, and it is negligence if they do not use them, for which they are liable to a person injured if the improvement would have contributed in any appreciable degree to prevent the injury. Ib.

3. That the charge of the judge, that a child, sui juris is bound to exercise the same care and caution in approaching a railroad track as an adult, was erroneous. Ib.

EVIDENCE-ADMISSION OF AGENT.

1. In 1869 defendant purchased of plaintiff a farm, and took a contract therefor. By the terms of the contract, $500 were to be paid down, and $500 in November, 1870, and balance in six years. Previous to the execution of this contract, plaintiff and defendant had entered into a contract in writing, in and by which plaintiff had agreed to loan defendant $3,000, to be invested in real estate by defendant, and defendant was to give a mortgage back on property so purchased as security. When the payment of $500 came due, in November, 1870, on the land contract, defendant refused to pay unless plaintiff, in pursuance of the contract to loan, would loan defendant the $500, and take a mortgage back. Plaintiff refused to loan the money, on the ground that the contract to loan had been rescinded by the execution of the land contract. This action was brought to recover the possession of

the property, and on the trial plaintiff gave evidence, tending to prove by the admissions of defendant's husband, who was her agent in the purchase of the land, that the agreement to loan was rescinded by the land contract, as the parties understood. The admissions were after the contracts were made. The referee found for plaintiff.

Held, that the admissions of an agent are inadmissible against the principal, unless made when he is performing some act for his principal, and in reference to the thing done. Judgment reversed. Gutchess v. Gutchess. Opinion by Mullin, P. J.

2. That what a witness may understand from his knowledge of the facts and statements made to him is inadmissible. It was his province to state what was said or done, from which he derived his understanding, and it was for the referee to say what was intended by the parties. Ib.

INSURANCE.

Action on policy of insurance. Judgment for plaintiff. Plaintiff held a mortgage upon real estate and procured a policy of insurance to be issued thereon in the name of the mortgagor, with the provision that the loss, if any, should be paid to plaintiff. Subsequently plaintiff foreclosed his mortgage and acquired title to the premises. He then applied to the agent of the insurance company, stating his ownership, to have said policy stand the same as before the transfer of title. The agent consented and agreed to make the proper entry on the books.

Held, that the policy was, in legal effect, assigned to the plaintiff at the time it was issued. If the policy expired at the time of the sale the assent of the insurer constituted a new contract and was equivalent to the issue of a new policy to plaintiff. Judgment affirmed. Pratt v. N. Y. Central Ins. Co. Opinion by Smith, J.

LANDLORD AND TENANT,

Defendant was tenant of plaintiff at a certain rent per month. Plaintiff, desiring to remove the house to another lot, told defendant and defendant agreed to remain while it was being moved and pay rent. After this defendant removed from the house and refused to pay rent, on the ground that the building was untenantable. Plaintiff brings this action for the rent from the time of the hiring to the commencement of the action. There was a judgment for plaintiff.

Held, that defendant, knowing that the house was to be removed, and having agreed to stay and pay rent, was bound and could not afterward leave because the house was untenantable. Judgment affirmed. cunse v. Krohn. Opinion by Mullin, P. J.

LEASE-DAMAGES.

Ahsle

Defendant, who resides at Richmond, Va., owns a store in Buffalo. Plaintiffs, desiring to lease said store, wrote defendant in reference to it, and after some correspondence, defendant finally wrote plaintiffs that they could have a lease of said store for five years for $1,000 per year, if the security plaintiffs offered was satisfactory Defendant offered one Kasson as security. The defendant understood the name of the surety to be Kannon, and upon inquiry decided not to accept the surety and wrote plaintiffs, and then gave a lease to other parties. This action is for damages for breach of agreement to give a lease. On the trial plaintiffs were nonsuited.

Held, that there was no agreement to lease proved. That had defendant made an agreement by which he was bound to give a lease, on receiving satisfactory security; he could not arbitrarily refuse to accept se

curity proved to be sufficient. But until he was legally bound to accept such security he might at his pleasure refuse to accept any. Motion for a new trial refused. McGroth v. Brown. Opinion by Mullin, P. J.

NEGLIGENCE-REFERENCE.

