as the heir and the executor did on a former occasion? The mitigation which was allowed in favor of the executor on that occasion would also be allowed in his favor on this occasion, yet with perhaps less readiness of indulgence; for in this latter case the executor's testator, not having been himself the full or sole owner of the land, or indeed the owner of it at all, but holding rather in virtue of the ownership of the person who created the entail or settlement, would be obnoxious to the rule which we have already quoted from the "Institutes of Justinian," that he who builds upon another man's ground, knowing that it is another man's, must be taken to build for the good of the land, and not of himself. Now these principles, so far as they relate to buildings and the necessary competitions of buildings, are entirely borne out by the very carefully considered decision which was pronounced by Lord Romilly in the case of D'Eyncourt v. Gregory, to which we have so often referred, and to which we can here do nothing more than refer again.

The case of Dudley v. Warde, Amb. 113, decided so early as 1751, is an illustration of the MITIGATION in favor of the executor to which we have alluded; and just as D'Eyncourt v. Gregory furnishes us with the principle of the general rule, so Dudley v. Warde may be said to furnish the principle of that mitigation, in other words of the limitation, of the rule, for it was held in the latter of these two cases, and clearly upon the old and now familiar principle of favoring trade, that a furnace erected in a colliery by a tenant for life (or in tail), went on the death of such tenant to his executor, and not to the remainderman. Now, it is clear that this decision was necessary for the purposes of encouraging trade generally, by the assurance which it gave to tenants for life under similar circumstances of their personal estate being recouped after their death, the extraordinary disbursements which it should have been put unto during their life by reason of the imperative necessities of trade; nor is it at all in conflict with the case of D'Eyncourt v. Gregory above referred to; indeed the principle of the reconciliation of the two cases is afforded by the case of Dudley v. Warde itself in the distinction which was there taken between the particular fire-engine which has been mentioned, and two other like engines mentioned in the case, and therein stated to have been left to go to the remainderman rather than to the executor, the latter two engines having been put up and left by a tenant in tail, whose estate had preceded that of the last deceased tenant, so that they had in fact already coalesced with the inheritance at the time the inheritance devolved upon the deceased.

Lastly, the relation of outgone to income tenant is one which follows as a natural deduction or corollary from the principles we have established. In examining this relation, the first point to be considered in connection with it is this the precise state of mat

ters existing between the outgone tenant and his landlord at the time of the outgoing of the former. If there be nothing special in that relation, then the outgone tenant, immediately he is outgone, ceases to have any right to the fixtures, whether defeasible or indefeasible interests in land which he may during his term have set up; and the income tenant, therefore, takes the land plus all these fixtures, and is entitled to hold them for the term of his tenancy without interference from any one, whether landlord or outgone tenant. This income tenant has not, however, any property or interest in them as fixtures; but his interest in them, so far as it extends, is an interest which arises under the demise, the fixtures being already part and parcel of the inheritance. Again, if any special stipulation or agreement has been entered into between the incoming tenant and the outgoing one, and that agreement or stipulation has been entered into with the concurrence or knowledge and assent (actual or constructive) of the landlord, then the terms of that stipulation, so far as they modify the landlord's legal rights, will, as a matter of course, bind the landlord, and so will regulate the relation between the outgone and the income tenants. It is, however, sufficient to observe briefly of this relation, in conclusion, that it becomes derivative through the medium of the landlord; and that once become such, it is regulated by the same or like principles which we have seen and found to regulate all the other derivative relations before mentioned and treated of.

CURRENT TOPICS.

It is not often that a court reverses its own deliberate judgment with so much rapidity as has the court of appeals of Mississippi. In Bowen v. Bailey, 42 Miss. 405, the court held, after a very elaborate examination of the question, that where the vendee of lands agrees to pay the purchase-money in installments, and the vendor covenants to make title upon payment of the last installment, the covenants are independent, and the vendor may enforce payment without performance, or tender of performance, of his covenant. This decision appears to have been unanimous. Directly after, in Robinson v. Harborer, id. 795, the same court, in an opinion equally well considered, and upon facts almost identical, swung back the judicial pendulum and deliberately reversed its former decision. That question can hardly be said to be settled in Mississippi.

