gagee to a decree for the deficiency against a purchaser who has assumed the mortgage does not arise from any vested right in the mortgagee by virtue of the stipulation of the grantee with the grantor. It rests merely on the doctrine of the courts of equity that a creditor is entitled to any security remaining in the hands of one who stands in the position of a surety for the debt, and that he may proceed directly against the person ultimately liable in order to avoid circuity of action, and that the liability of the purchaser to the grantor having been extinguished by the reconveyance the purchaser does not remain liable to the mortgagee. The contract of indemnity having been rescinded (without fraud) by the parties to it the mortgagee is not entitled to a decree for the deficiency, founded upon such a stipulation in the deed.

It will be seen that this case places the liability of the purchaser upon the ground upon which it was placed by Chancellor Walworth, in King v. Whitely, and by all the earlier cases, that it is opposed to the idea of a contract made with one person conferring an absolute right of action upon a third person, and also that it extends the principle of the case of Garnsey v. Rogers beyond the limit which was set to it by the judge who delivered the opinion. In this case it was held that if a mortgage is assumed in a deed which was given only as security for a debt, and with the expectation of a reconveyance, the person who assumed the mortgage did not remain liable after he had reconveyed the property, but the court was careful to distinguish this case from a case in which the conveyance was absolute. This, however, was doubtless done in deference to the decisions in the case of Beers v. Beers, 24 N. Y. 178, and it can hardly be doubted that if a case similar to this in New Jersey should now come before the courts of New York it would be decided in the same way.

NEWARK, N. J., March 16, 1877.

THE ELECTORAL COUNT.

To the Editor of the Albany Law Journal:

K.

SIR. I have read with much interest the able article of Rev. Dr. Spear on the subject of the electoral count, published in your paper of March 24. But to my mind the learned author fails to draw the line of distinction between the meaning of the terms ineligibility and disqualification. The one has reference to the time of election or appointment to, and the other to the time of entering into or of becoming invested with the title to, an office.

The

For instance, the constitutional requirement that "no Senator or Representative, or person holding an office of profit under the United States, shall be appointed an elector," makes such persons ineligible to be appointed. To say that a person coming within the constitutional prohibition may be appointed notwithstanding, is to nullify the constitution. object to be attained by the framers of the constitution was to prevent the use by the general government of an undue influence over the States in their appointments of electors. The fear was that the influence of an administration in office would be exerted to perpetuate itself or its party in power. If an administration may exercise the whole weight of its patronage and authority to accomplish that which the constitution intended to forbid its doing, if it succeed in having its Senators and Representatives, its collectors, marshals, postmasters and other official satellites, appointed

electors of president and vice-president, is it not absurd to say that the force of the prohibition may be evaded by having these persons to resign their offices before the day on which the electors meet to cast their ballots? The next day they may be reappointed. This very thing happened in the matter of an ineligible Louisiana elector of last year.

None of the cases cited meet this view of the case. As to those cases where the question was whether a person was qualified to hold a seat in Congress, they are not authority to support the principles enunciated by Dr. S. The language of the constitutional prohibition is different, the time at which it takes effect is different, and the evil to be cured is different. The constitution provides that "no person holding any office under the United States shall be a member of either house during his continuance in office." And "no person shall be a Representative who shall not have attained to the age of twenty-five years." In the language of Chief Justice Chase, as quoted by Dr. S., these provisions operate on the capacity to take office." They relate to the time of induction into office. And, by strict construction or liberal, they could hardly be made to attach a disqualification at a different time.

Dr. S. says: "In all these cases (referring to cases of ineligibility as well as disqualification) the disqualifying inhibitions relate directly to the capacity of the persons to receive office and discharge its duties, rather than to that of the people or State to appoint or elect them to office." Is this true? If so, what becomes of that inhibition in section 2, article 1, of the constitution, which says that "no person shall be a representative * * who shall not, when elected, be an inhabitant of that State in which he shall be chosen?" There are several disqualifications recited in the section named; but only this one of them is to affect the status of the person at the date of the election. Would the election of a non-resident of the State to Congress operate merely as a curable disqualification? Is not residence rather a condition precedent, the absence of which renders the election void? And is not the same rule applicable to presidential electors who come within the meaning of that clause of the constitution which pronounces them not eligible to be appointed?

The authorities concur in holding that votes for an ineligible person do not have the effect to elect him. If a respectable authority can be found, holding that the effect of a majority of votes cast for an ineligible candidate is to confer upon him any right to the office, under any circumstances, it has escaped my attention. In such a case there is no election. Ineligibility is not curable after election.

The result is well stated in People v. Clute, 50 N. Y. 451, a case referred to by Dr. Spear. The court there use this language: "The language (of the statute) is not that he shall not hold, but that he shall not be elected or appointed to hold, and operates upon the very first step in the process toward holding, and stops that. He can never hold but by appointment or election, and the act says he shall not be eligible to that election or appointment. So that he never can begin to hold."