1. Action to recover damages for injury sustained by explosion of defendant's steamboat, defendant being a common carrier. There was a latent defect in the boiler. The boiler was tested under laws of the United States, and allowed by the government inspector to carry twenty-five pounds of steam. The referee finds that at the time of the explosion the boiler was under twenty-seven pounds; that allowing this excess was negligence.

Held, that the finding was correct. Carroll v. Staten Island R. R. Co. Opinion by Smith, J.

2. On the settlement of the case before the referee, defendant's counsel requested the referee to find in respect to a large number of questions of fact, referee refused and counsel excepted.

Held, that there is no authority for taking exceptions at that time and in that manner, or inserting exceptions not actually taken, the requests should have been made before the submission of the case, and then on refusal of the referee to find as required, exceptions could have been taken, or counsel could, within the ten days allowed for excepting to the report, have applied to the court to have the case sent back to the referee. Ib.

3. The explosion occurred on Sunday, and defendant claims that plaintiff was not traveling for any of the purposes allowed by the statute in reference to Sunday.

Held, that the action not being on an executory contract for labor, etc., but for the violation of a plain duty on the part of defendants as common carriers, and for defendants' negligence, plaintiff had a right of action disconnected from the statute. Judgment for plaintiff affirmed. Ib.

PAROL MORTGAGE— QUESTION FOR JURY.

1. A parol mortgage, where the mortgagee is to have the possession of property, is valid. Bardwell v. Roberts. Opinion by Mullin, P. J.

2. Plaintiff brings this action to recover the value of a pair of oxen, sold by one B. to defendant. It was proved on the trial of this cause that one B. purchased a pair of oxen, and that plaintiff joined in a note for the price. Evidence was also given by plaintiff tending to prove that at the time of the purchase there was an agreement between B. and plaintiff that plaintiff should keep possession of the oxen until the note was paid. That in pursuance of this agreement plaintiff took the oxen to his house; that B. afterward took them away and sold them to defendant. Evidence was also given tending to show that defendant knew of the arrangement between plaintiff and B. The county judge refused to submit any question of fact to the jury, and directed a verdict for the defendant. Held, that the question of fact should have been submitted to the jury. Ib.

PARTITION-COMMISSIONERS.

Where, in proceedings to partition land, the commissioners determine that the portion set apart for the widow's dower cannot be actually partitioned without injury to other parties, it is their duty to report their determination to the court, and the court may then order a sale of such portion, subject to the life estate of the widow. A determination by commissioners

that the portion set apart for dower shall be sold on the death of the widow is of no effect. This action of the commissioners left a portion of the land unpartitioned, and this is not a case in which a partial partition can be had. Commissioners have power to require the payment of money by parties to equalize shares. But where, in the exercise of this power, the commissioners have imposed an unjust burden on any of the parties by requiring the payment of a sum beyond the means of such party, the court should refuse to confirm such report. Order confirmation reversed. Post v. Post. Opinion by Mullin, P. J.

PARTNERSHIP.

Defendants are partners, and were indebted to plaintiffs. B., one of the partners, was also indebted to plaintiffs on his individual account. To pay his private debt, B. gave the firm a note without the knowledge or consent of the other partners. The note was discounted at a bank by plaintiff, and when it came due was paid by defendants, and credited to said B. instead of the firm. Defendants claim that said note should have been credited to the firm instead of B., and set it up as a counter-claim.

Held, that to make defendants liable on the note, they must have ratified the acts of B. in giving it for his own debt. That, although defendants knew of the existence of the note before it was paid, such information did not apprise them that it was given to pay B.'s debt in fraud of their rights. That defendants not being aware of the improper use made of the note, the payment was not a ratification of the act of B., or of the plaintiffs in crediting the note to B.; instead of defendants being indebted to plaintiffs, they had the right to suppose that the note was for a firm debt, and that it would be credited to them. Judgment reversed. Hayes v. Baxter. Opinion by Mullin, P. J.

In an order made for the discovery of books and papers, the following provision was inserted: "For failure to comply with this order defendants shall be precluded from making any defense, and their answer shall be stricken out unless defendants should, immediately, upon the expiration of the time allowed for making the discovery, apply to a justice of this court for an order to show cause why this order had not been complied with, and defendant's attorney shall have his clients before the judge making the order for examination." This order was afterward made absolute, and from the last order defendant appeals.

