the northeast corner of where Sidney Huntington's value. One of them is an Aldine edition of Theocritus, coal-house formerly stood," etc. published in Venice in 1495, one of the Greek incunabula. It is very beautifully printed, and in typographical elegance is inferior to none of the famous productions of Aldus. "There are some funny things in law, and lawyers meet with some funny cases once in a while," said Representative Kelly, of Lackawanna. "A man who is somewhat distinguished in criminal annals as an expert pickpocket once asked a friend of mine to take his case for him. 'Where's your money?' inquired you'll promise to do the business for me I'll go out my friend. I haven't got any,' was the reply, 'but if and get a watch for you in about five minutes.'"-Pittsburgh Dispatch. Judgment affirmed and judgment absolute in favor of defendant, with costs out of estate-Hugh Lowery and others, executors, appellants, v. Sarah Erskine, respondent.Judgment of General Term and decree of surrogate reversed, and proceeding remitted for further action to the surrogate, with the question The appearance of the "Mystery of a Hansom Cab" of costs reversed for the determination of the court in the case of Fulton v. Kelly on Wednesday called below, upon the final disposition of the case-In re from the vast deep of law spirits which are apt to mys. Probate of Last Will of Henry P. Eysaman, deceased. tify. The distinctions between void and voidable-Judgment affirmed with costs--Andrew T. Huyck, void in part and void altogether, unlawful in intenadministrator, respondent, v. Thomas M. Andrews, tion and unlawful in law, and executed and execuappellant. Judgment affirmed, holding that all the tory have gathered round Pigot's Case, 6 Rep. 26, and legislation from 1868 to 1886, allowing the construction the question whether a contract tainted with illegality of an underground railway on Broadway, New York, can be enforced. Baron Huddleston decided in the to be unconstitutional and void-John Jacob Astor case in question that a contract between the lessees of and others, respondents, v. New York Arcade Rail- the Princess' Theater and an agent to advertise their way, appellant; and Nathaniel P. Smith and others v. play by sending one hundred hansom cabs round LonSame. Motion to dismiss appeal; ordered, that the don with a placard of the piece outside and a figure defendant within twenty days of service of copy of inside was unlawful because, by the Metropolis Traffic this order file a new undertaking to the same effect as Regulation Act (31 and 32 Vict., chap. 134), section 9, the original, and serve a copy thereof as required with it is forbidden to carry, by any person riding in any ve respect to such original undertaking; and if he fail so hicle, any placard except in such form as may be apto do within the above stated time, then the appeal in proved by the commissioner of police. The contract this action is hereby dismissed with costs-Marcus M. could not be carried out because the necessary apBeeman, respondent, v. Geo. A. Banta, appellant.- proval was not obtained; but does not the distinction Motion to dismiss appeal granted with costs, on ground between unlawful in law and unlawful in intent come that the Supreme Court had no power to grant an orin? If so, there would be no unlawful intent unless der allowing the appellant to perfect his appeal by fil- the jury found that the plaintiff meant to carry out ing au undertaking, and no reason is shown to this the contract unlawfully. That point does not seem to court for excusing the delay-Alfred Nelson, execu- have been raised, nor the further question whether the tor, v. Sutherland Tenney, assignee.-Motion for re- distinction between unlawful in part and lawful in argument denied with costs-Henry Bedlow and part does not apply, so that the plaintiff would have others, appellants, v. New York Floating Dry-Dock been entitled to recover for the work he had done, but Company, respondent.-Judgment reversed and new not damages for being prevented from doing more. trial denied-Adam Emerich, appellant, v. Peter H. This question would turn largely on the true incidence Hefferan, respondent. Motion for judgment of affirm- as between the parties of the duty to obtain the apance under section 1298 of the Code of Civil Proced-proval of the commissioner of police. At present the ure.-- Motion to return case to this court from the Second Division denied without costs-Hobart F. Atkinson, receiver, etc., respondent, v. Rochester Printing Company, appellant.-Motion to put on calendar and advance denied without costs-Maria T. Polhemus, respondent, v. Fitchburg Railroad Company, appellant. NOTES. ́UDGE Blodgett's late decision that an employer is JUDG not responsible for the negligence or incompetence of an employee, unless the person injured by such negligence or incompetence gives written notice of suit inside of thirty days from date of injury, will, if sustained, work a mighty upsetting of the old common law doctrine qui FUIT per alium FUIT per se.