Under the English rulings, when the voters, at the time of voting, had notice of the ineligibility of a candidate their votes were not counted, and they were held not to have voted; so that a minority candidate was thus some times declared elected. The American

rule is better, and is that there is no election when the candidate receiving a majority of votes is ineligible. See the numerous cases named in the opinion of the court in People v. Clute, supra, and also a case in point, Sublett v. Bedwell, 47 Miss. 266. HOLLY SPRING, MISS., March 31, 1877.

COURT OF APPEALS DECISIONS.

THE following decisions were handed down in the New York Court of Appeals on Tuesday, April

3, 1877:

Judgment affirmed, with costs Arkell v. The Commerce Insurance Co.; Eppendorf v. The Brooklyn City and Newtown Railroad Co.; Thursby v. Lidgerwood; Elverson et al. v. Vanderpoel; Cockroft v. New York and Harlem Railroad Co.; Stanton v. King, impleaded.- Motion for reargument denied, with $10 costs Augsbury v. Flower.- Orders of General,and

Special Terms reversed and motion granted, without costs to either party- Cormier v. Hawkins.- Order affirmed, with costs-National Broadway Bank v. Miller. Order affirmed, without costs as to either party in this court-Devlin v. Devlin.- Appeal dismissed, with costs In the matter of the application of the President, etc., of Delaware and Hudson Canal Company to acquire and perfect title to lands of John P. Adams.

THER

NOTES.

New Zealand colonial court of last resort has suffered the loss of all the written judgments rendered at its last sitting. The New Zealand Jurist says: "One of them, fortunately - McBride v. Brogden-has been printed, and will, consequently, descend to posterity. The others may be found, or may not. If not, there will be no reports, unless it should happen that the original drafts have been preserved. This calamity has happened more than once in this

district."The Washington Law Reporter complains

of the records of deeds in the District of Columbia, that they are written in an illegible hand, and intimates that the handwriting of females is seldom of a character to fit it for recording purposes.- The Southern Law Review is hereafter to be published bimonthly, and we are glad of it, for the Review is one of those good things of which we cannot have too much.

Judge Lowell, United States District Judge for the District of Massachusetts, in the case of In re Sawyer, decided on the 20th ult., thus animadverts upon one of the usual features of bankrupt practice: "The account rendered in this case brings to view one of the weak points of this, as of all other bankrupt laws, the temptation which assignees are under to exhaust the assets in unwarrantable charges. The assignees in this case have received about $6,000, and the charges for legal services are about $2,000, and for the assignees themselves $1,200. These are all disallowed. their services the assignees may have the commissions established by the rule of the Supreme Court, and no assignees are ever to have more without my order, as I have already decided. For counsel fees I allow the sum of $200. I disallow the item of $100, paid to the register's clerk. In this case the debts, not exceeding $50 each due the workmen, are more than enough to

For

absorb the fund, and I wish to repeat that where there are debts due workmen, which are privileged, the assignee has no moral right to take their money in litigation for the supposed benefit of the general creditors. If the latter want litigation, they must pay for it. In future, I shall allow no counsel fees, in such a case, until the privileged debts are paid in full. I do not think it necessary, in most cases, that the workmen should be put to the expense of proving their

debts, and the estate to the very considerable cost of paying their dividends in due and regular form."

The Bank of England will not accept a certificate of the Registrar-General of the death of an individual as proof of such fact, but is satisfied if proof of burial is produced. The directors, probably, think that a man is not certainly dead until he is buried. Judge S. C. Hastings, of San Francisco, has offered to deposit $100,000 with the treasurer of California, on condition that the State shall promise to pay seven per centum a year forever to the University of California, the amount thus received to be divided into two parts, one of $4,000 and the other of $3,000, the former to be used at first to purchase books for a law library, and the latter for a professor's salary.- Edgar M. Marble,

of Michigan, heretofore principal law clerk of the Interior Department, succeeds to the position of assistant attorney-general for that department. The Bar Association of Washington opposed the appointment and confirmation of Frederick Douglass as marshal of the District of Columbia.

A singular step has been taken, says the Manchester Guardian, by the Prussian Minister of Commerce He has addressed a circular to the various chambers of commerce, asking their opinion upon the desirableness of limiting the credit to be accorded among merchants for goods by legal enactment. It appears to be thought that the credit system may have been carried too far, and may thus have become a contributory cause to the prevailing commercial depression.The case of

Manisty v. Kenealy, in which the benchers of Gray's Inn sought to obtain from Dr. Kenealy possession of the chambers occupied by him, has at length, says the London Daily Telegraph, been brought to a close by the learned doctor paying Messrs. Iliffe, Russell & Iliffe, solicitors to Gray's Inn, the sum of $221 28. 11d., being the amount of taxed bills in the case. Dr. Kenealy, in his letter inclosing his draft for the amount, says: He does this under the distinct threat of "execution" conveyed in Messrs. Iliffe's letter. He does it because he is forced, and not as an admission that it is fairly due. The chambers, as is generally known, were given up some months ago by Dr. Kenealy.