Held, that although there is no authority in the Code for the rule of the supreme court, requiring the insertion of the above provision in the order for a discovery, the rule was confirmed and legalized by section 13 of chapter 400 of the Laws of 1870. 2. That, even if the rule had been confirmed, the provision was entirely harmless. 3. That as defendants procured the insertion in the order of the provision giving leave to apply to another judge for an order to show cause, they cannot complain of it now. 4. On consent of counsel a motion may be made in any county in the State. Order affirmed. Rice v. Ehle. Opinion by Mullin, P. J. Talcott & Smith, JJ., concur in the result.

The lower branch of the Connecticut legislature passed a resolution continuing until next year the committee appointed last year on a revision of statutes, and instructing them to embody this year's laws in the revision.

CORRESPONDENCE.

THE CASE OF MISS ANTHONY.

Mr. Editor: In the LAW JOURNAL of the 5th inst., you approve the course of Judge Hunt in refusing to submit Miss Anthony's case to the jury and directing a verdict of "guilty." If one will recall to his mind some passages of our legal annals in England and America, he may not be surprised to find history repeating itself, and judges usurping the functions of the jury, and even playing the part of the advocate; but it does seem wonderful to me that you, an unimpassioned spectator, a critic and guide to your brethren of the bar, should approve conduct in a judge unwarranted in law and subversive of justice.

In directing a verdict against Miss Anthony, Judge Hunt did not content himself with instructing the jury as to the law, and allowing them to "find a verdict;" but he directed them to find her guilty. It was his verdict, not theirs. If he had a right to do so, the law must give a remedy for a refusal on their part. Is there any? If the jury had acquitted in spite of the direction, could the judge have set aside the verdict and had "guilty" entered? If he could not, the claim is an absurdity.

In Erskine's day, the English courts tried the same game, except that they did not play it quite so far as Judge Hunt has. The Dean of St. Asaph's was indicted for libel on the government. Erskine defended and proved his client innocent; but Buller, J., instructed the jury—not, as in the case we are considering, to find the accused guilty, for that would have been too great a shock even for them; but that they must find a verdict of guilty, if they were satisfied the defendant had published the alleged libel; and that they had no right to consider the question of intent. The jury found the prisoner "guilty of publishing only;" and the court treated that as a verdict of "guilty." Mr. Fox thereupon carried a bill through parliament which declared the law of England to be that juries in libel cases may find a verdict upon the whole issue.

The decision in 49 N. Y. 137, cited by you, is not. against my view. It holds-no more, no less-that if the prosecution fail to prove all the elements of guilt, the court should instruct the jury to acquit. This is in favor of liberty. In such case, a verdict of guilty would be set aside, but who can set aside a verdict of not guilty? The true line between the power of the court and of the jury is well stated in 8 Johns. 515.

You say the jury might have been trusted "provided there were 'twelve honest, intelligent jurymen' in the box, which might be fairly doubted." The only reason for doubt, I can see, is the circumstances that they obeyed the court, and acquiesced in the verdict of guilty which they had not "considered," and which they, in fact, never "rendered." While State judges make stump speeches to juries, and federal judges usurp their functions, we are not entitled to find much fault with them. They are quite as good as the judges.

LAW REPORTING.

ILION, N. Y., July 7, 1873. Dear Sir: Among your readers, who have been deeply interested in the developments relating to our present system of reporting judicial proceedings, is the subscriber. I trust the bar will continue to present their views on this subject and keep the matter

agitated until our solons (?) are forced to provide measures to relieve us of this chaotic incubus of indigest law. It is becoming so that none but a modern Croesus can furnish a law office with any thing approaching a complete library; whereas, it is well known that a large majority of the profession begin poor. Our present reporters seem bound to "fill the world with words." They are "accused by a thousand several tongues, and each tongue brings in a several tale, and each tale condemns" them and their reports; and still, not one of them "rises to explain." Is there no system by which order, certainty, brevity, promptness and economy can be secured in law reporting, and the profession relieved from the very opposite of all these as at present experienced?