-New York Commercial Advertiser. Which is the more perplexing, the judge's law or the journalist's Latin, is hard to say. A special statute may sanction the one, but the other is past amendment. He was probably thinking of fuit Ilium. Judge Truax, of the New York Superior Court, is an ardent collector of Greek classics. Not satisfied with the previous gift of 500 volumes of the classical library of Hamilton College, he has recently made a new donation, which includes volumes of great variety and decision would seem to go the length that if a man sold wine wholesale to a person who had no license to sell it, he could not recover the price.-London Law Journal. The Kingston Leader says: During the last Circuit Court in Schoharie county, at which Judge Parker presided, a case that caused considerable merriment was called for trial. The case had been tried before a justice of the peace, and appealed. The defendant appeared for himself, and asked to be heard in his own behalf. Imagine the feelings of the judge when a paper, of which the following is a verbatim copy, was handed up as the the defendant's answer: thereby accomplish the very utmost with the least Journal. money." He elaborates the idea as follows: "The The Albany Law Journal. ALBANY, MARCH 23, 1889. CURRENT TOPICS. city manager should be protected in financial matters as a railway manager is protected, by a system of contracts and vouchers and custodians that will exempt him from wanton charges of extravagance or dishonesty. He should be elected every year or two by a comparatively large representative body or electoral college-say composed of five men from each ward- and he should be eligible to the office incle fuitely. The voucher men and custodians should be elected by this body also. They should be treasurer, storekeeper and auditor. All other officers should be selected by the manager, with no limitations on him, except perhaps general financial limitations set by the State law or some other power." We listen to Brother Gleed with respect, but as at present advised, we say no boss for us. ""Tis better," etc. HE report of the sixth annual meeting of the Kansas Bar Association, held in January last, is promptly at hand. It contains the following addresses: "The State Bar Association," by W. A. Johnston; "The Counter-Claim," by J. H. Gillpatrick; "The Compensation of Lawyers," by T. A. McNeal; "The Legal Profession; its Duties and Obligations to Society," by David Overmyer; "Centralization of Political Power," by C. W. Smith; “The Government of Cities," by C. S. Gleed. Mr. Johnston dwelt on the enormous growth of Kansas and the increase of its litigation, which is too weighty for three appellate judges. We regret to An eminent judge of this State encloses to us observe that he is in favor of the bleeding system the following extract from Wyche's Practice, edi-limiting appeals by the amount involved. The tion of 1794, page 5: "There is now no distinction amounts in new States are frequently very trivial, of dress observed by either the judges or the genbut it is better to have rights decided by courts of tlemen at the bar, though by the rule of the Janulaw than by the shot-gun. Mr. Gillpatrick's rec- ary term, 1765, abrogated only by custom, counsel ommendation that in any civil action the defend- are to be habited in the bar gown and band used ant should be allowed to counter-claim for damages by the English barristers." And asks if we can on the ground that the action is malicious and guess where the rule therein referred to may be without probable cause, has the merit of complete | found. We cannot find any reference to it in originality. And yet, why not? Mr. McNeal in- Judge Folger's scrap-book, and so we give it up. tends to be funny, and is certainly coarse, slangy Perhaps some of our readers can tell. Was there and chestnutty. He probably sounded better than not a recent learned article on "Gowns" in the he reads. We hope his address was extemporane-Scottish Journal of Jurisprudence? ous. Mr. Overmyer is dignified and elevated; his subject conclusively forbade originality. One paragraph is especially worth quoting: "The lawyer comes into contact with all manner of people, from dolts and dullards up to the greatest scholars and most profound thinkers; from the artless rustic to the polished and accomplished cosmopolitan; from the purest innocence to the deepest infamy; the spendthrift, the miser, the man with no other purpose than that of mere existence, and the man so designing that to accomplish his ends he would burst all bounds and sunder all restraints. And he comes to know in time all the shibboleths and slogans of all the clans and tribes of men; and how, back of them all, lies self, self, self, and ever and ever, self; and how each will serve himself at the expense of all. And he realizes more completely than others can the importance of raising up between them barriers which none may dare to transcend or demolish." He also nobly says: "To 'support the Constitution' means something more than merely to abstain from flagrantly violating it." Mr. Smith notes the growth of constitutions, and reviews the struggles between the Federalists and the Republicans. Mr. Gleed is the most original of all the speakers, for he advocates the one-man control of each city. His paper is very interesting throughout, and his idea may be gathered from one expression: "Run a city as a railroad is run, and VOL. 39 No. 12. ་ A bill has been submitted to the Minnesota Legislature to regulate the admission of attorneys. It provides for the establishment of a State board of examiners, consisting of six lawyers, to be