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any previous forfeiture. The money ($30,000) received on the sale must have been enough to pay the rent then in arrear, as the lease had run only two years at the time of renting. As Stuyvesant was both mortgagee and landlord, this foreclosure sale, describing the lease as existing, with the provision in the judgment as to redemption, must be held to have conveyed to the relators the lease for the unexpired term. They became practically the assignees of B. and M., and tenants of Stuyvesant, under his lease. This was the view taken in Stuyvesant v. Geissler, 12 Abb. N. S. 6. The proceedings before the justice should be affirmed. The People, etc., ex rel. Geissler and Fansell v. Fowler, Justice, etc. Opinion by Learned, J.

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Judgments affirmed with costs-Worrall v. Munn, Schuchardt v. Mayor, etc., of New York, DeGraw v. Elmore, Hubbell, Trustee, v. Moulson, Johnson v. Elwood, Bullard v. Persall, Homan v. Earl, Sands v. Hughes, Sands v. Johnson, Gray v. Fiske, Gray v. Fiske, Ledwick v. McKim, Burke v. Isham, Cibbs v. Ross, Millner v. New York and New Haven Railroad Co., Shellington v. Howland, Tifft v. Horton, Anderson v. Van Tassel, Wilbur v. Wilbur, Kemp v. Holcomb, Bowman v. First National Bank of Elmira, Beemer v. First National Bank of Elmira, Coleman v. First National Bank of Elmira, Bohm v. Goldstein, Hayden v. De Metts, Barber v. Coleman, Harland v. Lilienthal. affirmed with costs-Taggart v. Murray, In Re Seeds to vacate assessments, People ex rel. Day v. Begen, Demets v. Dagron. -Judgment reversed and new trial granted - Moore, plaintiff in error v. The People.

Orders

- Judgment reversed, new trial ordered, costs to abide events - Baker v. Drake, Perry v. Chester, Schwinger . Hicox, Roberts v. Prosser, Cooke v. Davis, Harper v. Fairley, Legett v. Mutual Life Insurance Co., N. Y., Fricking v. Rolland, Pullman v. Alley. Motion denied with costs - Wilmerding v. Fowler. Ordered that the cause be transferred to the commission of appeals - Stearns v. Cook. —Order of general term affirmed and judgment absolute for plaintiffs with costs-Despard v. Church, Harloe v. Foster. Order of general term granting new trial affirmed and judgment absolute for defendants with costs - People etc., v. Mayor, etc., of Albany. · -Judgment reversed, and judgment for defendants on demurrer with costs -Brevort v. Grace. - Judgment of supreme court affirmed, and proceedings remitted without costs to either party as against the other-Rogers v. Rogers. - Order of general term granting new trial reversed, and judgment ordered for plaintiffs on the verdict, with costs-Simar v. Canaday. Order reversed and proceedings remitted for rehearing at special term of supreme court, with costs to be paid out of the fundIn the matter of the application of Schell, trustee, etc. Order reversed as to William Horton Mills, and terms of order to be settled on notice, by Chief Justice Church and Judge Allen-Howell v. Mills.Order granting new trial reversed and judgment on report of referee modified by deducting the unpaid premiums of 1862, 1863 and 1864, and interest, and as modified affirmed with costs - Martine v. The International Life Assurance Society of London, and others.

Appeal dismissed without costs to either party in this court - Mills v. Davis. Judgment of supreme court and decrce of surrogate reversed and proceedings remitted to the supreme court, with directions that issues be framed as required by statute and tried by a jury as to the due execution and genuineness of the paper propounded as a will-Howland v. Taylor. ———— Judgments of the supreme court modified in conformity with the opinion of Judge Andrews, and as modified affirmed, with costs of all parties to be paid from the estate, judgment to be settled by Judge Andrews, on notice- Vernon v. Vernon. Order of general term affirmed with costs to respondent, and judgment for plaintiff for $61.94-Briggs v. North British and Mercantile Insurance Company. Order reversed and motion granted with costs - Mitchell v. Smith. -Judgment of general term reversed and judgment of special term affirmed with costs- - Robinson v. Peasant.