A somewhat novel defense was interposed in the case of Powell v. Owen, before the English High Court of Justice. The plaintiff remained for some time at an hotel kept by a widow, and stabled his horses there. Upon the widow's death the defendants, her legal representatives, brought an action against the plaintiff for the amount of £30 14s. 3d., a debt alleged to have been incurred by him during his stay at her house. He replied that he was engaged to be married to the landlady, and was not a guest at the hotel, but was assisting her in its management. No decision has yet been rendered.

that it would not be, that the theory of a gift was advanced. The Supreme Court have settled the matter in accordance with the statute, and to the satisfaction of the country at large, if not to that of the people of Philadelphia.

The probabilities concerning the Revision are these: The Commission will be continued until next spring, but, upon the offer or suggestion of Mr. Throop, without salary. The thirteen chapters adopted last winter are to remain upon the statute books after numerous amendments. The nine chapters reported this year are not likely to be adopted at present. As these chapters are the complement of those already adopted, and with them form an integral system of procedure, they should go into operation at the same time with the first thirteen chapters. With only a half system, such as those chapters constitute, the utmost confusion is likely to be created. If the whole constitute a system of any value, there must be an interdependence among the several parts that would render any one part inadequate without the others. There is no especial haste. The profession, alike those in favor of and those opposed to the Revision, are most unmistakably opposed to any fragmentary procedure, and would much prefer that the whole matter should be postponed until the whole can take effect at once. Were the exigencies much greater there would hardly be excuse for a half measure

the description of Phair, on a railway train, near Providence, at the time Phair claimed he was in that locality. He communicated with the police of Boston, and was shown a large number of photographs, among which was one of Phair. He selected this one as being that of the man he had met on the train. A telegraphic dispatch was sent to the governor of Vermont, informing him of this newlydiscovered evidence. He at once directed that the execution of the sentence be postponed, which direction reached the sheriff who was to carry it out

less than an hour before the time he had fixed for the performance of that duty. If the result of the newly-discovered evidence shall be to establish the truth of the defense set up, the case will afford another exemplification of the unreliability of testimony as to identity. The narrow escape of the defendant from an ignominious death gives the case a dramatic interest, and will call to the mind of many the remarkable case of the Boornes, which has, and for defendants' attorneys in trials for crime, and for half a century, furnished a theme for novelists which, by the way, happened in a county of Vermont adjoining that in which Phair was convicted. If Phair should now escape, the criminal jurisprudence of Vermont, in which a trial for murder very seldom occurs, will be distinguished by two instances of the conviction of men for crimes of which they were afterward shown to be innocent, both being rescued by a chance when almost under the shadow of the gallows. But alas for Vermont

that has served us well for a third of a century, there is no possible reason why we should not have the whole or none. It is our opinion, and, we believe, the opinion of the great body of the legal profession, that the new Code ought not to go into effect earlier than May of next year. By that time the Code, as a system, will have been before the profession long enough for them to have become familiar with it.

The reprieve of Phair, who was convicted of murder and sentenced to be hanged in Vermont, and the circumstances leading to such reprieve, render the case one of more than ordinary interest to those conversant with criminal jurisprudence. As will be remembered, Phair was convicted of a murder committed in Rutland over two years ago. At the trial he attempted to establish an alibi by showing that he was in the neighborhood of Providence, R. I., at the time the deed was reported to have been committed; but a Boston pawnbroker identified him as the person who pawned the murdered woman's property, and he was convicted and sentenced to be hanged. On the morning of the day his execution was to take place, a resident of Boston, whose attention was attracted to the circumstances of the defense interposed, remembered that he met a man answering

he be innocent, since the machinery of the law has been exhausted. He cannot have a new trial, there is no provision for a stay, the legislature is not in

session, and the Governor's power longer to reprieve

is denied.

The temperance agitators have achieved a victory before the Court of Appeals of this State, in the case of People v. Smith, reported in our present issue, wherein it is decided that the excise law does not permit the issue of a license to sell spirits to be drank on the premises, to any persons except innkeepers. This will render the prosecution of the traffic illegal in the thousands of places variously denominated as saloons, sample-rooms, etc., which crowd the State, and if the law is enforced the agitators against strong drink will be gratified with a multitude of convictions. We do not, however, anticipate a cessation of the sale of liquor by the glass in the places mentioned. There was, before 1870, no pretense that a license could be given to sell elsewhere than in inns, yet saloons and samplerooms flourished. The law is, by the decision of the Court of Appeals, placed exactly as it was understood to be before the act of 1870, and there is no greater liability incurred by those violating it now than there was then.

