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REPAIRS. See Landlord and Tenant, 2.

RESIDENCE. See Settlement.

RESTRAINT OF TRADE.

The defendant sold to the plaintiffs two patents issued to him for improvements in twist drills and collets, covenanting at the same time to transfer to the purchasers all his subsequent improvements in the process of manufacture, and that he would at no time aid, assist or encourage, in any manner, any competition against them. Afterward he removed to another State and engaged in the manufacture of other twist drills and collets, selling them in the same market in competition with plaintiffs. In a suit to restrain defendant from violating his covenant, held, that as the business was not local in its character, and the restraint not greater than the interest of the plaintiffs required, the contract was valid. Morse Twist Drill and Machine Co. v. Morse, 513.

REVENUE STAMP. See Evidence, 3; Stamps.

RIGHT OF WAY. See Railroad, 1, 5.

RIPARIAN OWNER.

The owner of land bounded on a lake, whether navigable or not, has title to the land left dry by the gradual and imperceptible receding of the waters. Warren v. Chambers, 23.

SALARY. See Office.

SALE.

The agent of defendants exhibited samples of tea to plaintiff and negotiated a verbal sale in value exceeding $50. Subsequently a bill of sale and the tea were forwarded. There was no warranty in the bill of sale, but the tea was found to be unsound. Held, that the transaction was an executed sale with warranty, and that the plaintiff was entitled to recover without any offer to return the tea for breach of warranty. Letterpress copies of correspondence are mere secondary evidence. Foot v. Bentley, 652.

See Statute of Frauds, 4; Lord's Day.

SALE OF LAND. See Mistake.
SAVINGS BANK BOOK. See Gift.

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STAMPS.

1. The United States internal revenue laws were not in operation in the Confederate States during the war, and it was therefore unnecessary to stamp promissory notes to give them validity. McElvain v. Mudd, 106. 2. An unstamped note is valid, and may be recovered upon in the State courts. Burson v. Huntington, 497. See Evidence, 3.

STATE ORDINANCE. See Constitutional Law, 2.
STATE STATUTES. See Foreign Law.

STATUTE OF FRAUDS.

1. Plaintiff had a debt against S. who had a debt against D., and a lien therefor upon defendant's vessel. S., being pressed for money by plaintiff, told him that he should have his lien claim on the vessel, to be enforced if D. should not pay the amount thereof to plaintiff. Defendant hearing of this, and not desiring that his vessel should be stopped, verbally promised plaintiff that he would pay S.'s claim if D. should not do so. Plaintiff did not discharge S., nor did S. release D. or his lien on the vessel, although he did not enforce it as he would have done, but for the expectation raised by defendant's promise that the claim would be paid to plaintiff. E. afterward collected of defendant, but did not pay plaintiff. Held, that the promise was within the statute of frauds. Stewart v. Campbell, 296. 2. The wife of B. agreed with defendants to release her right of dower in lands which B. wished to convey to their use by a trust deed; the consideration of the release being a verbal promise by defendants that they would pay a debt of B. to C. B. and wife executed the trust deed, but defendants refused to pay the C. debt. Held, that the verbal agreement of defendants was not within the statute of frauds. Brown v. Brown, 320.

3. A. and B. mutually agreed by parol that each should make a will of her real and personal estate in favor of the other, and the wills were so made; but B. afterward made a will in favor of other parties and died. Held, that the agreement was a contract for the sale of lands within the statute of frauds, and therefore void. Gold v. Mansfield, 573.

4. Where a contract of sale is verbal, the delivery of the goods, after acceptance, to a carrier designated by the buyer, is sufficient to satisfy the statute of frauds. Cross v. O'Donnell, 721.

See Sale.

STATUTE OF LIMITATIONS.

1. The statute of limitations was suspended in Alabama between January 11, 1861, and September 21, 1865, that being the period during which the civil courts were virtually closed on account of the rebellion. Coleman v. Holmes, 121.