The opinion of Judge Davis of Mississippi, in the case of the State v. Wissler, a copy of which we have just received, contains a very suggestive warning to people using and handling kerosene or coal oil lamps. The defendant, Wissler, was charged with the killing of one Shipley, by setting him on fire with coal oil in the "Scruggs House," at Corinth. The prisoner and deceased were together at the hotel table,

engaged in conversation, when the former dropped something on the floor, and took the lamp filled with kerosene or coal oil from the table and set it on the floor to assist him in the search. On being requested by the servants to replace the lamp, and warned of the danger of explosion, he took it up and carelessly moved it from side to side, and finally let it drop, accidentally it appears. The lamp broke, and the flames from the ignited oil caused Shipley's death. Wissler, having been held for manslaughter, applied to Judge Davis for a discharge on a writ of habeas corpus. The judge, after a lengthy review of the authorities, held that the prisoner had been guilty of such gross and inexcusable carelessness as to make the case clearly one of manslaughter, and refused to grant the discharge.

Although the house of lords has repeatedly refused to pass the bill to legalize, in England, marriage with a deceased wife's sister, the royal sanction has been given to a like bill passed in South Australia. Whereupon the Law Times discovers a mare's nest that looks curious on paper whatever it may prove in practice. The Times says, "its effect will be this: A South Australian may lawfully have two wives at once, a deceased wife's sister in Australia, and another woman in England. His marriage in Australia not being a recognized marriage here, an alliance with a second wife in England would be a valid

marriage, and he would not be indictable for bigamy;

while in Australia his former wife's sister would be his lawful wife, and his English wife would be accounted his mistress only. The complications as to legitimacy and inheritance growing out of this strange state of things may be readily imagined. But if the other colonies should follow the example and make the same demand, as certainly they will, the consequences may be most serious."

In the case of the People v. Cole the court of appeals has decided that it is error to suffer to go to the jury any evidence given by a witness on direct examination for the people, when, by the sudden illness or death of such witness, or other cause, without the fault of the prisoner, he is deprived of his right of cross-examination. This is clearly in accordance with the rule of the common law, although the authorities on the subject are not numerous. The question arose in Forest v. Kissam, 7 Hill, 463, and the chancellor and two senators gave opinions to the effect that the testimony ought to be considered for what it was worth, although there had been no opportunity for crossexamination, the witness and the party introducing him being wholly free from fault. Other senators were in favor of reversal on other grounds, so that it is quite impossible to determine upon what ground the reversal was placed by the majority of the court, and the case is consequently of no authority on the subject. The chancery rule is held to be entitled to

but little weight upon the inquiry as to what it is at common law, for the reason that the practice and rules in chancery were, to a great extent, derived from the civil law, under which the rules of evidence were not of that strict and searching character that characterizes the rules of the common law.

แ

There used to be a delightful little story in the school-books, in which, if our memory serves us, a lawyer or a judge was made to play a leading part, and the object of which was to show what a vast difference it made whose "l 'ox was gored." History repeats itself. Some of the leading New York daily newspapers have been engaged for some years past in denouncing the judiciary for being influenced, as was alleged, by outside pressure. A few days ago Mr. Justice Barnard, that "corrupt ring judge," as these dailies delighted to call him, granted an injunction to restrain the "ring" from doing certain acts. The dailies were confounded at this unexpected exhibition of "judicial integrity," and set about devising reasons to account for his honor's proceeding. The most charitable of the reasons assigned was, that the judge had taken a new departure." But on Monday last the motion for a continuance of the injunction was to be argued, and here comes the moral at which we have been aiming. We challenge any one on the continent to name any attempt to influence judicial resorted to by these same dailies during the interval. action, so palpable, persistent and unblushing as that Notable among them was the Tribune, which painted in glowing colors the concentrated wrath that would settle upon the devoted head of Barnard if he dared to refuse to continue the order. Not content with that, on Monday it devoted much space to the so-called opinions of various prominent lawyers as to what the judge would do or ought to do. No sensible man can for a moment doubt the design of that sort of thing. It was a gross and unjustifiable attempt to influence the decision. That the object sought to be gained was supposed to be commendable does not alter the real merits of the question. It was simply and purely an attempt to compel a judge to yield to the "shriek of locality," without regard to his convictions of the law.