NOTES.

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Messrs. Robert Clark & Co., of Cincinnati, promise to do a good work for the student of historic law in this country, by the reprint of three works which they very justly term "legal classics." The first on the list is Montesquieu's "Spirit of Laws," the greatest work of that great author, and the earliest, as it is the ablest, development of the connection between and the interdependence of jurisprudence, history, and philosophy. The second is Saint Germain's " Doctor and Student,” a work which has, for over three centuries, been ever cited with respect by the learned both on the bench and at the bar. The third is Fortescue's "De Laudibus Legem Angliæ," a work written so long ago as the time of the Lancastrian wars, but which no modern student interested in the origin and progress of the common law can afford to pass by.

FOREIGN NOTES.

Chief Justice Cockburn has fined the editor of the Cheltenham Chronicle $750 for publishing a criticism on the conduct of the trial of the Tichborne claimant, and threatens him with imprisonment if the offense is repeated. Sir George Iessel, the new master of the rolls, entered upon the duties of his office on the 3d inst. It is rumored in England that it is in contemplation to raise Sir John Duke Coleridge to the bench, probably with a peerage, and that the offices of attorneygeneral and solicitor-general will be filled by Mr. Watkin Williams, Q. C., and Mr. Henry James, Q. C.

LEGAL NEWS.

Judge Devens, of the Massachusetts superior court, is spoken of as a candidate for the vacancy in the supreme court of that State.

Hons. S. S. Dewinelle and Anson Bronson have been nominated for judges of the supreme court of California by the republicans of that State.

Governor Kellogg, of Louisiana, offers a reward of $5,000 for the apprehension and conviction of the murderers of Judge Crawford and District Attorney Harris.

During the present term of the supreme court of Illinois sixty members have been added to the bar of that State. Among them Mr. Joel B. Tiffany, former State reporter of this State.

The Albany Law Journal.

ALBANY, OCTOBER 4, 1873.

RAILROAD AID BONDS IN THE UNITED STATES SUPREME COURT.

In addition to the decisions of the United States Supreme Court, which we noticed last week, there were several of the same term in relation to defenses to actions brought upon municipal bonds given in aid of railroads. In Kennicott et al. v. Supervisors of Wayne County, Mr. Justice Hunt, in delivering the judgment of the court, said:

"The following propositions may be considered as settled in this court:

Upon the

ant, the board of commissioners, possessed no authority to execute, or to authorize to be executed, the bonds in question, and hence that they are obligations not binding upon the county of Knox, which this board represents. Our chief inquiry, therefore, will be, whether or not these several obligations were executed and put into circulation as evidence of indebtedness by competent legal authority. inquiry thus put the decision is stated by the reporter in the following language: 'Where the statute of a State provided that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of a county should so determine after a certain notice should be given of the time and place of election, and the board subscribed for the stock and issued the bonds, purporting to act in com

"1. If an election or other fact is required to author-pliance with the statute, it is too late to call in quesize the issue of the bonds of a municipal corporation, and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer or tribunal, and that judge, officer or tribunal, on behalf of the corporation, executes or issues the bonds, with a recital that the election has been held, or that the fact exists or has taken place, this will be sufficient evidence of the fact to all bona fide holders of the bonds. Authorities, infra.

"2. If there be lawful authority for the municipality to issue its bonds, the omission of formalities and ceremonies, or the existence of fraud on the part of the agents of the municipality issuing the bonds, cannot be urged against a bona fide holder seeking to enforce them. Grand Chute v. Winegar; Com'rs of Knox Co. v. Aspinwall, 21 How. 539; Gelpcke v. Dubuque, 1 Wall. 203; Moran v. Miami County, 2 Black, 722.

