proceedings in making the assessments, and that the review in this court is limited to the facts appearing in or upon the return of the county court to the certiorari. Ib.

3. That the findings of the county court, "that such estimate was made without examination of each and every parcel assessed," is not unwarranted by the facts before that court, and that there is nothing before us that would warrant this court in reversing such findings and decision, and that the judgment should therefore be affirmed with costs. Ib.

EJECTMENT.

Equitable defense.- Where plaintiff at the circuit established a legal title to premises, and defendant interposed as a defense and proved that, upon the assurance of the plaintiff's grantor, that he would advance her money to complete the purchase of the premises, she made a contract for the purchase of the same in her own name, and that said grantor advanced her the purchase-money and took the title in his name as security for such advance, and that defendant immediately went into possession, fitted up the house for a residence, with the knowledge and assent of said grantor, and under his advice, and he was a constant visitor there from the time of the purchase until his death, some two years after, and defendant resided on said premises until the commencement of this suit, a verdict was directed for the plaintiff, and defendant excepted, and exceptions ordered to the general term. Held, that the defendant became the debtor of said grantor for the said advances, and he took the title merely as a trustee or mortgagee, for his security, and that the defendant had an equitable title which could not be cut off without foreclosure, and that the facts disclosed made out a complete equitable defense. Plaintiff should have been nonsuited or verdict directed for defendant. New trial granted. Hermans v. Lucy. Opinion by E. D. Smith, J.

EVIDENCE.

1. Where plaintiff and defendant had conversation in respect to a settlement of claims between them and referred the matters to their attorneys to draw up and prepare the proper papers and vouchers; defendant testified that all demands were settled, and plaintiff and his attorney testified to a conversation between themselves - apart from defendant-wherein plaintiff instructed his attorney not to release a certain claim, and defendant's counsel objected to said evidence as improper and inadmissible, but it was received, and, on judgment for plaintiff, defendant appealed to this court. Held, that the evidence was inadmissible. It consisted of the declarations of instructions of the plaintiff given to his attorney, not in the presence or hearing of defendant, but for his private conduct in negotiating and perfecting the settlement. 2. That the rule "that an exception is not good when no ground is stated for it" is not applicable to the objection taken to this evidence. When evidence is offered which is apparently upon its face inadmissible, as in this case, a general objection to it, as improper or inadmissible is sufficient to call upon the party offering it to show jupon what 'ground it is offered, if it be only admissible upon some special or particular ground. This evidence, upon general principles, was not admissible upon any grounds. It is not a case of evidence, upon its face, apparently admissible. Being inadmissible generally, plaintiff was bound to show its admissibility to exempt it from the general objection. The evidence was improperly received and

the exception well taken. New trial granted. Childs v. Delaney. Opinion by E. D. Smith, J.

2. Privileged communication: divorce.--Where, in an action for a divorce on the ground of adultery, the defendant answered, denying the allegations of the complaint and setting up adultery of the plaintiff as a defense, and the issue was referred to a referee for trial, who directed judgment for the plaintiff, and judgment was ordered by the court, and defendant appealed to this court. Held, that the evidence of a physician, who was consulted professionally by the plaintiff, that the plaintiff, during the period alleged, had a venereal disease, which he admitted to him he had contracted from a female in his employ, being objected to before its delivery, was a privileged communication, and inadmissible under the statute (3 Rev. Stat., 5th ed. p. 690, § 104). Also, that evidence of plaintiff's going into the hall of a house in which was a saloon, not proven to be of bad repute, with a girl, about eight o'clock in the evening, is not enough to sustain the complaint. Judgment reversed and a new trial granted. Hunn v. Hunn. Opinion by E. D. Smith, J.

(Concluded next week.)

CORRESPONDENCE.

A POINT OF PRACTICE.