The people of Georgia intend to make some changes in their State constitution, not least among which is a reorganization of the judicial system. The press and bar of the State are discussing as to the character of the reorganization, about which there are as many different notions as there are individuals who take an interest in the matter. There seems, however, to be harmony in one thing, and that is that the present mode of appointment of judges by the governor, with the consent of the senate, ought not to continue. As to a substitute for this mode, those offering it are at loggerheads, but, if any change is made, there is little question that it will be to a choice by popular vote. We think, however, that if the leaders of public opinion in Georgia could experience a little while the blessings of an inferior judiciary, chosen by the people, they would not be in a hurry to change their present system.

The following bills of general interest were introduced in the legislature during the past week: Relating to the sale of eggs, declaring that a pound and one-half avoirdupois weight shall hereafter constitute a dozen; relating to the publication of legal notices, making provision in certain cases for publication in the German language; amending the excise law so as to authorize the sale of liquors at places other than inns. This last bill is intended to make the law what it was generally understood to be before the recent decision of the Court of Appeals in People v. Smith. The bill authorizing the taxation of insurance companies failed to pass the Senate, but a new bill has been introduced authorizing a tax of two and one-half per cent upon the premiums received. The bill to incorporate the State Bar Association was reported favorably in the Assembly. The Senate passed the bill permitting aliens to hold real estate. The provisions of this enactment are of a sweeping character, and take away all discrimination in the matter between resident aliens and citizens. We have now some hope that the bill may become a law.

NOTES OF CASES.

IN Third National Bank v. Boyd, 44 Ind. 47, bonds to a large amount were, under an arrangement between the bank and a customer, deposited with the bank as collateral security, for such sums as then were or should be thereafter due to it from such customer. The customer made deposits, and also borrowed money from time to time, sometimes owing the bank and sometimes not, but having money therein to his credit. Subsequent to July, 1872, the customer was not indebted to the bank, but the bonds were not withdrawn, but left with the bank under the original agreement. In August, 1872, the bank was entered by burglars, and certain of the bonds stolen. This action was brought for the

value of these bonds. The court held that the contract entered into by the bank was not a mere gratuitous bailment; that the bank had, within the terms of the national banking law, power to enter into such contract; that the obligation of the bank as to safe-keeping did not cease when the customer had paid the debt secured by the bonds, and that, if the bonds were stolen in consequence of a failure to exercise such care and diligence in their custody as at the time banks of common prudence usually bestowed in the keeping of similar property belonging to themselves, the bank was liable for the loss. In respect to the right of the bank to make a contract of the character mentioned and to receive the custody of the bonds, the decision accords with that in numerous cases: Wiley v. First Nat. Bank of Brattleborough, 47 Vt. 546; First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278; Erie Bank v. Smith, 3 Brewst. 9; Maitland v. Citizens' Nat. 'Bank, 40 Md. 540. It has been held, however, that a national bank cannot receive special deposits, either gratuitously or for hire. See cases supra, and also Foster v. Essex Bank, 17 Mass. 497.

The Common Pleas Division of the English High Court of Justice, on the 12th of January last, in the case of Humphreys v. Cousins, 36 L. T. Rep. (N. S.) 180, decided that an occupier of land can recover against an adjoining occupier for damages caused by noxious substances coming on to his premises, in a way in which he is not bound to receive them, from any artificial structure on the adjoining premises, although the adjoining occupier is ignorant of the facts which cause the injury, and there is no negligence. In this case plaintiff and defendant occupied adjoining premises. An old drain commenced on defendant's premises, passed under other houses, came back through defendant's premises, and then passed under plaintiff's. The drain got out of repair under defendant's premises, whereby sewage and water escaped into plaintiff's premises, and caused damage. Defendant did not know that the drain turned back through his premises and under plaintiff's, or that it was out of repair, and was not guilty of negligence. The court held that The case is displaintiff was entitled to recover. tinguished from Smith v. Kenrick, 7 C. B. 515, and

that class of cases where water or other matter comes naturally from the land of one adjoining owner on to that of another. Smith v. Agawam Canal Co., 2 Allen, 355. In the case of Pixley v. Clark, 35 N. Y. 520, a defendant was held liable for erecting a dam, whereby water was caused to percolate through the natural banks of the stream, to the injury of plaintiff's adjoining property. See, also, Fletcher v. Ryland, L. R., 1 Exch. 265; S. C., L. R., 3 H. L. 330; Smith v. Fletcher, 20 W. R. 987; Broder v. Saillard, L. R., 2 C. D. 692; Ashby v. White, 1 Sm. L. Cas. 263, note; Tenant v. Goldwin, 1 Salk. 360; Wilson v. City of New Bedford, 11 Am. Rep. 352; 108 Mass. 261.