Have the present reporters a life-lease of the legislature or judiciary committees? Cannot even the judicial decisions be furnished the profession without jobbery in high places? It occurs to me to be a very simple and feasible system to have a State reporter appointed by law, located at the seat of government, to be paid an ample and independent salary and furnished with office, materials and clerks, with his duties clearly and definitely defined; thus securing a competent and responsible head, and enabling the profession to obtain the reports at cost. Then let the court in banc, at the time when a decision is rendered and adopted as the opinion of the court, determine (for who should know better than they?) whether such decision ought to be reported, and if so, indorse it "to be reported," and the clerks of general terms and courts of appeal forward such indorsed decision, or a certified copy thereof, to the State reporter, who would report so much thereof and no more, as in the exercise of a sound discretion he would deem necessary to give an intelligent resume of the law of the case. Would it be too much to ask this of the judges? They, a fortiori, are presumed to know the law, and they cannot be ignorant of the present condition of the reports, and it would seem that in the exercise of the same discretion, and considering the claims of their profession, as well as those who are come after, they could, without much additional labor, determine which cases should and should not be reported. The objection might be raised that no such office as State reporter can be constitutionally created; in that case, and until that difficulty can be remedied, let the reporter provided for the court of appeals as per section 2, article 6 of the constitution, and that of the supreme court, provided for by section 23, after the office shall be brought to the qualification and independence indicated, act as such.

Then we should have but two sets of reports (regard being had, of course, to State institutions only), and these should be designated "New York Reports, Court of Appeals;" "New York Reports, Supreme Court," etc., and not Barbour's, nor Howard's, nor Jones', nor Micawber's. If reported properly they would be issued about half as often as now, and yet contain all that is necessary with all the other excrescences cut off. Although upward of thirty supreme court judges in the State, yet, of course, they constitute but one supreme court, and their decisions can be reported as such as well as those of the court of appeals. Should any objections be raised as to the expense of paying such reporter or reporters such a salary as would obviate all temptations to outside peculations or jobs with publishers, why, let the expense be imposed on the legal profession, if necessary, and I am confident

that they would bear the small pittance that it would demand of each, thankfully.

In regard to brevity, by the judges in rendering decisions, it would seem that "a word to the wise" ought to be sufficient.

We have learned and upright judges, but they will not claim to be any better than the old fathers of the common law, whose opinions are very models of brevity and conciseness; and a simple reference to a former decision ought to suffice, without making us buy law several times which is already on our shelves. I apprehend that we should proceed in relation to the written law as though it was made for all time and not for fifty or a hundred years. We received it in a comparatively compact and well digested condition from our fathers; do present indications give assurance that we are to transmit it so?

Our present State government is not yet a century and mirabile dictu! if the reports increase in the same ratio during the coming century as in the past, where will a man begin to study law? Whither are we drifting?

BOOK NOTICE.

F. V. M. W.

Wharton & Stille's Medical Jurisprudence. Third Edition. Vol. 2. Philadelphia: Kay & Brother, 1873.

The first volume of this treatise, noticed in this journal, vol. 7, page 9, was devoted exclusively to a consideration of mental unsoundness and psychological law. The present volume covers the other subjects pertaining to medical jurisprudence. The general subdivisions are as follows: "Questions relative to the foetus and new born child;""Questions arising out of the difference of sex; Questions relative to identity;" "Questions relative to the cause of death;" under which are several chapters on poisons; "Survivorship; ""Medical Malpractice;" Legal relations of Homicide, Foeticide and Infanticide;" "Legal relations of Identity;" and "Legal relations of Experts."

The first edition of this treatise was published in 1855. Soon after, Dr. Stille died, and the subsequent editions have been prepared by Mr. Wharton, assisted by prominent medical gentlemen. The assistants for this edition were Drs. Ashhurst and Linkler, of Philadelphia, and Amory, of Brookline, Mass.

These volumes present the whole subject of medical jurisprudence, and so thoroughly and exhaustively is each topic discussed that one using it will seldom find it necessary to resort to the other works on special topics.

LEGAL NEWS.

Prof. Simeon E. Baldwin, of the Yale law school, has sailed for Europe, where he will spend the sum

mer.

Yale college has conferred the degree of Doctor of Laws on Hon. D. S. Seymour, chief justice of the supreme court, of Connecticut, and Hon. Edward Pierrepont, of New York city.

A Washington dispatch to the New York World says, that while the belief has become general that the chief justiceship has been tendered to Senator Conkling, it is thought doubtful about his accepting.

A silver vase, worth $5,000, and two oil paintings, one a life size portrait of Thomas Addis Emmet, and the other of Chancellor Kent, the gift of the late Hugh Maxwell, have been presented to the Law. Institute of New York city.