SIR-The decision of the Court of Appeals in Ludington v. Miller, though not accompanied by a written opinion, will probably be cited hereafter as authority upon an important point of practice, and is, therefore, deserving of a brief notice. It will be seen by the abstract that the complaint was dismissed at the trial, and that judgment was entered thereon for defendant. After the time limited for appeal had expired, a motion was made at Special Term for a new trial, which was denied. From the order an appeal was taken to the General Term, where the objection was made that it could not be heard while there was a judgment unappealed from. The court overruled the objection, and granted a new trial, from which defendant appealed to the Court of Appeals, where the decision is now affirmed, but, pursuant to the statutory provision applying to such cases, judgment absolute is directed instead of a new trial. The decision of the court below (Superior Court, N. Y.) was based wholly upon the case of Tracey v. Altmeyer, 46 N. Y. 598. That case, it will be seen, determined that a motion might be made for new trial after judgment, but the question was not presented whether an appeal from an order granting or denying a new trial is sustainable, without also appealing from the judgment—for there was in that case an appeal from both the order and judgment. The present decision, therefore, is, to some extent, an entirely new adjudication—that is, there is no previously reported case on which this distinct question has come up. What the exact grounds of the decision are, do not appear, there being no written opinion of this court, and the opinion of the court below being hardly adequate as an explanation of the views of this court. The following is the abstract:

Ludington v. Miller. This case, which was decided at the last term of this court, presenting the following facts and questions: The custom house placed a storekeeper in charge of a bonded warehouse in the city of New York- a man near 80 years of age, and subject to serious infirmity. By the regulations of the Secre

tary of the Treasury, pursuant to a statute of the United States, the warehouse cannot be opened, nor any goods be received or delivered, but in the presence of the storekeeper, and all the work done is to be under his supervision. Hatches were used in this, as in other warehouses, for hoisting or letting down goods, with which the storekeeper was fully made acquainted. No artificial light was allowed in the building, by the custom-house regulations, except a lantern. The storekeeper met with an accident by falling down one of these hatches while it was in actual use for the hoisting of goods, which accident resulted in his death. No one saw him fall. The testimony was not positive whether the hatch could have been seen by the ordinary light- the deceased had no lantern. At the trial, upon proof of these facts, the complaint was dismissed, and judgment entered accordingly for defendants. Two months afterward a motion was made for a new trial, which was denied. Plaintiffs appealed to the General Term from the order, but not from the judgment. A divided court by a majority ordered a new trial, and from this order defendants appealed to the Court of Appeals.

The questions presented to this court were: First. Whether the storekeeper was or was not the principal, and the warehousemen his subordinates. Second. Whether the warehousemen were guilty of negligence, and if so, whether the deceased was chargeable with negligence contributing to the injury. Third. Whether, after judgment, a motion could be made for a new trial, and an appeal taken from the order denying such motion, without appealing from the judgment, and after the time allowed for appealing from such judgment had expired.

The Court of Appeals decided all these questions against defendants, and ordered judgment absolute for plaintiffs, and assessment of damages, and this decision was made without a written opinion of any one of the judges.

*

In United States v. Vermilye (p. 280) it was held that -a "seven-thirty" note, issued under the act of March 3, 1865, payable to the order of and not having

the name of any person filled into such blank, is payable to bearer and negotiable, and that the writing of any thing on the back of such note (the blank being unfilled), does not amount to an indorsement, nor restrict its negotiability.

Freedman v. Sigel (p. 327) held that the United States cannot impose a tax on the salary of a judge of the Superior Court of New York.

COMMISSION OF APPEALS.

The attention of members of the bar is called to the following order made at the late term of the Commission of Appeals. The next term will commence on the first Tuesday of January, 1874:

IN COMMISSION OF APPEALS,
ALBANY, October 3, 1873.

Ordered as follows: 1. The clerk will make up a calendar for the January term, 1874, on which shall be put, without further notice, all the causes, not previously disposed of, which have been on either of the printed calendars of the present year; and also all other causes pending before the commission which shall be noticed for argument by either party.

2. All other causes pending before the commission shall be put upon a special calendar, which shall also be printed and brought into court at the beginning of the January term, 1874. This special calendar will be called over at the next succeeding term, beginning on a day to be hereafter fixed, and to be announced at the January term. Cases upon it which shall be answered to when called, shall be transferred to the foot of the general calendar; cases not answered to will be dismissed. W. H. BENJAMIN, Clerk.