2. Defendant wrote a letter to plaintiff stating that he had a certain sum of money, and proposed giving it to his creditors for equal distribution, provided they would release him from all obligations; and that he extended the proposition to plaintiff for his decision. The offer was not accepted. Held, that the letter did not constitute such an acknowledgment or promise as would remove the bar of the statute of limitations. Chambers v. Rubey, 318.

3. A statute of limitations does not run against the State in the absence of express legislative enactment. Crane v. Reeder, 430.

See Partnership.

STREETS. See Municipal Corporations, 2, 3, 4, 5. SUNDAY. See Lord's Day; Partnership.

SURETIES.

1. C. was arrested on a criminal charge in the State court and was bailed. He was subsequently arrested and imprisoned for another crime by the military authorities of the United States, and could not be produced in the State court according to the terms of the recognizance. Held, that the sureties were discharged. Belding v. State, 26.

2. In an action on a forfeited recognizance, the defense was, that the criminal could not appear when called, because he was in prison in another State. It appeared that he had gone to New York, after his release, and had been taken to Maine, under a requisition from the governor of that State, to answer for a crime committed there. Held, no defense. Taintor v. Taylor, 58.

TAXATION. See Constitutional Law, 1, 5.

TAXES.

An action in assumpsit will not lie against a town for money paid, under protest, by a resident owner for taxes on real estate, where the only objection is, that "the assessments were not legally made." It seems that the proper course for the tax payer is to refuse to pay the taxes, and, when the land is sold by the collector, to defend his title. Rogers v. Inhabitants of Greenbush, 292.

TAX DEED.

1. A county treasurer, having given an imperfect or informal tax deed which does not pass the title, may, on his own motion, give a second deed correct in fact and regular in form. McCready v. Sexion & Son, 214.

2. An act of the legislature, declaring a tax deed conclusive evidence that all of the essential requirements of the law regulating the exercises of the taxing power were complied with, is unconstitutional. Ib.

See Constitutional Law, 4.

TELEGRAPH.

1. A mistake in the transmission of a telegram is prima facie negligence on the part of the company, and the burden of proof rests upon it to show itself free from fault. Rittenhouse v. The Independent Line of Telegraph, 673.

2. A message as delivered by plaintiff to a telegraph company read: "If we have any Old Southern, sell same before board. Buy five Hudson at board;" but the message as transmitted read: "If we have any Old Southern, sell same before board. Buy five hundred at board." Plaintiff's agent, who received the message, bought five hundred Old Southern; but plaintiff, hearing of this, immediately directed the sale thereof, and the purchase of five hundred shares Hudson River, according to the intention of the original message as delivered. In the mean time Hudson River had risen, making a difference to plaintiff of $1,375. In an action against the company for damages, held, that plaintiff could recover, and that the measure of damages was the rise in the price of the stock. Ib.

TENANT. See Landlord and Tenant.
THROUGH CONTRACT. See Common Carrier, 5.
TRADE. See Restraint of Trade.

TRANSFER OF CAUSES.

1. The United Statcs statutes, relative to transferring causes from the State to the federal courts, authorize the transfer where the plaintiff is a citizen of the State where the suit is commenced and the defendant is a citizen of another State; where both plaintiff and defendant are non-residents of the State in which the action is commenced, the case is not within the statute. Wills v. The Home Ins. Co., 180.

2. By an act of the legislature of Michigan it was provided that no foreign insurance company should transact business within that State without first appointing an agent in that State, on whom process of the State courts could be served, and "that such courts shall have exclusive jurisdiction of all cases arising under this act." A New York insurance company was sued in the State court of Michigan and accepted service of process through their agent in that State. On an application to the State supreme court for a writ of mandamus compelling the circuit judge to issue an order transferring the cause to the United States court, held, (1) that the company by operating under the Michigan statutes, and accepting service of process, had waived the right of transfer; and (2) that a writ of mandamus was not the proper remedy even if the company were entitled to the transfer. The People ex rel. Glens Falls Ins. Co. v. The Judge of Jackson Circuit, 504.