"3. There must, however, be an original authority, by statute, to the municipality to issue bonds. Municipal corporations have not the power, except through the special authority of the legislature, to issue corporate bonds which will bind their towns: neither have they the power to sell or mortgage the lands belonging to such towns, without special authority. Marsh v. Fulton County, 10 Wall. 676."

Grand Chute v. Winegar, decided at the December term, 1872, was an action to recover the amount of several bonds, with interest, bearing date March 12, 1855, and payable in fifteen years. The bonds were issued by the defendants, under authority of an act of the legislature, to aid in the construction of a plank-road. The defendants, among other things, set up that the bonds were issued without the authority of the town purporting to issue them, and through the fraud of the agents of the town and of the obligees. The plaintiff was a bona fide holder for value. On this question the court said:

"In Knox Co. v. Aspinwall Mr. Justice Nelson thus states the question: The main ground of the defense

tion the existence or regularity of the notices in a suit against them by the holders of the coupons attached to the bonds, who were innocent holders. In such a suit, according to the true interpretation of the statute, the board were the proper judges whether or not a majority of the votes of the county had been cast in favor of the subscription. The bonds on their face, import a compliance with the law under which they were issued, and the purchaser was not bound to look further for evidence of a compliance with the condition of the grant of the power.

"In Woods v. Lawrence County, 1 Black R. 386, it was held that where the statute requires the grand jury to fix the amount of a subscription to railroad stock, and to approve of it, and upon their report being filed, empowers commissioners to carry the same into effect by making its subscription in the name of the county, and, if these things be done agreeably to the law, the county cannot afterward deny its obligation to pay the amount subscribed. In a suit brought to recover the arrears of interest on such bonds, it is not necessary for the holder to show that the grand jury fixed the manner and terms of paying for the stock; nor is it a defense for the county to show that the grand jury omitted to do so. It is enough that the manner and terms of payment were agreed upon between the company and the commissioners. In a suit brought upon the coupons by a bona fide holder, his right to recover is not affected by the fact that the railroad company sold the bonds at a discount of twenty-five per cent, contrary to the charter, which forbids the sale of them at less than their par value.

"In Mercer County v. Hackett, 6 Wall. 83, it was held that "where a county issues its bonds payable to the bearer, and solemnly pledges the faith and credit and property of the county, under authority of an act of the assembly, referred to on the face of the bonds by date, and the bonds pass into the hands of a bona fide holder for value, the county is bound to pay them; that it is no defense that the act of the

relied upon to defeat the recovery is, that the defend-assembly referred to on the face of the bonds author

ized their issue only on, and subject to, certain limitations, restrictions and conditions,' which have not been formally complied with, nor that the bonds were sold at less than par when the act authorizing their issue declared that they should in 'no case,' nor 'under any pretense,' be so sold, and that the bonds are in the nature of negotiable instruments. The same principles are announced in Gelpcke v. The City of Dubuque, 1 Wall. 175, and in Meyer v. The City of Muscatine, id. 384. In the latter case the court say: "That if the legal authority was sufficiently comprehensive, a bona fide holder for value has a right to presume that all precedent requirements have been complied with." By the act of February 10, 1854, the legislature of Wisconsin authorized the supervisors of the town of Grand Chute to make a plankroad subscription to the amount of ten thousand dollars. The bonds in question were signed by the chairman of the board of supervisors of that town, and recited that the subscription had been made by the supervisors of the town, and that these bonds were issued in pursuance thereof for the purpose of carrying out the provisions of that act. The plaintiff was the bona fide holder for value of the bonds in suit, and his title accrued before their maturity. The

cases cited are an answer to the numerous offers to show want of compliance with the forms of law, or to show fraud in their own agents."