The Albany Law Journal.

ALBANY, JULY 26, 1873.

WHERE TO BEGIN THE STUDY OF THE LAW. As law schools have become established institutions in this country and important aids in legal education, it is a question of considerable moment, especially to the lawyers of the future, at what period in the student's career he should avail himself of their advantages. There exists on this question, as on most others connected with legal training, a wide diversity of opinions, some holding that the study of the law should be commenced in the law school and continued in the office of the practitioner, while others favor a preliminary course in the office.

Two eminent jurists and writers on legal education, Judge Sharswood and Professor Washburn, are among the number whose opinions differ. Judge Sharswood says: "A law school, law lectures and recitations, essays and forensic discussions can act properly only as auxiliary to the studies of the law office. I am disposed to believe, from a limited experience, that they will be found most valuable to those who have just been admitted to the bar. The attendance on the school a portion of their time, that conference upon the subject of their pursuits which Lord Coke terms the life of study, and the occasional independent exercise of their powers in the public discussions and duties prescribed, will afford to young men thus situated, an agreeable as well as useful relief to the tedium of solitary study, and like milestones to the travelers on a long journey, will enable them to measure their own progress and keep them from discouragement and dispair. A few of the first years of every man's novitiate thus spent may be of incalculable advantage, while if the same thing had been attempted, and especially much relied on at the very commencement of study, its tendency might be rather to dissipate and confuse, than strengthen and invigorate the mind."-Law Lectures, 60.

Professor Washburn is not quite so positive in his opinion, "so much depends" as he says upon the circumstances of each particular student." But, after referring to the fact that the course of study in some of the law schools covers two years, and the necessity of the student's learning primarily the definitions and terminology of the law, he says: "If he (the student) can go through a course of two years, he can acquire the rudiments of the science so much faster there than elsewhere, that it seems clear that he should begin it in the schools. But if his means or circumstances preclude his remaining beyond a portion only of the two years, it is probably equally clear that to gain the most that he can in a given time, from the lectures and teaching of the schools, he had better postpone his attendance upon these till he has surmounted, in

some way, these early embarrassments in the way of his progress, so far, at least as to have gained a knowledge of the terminology of the law."- Lectures on Study and Practice of the Law, 58.

So far as regards some of the law schools of the country, it will probably make but little difference at what time a student seeks their aid. These are the schools which claim to produce "thoroughly educated" lawyers with less than a year's study, legal hotbeds for forcing men into lawyers. But there appear to be several good reasons why the student should avail himself of the advantages of a properly conducted law school at the commencement of his studies. It seems

to us that any law school that undertakes to make practitioners, to dispense with the training of the office is based upon a wrong theory. The proper function of the school is to teach general jurisprudence - law as a science, not a science of precedents, but a broad and liberal science of principles, leaving the student to learn in the office of the busy lawyers, the ends and purposes of the law, its application to the business of life.

It is generally conceded, we believe, that the student should begin by studying the general system of law and its grounds and reasons, and this he is not likely to do by commencing in an office. So far as any instruction or assistance from the master is concerned, the office is practically no better than solitary reading. The intimate relation which exists between the English special pleader and his students, is not often to be found in this country. So far as our experience and observation goes, the practitioner seldom knows what the student in his office is reading, or whether he be reading at all. The first step in the law, as in other things, is often the most important, and it is therefore of prime necessity that the pupil have in limine the assistance and instruction of a competent teacher. Left to his own unaided exertions he is more than likely to fall into that slovenly and superficial habit of mind and that "cursory and tumultuary reading," as Lord Coke hath it, which result in making the merely "case lawyer," the one who knows nothing beyond the ita lex scripta est. A writer in the Encyclopædia Americana, after speaking of the two methods of acquiring a knowledge of the law, the first by a methodical study of principles, says: "The other is, to get an outline of the system, by the aid of commentaries and to fill it up by the desultory reading of treatises and reports, according to the bent of the student; without much shape or certainty in the knowledge so acquired, until it is given by investigation in the course of practice. A good deal of law may be put together by a facile or flexible man in the second of these modes, and the public are often satisfied; but the profession itself knows the first by its fruits, to be the most effectual way of making a great lawyer." The second method is the one which the office has a tendency to develop.

Nothing can or ought to dispense with a regular