appointed by the Supreme Court justices. It requires a term of three years' study in a law office, but a two years' course in a law school is made equivalent, and the term of study only entitles the candidate to an examination. Doubtless a law-school education is superior to a mere office education, but we doubt the advisability of making it a complete substitute. Perhaps one year at a law school is fairly to be considered an equivalent for two in an office, but we think at least one year in an office should be exacted. There is a great deal of law, and especially of practice, learned by absorption from contact. The most noteworthy articles in the current num"Cases withber of the American Law Review are out Treatises," by Mr. Schouler; "Liberty of Testamentary Bequests," by Judge Redfield; and "More Justice and Less Technicality," by Judge S. D. Thompson. Mr. Schouler makes an ingenious defense of the influence of treatise-writers as against that of judges. Judge Redfield defends the right of the creator and possessor of a fortune to will it as he chooses, so far as the claims of his children are concerned. He points out that restriction upon deeding or donating in the life-time would be just as sensible. Judge Thompson's paper is a part of an address before the Georgia Bar Association last August. It is brilliant, vigorous and judicious. He gently dissents from Judge Cooley, who on the same occasion celebrated the beautiful certainty of the law-on which we have heretofore said our say. He does some significant ciphering on the subject, based on Missouri and Georgia statistics. He says: "What certainty is there in judicial administration when in the last twenty-five volumes of Missouri Reports, out of 442 criminal cases which were decided on appeal, there were 200 reversals; out of 2,439 civil cases which were so decided, there were 1,052 reversals and 1,387 affirmances. In the same number of volumes of the latest reports of the Supreme Court of Georgia, out of 452 criminal cases which were decided on appeal, there were 187 reversals, 265 affirmances; while in the same volumes, out of a total of 4,433 civil cases, 1,535 were reversed and 2,898 affirmed." A total of 4,792 affirmances to 2,974 reversals! We wish every lawyer would read every word of Judge Thompson's appalling indictment of our abominable system of technicality. The American Law Review rebukes the Central Law Journal and ourselves for not furnishing headlines to editorial notes. It says: "We do not want to read twenty lines in order to ascertain whether we want to read the paragraph at all or not." This is all very well for the American and other periodicals whose readers like to skip frequently. But our readers do not want to omit any thing we write. Therefore a syllabus would be superfluous, and would waste useful space. At all events, we are just vain enough to think that we contrive to let the reader know what we are driving at within "twenty lines." It ought to occur to the American that instructing the ALBANY how to edit its matter is like "teaching your grandad how to lap 'lasses." We guess there is a new hand at the American's "notes." But we read them all, just the same, and like them. The meanest conduct on the part of a public body in modern times is the refusal of Congress to pay to Mrs. Waite the balance of her husband's salary for the year in which he died. Considering that the chief justice might have retired two years ago and drawn his pension without doing any work for it, the base ingratitude of this action is very conspicuous. If the country should pay the widow the pension for her life it would not be disproportioned to her husband's services. She is as much entitled to such consideration as Mrs. Grant or Mrs. Sheridan. When an author comes so near to writing a good legal fiction as Mr. Robert Grant has done in " An Eye for an Eye," in the current number of Scribners' Magazine, it is a pity that he did not make it completely good by consulting with a lawyer, or at least by consulting with a better one than his adviser. For example, if he had resorted to his quondam confrere, Mr. John T. Wheelwright, it is possible his law would have been better, although his story might have been spoiled. The story runs thus: The aged nurse of a lawyer, being at the point of death in a Roman Catholic hospital, sends for him to draw her will, desiring to make him her sole beneficiary. He draws the will accordingly, no one else being present except the mother superior. This person happens to be one whom the lawyer had jilted-to put it mildly — some years before. She is present all the time but apparently pays no attention. The lawyer reads the will to the testatrix, and then calls in three witnesses and it is signed and acknowledged in their presence in the ordinary form, and they attest at the request of the testatrix. When the lawyer, who is also sole executor, offers it for probate, it is opposed on the ground of fraud. On the trial of the issue before a jury the mother superior testifies that the testatrix directed the lawyer to draw the will so as to give all her estate to the church. Although the lawyer testifies to the contrary, the jury believe the woman, and the result is the lawyer's ruin. He flings away his life in battle with the French, and the mother superior nurses him in his last