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The first to reach us of the July quarterly law periodicals is the "Southern Law Review" (No. 3), published by Reid & Brown, Nashville. This number by no means comes up to the promise of the first or second. The first article is an "Autobiographical Sketch of Chancellor Kent." This is alleged to be a copy of a letter written by Chancellor Kent in 1828 to the late Thomas Washington, of the Tennessee bar, detailing the principal events in his life, and now published for the first time. It is certainly full of interest, especially as our biographical knowledge of the great commentator is limited. We shall reproduce it next week. The second article, on Characteristics and Essential Requisites of Negotiable Bills and Notes," is altogether too elementary for any one but the veriest neophyte. Here is a fair illustration of the writer's treatment of the subject: "Abram, who draws the bill, is called the drawer; Benjamin, to whom it is directed, is called the drawee, and upon accepting it becomes the acceptor. Charles, to whom the bill is made payable, is called the payee." This is undoubtedly correct, but hardly to be expected in a quarterly. The third article on "Transfer of Negotiable Paper," by the same writer as the second article, is of the same character. By the way, we should suppose, from "internal evidence" that these articles were but chapters of a book which the writer-John W. Daniels

purposes to launch at the profession in due time. We doubt that it will be said of it that "it supplies a need that has long been felt by the profession."

The succeeding article on "Heiskell's Reports, volumes 1 and 2," contains, after some rather extra eulogistic prefatory remarks, a fair, though not always correct, criticism on the principal decisions in those volumes. For our own part, we have not been particularly impressed with the judicial wisdom displayed in these volumes, but this may be accounted for by the statement of this writer that "the learned judges are new in their seats and make their first appearance in a novel and untried role."

The concluding paper upon a "Proposed Plan for the Improvement of the present system of Recording" is a reprint of a portion of Mr. Samuel D. Seward's little brochure on the "Registration of Written Instruments." The other contents is made up of opinions, digests, book notices and selections. Among the latter we notice an article on the "Condition of our Municipal Law," accredited to the Harrisburgh Legal Opinion, which paper copied it from the ALBANY LAW JOURNAL. If the Southern Law Review is run as a tender of the "Southern Law and Collection Union," as from its make up it most unmistakably is, its prosperity will probably be short-lived, as there is too much professional etiquette and esprit du corps among the profession to sustain a mere touting publication, and we therefore trust that the editors and publishers will have the good sense to cut loose from the "Union" and occupy, fairly and with dignity, the excellent field before them.

The United States Jurist (W. H & O. H. Morrison, Washington), is as practical and as pointed as usual. The leading article is a well-written notice of "Field's Outlines of an International Code," from the pen of one of the most eminent jurists of our land," we are told in an editorial note affixed. We make the following extract from the article:

"He [Mr. Field] has taken hold of the enterprise with his characteristic vigor; and though, so far as it has been carried, he has acted pretty much alone, it cannot fail to be welcomed as an earnest of what may be effected in advancing international jurisprudence, if he shall find workers as willing or as able as himself. Nor is it a slight matter that the work has been undertaken by one whose reputation for energy, sagacity and learning, as a jurist and law reformer, is so widely known and so highly esteemed, especially among the leading publicists abroad. Probably, no American lawyer is personally better known in England than he, and no one could be found whose advocacy of a measure like the one before us would be more likely to command a favorable hearing on the part of her thinking men. Nor do we believe that this has been affected or impaired by the effort which seemed for a year or two to be systematically pursued to cast opprobrium upon his name for the manner in which he enlisted his skill and ability in a cause wherein interests of a vast amount were involved, and which had to be determined by such courts and forms of procedure as the constitution of New York and the administration of the laws under it, had supplied for all its citizens. It is no new expedient in waging war upon an adversary in a court of justice to seek to deter able counsel from engaging in his behalf, by attempting to identify whatever popular odium there may be against the client with his cause, and whoever is bold enough to advocate it. We know little of the courts of New York, or the crooked ways through which one has to seek justice there, except what we gather from the newspapers and other publications of the day, nor do we suppose Mr. Field is responsible for these. But from the little we do know, we can hardly see how a lawyer, be he ever so honest, can carry through a cause to final judgment, in a matter at all complicated, without feeling, when he has got through, that his reputation for fair dealing has been quite as much in danger of being damaged as the interests of his client. And if he is so unfortunate as to have a client of a bad or doubtful reputation, no matter how just may be his cause, it is not surprising that, to the uninitiated, the ways of the best man at the bar should look as dark as those of the veriest "Heathen Chinee." And if it were not that it is such courts and such proceedings as these that New York provides for all her citizens, and that whoever seeks justice there must make use of these or forego the pursuit altogether, one might be ready to conclude, that this game of chasing over the country to hunt up antagonistic judges to supply injunctions and counter injunctions, under the pretense of facilitating the promotion of right, was unbecoming the conduct and character of any honorable advocate. We pass no judgment between Mr Field and those who have been ready to assail his reputation in his profession; but the conclusion to which most people would be likely to come from the best examination of the question which ordinary minds could give to it, must be that the principal cause of his offense was, that, in a matter in which great interests were in peril, then pending before the courts which the State had provided, he had the pluck and fidelity to stand by his client, and skill and ability to make the best possible use of such instrumentalities as the law had provided alike for his clients and their opponents. The great cause of complaint seems to have been, that this was done with so much effect as greatly to damage the schemes of those to whom he was opposed, and thereby to excite the ill-will of a strong and powerful party to whose interests he had ventured to show himself hostile."

The "Quarterly Table of Criticised Cases" presents the cases "doubted, denied and modified in the latest English and American Reports for the quarter ending June 30, 1872, with editorial notes," and will be found of decided use to the profession, especially if the members will take the trouble to note their reports accordingly. The usual digests of Federal and English decisions; a Digest of Domestic Relations," which is a new feature in the Jurist; Book notices; list of books published during the quarter, and an interesting

collection of legal intelligence make up the remaining shop of a cabinet maker. Some few years after, he contents of the number.

The American Law Review (Little, Brown & Co., Boston) opens with a paper on "Slander and Libel," wherein the writer points out the incongruities of the law on those subjects. But by far the ablest and most valuable article in the number is that on the "Responsibility for the Condition of Demised Premises," wherein is considered "the respective and relative rights, duties and liabilities of landlord and tenant in regard to premises, part of which is devised, and part retained or controlled by the landlord." It is the best exposition of that subject we have seen, and will abundantly repay careful perusal. "The Wharton Trial" gives an interesting history of that cause celébré. The recent decision of the court of appeals of this State, on the rights of authors, is printed with notes.

The "Book Notices" are well written, but as usual, tinged strongly with that dark blue spirit of criticism which we have heretofore had occasion to lament in our able contemporary. We would suggest also, that when it gets virtuously indignant and makes "flings" it should know whereof it speaks. In its notice of Mr. Lawrence's little work on the Disabilities of American women married abroad, it says: "The common-law rule, that an alien cannot derive title to real estate by descent or operation of law is still in force in New York, for instance. * * *Meantime the continuance of this disability, on American women married abroad to aliens, is another example of the wretched way in which Albany politicians attend to their duties."

Now, the fact is, that the law in this State now is and was before the above was written, that the chil-. dren of American women, married abroad to aliens, can inherit, take and hold real property, the same as children born within the State of native parents. This our contemporary could have learned had it carefully perused the pages of the LAW JOURNAL.

LEGAL OBITUARY.

JOHN H. McCUNN.

John H. McCunn, whose removal by the senate from the office of judge of the superior court of New York we last week recorded, died at his residence in New York on Saturday morning last, July 6. He had returned from Albany on the Wednesday preceding much depressed at the decision of the senate, and apparently exhausted by the excitement and worry of the last few weeks. Toward evening of Wednesday he became quite ill, and so continued, at times delirious, until Friday evening, when it was apparent that his death was approaching. He, himself, was conscious that his race was nearly run, and requested the presence of a priest, who administered the sacrament. About four o'clock in the morning the ex-judge became conscious for a moment, and, as is said, turned to a physician present, and said: "My son, they have broken my heart, but it was not a bad heart after all." The cause of his death was stated by his physician to be nervous prostration consequent upon his anxiety and worry induced by the proceedings against him and his removal by the senate.