Judge Bedford, of New York city, is accredited with having expressed a very foolish wish to the grand jury a few days ago, to wit: a wish that the next legislature would make the crime of abortion murder in the first degree, and punishable with death. For consistency sake the judge should have gone one step further, and expressed the wish that the legislature would provide that all offenses of the kind should be tried by the court without the intervention of a jury. If Judge Bedford's feelings had not got the better of him he would have known from past experience how impossible it would be to induce an unprejudiced jury to convict an abortionist of murder in

the first degree. The natural instincts of every man tells him that there is a wide difference in the grade of crime between a deliberate, designed murder and an abortion. It is difficult enough now to induce a jury to condemn to death a cold-blooded murderer, and the result of Judge Bedford's plan would be, that almost every abortionist would go scot free. It is the certainty of punishment, and not its severity, that is most likely to restrain this, as every other, crime.

The decision of the court of appeals in the case of The People ex rel. Fowler v. Bull settles, so far as this State is concerned, the unconstitutionality of all attempts by the legislature to extend the term of an incumbent of an elective office. The legislature passed an act in 1866 (chapter 217) to extend the terms of office of the justice and clerk of the district court of the eighth judicial district in the city of New York. This district and court were created in 1860 (Laws 1860, chapter 300), and it was provided that the justice of the court should hold his office for six years. Bull, the defendant, was elected in 1861. Under the eighteenth section of the sixth article of the constitution of 1846, all judicial officers of cities were to be elected. There was no other way by which they could attain or hold office, and the court decided that this attempt to retain a man in office for nine years who had been elected for only six was only another form of an attempt at the appointing power and therefore void.

The decision does not, of course, qualify or question the right of the legislature to extend the term of office where it is not fixed by the constitution, but it does say that a person, in order to hold for the extended term, must be elected for that term. "If the legislature" says the court "sees proper cause for extending the term of an office, it should, at the same time, provide for an election to fill that extended term. The lengthened duration may be and should be so provided for as not to begin until after the electors have had the opportunity to declare their will as to the incumbent for the new term." It was claimed for the defendant that the case of The People v. Bachelor, 22 N. Y. 128, made the question res adjudicata, but the court, while distinguishing that case from the one at bar, expressly stated "that no inference is to be drawn from any thing here, and that the court, as at present constituted, would sustain the decision in that case."

GENERAL TERM ABSTRACT. FOURTH DEPARTMENT.

ARREST.

For violation of city ordinance, where to be made. -This action was brought for false imprisonment. Defendant caused the arrest of the plaintiff for the violation of an ordinance of the city of Syracuse. The offense was declared by the statute and charter to be a misdemeanor. The offense was committed in the city. The arrest was made in the town of Salina, beyond the

city limits. Defendant was an alderman of the city. Held, that at common law the defendant had no right to arrest, or cause the arrest of, plaintiff without a warrant in writing; that he only had the right to arrest without a warrant for a felony or breach of the peace when committed in his presence; that defendant, under the charter, had power to arrest, or cause to be arrested, without warrant any person guilty of the violation of the charter or ordinances of the city; that the delay of half an hour in making the arrest did not deprive the defendant of the right to make it. Held, that at common law an arrest on warrant must be made in the jurisdiction of the officer who issued it; that in cases of felony, the officer making the arrest might raise the hue and cry, pursue the offender into any other jurisdiction and there arrest him without warrant; that this power was limited to cases of felony and did not apply to cases of misdemeanor; that an arrest for the violation of an ordinance of the city of Syracuse must be made within the city limits; that the arrest of plaintiff was illegal. Nonsuit set aside and new trial ordered.

CONVERSION.