BOOK NOTICE.

Blatchford's Reports. Vol. X. New York: Baker, Voorhis & Co., 1873.

This volume contains the cases argued and determined in the Circuit Court of the United States for the second circuit, from March, 1872, to March, 1873. This circuit is particularly fruitful in litigation, especially of bankruptcy, collision and patent questions, and this volume contains a large number of decisions on each of those subjects — some of them important. We have space to note only a few of the decisions. In Fraloff v. N. Y. C. & H. R. R. R. Co. (p. 16), valuable laces were held to be proper baggage for a lady to carry, reference being had to her social position and wealth, and to the object of her journey.

In re Sacci, a bankrupt (p. 29), it was held that, in general, a mortgagee, holding a mortgage on real estate of a bankrupt, should not be permitted to foreclose in a State court.

In Clark, assignee, v. Iselin (p. 204), it is held that the mere giving of security on a loan of money is not an illegal preference under the bankrupt act.

Martin v. Criscuola (p. 211) holds that the United States Practice Act of June 1, 1872 (17 U. S. Stat. at Large), does not authorize the commencement of an action at law in the Circuit Court by a summons issued in the name of the plaintiff's attorney, according to the mode of commencing actions in the courts of the State of New York.

COURT OF APPEALS DECISIONS. The following decisions of the Court of Appeals were announced on Tuesday last:

-

Order reversed and motion for mandamus granted with costs People ex rel. Church v. Hopkins, Comptroller. Judgment affirmed with costs to all parties to be paid from the estate-Dupuy v. Wurtz.Judgments affirmed with costs - Filike v. Boston & Albany R. R. Co.; Prendergast v. Borst; Ritter v. Phillips; Hackford v. New York Central and Hudson River R. R. Co.; Bosworth v. Vandermaker; Dugan v. Champlain Transportation Co.; Sands v. Hill; Long v. Western R. R. Corporation; Sun Mutual Ins. Co. v. McCall; Rogers v. King; Merchants' National Bank v. Comstock.- Order affirmed with costs Waring v. Loder.- Judgments reversed, new trial granted, costs to abide event - Gray v. Barton; Hewlett v. Wood.- Order reversed and application denied with costs.- In the matter of the Boston and Albany R. R. Co.- Order reversed and motion granted with costs People ex rel. Rolton v. Albertson.- Re-argument ordered of the following questions-First: Was the title to the money the subject of the controversy in the county of New York. Second: If the money was the money of the county, can the Board of Supervisors maintain an action for the cause stated in the complaint in behalf and for the benefit of the county? - People, etc., v. Ingersoll, impleaded, etc.- Motion denied with $10 costs - Barber v. Coleman.Judg

ment reversed and judgment ordered declaring that under the codicil the nephews and nieces each take $3,500, subject to debts, etc., with costs to each party to be paid from the estate-Pierpont v. Patrick. Judgment of Supreme Court and order of County Judge reversed and proceedings dismissed - People ex rel. Rogers v. Spencer, County Judge, etc.- - Judgment reversed and new trial granted with costs of the appeal to abide the final decision as to the costs of the action-Moore v. Metropolitan National Bank. Judgment of Supreme Court and proceedings of Court Martial reversed - People ex rel. Garling v. Van Allen.

Order modified pursuant to opinion of Judge Folger; term of order to be settled by him without costs to either party in the court-Merchants' Bank v. Thompson.

FOREIGN NOTES.

The Social Science Congress will meet next year at Glasgow, Scotland. - Business in the English common-law courts is said to be continually decreasing.Professor James Bryce and Messrs. I. B. Gunning Moore, T. C. Holland, W. R. Kennedy, all of Lincoln's Inn, barristers at law, are each to deliver a lecture during the season of 1873-4, before the Incorporated Law Society of Liverpool. -Mr. Hawkins, on the sixth inst., applied to the Queen's Bench for an extension of time for further hearing in the case of the Tichborne claimant until November, 1874. The application was granted. The European Assurance Arbitration resumed its sittings on the 27th ult., in London, with Lord Ramilly as arbitrater. -There are nine law lords sitting in the House of Lords, and in the House of Commons, as near as can be ascertained, there are forty lawyers (chiefly barristers), representing various constituencies. At the recent Birmingham (England) Quarter Sessions, the grand jury made a presentment that the time has arrived when the functions of grand juries in large towns and districts should cease.

