Every Saturday has been uttering some very silly stuff about the action of Judge Pratt in granting a stay of proceedings in the case of Foster. "The murder," it says, "was committed in one county, and the judge lives in another; it may seriously be doubted if he had, under the circumstances, any legal right to interfere with the matter. The facts in controversy have been tried and decided by a jury; can any appellate court review the decision thus found on a proven state of facts?" It may "seriously be doubted" whether Every Saturday knows precisely what it is talking about. It evidently thinks that Judge Pratt is a county judge, and that his jurisdiction is pent up within the county lines; and, also, that an appellate court cannot review a decision in a criminal case "found on a proven state of facts." A novel theory certainly.

แ

The Westminster Review, in an article on 'The American Republic; its Strength and Weakness," pays the United States judiciary the following merited compliment: "That this judiciary, and especially the supreme court of the United States, has been equally illustrious for its talents as for its virtue and patriotism, and that it has rendered the most effective service to the cause of well-regulated liberty, by establishing a system of national jurisprudence founded upon common sense, compacted by sound and comprehensive reasoning, adorned by clearness and eloquence of statement, and commending itself to the conscience by its dispassionate impartiality, cannot be denied by any disinterested critic."

The movement begun in England something over a year ago to establish a legal university has been steadily progressing. Sir R. Palmer, president of the association, moved in the house of commons on the 11th of July an address praying the queen to grant a royal charter to the university. The plan proposed is to combine the inns of court into a university, which alone shall have the supervision of the education of both branches of the profession, prescribe the proper tests of professional or other knowledge, and regulate the admission to practice. In short, the project is to utilize and energize those, at present, useless and inert institutions -the inns of court. Time was when these inns were in fact what they purport to be, institutions for legal education. But for the last quarter of a century their influence over the training of the English lawyer has been but very slight. This attempt to establish a legal university has had the effect to arouse them somewhat, and in the face of it, they promise better things for the future; but it is more than probable that, if these promises were accepted and the entire regulation of the new system confided to them, they would drop into their old ways as soon as the present strong feeling for improvement subsided.

A novel question arose and was decided in the case of Wilkinson v. Verity, which will be found in another column. It was held, that a fresh and substantive cause of action in detinue, as upon a bailment deter

mined, accrued to the owner of the bailed goods upon demand, and refusal to deliver them up, notwithstanding the previous unknown conversion thereof by the bailee to his own use more than six years before the action-in other words, that the statute begins to run from the demand and not from the conversion.

The radical defect in the system of legal education in this country, granting that we have any system, is Abstract its tendency to make mere case lawyers." propositions and general principles are most studiously avoided, and the "corpus juris" is divided up into a prodigious mass of insulated decisions. Take down almost any volume of reports, and you will notice that the judges are by no means free from this slavery to decided cases. Principles are ignored, so much so, in fact, that a large proportion of the opinions present the appearance of, and are little better than, the pages of a digest. A great deal of vague nonsense is, doubtless, talked about legal principles and scientific jurisprudence; but the words, nevertheless, import something better and higher than case law." It is stated of one eminent advocate that he never cited a case except to maintain a paradox, and we sometimes meet with a decision in which the legal questions are elaborately argued upon principle, without the aid of precedents. Cases have their uses; but it is a great misfortune for a lawyer never to get beyond ita lex scripta est.

Some philanthropic individual ought to send the attorney-general of the United States a copy of "Potter's Dwarris on Statutes." Chapter one hundred and twenty-one of the acts of congress for 1871 contains, among other appropriations for the service of the post-office department, the following: "For manufacture of postage-stamped envelopes and newspaper wrappers four hundred and fourteen thousand two hundred dollars; provided, that no envelope as furnished by the government shall contain any lithographing or engraving, and no printing except a printed request to return the letter to the writer." The sapient attorney-general aforesaid has been called upon to construe this provision, and he has announced his conclusion in the following terms: "The statute is universal in its prohibition of all printing except the 'return request.' Printing is the forming of characters or marks on paper or similar material by impression. I am unable to distinguish, in construing this act, between the impression of one sort of mark and the impression of another sort of mark, and while it is possible that such marks as those in the specimen which you have sent me were not within the special contemplation of congress, yet I am of the opinion that the universality of the language forbids that any

FIRST DEPARTMENT.