The same question arose in St. Joseph Township v. Rogers, fully reported in 7 Alb. L. J. 362. The action was brought by a bona fide holder for value, upon bonds issued by the St. Joseph Township to aid in the construction of a railroad. It was alleged as a defense that no valid election had been held, as required by the act of the legislature. The bonds contained recitals that they were issued by virtue of said act and in accordance with the vote of the electors of said township, pursuant to said act. The following are the opening sentences of the opinion:

"Bonds, payable to bearer, issued by a municipal corporation to aid in the construction of a railroad, if issued in pursuance of a power conferred by the legislature, are valid commercial instruments; but if issued by such a corporation which possessed no power from the legislature to grant such aid, they are invalid, even in the hands of innocent holders. Such a power is frequently conferred to be exercised in a special manner, or subject to certain regulations, conditions or qualifications, but if it appears that the bonds issued show by their recitals that the power was exercised in the manner required by the legislature, and that the bonds were issued in conformity with those regulations and pursuant to those conditions and qualifications, proof that any or all of those recitals are incorrect, will not constitute a defense to the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds, to decide whether or not there had been an antecedent com

pliance with the regulations, condition or qualification, which it is alleged was not fulfilled."

Lynde v. The County of Winnebago, is another decision of the same term to the same effect. A full abstract of it will be found in volume 7 of the Journal, page 125.

It should be borne in mind, however, that the same court has recently decided that if the statute authorizes municipal officers to issue bonds in aid of railroads only after a sanction thereof by the voters, bonds issued without such a sanction (either in fact or according to the decision of some authorized body), are void even in the hands of an innocent purchaser. See Marsh v. Supervisors, 10 Wall. 676; S. C., 3 Alb. L. J. 436. For a very full and able discussion of the course of decisions in the United States supreme court on this subject, see Dillon's Municipal Corporations, 415, et seq.

CODE OF MILITARY RULE.

We have already called attention to the important contribution of Mr. David Dudley Field to international law considered as a science. To one section of his

book, however, that relating to martial law, or rule, we would now refer somewhat more in detail, not only on account of the importance of the subject itself as a question of jurisprudence, but as bearing on the constitutional relation a relation which has, as yet, been imperfectly investigated-which one especial class of the community bears to the nation at large.

Martial rule, then, it is proposed in the work before us* to define as the exercise of the will of the commander" of an army, or military force; a definition which has been adopted by the supreme court of the United States in an important case in which the subject underwent much investigation. And the reason why the term "rule" is employed in preference to "law" is stated, in the note of the section, to be because "the will of the commander, although ordinarily called martial law, is in the proper sense not law at all." That this is the expression of the correct view of the subject seems now hardly open to doubt, and its employment in a work of an international character, and which aims at reducing conceptions more or less imperfect into a formal system, marks an advance in the progress of correct thinking upon this and other important questions of constitutional and public law. Even with us there exists, as observed by a recent writer,‡ much confusion between the ideas denoted by such terms as "military" and "martial law," and the relation in which persons subject to these stand toward the crown, the parliament, and the ordinary courts of civil jurisdiction. Every year, for instance, parliament, as is well known,

*Outlines of an International Code. By David Dudley Field. Book II. Relations of nations and of their members to each other, produced by a state of war. Ch. 55, 1872. + The Milligan case. 4 Wallace, U. S. Supreme Ct. Rep. 1. Military and Martial Law. By C. M. Clode.

