under the statute a new company, which, with knowledge of the facts, has continued to operate its road over said land. Held, that equity will restrain the company from further maintaining and operating its road over said land, except upon payment of said judgment against the old company. Gilman v. The Sheb. & F. du L. Railway Co.

REMOVAL OF CAUSE.

1. Wisconsin statute as to foreign insurance companies.- Save by the voluntary license of the State, a foreign insurance company has no right to carry on its business within this State; and the State has power to make such license subject to the company's forbearance of a right, and revocable upon the exercise of such right. Those provisions of the statutes (chap. 56 of 1870 and chap. 64 of 1872), which authorize the issue of licenses to foreign insurance companies only upon condition of their filing a written agreement not to remove to the Federal courts causes commenced against them in the courts of this State, and require the Secretary of State to revoke such licenses upon a violation of that agreement, are valid. Ins. Co. v. Morse, 20 Wall. 445, distinguished, and certain obiter dicta therein criticised. State ex rel. Drake v. Doyle, Secretary of State.

2. So much of the statute as requires such agreement as a condition of license being designed as a compensation for the provisions authorizing licenses, if the former were held invalid, the latter would fail with it; the Secretary of State in issuing the license here in question would have acted without authority; and the court would compel him to revoke it. Ib.

3. Where State real party in interest: jurisdiction of Federal court. Where a suit is prosecuted in a Federal court by a private party against a State officer, who has no personal interest or liability in the action, but is sued in his official capacity only, to affect a right of the State only, the State is the real defendant within the prohibition of the eleventh amendment to the Federal constitution. A Circuit Court of the United States has, therefore, no jurisdiction of a suit by a foreign corporation to restrain a State officer from revoking (as required by the law of the State) a license granted the plaintiff corporation to do business in the State. Even if the Federal court had authority to bind the officer in such a case, it could not bind the State in the exercise of its authority. Ib.

SALE.

1. Exaggerated statement of value by vendor.- Mere exaggerated statements by the vendor of land, as to its value, and purchase by the vendee at such excessive valuation, are not sufficient ground for rescinding the contract, where both parties had equal opportunities for ascertaining the value, and there is no proof of fraudulent intent in the vendor. Suessenguth v. Bingenheimer.

2. Sale of chattels : caveat emptor.- Where the purchaser of goods with full knowledge, or with full opportunity for examination and knowledge, of their defects, which are patent, and of the fact that the place of delivery is not that required by the contract, takes possession without notifying the vendor, at the time of receiving them or within a reasonable time thereafter, that they are not accepted as fulfilling the contract, he cannot recoup damages for such defects or failure in an action for the contract price. Locke v. Williamson.

STATUTES OF LIMITATION.

Residents of Confederate States during war. During the late war between the United States and the Confederate States, residents of the one were incapable of suing in the courts of the other; all contracts subsisting between such parties were suspended; and State statutes of limitation ceased to run against such contracts. The disability of residents of New Orleans to sue in the courts of the United States, or of any one of such States, terminated upon the capture and occupation of that city by the forces of the United States in May, 1862, or at least upon the issue of the President's proclamation of April 2, 1863; and thereupon the statutes of limitation of this State began again to run upon rights of action between residents of this State and residents of New Orleans. Ahnert v. Zaun.

BOOK NOTICES.

A Treatise on the Law of Executions in Civil Cases, and of Proceedings in Aid and Restraint thereof. By Abraham Clark Freeman, Author of a Treatise on the Law of Judgments, and also of a Treatise on the Law of Cotenancy and Partition. San Francisco: Sumner Whitney & Company, 1876.

AS

S progress is made in the acquisition of knowledge upon a subject, there is a tendency to specialization, and law forms uo exception to the general rule. A hundred years ago the whole law relating to practice, pleading and evidence could have been compressed into a single small volume. It was, a couple of generations ago, found necessary to separate these topics, when the law relating to practice alone would fill a volume. Now we divide practice itself into subheads, each successive step in the conduct of an action at law being deemed worthy of a voluminous treatise. And these special works have become necessary by reason of the enormous aggregation of case law, which can, in that way only, be made accessible to the practicing lawyer. Then, too, it is impracticable for an elementary writer to do justice to more than a portion of even the topics embraced under the title Practice. It is said that those in Germany studying the ancient languages, each take a special department, and do not, as we do, undertake to cover the whole field embraced in that subject of learning, and it is told of one enthusiastic scholar that he devoted his entire life to the study of the Greek article. Our law writers have not come down to as fine a point as that, but they are rapidly approaching it, and we shall no doubt yet see the day when "Practice" alone will be expanded into a large library.