1. This action was commenced before a justice of the peace for the conversion of a refrigerator, etc. Defendant owns the shop in which the refrigerator in question was deposited. In 1868 he leased the shop to B. & P., who put into it the article in question. B. & P. sold to plaintiff, and plaintiff, after he had acquired title, on repeated occasions applied to defendant for the property, and, on each occasion, defendant told him he might have it, and would go to the shop, open the door and ask plaintiff to give a list of the property. Defendant would point it out and tell plaintiff if he took it he did so at his peril, saying that he had a lien on it for rent, etc. Plaintiff commenced an action of replevin, and the constable, under his process, took possession of, but did not remove, the property. The replevin suit was, after a short time, withdrawn and this suit commenced, but the constable never, in any manner, redelivered the property to defendant. On the trial, in the county court, the judge charged the jury "that if defendant merely asserted his claim to the property and threatened litigation if plaintiff took it away, it was not a conversion; that the possession acquired by the officer in the replevin proceedings did not remain in him after the writ went down, in which the process directing the seizure of the property was issued, but revested in defendant." Held, that the latter part of the charge is erroneous; that the termination of the replevin writ did not revest in defendant the property seized by the officer, unless he was willing to accept it; that the property was still in the officer, and as there was no evidence of any conversion after replevin suit was withdrawn, the order of the county court, refusing a new trial, must be reversed, with costs. Jones v. Hart. Decided May term, Syracuse, 1871.

2. Effect of tender after levy and before sale. - This action was brought by plaintiff for the conversion of a canal boat. The canal boat was seized by the sheriff of New York on an attachment. The sheriff afterward proceeded to sell the boat on an execution in favor of the defendant, from the marine court of New York city, and the defendant was present at the sale, and bid on the boat. Before said sale took place, plaintiff, in presence and hearing of the defendant, offered the sheriff $120, it being the amount of the execution

on which the sale was made. Held, that a tender of money does not discharge a debt, but it does relieve the debtor from damages and costs. That, although the debt is not discharged, a lien given or obtained as security for it is discharged by a tender. That the plaintiff or a fi. fa. would be liable after the tender of the damages and costs and sheriff's fees, for directing a sale of defendant's lands or goods. That plaintiff being present when the tender was made, and being then apprised that the right to sell upon the execution was gone, it was his duty to instruct the sheriff to stop the sale and release the property; that having, instead of attempting to stop the sale and release the property, remained during sale and bid upon the property, there is no doubt of his liability. Judgment affirmed. Tiffany v. St. John.

COSTS.

In actions of trespass on lands. This action was brought to recover treble damages under § 1, title 6, chap. 5, pt. 3 R. S., for cutting and removing timber from plaintiff's lands. The question of title did not arise in the case. On the trial the jury gave verdict for the plaintiff for $5. The clerk of the court taxed full costs in favor of plaintiff. Defendants moved at special term and obtained an order setting aside the taxation of costs in favor of plaintiffs, and directing the clerk to tax costs in favor of defendants, from which order plaintiff appeals. Held, that all the provisions of the revised statutes in relation to costs, prior to the code and inconsistent with it, are repealed. That section 304 of the code is the only section under which costs can be claimed in this case (overruling Utter v. Gifford, 25 How., Pr. 289). That a plaintiff who recovers, in an action of trespass on real estate, less than $50, cannot recover costs, but must pay them. Held, further, that a plaintiff has no right when he has only a bona fide claim of $50, over which a justice of the peace has jurisdiction to claim in his pleadings $300, or more, and thus force the defendant into the supreme court, and upon recovering less than $50 in that court demand costs. Held, also, that § 3, title 1, chap. 10, 3 R. S. (2 R. S., 2 ed., 508, 509), giving costs of the court in which the action of trespass is tried to the plaintiff upon a recovery therein, without regard to the amount of the recovery, is repealed by the code. Order of the special term affirmed. Turner v. Van Riper.

CRIMINAL LAW.

Justifiable homicide: evidence tending to justify principal is admissible to justify accessory. The prisoner was jointly indicted with one John Utley for murder in the first degree, in the first count, and as accessory in the second count, of the indictment; Utley being charged in the indictment with committing the murder, and Temple, the prisoner, as present, aiding and abetting. The facts proved on the trial were: that Utley's house was one of bad repute; that on the night of the 9th of November, 1870, a party of young men, among whom was the deceased, Hudson, went to Utley's house, as they threatened, and with the intention, as they expressed it, "to go through the house;" "to raise the devil;" or "to find the prisoner there, and have some fun at his expense." The prisoner had heard of these threats, and the proposed visit of the mob to Utley's house, and went to Utley and told him of it, and, at Utley's request, agreed to stay at the house that night; about two o'clock A. M. the mob reached the house; they made considerable noise; they tried to open the back door of the house, and, finding