*

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is asked to vote a large sum for the administration, political society, many of these questions remain still not of "military," but of "martial" law, in complete in an unsettled state, which, not unnaturally, has been forgetfulness of the great and leading distinction be- the cause of much discontent. The duties, for examtween the states and conditions marked out by these ple, and the constitutional position of that important terms respectively; the former, as is well known, officer, the judge advocate-general, is still undereferring to a regular code as contained in the mutiny fined, and his proper place and proper functions with act and articles of war, to which the land forces of respect to the soldier, to parliament, and to the comthe crown are alone subject- the "body of regula-mander-in-chief of the army, are ambiguous and mattions," as Mr. Field puts it, "prescribed by a nation ter of debate. The office is at present, as a makeshift for the government of its military forces;" the latter which cannot long be allowed to last, held by the having regard to a condition of society when all law very learned judge of the court of admiralty, Sir deserving of the name is in abeyance, and which in- Robert Phillimore, an arrangement which, however volves equally, and is binding upon, all persons civil attractive on the score of economy, cannot but have and military. The employment of the word "rule,” an injurious effect, as the army is thus deprived of the therefore, in Mr. David Dudley Field's specimen of exclusive services of a trained lawyer, whose sole codification has, at least, this use, which is one quite be- duty it would be to examine into and revise the proyond the immediate object of the chapter in which the ceedings of courts military. So, also, to take another matter is discussed, that it tends to clear away the case of which an example has been recently forced obscurity arising from designating by the term "law" upon public attention- the extent to which civil courts may be resorted to in mixed cases, as for libel or slander, where papers written or words spoken in the discharge of military duty are attempted to be made the ground of civil proceedings* — is a question upon which, among judges of eminence, much uncertainty continues to prevail. These and other matters, which might be readily mentioned in connection with our military system, call for a more thorough and satisfactory settlement than they have as yet received. Our military code, in short, requires, in common with many other departments of our law, to be treated with something like scientific precision of language, and Mr. Dudley Field's book goes far to indicate the right method of accomplishing this desirable result.Law Magazine and Review.

a word which it is obvious implies a regular method of administering justice according to fixed principles - a state of society which is only founded upon paramount necessity, and which, therefore, supersedes under the pressure of that necessity all the ordinary forms of civil procedure. To speak of that as "law" which implies the cessation of every thing that can properly be called by the name, marks an indifference to accuracy of thought and definition in matters of legal science which it is desirable should, as far as possible, be corrected. In this respect the work before us is worthy of imitation; and, indeed, not only in the section which treats of military persons and a state of war, but throughout the whole book, it is impossible not to be struck with the careful treatment which every subject receives, even where it is one so foreign as must the military status be in the view of an American jurist and to the student of American society. In the judgments of the supreme court, also, and in the valuable series of legal State papers known as the opinions of the attorneys-general, the constitutional position which the soldier occupies, as well in time of peace as in war, with reference to the civilian, the civil court, and his military superior, has been ascertained and placed on a sound basis of public and municipal law. With us, on the other hand, although a standing army is a constitutional fact and a permanent institution of

See the authorities collected in Mr. Clode's work upon the subject.

+1. Martial law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the order of his military chief or supreme executive ruler.

2. Military law is the rules and regulations made by the legislative power of the State for the government of its land and naval forces. Hence, offenses against these latter, or military laws, are determined by tribunals established in the acts of the legislature which enact those laws, such as courts martial and courts of inquiry. The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. Milligan's Case, 4 Wall. Sup. Ct. R. 1.

CURRENT TOPICS.

The patent congress which has just concluded its session at Vienna, adopted resolutions to the effect that protection of inventions should be guaranteed by the law of all civilized nations, that only the inventor or his legal representatives should be entitled to a patent; that patents should not be refused to foreigners; that a system of preliminary examinations should be adopted, and that governments should bring about an international convention for patent protection. The patent laws of the United States, of England and of Belgium were especially commended.

The conference of lawyers and writers on international law from Europe and America, which met at Ghent recently, for the purpose of examining the question of bringing scientific action to bear upon the administration of international law, has constituted a permanent international law institute, agreed upon its statutes, and laid down the three following subjects

* See Dawkins v. Lord Rokeby. 4 Foster and Finlason.

for consideration, viz.: International arbitration; the three rules laid down in the Treaty of Washington; and the conclusion of treaties for the codification of the fundamental rules of international law with respect to private property.

The department of State has been informed by Minister Schenck, of the prize of £300 offered by his excellency Senor Marcoartu, through the Social Science Association, for the best essay on the subject, "In what way ought an international assembly to be constituted for the formation of a code of public international law, and what ought to be the principles on which such a code should be framed?" The association invites the competition of Americans for the prize. The conditions relating to the essay will be found on page 192 of this volume of the ALBANY LAW JOURNAL.