Ex-Judge McCunn was born in Coleraine, Ireland, in 1824, and, when sixteen years old, came to New York, working his passage over as a common sailor. Shortly after he went to Philadelphia, and entered the

returned to New York and secured a situation in the law office of Hon. Charles O'Conor as messenger and clerk. During the five years spent here he devoted himself assiduously to the study of the law, and was admitted to the bar at the age of about twenty-five. Subsequently he formed a copartnership with James Moncrief, and that relation was continued until the election of Mr. Moncrief to the bench of the superior court.

In 1861 Mr. McCunn was elected city judge of New York, and in the same year accompanied the 69th regiment to Washington as captain of engineers, but soon returned and raised the 37th regiment, of which he was chosen colonel, and with which he went to Washington. Owing to a difficulty with the provostmarshal, he resigned his commission and returned to New York, resuming his judicial duties. In 1864, he was elected a judge of the superior court, which position he retained until removed by the senate.

The deceased left a property valued at nearly two millions of dollars, and one of the largest and most carefully selected private libraries in New York.

BOOK NOTICE.

A Digest of Statutes, Decisions and cases throughout the United States upon the subjects of Divorce and Alimony. Supplemented by a Brief of law and fact of all cases in divorce decided in the supreme court of Pennsylvania, with a synopsis of the acts of assembly and rules of practice in divorce cases in Pennsylvania: by Wm. Hardcastle Browne, Esq., of the Philadelphia bar. Philadelphia: Kay & Brother, 1872.

Mr. Browne had, we should suppose, an opportunity to present a valuable work on the subject in hand, but he has certainly not "done well and as is fitting the story." His chief short coming is in the arrangement which is past finding out.

His hobby seems to be the chronological arrangement, almost always the very last that should be adopted. For instance in that part devoted to the digest of "important decisions" - why not on so limited a subject give a digest of all decisions? - he classifies his matter under a few general heads as "Adultery" for instance, arranging the separate propositions "chronologically," and then prefixes to each division a "table of State references" instead of an initial index of the subject-matter of each proposition. As though the subject-matter were of the last importance the author has put a brief and incomplete table thereof at the end of each division.

The first section of the book contains "an analytical digest of the statutes of the several States upon divorce, embracing the causes for which a divorce will be decreed, and the mode of proceeding therein." The second section contains the digest of decisions. The third section is "a complete index of all cases in divorce mentioned in the reports of the appellate courts of every State." The fourth section "is a brief of fact and law of all cases published in the State reports of Pennsylvania." The fifth section is a synopsis of the Pennsylvania acts of assembly upon the subject of divorce, and the sixth contains the rules of practice in the same State.

We presume that sections fourth, fifth and sixth were added as padding to make a goodly sized volume, for otherwise we should expect to find the contents of section fourth distributed in its proper place in the

digest of decisions; section fifth, or all that was valuable said thirteenth article; which said amendment is in of it, under section one, and section sixth omitted the words following, to wit: altogether as of little, if any, use to anybody. Should a second edition ever be called for, we would suggest that he digest all reported decisions, and thoroughly revise his plan and arrangement.

LEGAL NEWS.

Mr. Appleton, an American gentleman residing for a number of years in Switzerland, has been appointed Professor of French Law in the University of Berne.

The work of codifying the internal revenue laws progresses favorably, and it is intended to make it complete in every particular, especially so that when the collection districts are consolidated the officers retained or appointed will experience no difficulty in carrying out the duties of their office.

NEW YORK STATUTES AT LARGE.
CHAP. 698.