Among the topics which are of great practical importance no one takes the lead of Execution-"Execu tio est fructus et finis legis." The questions which here arise are often embarrassing, and nearly always demand immediate decision, and the work before us seems fitted to render upon such occasion important aid. To practicing lawyers it must be always found useful; to sheriffs and marshals, absolutely necessary. The entire field indicated by the title seems to be covered, and that the author has been diligent in his investigations is demonstrated by the fact that there are in the volume nearly fourteen thousand citations, embracing references to over ten thousand different cases. Of course, a multitude of citations does not necessarily make a treatise valuable, and the tendency to over citation among American authors, has been sharply criticised in England. Upon a subject of this kind, however, every decided case is likely to be of value, and where the statutes of between

Jamaica in May, 1856. He was knighted by patent in 1859, and retired in 1869, when he was succeeded as Chief Justice by Sir John Lucie Smith.- - John L. Shoemaker, a prominent member of the Philadelphia bar, died in that city last week at the age of 44 years.

Among the deaths of those prominent in the profession in this country, during the past year, not above noticed, we find the names of Ex-Governor Clifford, of Massachusetts; Reverdy Johnson, of Maryland; Isaac F. Redfield; O. P. Nicholson, of Tennessee; Judge David Kirk; Patrick Este, of Cincinnati; Judge Lowrie, of Pennsylvania; Chief Justice Gilpin, of Delaware; Judge Boulden, of Virginia; Nathan Howard, the well-known reporter; Judge Monell, of New York; Judge Vories, of Missouri, and Levi Hubbell, of Wisconsin. In England many wellknown names appear in the necrological list. Among them we notice Lord Chief Justice Whiteside, of Ireland; Judge Archibald, of the English Common Pleas; Ex-Vice-Chancellor Stewart, and John Taylor Cole

ridge.

French juries often astonish the world by the curi ous way in which they discover "extenuating circumstances" in favor of the culprits brought before them, but it has been reserved for an enlightened Belgian jury to surpass any thing ever heard of in this line. A man named Brin was found guilty of murdering both his first and second wife, but, according to the report in the papers, he was recommended to mercy on account of his wooden leg, and got off with hard labor for life instead of death.- At St. Louis, recently, as a funeral procession was about to move, a writ of replevin on behalf of the undertaker was served on the casket. The corpse was within, and as the constable was about to carry it off, it suddenly occurred to him that a writ of habeas corpus might also be necessary to protect him. He accordingly appealed to mourners to take out the body or raise the cash, and the result was the liquidation of the claim. -Gov. Tilden appointed William H. Sawyer, of Canton, St. Lawrence county, Justice of the Supreme Court for the Fourth Judicial District, in place of A. B. James, resigned. A female lawyer in London has just been awarded the Joseph Hume scholarship in jurisprudence by the Council of University College. She is making her way in such active business at the law as is allowed to persons who are not called to the bar: and women are not permitted to aspire to that as yet.

Our English brethren are given to criticising the methods adopted by the profession in this country to procure business, but we doubt if any advertisement that has appeared on this side of the Atlantic will outdo this circular, issued by a London solicitor: "I have much pleasure in informing you that I have entered upon a profession for which I was originally educated; and having been duly admitted upon the roll of solicitors, I have commenced practice at the above address. With a view of becoming more thoroughly acquainted with the theory of law, I matriculated at King's College, and, having successfully passed the requisite examinations, I have been enrolled an associate of that institution. During my course of study, I had the pleasure in taking the first prize in Professor Leone Levi's class for Commercial Law, and also Professor Cutler's Prize for General Law and Jurisprudence. While serving my articles and managing an extensive city practice, I found my commercial knowledge and

The Index to volume 14 of the ALBANY LAW Jou NAL, will be sent to subscribers with the next issu

The General Term of the Supreme Court of th State, in the Fourth Department, recently decided t the case of Bordeaux v. Erie Railway Co., that where railroad company, which was organized under a specia act, has fixed two rates of fare between certain point -one where the fare is paid in the train, and a less ras where a ticket is purchased- -a passenger entering train without a ticket is bound to pay the greater rate There is no law requiring such companies to keep their offices open at any particular time. The option of pur chasing a ticket is a privilege granted the passenger of procuring a passage at a less rate than the regular fare and if he does not avail himself of it he must pay the regular fare.

In Kleine v. Shanks, executor, the United States Circuit Court for the Southern District of Mississippi, recently decided that real estate held by partners either as capital stock for partnership purposes, or as purchased with partnership means, is for the purpose of paying the debts due by the partnership, or the balance due its members, considered as personal assets of the partnership; the legal title being vested in the partners as tenants in common, in trust, for the creditors and members of the firm. Upon the death of one of the members, the title so vested in him descends to his heirs or devisees subject to the same trust. The surviving partner has the right to control and manage the estate for the purpose of satisfying the trusts which rest upon it, and he may to this end rent it, receive the rents, sell it and receive the purchase-money, and convey to the purchaser not only the legal and equitable title in himself, but the equitable title which he holds as such surviving partner, and if the sale be bona fide, the court will compel the party holding the legal title under the deceased partner to convey such legal title to the holder of the equitable title, and thereby make the title complete.