SUPREME COURT-JUNE TERM, 1871.
(Continued from last week.)
COMMON CARRIERS.

Ferry boats common carriers.-Appeal from judgment in favor of plaintiff. It appeared on trial that the plaintiff drove his horse and buggy on board defendants' ferry boat at Astoria. It was about ten o'clock-the last trip of the boat. Plaintiff and wife were in the buggy. They sat in the wagon until the Three bells were time came for the boat to leave. rung on shore, the signal that the time was up. The pilot then blew his whistle; the plaintiff's horse became uneasy; plaintiff struck him with his whip. The pilot said to him: "Neighbor, you had better get out and hold that horse by the head." Plaintiff remarked: "Never mind, I will take care of the horse myself." The pilot blew the second whistle, and the plaintiff at the instant struck the horse again, and the horse sprang forward, ran to the forward end of the boat, and precipitated the horse, wagon, plaintiff and his wife into the water. The plaintiff and his wife were rescued, but the horse, wagon and harness were lost. The practice was to blow three whistles before leaving on the last trip. The chain was up at the outward or forward end of the boat.

Held, That there is no reason to disturb the finding of the jury as to the negligence of plaintiff and defendants. So far as relates to the property of the plaintiff, the defendants assumed the liabilities of carriers bound to protect the property while in their possession from loss or damage. This has been repeatedly held as to stage coaches, 19 Wend. 236, 250. In Brockway v. Lascala et al., 1 Edmunds 135, it was said: "Ferry boats occupy both positions: as to goods they are liable to the obligations of a common carrier; as to passengers, the obligation to the passenger carried." This rule is the correct one, and applicable to the case. The recovery here was mainly as to the plaintiff's property. There was no request to instruct the jury differently as to the passenger and no available exception is made on this point. Judgment affirmed. Wyckoff v. The Queens County Ferry Company. Opinion by Ingraham, P. J.

CONTRACTS.

1. This action was brought to recover for "goods, wares, and merchandise, carriages, wagons, sleighs and cutters," and for labor and services rendered and materials furnished in making repairs on such vehicles, and disbursements paid thereon, and a carriage sold on commission, all reasonably worth $5,154.15. The complaint further alleges that there is now due and owing $2,255.65 with interest. The answer contains a general denial.

mission for $898.50 net. There was a conflict of evidence as to whether the defendant had authorized the sale of the landau at $800. The defendant offered to show that the landau was disposed of by the plaintiff without authority, and against the defendant's orders, for a price far below its value, and to show what its real value was. This endeavor was objected to, on the ground that no such defense was set up by the answer, and was excluded, and the defendant's counsel excepted. The court, in charging the jury, withdrew from their consideration the matter of the landau, and to this the defendant excepted.

Judgment for plaintiff. On appeal, held, though the judge.charged the jury that the items relating to the landau were withdrawn from their consideration, except as to the price agreed to be paid, and for repairs, the jury allowed for it on the alleged sale by the plaintiff on the defendant's account. This was an error. The effect of it may have been to conclude the defendant as to any claim which he may have against the plaintiff for selling it contrary to orders limiting the price. Judgment reversed. Wood v. Belden. Opinion by Ingraham, P. J.

2. Interest should only be charged on an account when rendered, and not on the various items from date. Ib.

Also, see Damages, Specific Performance and Recoup

ment.

DAMAGES.