AN ACT to amend an act entitled "An act respecting elections other than for militia and town officers,' passed April fifth, eighteen hundred and forty-two. PASSED May 14, 1872.

The People of the State of New York, represented in Senate and Assembly, do enact as follows ·

SECTION 1. The third subdivision of the sixth section of the second title of chapter one hundred and thirty of the laws of eighteen hundred and forty-two, is amended to read as follows:

§ 3. When a vacancy exists in the office of any senator or member of assembly occurring after the first day of January in any year, the same shall be filled at the first election held thereafter in any such district where such vacancy may occur, or at a special election to be called by the governor for that purpose; provided such vacancy occurs during the first year of the term of any senator, or before the first day of March, in the second year of the term of any senator. But no vacancy shall be filled for theoffice of member of assembly, unless the same shall occur on or before the first day of April, in any year, unless the legislature is in session at the time such vacancy and election shall take place.

§ 2. This act shall take effect immediately.

CHAP. 757.

AN ACT to perfect an amendment to the constitution relative to the court of appeals, and for the extension of the services of the commissioners of appeals.

PASSED May 17, 1872; three-fifths being present. Whereas, The following amendment to the constitution of this State was agreed to by a majority of all the members elected to each branch of the legislature for the year one thousand eight hundred and seventyone, and the said amendment was duly entered on the journals of each branch of the legislature, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election of senators, and was duly published for three months previous to the time of making such choice, in pursuance of the thirteenth article of the constitution of this State; and

Whereas, Said amendment was also agreed to by a majority of all the members elected to each of the said branches of the legislature for the year one thousand eight hundred and seventy-two, pursuant to the

"Relative to the court of appeals, and for the extension of the term of service of the commissioners of appeals,

"Resolved (if the assembly concur), That the sixth article of the constitution of this State be amended by adding thereto the following section:

"§ 28. The court of appeals may order any of the causes, not exceeding five hundred in number, pending in that court at the time of the adoption of this provision, to be heard and determined by the commissioners of appeals, and the legislature may extend the term of service of the commissioners of appeals for a period not exceeding two years."

Now, therefore, for the purpose of submitting the said proposed amendment to the people of this State, The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The inspectors at each poll in the several towns and wards of this State, at the general election to be held in this State on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, shall provide a box to receive the ballots of the citizens of this State in relation to the said proposed amendment; and each voter may present a ballot on which shall be written or printed, or partly written and partly printed, one of the following forms, namely: "For the proposed amendment relative to the court of appeals;" or, "Against the proposed amendment relative to the court of appeals.' The said ballots shall be indorsed, "Proposed amendment relative to the court of appeals," and shall be so folded as to conceal the contents of the ballot and exhibit the indorsement. And all the citizens of this State entitled to vote for member of assembly in their respective districts shall be entitled to vote on the adoption of the said proposed amendment, during the day of election, in the several election districts in which they reside.

§ 2. After finally closing the poll of such election, the inspectors thereof shall count and canvass the ballots given relative to the said proposed amendment, in the same manner as they are required by law to canvass the ballots given for governor, and thereupon shall set down in writing and in words at full length, the whole number of votes given "For the proposed amendment relative to the court of appeals," and the whole number of votes given "Against the proposed amendment relative to the court of appeals," and shall certify and subscribe the same, and cause copies thereof to be made and certified and delivered as prescribed by law in respect to the canvass of votes given at an election for governor.

§ 3. The votes so given shall be canvassed by the board of county canvassers, and statements thereof shall be made, certified and signed and recorded in the manner required by law in respect to the canvassing the votes given at an election for governor; and certified copies of the said statements and certificates of the county canvassers shall be made, certified and transmitted by the county clerks, respectively, in the manner provided by law in cases of election for governor. The said certified copies transmitted by the county clerks shall be canvassed by the board of State canvassers, in the like manner as provided by law in respect to the election of governor, and in like manner they shall make and file a certificate of the result of such canvass, which shall be entered of record by the secretary of state, and shall be published by him in the State paper.

$ 4. This act shall take effect immediately.

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