Sir Alfred Shepherd, Chief Justice of New South Wales, has retired from the bench. He was appointed judge of the Supreme Sourt in 1847, and chief justice in 1844. - The new Italian minister of justice has, it is said, completed his labors for the formation of a new penal code, by which other punishments are substituted for that of death. Hon. E. B. Washburne, United States Minister to France, Consul-General Read, E. D. Freed, of New York, Fred. Passy, Secretary of the French Peace Society, and others, met in Paris on the 26th ult., and discussed the proposition laid down at the Judicial Congress of Brussels. The conference was followed by a dinner, at which a toast of friendship of France and the United States was enthusiastically received. Japan has substituted short terms of imprisonment for the death penalty in cases of crime against property.

LEGAL NEWS.

A large number of rare English law books have been added to the library of the Chicago Law Institute.

W. P. D. Bush, Esq., has been re-appointed reporter of the Court of Appeals of Kentucky.

The expenses of the Pennsylvania constitutional convention up to November 1, were $475,000, leaving $25,000 unexpended.

It is stated that at the commencement of the judicial career of Hon. Caleb Cushing he read sixty volumes of Massachusetts reports in nineteen days, and that his average study and labor for years has been seventeen hours a day.

W. R. Adams, who was accused of the murder of Judge Crawford and District Attorney Harris, in Franklin Parish, La., last September, has been discharged by United States Commissioner Wells, the prosecution not being able to make a case against him.

The First Comptroller of the United States treasury has instructed the assistant treasurer at New York "that the bankruptcy of an agent is a revocation of the agency, but where, subsequent to the bankruptcy, the principal, with knowledge of the fact, appoints the bankrupt his agent, the latter may lawfully transact any business intrusted to him."

The United States marshal for the Western district of Texas, informs Attorney-General Williams that Deputy Marshal John P. Freys, was assassinated on the 25th of October, by a man named McUber, who had been convicted of murder and sentenced to be hanged, but made his escape from prison. This is the fifth deputy marshal assassinated in that district.

The Department of Justice has attempted, during the present year, in accordance with a resolution of Congress, to obtain full criminal returns for the Cuited States. As no appropriation was made, such returns were dependent on the good will of judicial and other officers. Mr. Falls, chief clerk of the department, states that the returns of all inmates of penitentiaries, their trials, sentence, nativity, education, etc., are completed; but as far as the city and county jails are concerned, the returns are meagre. There are over 2,200 county jails. Blanks were sent to the several county clerks and responses have been received from about 600. The facts will be reported to Congress by the attorney-general.

A statement prepared by the commissioner of patents for the coming report of the secretary of the interior, shows that during the year ending September 30, 1873, there were filed in the patent office 20,354 applications for patents, including re-issues and designs; 283 applications for the extension of patents and 519 applications for the registering of trade-marks; 12,917 patents, including re-issues and designs, were issued; 235 extended and 965 allowed, but not re-issued by reason of non-payment of the final fee; 3,274 caveats were filed, and 475 trade-marks registered. The fees received during the same period from all sources amounted to $701,626.72, and the total expenditures to $699,449.69, making the receipts $2,177 in excess of the expenditures. The expenditures included $40,000 for the publication of the Official Gazette, $40,000 for writing current drawings and $60,000 for reproduction of old drawings.

The Albany Law Journal.

ALBANY, NOVEMBER 22, 1873.

OFFICERS DE FACTO.