it fast, came around to the front door, which they opened, when Utley, at the instigation of Temple, shot and killed Hudson as he stood at the door. The question to be decided is, was the killing justifiable as to the plaintiff in error? Held, that there was no evidence in the case that deceased and his party came to Utley's house with the intention of committing murder, but there was evidence competent for the jury that the deceased was killed while making an attempt to commit a felony in Utley's house; that the only felonies that can be committed in a house are arson and burglary; that there was no evidence that arson was intended, but there was some that burglary was intended. Held, further, that if, upon the evidence, the jury should find that the deceased did open the door with the intention of committing violence on any of its inmates, the justification was complete, because the two things thus proved constitute a breaking of the house with the intent to commit a crime therein. Held, also, that the rejection of evidence on the trial that the prisoner had heard "that persons had been at the house shortly previous, and had made disturbances, and taken the old man, Utley, out in the night time, and beaten him severely," for the purpose of showing grounds of apprehension, was erroneous. That where an assault is made on the person or upon the house in which a person lives, he must decide upon the nature and degree of violence to use, not only from the nature and degree of violence with which he is assailed, but also from what he has heard of the intentions of the assailants. All persons have a right to act in the protection of life and property, not only from what they know, but from what they hear, as to violence contemplated toward them. If Utley was on trial, the evidence would be competent to prove the previous outrage on his person, and if admissible for Utley, it was also admissible for the prisoner, who was aiding and abetting Utley at his request, for otherwise the principal would be acquitted as justified, while the aider and abettor would be convicted. Judgment reversed, and new trial ordered. Temple v. The People. Opinion by Miller, P. J.

EJECTMENT.

By one holding title as security.-Defendant's husband prior to February, 1858, applied to plaintiff to advance for him, to one Barry, the balance due on a piece of land which he (defendant's husband) had purchased, and take a conveyance from said Barry, and hold the title in his own name as security for the money so advanced, and on payment of the money so advanced, he, plaintiff, was to convey the title to said defendant or her husband. Defendant and her husband in pursuance of this arrangement went into possession of the land in question and made payment, etc. In 1866 defendant's husband died and default was made in payments, and this action of ejectment brought. On the trial the court with consent of counsel submitted to the jury the full questions.

1. Was deed of premises in question taken by plaintiff under the parol agreement with defendant's husband that the purchase should be made and the purchase-money or some portion of it should be advanced by the plaintiff for the benefit of said husband; that the plaintiff should hold the title as security for the payment to him of the sum advanced for the purchasemoney, taxes and insurance; and that on repayment of such advance the premises should be conveyed to defendant or her husband?

Reporter & Laus ? a Rescuer 47 my 580.

2. Was the deed taken by plaintiff on a parol agreement with defendant's husband, that plaintiff should sell and convey said property to him on payment of the price paid by plaintiff, and taxes and insurance?

The jury answered the first question in the affirmative, and the latter in the negative, and the court gave judgment for defendant.

Held, that effect can only be given to the agreement between counsel, to submit the above questions, by holding the finding of the jury on the above questions to be a special verdict.

Held, that the plaintiff was a mere mortgagee, and as such would not maintain ejectment. That in order to create the relation of mortgagor or mortgagee it is not necessary that there should be an instrument in writing, under seal, or that the title should be conveyed by the person claiming the rights of mortgagor.

Held, that the agreement to submit the above questions to the jury, being made by both counsel, could not afterward be objected to by either party. Judgment affirmed. Carr v. Carr. Opinion by Mullin, P. J.

GIFT.