The legal periodicals of England have been complaining for two or three years past, of a decline in law business, and some of our American papers have been echoing the complaint, although without sufficient cause. An English contemporary says:

"From various causes legal business is not now what it has been for the last half century. There is not, we believe, a diminution in the amount of litigation, but the mode in which it is disposed of is calculated in a considerable degree to lessen legal labor, and consequently to reduce the emoluments of the profession. Upward of six hundred causes were remitted last year from the superior courts to the county courts; the bar therefore suffered, and the solicitors' charges fell to a lower scale in those causes. The county court act of 1867 was passed in order to extend the jurisdiction of the inferior tribunals, and to relieve the superior courts of trifling and vexatious actions. There is, notwithstanding, a block in all the superior courts, and the delay has become of late a crying evil, which the Judicature Act has been passed to remedy. We find that in America the condition of things is much the same, but a contemporary attributes the decline in prosperity of the legal profession to a want of 'snap' among lawyers. Snap appears to mean dispatch, for we are told that the principal question usually asked by merchants who contemplate litigation is, 'How long is it going to take?' Our contemporary concludes: 'We want more high pressure movement, quicker action, and more decisive judgments. But, most of all, we want a lesser variety and a greater number of courts of concurrent jurisdiction.' English lawyers anticipate that the new procedure under the judicature act will greatly improve the prospects of the legal profession."

Hon. E. W. McKinsley, at present judge of the 12th district, California, court, has been nominated for supreme court judge by the independent tax payers of that State.

COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT.

There have been some fluctuations of judicial opinion as to the extent to which communications between solicitor and client are privileged from disclosure. It has, indeed, long been settled, as was pointed out by Wigram, V.C., in Walsingham v. Goodricke, 3 Hare, 124, that communications between solicitor and client, made pending litigation, and with reference to such litigation; or made before litigation, but in contemplation of and with reference to litigation which was expected and afterward arose; or made after the dispute between the parties followed by litigation, but not in contemplation of or with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional adviser, although they do not relate to any litigation either commenced or anticipated, are privileged where the solicitor is the party interrogated.

It has, however, been a matter of doubt whether the rule extends beyond the last case, and embraces such communications where the client, and not the solicitor, is interrogated. Some of the cases seem to imply that the privilege of the solicitor is more extensive than the privilege of the client, and that communications might pass between a solicitor and client as to which the solicitor, if called upon to give evidence, might refuse to answer, while the client could not; although, if the communications had been made after a dispute arose, the client also might refuse. Well might Vice-Chancellor Knight-Bruce remark (Pearse v. Pearse, 1 De G. & Sm. 27): "What for the purpose of discovery is the distinction,in point of reason or principle, between such communications and those which differ from them only in this, that they precede instead of following the actual arising, not of a cause of dispute, but of a dispute, I have never hitherto been able to perceive." Anomalies of this kind are often the precursors of a broader rule in which arbitrary distinctions are merged, and the decision in Minet v. Morgan, 21 W. R. 467; L. R., 8 Ch., 361, has at length finally established the law on a footing accordant with common sense and general convenience.

This case was a suit by a commoner against the lord, to establish rights of common claimed by the plaintiff and others. The plaintiff was required by the defendant to make an affidavit as to documents. Accordingly, he admitted the possession of correspondence between himself and the solicitors of his family, or between himself and his solicitors in the suit, written in contemplation or in the course of the suit, or with reference to the subject-matter in dispute, and of letters between his mother, from whom he derived title, and her solicitors, with reference to questions connected with the matters in dispute in the cause; but he stated that all these documents were of a private and confidential character, and that he believed them to be privileged, and therefore objected to produce them. The defendant took out a summons to compel production of these documents, which was heard on appeal by Lord Selborne, C., and Mellish, L. J.

The judgment of Lord Selborne, in which Mellish, L. J., concurred, traces the development of the rule as to the compulsory disclosure of communications between solicitor and client, and shows the successive steps by which the law has reached a broad and reason

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