The questions as to who is and who is not a de facto officer, and as to the validity and effect of the acts of such an officer have frequently come before the courts for adjudication, and while the general principles are considered well settled, there has been considerable dispute as to some of the minor points. It is conceded, that an officer (not de jure), acting under color of appointment or election by the only body which had the power to appoint or elect, is an officer de facto; but it has been claimed by some of the courts that, in order to constitute an officer de facto, there must be color of appointment or election by the only body which has the power to make it. This definition of an officer de facto was apparently assented to by the court in The People v. Collins, 7 Johns. 549; in McInstry v. Tanner, 9 id. 135; and was adopted in People v. Albertson, 8 How. Pr. 363, and other cases in this State and in other States. Most of the courts have since found it necessary to qualify this definition by striking out the clause that the election or appointment must be by "the only body which has the power to make it."

This erroneous definition is said to have arisen from an inaccurate report of Rex v. Lisle, in Strange, 1090. In that case the question arose as to whether a man was mayor de facto. It appeared that he never was, in fact, elected, but pretending to be so, was sworn in and acted as such. According to Strange, the court said that, "in order to constitute a man an officer de facto, there must be at least the form of an election, though that upon legal objections may afterward fall to the ground." This was a general proposition. It appears, however, from a much fuller, and unquestionably more accurate, report of the case in Andrews, 163, that what the court did say on this point was "In order to constitute a mayor de facto, it is necessary that there be some form or color of an election." This proposition was confined to the particular case, involving the status of an officer of a corporation in respect to the proceedings of the corporation, and had no reference to the public or to third persons.

Chief Justice Butler in State v. Carroll (38 Conn. 449), after a review of all the material English authorities running through four centuries says: "It will be seen that the idea that color can only be conferred by a body or person having power or prima facie power, to elect or appoint in the particular case, has never been broached in England." Among these cases may be mentioned that of Rex v. Bedford Level (6 East, 356), wherein Lord Ellenborough, giving the opinion of the court, said: "An officer de facto is one

who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." Judge Storrs thus expresses the rule in Plymouth v. Painter (17 Conn. 588): "An officer de facto is one who exercises the duties of an office under color of an appointment or election to that office. He differs on the one hand from the mere usurper of an office who undertakes to act as an officer without any color or right, and, on the other hand, from an officer de jure, who is in all respects legally appointed and qualified to exercise the office." Fowler v. Beebe (9 Mass. 231), is a leading case in this country. The legislature passed a law organizing a new county and authorizing the governor to appoint a deputy sheriff for it. The law was to take effect at a future day. Before it took effect the governor appointed a deputy sheriff for the county, and he acted as such. His power to act was questioned collaterally, and it was holden that the appointment was void because the law had not taken effect, and the authority to appoint had not been conferred, but that the sheriff was, nevertheless, an officer de facto, and the validity of his acts could not be collaterally impeached. So in Parker v. Baker (8 Paige, 428), where the governor appointed an officer without authority to appoint, the chancellor held him to be an officer de facto. In Wilcox v. Smith (5 Wend. 231), the validity of an execution issued by one acting and who had acted for three years as a justice of the peace was in question. There was not so much as color of election or appointment shown. The question was presented whether there could be a de facto officer without color of election or appointment. The court held that there could be. It said: "The mere claim to be a public officer and the performance of a single or even a number of acts in that character would not, perhaps, constitute a man an officer de facto. There must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public, for a length of time which would afford a strong presumption of at least a colorable election or appointment." Among the cases holding similar views on this question may be cited Brown v. Lunt, 37 Me. 423; Gilliam v. Reddick, 4 Ired. 368; Mallett v. Uncle Sam Co., 1 Nev. 188; Taylor v. Skrine, 3 Brevard, 516; Carleton v. The People, 10 Mich. 250; Cocke v. Halsey, 16 Pet. 71; Commonwealth v. McCombs, 56 Penn. St. 436; Clark v. Commonwealth, 29 id. 129; Kimball v. Alcorn, 45 Miss. 151; Ex parte Strang, 21 Ohio St. 610. The question was discussed in People v. White, 24 Wend. 520. There the legislature, by a special law, made the aldermen of the city of New York ex officio judges of the oyer and terminer.

A prisoner was convicted of murder before that court, partly constituted of aldermen. Objection was made by him to the organization of the court, on the ground that the law authorizing the aldermen to sit was unconstitutional. The supreme court held, that the objection could not prevail, on the ground that