-

The United States Circuit Court of Oregon, a short time since, in the case of Waters v. Campbell, held that Alaska is not "Indian country" in the technical sense of that phrase, only so far as the introduction and disposition of spirituous liquors is concerned; and subject to this restraint it is open to occupation and trade generally. There is no law of the United States requiring persons to be licensed to trade in Alaskaeven with the Indians. The provision of the general appropriation act of March 3, 1873 (17 Stat. 530), extending sections 20 and 21 of the Indian Intercourse act of June 30, 1834, over Alaska, being local in its character, was not repealed by the repealing clause of section 1954 of the Revised Statutes. The proviso in section 1954 of the Revised Statutes should be placed at the end of it, and not in the middle of the second clause of it, as now printed.-The Supreme Court of Pennsylvania in Monocacy Bridge Co. v. American Iron Bridge Co., lately decided that the waiver of parts of a covenant by defendant does not make a new contract, and the plaintiff's remedy is by action of covenant, Where a complete performance by plaintiff is prevented or waived by defendant, such want of complete performance does not prevent recovery.

CC munications intended for publication in the 37* «URNAL should be addressed to the editor, and the of tb writer should be given, though not necessar pu' cation.

amurications on business matters should be aded to the publishers.

[↑ PUBLISHERS have made arrangements whereby all ions of the Supreme Court of the United States will

warded to the ALBANY LAW JOURNAL, from the of the Clerk of the Court, as soon as announced. most important of them will be published in full, and le others, abstracts will be given.

The Albany Law Journal.

ALBANY, JANUARY 13, 1877.

CURRENT TOPICS.

HE National Board of Trade have presented a memorial to Congress asking that the bankpt laws be amended, and we presume that the ggestions of this body will meet with the respect ad attention due to an important and influential terest, and the one chiefly affected by the operaion of the laws in question. The changes asked y the memorial are, for the most part, of a charcter that will meet the approval of all fair-minded ersons. Certain of them, however, will be opposed y those officials who are designated to carry out he law, and whose fees and charges render its opertion oppressive, and without benefit to either debtors r creditors. The board of trade asks, first, that he law be so adjusted as to secure a more speedy and inexpensive distribution of the assets of insolvent debtors among their creditors, and, at the same time, to afford full protection for poor, but honest traders, temporarily embarrassed, but endeavoring to regain their financial standing. This, of course, means a cutting down of fees and expenses of officers, and a limitation of the causes of Compulsory bankruptcy, and must find general approval among the mercantile class. The memorial also asks that compulsory bankruptcy be limited to those acts which show fraud upon the part of the debtor, or an attempt on his part to prefer a creditor, or to remove his property beyond the control of the court. It is also asked that an assignment or an attachment made or taken under a State law, for the equal benefit of all the creditors, be not invalidated, except in cases where the debtor has previously made some fraudulent disposition of his property. But the most important change that is asked is, that all exemptions in favor of a bankrupt be made niform throughout the country, by superseding conflicting laws of the different States concerning exemption in favor of insolvent debtors. This is a change that should certainly be made, because otherwise the law operates unequally upon debtors in different sections.

VOL. 15.- No. 2.

We give this week the first part of an essay on Rufus Choate, from the pen of Chief Justice Neil son, of Brooklyn. Few men have owed less to biographers than Mr. Choate. Of him they have given us an abundance of undistilled biography, have rehearsed his jokes, printed his diaries and memoranda, repeated his singular words and ways; but Judge Neilson is almost the first to attempt a delineation of the resulting character of the man,the first to discern and show forth the singularly great and earnest nature that made his life worth cherishing. And one could hardly be better fitted for the task than is Judge Neilson. Besides being himself an able lawyer, and thereby the better able to appreciate the mere professional greatness of Mr. Choate, he is in loving sympathy with his subject, and loyally recognizes those greater qualities that made the MAN more than the Lawyer and the Advocate. Judge Neilson is, moreover, a careful observer and analyzer, a clear and vigorous thinker, and a discriminating and incisive writer. We purpose to give the remaining parts one early in each month.

There may be a question whether the bankrupt law, in respect to the matter of exemption under the State laws, is in harmony with the Federal constitution. Congress has power to establish "uniform laws on the subject of bankruptcies throughout the United States" (Const., art. 1, sec. 8, subd. 4). In the matter of exemption, the bankrupt law (sec. 5045) after making certain general exceptions from its operation, adds: "and such other property, not included in the foregoing exceptions, as is exempted from levy and sale upon execution, etc., by the laws of the State in which the bankrupt has a domicile," etc. The courts have decided both ways on the question, but the provision has been acquiesced in so long, that it would, perhaps, be too late to ask a judicial denial of its validity. But in view of the vast difference between the laws of the various States on the subject of exemption, it would be a proper exercise of the power of Congress, to render the law equally operative in every part of the country.