moments. All very pathetic, except to a lawyer. Of course no lawyer with an ounce of brains would have consented to draw a will constituting himself sole beneficiary. He would have sent out for counsel. Or at least he would have had the will read to the testatrix in presence of the witnesses, and made the attesting clause certify that fact. He ought to have known that under the doctrine of constructive fraud such a will as that in question could not stand without affirmative, clear and preponderating proof on his part of the most absolute good faith. But if Mr. Grant's law had been good he could not have sold his story to the magazine. The Very much beloved of the newspapers just now is Judge Bartlett of New York, because he advances the opinion that newspaper reporters ought to be admitted to witness and permitted to describe executions, in order that the public may determine whether the thing is done right. We have never before observed so much tenderness on the part of the newspapers toward criminals. amount of gratuitous and simultaneous advertising that the Judge has thus received would be amusing were it not disgusting. We hope he is annoyed by it. Now let him take up the cudgels for a free and easy libel law and his fortune is made. If expert opinion on the working of the new law is desirable, there are more dignified and trustworthy channels than newspaper reporters. The judge's remarks on expert evidence and the confinement of lunatics, on the same occasion, were in all respects discreet and admirable. NOTES OF CASES. but simply muniments of title, and evidences of the holder's right to a given share in the property [N East Birmingham Land Co. v. Dennis, Ala- and franchises of the corporation. It was observed, Ibana Supreme Court, January 15, 1999, it was in regard to the matter of negligence, as follows: 'But if the purchaser from one who has not the title, and has no authority to sell, relies for his pro held that a certificate of shares of stock is not a negotiable instrument, any usage among stock-brokers to the contrary notwithstanding; and an inno-tection on the negligence of the true owner, he cent purchaser for value of such a certificate, indorsed in blank by the owner, and stolen from him without negligence on his part, acquires no title thereto. The court said: "The authorities are clear in support of the view that a certificate of corporate shares of stock, in the ordinary form, is not negotiable paper; and that a purchaser of such certificate, although indorsed in blank by the owner, where no question arises under the registration laws, obtains no better title to the stock than his vendor had, in the absence of all negligence on the part of the owner, or his authority to make the sale. This question arose and was decided by the New York Court of Appeals in Bank v. Railroad Co. (1856), 13 N. Y. 599. It was there held that such a certificate does not partake of the character of a negotiable instrument, and that a bona fide assignee, with full power to transfer the stock, takes the certificate subject to the equities which existed against his assignor. Such certificates, said Comstock, J., 'contain no words of negotiability. They declare simply that the person named is entitled to certain shares of stock. They do not, like negotiable instruments, run to the bearer or order of the party to whom they are given.' They were said to be in some respects like a bill of lading or warehouse receipt, being the representation of property exist ing under certain conditions, and the documentary evidence of title thereto.' The most that can be said is that all such instruments possess a sort of quasi negotiability, dependent on the custom of merchants and the convenience of trade. They are not, in the matter of transferability, protected strictly as negotiable paper. In Shaw v. Spencer, 100 Mass. 382, it was also decided that a certificate of corporate stock, transferred in blank on its back, was clearly not a negotiable instrument. 'No commercial usage,' it was said, 'could give to such an instrument the attribute of negotiability. However many intermediate hands it may pass through, whoever would obtain a new certificate in his own name must fill out the blanks * * so as to * must show that such negligence was the proximate cause of the deceit.' The same principle was applied to bills of lading in Gurney v. Behrend, 3 El. & Bl. 622, decided by the English Queen's Bench, where an instrument of that kind, indorsed in blank by the consignor and sent by him to his correspondent, had been misappropriated. The correspondent, without authority, fraudulently transferred the bill for value, and it was held by Lord Campbell, that for the want of the element of negotiability in the paper, the title to the goods was unaffected by the transaction. The doctrine of Barstow v. Mining Co., supra, is well supported by authority, and in our judgment announces a correct principle of law, and we fully approve it. Woolley v. Sergeant, 14 Am. Dec., note, p. 427, and cases there cited; Cook Stocks, §§ 7, 10, 192, 368, 437; 2 Dan. Neg. Inst. (3d ed.), § 1708g. It harmonizes entirely with the declaration of our statute that shares of stock in private corporations are 'personal property, transferable on the books of the corporation' in accordance with the rules and regulations of the corporation. Code 1886, § 1669; Campbell v. Iron Co., 83 Ala. 451. There is a class of cases, not to be confounded with the one in hand, where the holder of such a certificate of stock, indorsed in blank, is clothed with power as agent or trustee to deal with such stock to a limited extent, and transfers it by exceeding his powers or in breach of his trust. In such cases it has often been held that the true owner, having conferred on the holder by contract all the external indicia of title, and an apparently unlimited power of disposition over the stock, 'is estopped to assert his title as against a third person, who acting in good faith acquires it for value from the apparent owner.' 