What constitutes.-The defendant is the executor of the last will and testament of his father, David Wilson. In September, 1868, he applied to the surrogate for a final settlement of his accounts. The plaintiff is the daughter of David Wilson, and on the hearing before the surrogate insisted that defendant should be charged with the sum of $3,000. Defendant claims said sum as a gift from said Wilson, under the following circumstances, viz.: On or about March 30, 1866, and before, Wilson's death, defendant purchased a certain piece of land for $3,000. Wilson advanced the money, and on defendant's offering to give security note, etc., Wilson said: "I want no note; the condition is this: if I ever want the interest, or any part thereof, when I call for it it will be six per cent; if not, when I am dead that is the end of it; it is your property and you have made good use of it." Defendant claims under the above promise. The surrogate found for defendant and plaintiff appeals. Held, that to render a gift effectual there must be a delivery of the subject of the gift, and if the thing cannot be delivered there can be no gift. That where there is no written evidence of a debt, and it exists by agreement merely, no delivery can be made, and hence there can be no gift of it. That it is essential to a gift not only that there should be a delivery of the subject of the gift, but the donor must part with all interest in and control over it. That in this case there was not only no gift, but there was not even a release of the debt. A mere parol release, without consideration is void. Decree of the surrogate reversed. Doty v. Wilson.

JURY.

Error in list of.-Where the county clerk, in preparing a list of petit jurors to be drawn, made a mistake as to the residence of one of the jurors, and the mistake was not noticed until after the court for which the juryman was summoned had adjourned, held, that the court could not set aside a verdict rendered by a jury, of which the juryman in question was one, on this account, unless the party claiming to be aggrieved could show that he was in some way clearly injured by the mistake. Bennett v. Mathews. Opinion by Mullin, J.

OBSTRUCTIONS IN RIVER.

On the 28th day of May, 1870, defendant was engaged in erecting a pier on the west side of Genesee river,

extending from one of the piers of the Main street bridge, about 65 feet southerly therefrom. In March, 1865, a flood of unusual magnitude and violence occurred in the Genesee river, destroying a vast amount of property. On the 1st of May following this flood the legislature passed an act entitled "An act relating to the city of Rochester," and appointing commissioners to devise and report measures to prevent inundations in that city from the Genesee river. The fifth section of that act provides as follows: "The common council of the city of Rochester are hereby authorized, and it is hereby made their duty, to prevent the construction of any encroachments upon or obstructions in the bed of the Genesee river within the limits of the said city, and for that purpose the said common council may institute any actions or proceedings in the name of said city as plaintiff therein." This action was brought in pursuance of the provisions of the foregoing act to restrain defendant from erecting the abutment and pier aforesaid.

The matter was referred to a referee, who dismissed the plaintiff's complaint, on the ground that the pier in question was not an obstruction to the flow of water through the arches of the Main street bridge. The witnesses do not testify, nor does the referee find, that the pier in question is not an obstruction in the bed of the river.

The referee, as well as the witnesses, seem to be of the opinion that nothing can be considered an obstruction that does not lessen the quantity of water that could pass through the arches of the bridges. Held, that the legislature intended to prevent the erection of any encroachments on, or obstructions in, the bed of the stream; that the necessity of such a law is evident; that, if the prohibition was not absolute, owners on either side of the river would continue to appropriate the bed of the stream so long as they could find engineers who will testify that such obstructions do not lessen the quantity of water which can pass through the bridge; and should the engineers be mistaken and their theories prove untrue, the damage to the city would be very great; that it is impossible to say that the theories of engineers, etc., are true, and the prohibition in the act being absolute, it cannot be limited by such theories; that it was the intention of the legislature to enable the city to prohibit altogether the erection of encroachments on, or obstructions in, the bed of the Genesee river, and it is the duty of the courts to prevent any such encroachments, etc., regardless altogether of the question whether it retards the flow of the water through the arches of the Main street bridge; that if it was certainly known that the Main street bridge was always to stand as it is now, the referee's decision might be correct, but such a fact cannot be known. Judgment reversed, and new trial ordered. City of Rochester v. Osborn.

SALE.

Fraud in: instructions: damages. - Action brought to recover damages sustained by the plaintiff, by reason of the false and fraudulent representation as to a patent right of a fence, sold by defendant to the plaintiff. On the trial the court decided as matter of law, that the patent right sold to plaintiff did not cover the fence he, defendant, claimed it did. The court also instructed the jury that, in estimating the value of the patent in question, they might take into consideration the prices which defendant told plaintiff he had received on sales to other parties, to aid them in arriving at plaintiff's