The Bar Association of New York city are still, through its "Council of Law-Reporting," endeavoring to control the publication of the decisions of the courts of this State. "The death of Mr. Howard, and the discontinuance by Mr. Abbott of his practice reports," says the council, "seem to offer an opportunity which the bar should not allow to pass without securing one good series of practice reports." But the truth is, that the discontinuance of Mr. Abbott's reports is only nominal, inasmuch as he is about to begin another series of reports under the name of "New Cases," and Mr. Howard's death has not in any way interfered with the periodical issue of the series bearing his name. The "op

portunity," which the council speaks of, is, therefore, a myth, for just as excellent a one has existed at any time during the last twenty years. It would have been better to say that the events mentioned afford an occasion for the council to mention the subject of reporting, etc. The means suggested to secure a single series of practice reports are worthy of consideration. Premising that, in the opinion of the council, Mr. Abbott will be more likely to furnish the profession with such reports as it needs, than any new reporter, and Mr. Abbott having given an assurance that he will confine his reports to Special Term cases, and will not publish, in full, any opinion of the Court of Appeals or General Term, until three months after it is filed, the members of the bar are asked to confine their support to "Abbott's New Cases," and refrain from longer

purchasing Howard's Reports. We presume, how

ever, that the members of the bar will continue to disregard the admonitory voice of the "Council," and to buy both series, and practice reports will increase and multiply as heretofore.

The bar in the Eighth judicial district have taken the initiative in the formation of a local association, a call having been issued for a district convention to meet at Buffalo on the 28th of March next, to take into consideration the expediency of forming a district association, and also an association in each of the counties comprising the district. These local associations are essential to the continuance and usefulness of the State association, and we hope to see them come into existence in every county. In the cities of New York and Brooklyn,

a half dozen associations are needed, and in time

will be formed, unless the spirit of organization should die out, which we believe will not be the

case.

Germany, which in many respects is like our own country, being made up of partially independent States, has, during the past few months, been agitated by a discussion somewhat resembling that which here took place just previous to the adoption of the Federal constitution. This discussion has arisen over what are known as the judicature bills, a group of proposed laws for the reorganization of the judicial system, so as to have the courts and procedure uniform, or as nearly so as possible, throughout the empire. Of course such an experiment has met with considerable opposition, not professedly arising, however, out of a dislike to have the thing aimed at done, but from a disapproval of the manner in which it was proposed to be done. This has led to a disagreement between the parliament and the government in regard to certain provisions which were omitted from, or incorporated into the bills. Among other grounds of dispute, was the method of trial of press offenses, which the govern

ment insisted should be tried by judges, parlia by a jury. Then it was insisted by parliament, the public prosecutor should not, as he has he fore been, be the only person who could lodge a inal information, that a government employee sh be liable to be prosecuted directly for an abu: power, that the courts and public prosecutor sh not be allowed to order an indiscriminate seizu letters in the post-office bearing the handwritin suspected persons, and other matters of the nature. This disagreement has rendered the pas of the bills a question of doubt, which is muc be regretted.

It is announced, however, that there had be compromise between the parliament, or rather liberal party, and the government, whereby all objectionable features, except those relating to press, and press offenses, have been withdrawn f the bills, the liberals yielding the claims mad them in regard to matters affecting the press. It matter of congratulation that this is so, for adoption of a uniform procedure in all the coof the German empire is an advance in the di tion of legal reform that will work benefit even side of Germany. By the obliteration of le forms and ceremonies, a large share of what is kne as local prejudice is done away with, and e though the generalizing process extends only so as to embrace under one code, only those subjec a single government, and speaking a single langua the beneficial effects resulting from such as tend to incline the people who feel them towar larger generalization in matters of law. If the E ject for the adoption by the nations of a code international law ever proves a success, it must through the spirit aroused in each country by

endeavor to secure within its own boundaries u form legal rules.

The Supreme Judicial Court of Massachusetts just decided that Sunday must be kept as a Sabbin that State, at least so far as the vending of goo is concerned, and that the fact that the offendi person is an Israelite will not alter the rule. It therefore, probable, that until a legislative ena ment shall provide to the contrary, the Puritan Sa bath will be a dies non in that State for all traff always excepting the operation of railways, ver ing of liquors and tobacco, and such like necessa vocations.

Upon the heels of the announcement that all e tradition difficulties between this country and Gre Britain are definitely settled, comes another th a treaty of extradition has been concluded wi Spain. According to the statement publicly mad this treaty applies to all criminal offenses, exce those of a political nature. This is probably ne entirely accurate, although the readiness of Spai