2 Dan. Neg. Inst. (3d ed.), § 1708g; McNeil v. Bank, 46 N. Y. 325; Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Pratt v. Tilt, 28 id. 479; Bank v. Livingston, 74 N. Y. 223. These cases rest on the principle that it is more just and reasonable, where one of two innocent parties must suffer loss, that he should be the loser who has put trust and confidence in the deceiver than a stranger who has been negligent in trusting no one. Allen v. Maury, 66 Ala. 10." derive title to himself directly from the last recorded stockholder, who is the only recognized and legal owner of the shares.' The case of Sewall v. Water-Power Co., 4 Allen, 282, decided by the same court a few years before, is referred to as a precedent in support of this conclusion. The precise In Watertown Thermometer Co. v. Pool, 51 Hun, point in the present case was also decided in Bar-157, it was held that an agreement by a vendor stow v. Mining Co., 64 Cal. 388, where it was expressly held that a bona fide purchaser of stock standing on the company's books in the name of the former owner, regularly indorsed by him, and stolen from the present owner without his fault, gets no title. The decision was based on the fact that such certificates are not negotiable instruments upon the sale of a business, with a trade-mark, not to re-engage in that business at any place in the United States for ten years, may be valid. The court said: "It seems to us that the reasoning of the learned judge in that case (Diamond Match Co. v. Roeber, 106 N. Y. 473) fully covers the question under consideration, and is so satisfactory that we feel justified in adopting it in this case; moreover, though it extended through the whole kingdom or country. In this case the defendants by their de murrer admit that the business of the plaintiff in the manufacture and sale of thermometers and storm glasses required for its full and proper development the entire territory embraced within the United States, and that one of the considerations that induced the plaintiff to make such purchase and pay the consideration named was such restriction, which would enable it to fully develop its business throughout the whole United States without interference on the part of the defendant. Assuming this, as we must, it seems quite clear that the restraint, though general, is at the same time co-extensive only with the interest to be protected, and with the benefit meant to be conferred by this agreement; that it imposes no restriction upon the defendants which is not beneficial to the plaintiff, or which was unnecessary for its reasonable protection; and that it was induced by a consideration which made it reasonable for the parties to enter into it." In Conolly v. Crescent City R. Co., Louisiana Supreme Court, December 3, 1888, it was held that a passenger stricken with apoplexy while riding on a street car, although attended with severe vomiting, to the inconvenience and great discomfort of other passengers, may not be removed while in a speechless and helpless condition and laid in the open street on a bleak, drizzling December day, and there abandoned with no effort to procure him attention, without liability of the carrier for resulting damage, although it was supposed the passenger was drunk. The court said: "It should need no parade of learned authorities to maintain the proposition that a common carrier cannot treat an unfortunate passenger, stricken with apoplexy while under its charge, in the manner above indicated, without a breach of the plainest obligations of its contract of carriage. If there were any precedent to the contrary humanity would revolt at it, and it would be one more honored in the breach than the observance.' But there is no such precedent, and those cited by defendant's counsel are far from sustaining their position. No doubt a carrier owes obligations to its well passengers as well as to sick passengers, and is bound to protect the rights of both. When the condition of a sick passenger such that his continued carriage is inconsistent with the safety, or even the reasonable comfort of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. Thus if he had cholera, or smallpox, or delirium tremens, or even if, as in this case, he were subject from any cause to continuous vomiting, utterly inconsistent with the comfort of other passengers in a street car, the right of the carrier, in protection of the latter's privileges to exclude him, would undoubtedly arise. Such is the reasonable doctrine of the cases cited, Lemont v. Railroad Co., 47 Am. Rep. 238; Vinton v. Railroad Co., 11 Allen, 304; Murphy v. Railroad Co., 118 Mass. 228; is |