This action was brought by plaintiffs, who had acted as stock brokers for defendant, to recover a balance due from him on certain stock transactions. The referee found that a balance was due to the defendant by way of damages for sales of certain Illinois Central and Fort Wayne railroad shares, made by plaintiffs on account of defendant, without or in contravention of orders. In the Illinois Central transaction it appeared that the defendant had fixed the day of sale, and ordered the sale made at 137 1-2 per cent, while the plaintiffs had sold at 136 1-4. The referee allowed to defendant, as damages on such sale, the difference between the price sold and the highest price of the stock up to the day of trial. In the Fort Wayne transaction it appeared that on Saturday, April 9, 1864, plaintiffs purchased 200 shares, sending defendant immediate notice of the purchase. He received it on Monday morning, and telegraphed "Fort Wayne dead; sell Saturday's purchase at profit as soon as possible." Before the receipt of the telegram, they had sold out at a loss, on account of apprehension of a fall. Both buying and selling were admitted to be without special instructions, but were alleged to be in pursuance of a general authority. On April 26, 1864, plaintiffs rendered their account, and defendant did not find fault with these sales until the bringing of this action, two and one-half years after. Referee decided that these sales were made without authority, and allowed damnages to defendant therefor.

From judgment in favor of defendant, on appeal, held, the transaction in Illinois Central stock must be governed by the letter and telegram of the parties The defendant is fixing the price of selling at 137 1-2. entitled to the difference between that sum and the

price at which it was sold. The transaction in Fort Wayne stock was adopted by the defendant after full notice of the terms of purchase and sale. He made no objection to either. If he intended to disavow the plaintiff's acts, he should have notified him on receiving information of the sale, and not by an apparent acquiescence have led the plaintiff to suppose that he approved of what he had done. In neither transaction was the defendant entitled to recover the value of stock so sold at any time before trial. Judgment reversed and new trial ordered. Mott et al. v. Renshaw. Opinion by Ingraham, P. J.

FERRIES. See Common Carriers.

See Specific Performance.

"MARGINS. See Damages and Recoupmen.

See Removal of Causes.

The right to mortgage burial plots.-The defendant, being the owner of a lot in Greenwood cemetery, conveyed the same to the plaintiff by an absolute conveyance. The plaintiff executed at the same time to the defendant an instrument in writing, reciting the conveyance and agreeing to reconvey the same to the defendant on repayment to him of the consideration money, with interest, in one year. He also gave the defendant the privilege of interring in the plot during the year. The money not having been paid, the plaintiff treated it as a mortgage, and commenced this action for the foreclosure of it. The defendant demurred to the complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action. Judgment was given in favor of the demurrer. On appeal, held, that the only question is, whether the defeasance executed by the plaintiff at the same time with the conveyance, in which he agreed to reconvey the property on receiving a certain amount, vitiates the conveyance. The owner had a right to grant the lot absolutely. The plaintiff, under these two instruments, might have sustained an action for a strict foreclosure, and thereby obtained a perfect title. Such a decree or judgment would not have required any execution, to enforce it, and would not have come within the prohibition of the statute. The statute (Session Laws, 1838, p. 297) provides that the plots when conveyed to individuals shall not be liable to be sold on execution or to be applied to the payment of debts by assignment under any insolvent law. This was intended to prevent the sale of the property for the payment of the debts of the owner against his will, by process of law or by a general assignment under an insolvent act. The foreclosure of a mortgage does not require any execution or assignment to carry it into effect. The judgment itself directs the officer to sell, and the sale is made under the judgment and not by virtue of an execution. Although the plaintiff claims a sale of the premises in his complaint, still he states facts sufficient to show that he is entitled to a strict foreclosure without a sale, and so far as this action is attacked by the demurrer, the objection of the statutory provision would not deprive him of this remedy. The statute was not intended to apply to any voluntary act of the owner by which his title to the lot was to be affected. He has taken the price for it and given his consent to a transfer; he cannot now retain the money, and at the same time object that the

instrument given to secure the same is void. No such result can follow the acceptance and retention of the money, except in cases in which, by statute, the security is declared to be void. There is no difference, so far as a question of morals is concerned, between a sale by absolute conveyance and a sale by a conditional conveyance. However objectionable it may seem to allow such transfers of plots intended for burial purposes, an absolute prohibition against such conveyances by the legislature, as is contained in act of 1847, chap. 133, is necessary before the courts can declare them to be void. Judgment reversed. Lantz v. Buckingham. Opinion by Ingraham, P. J.

NEW YORK CITY. See Taxes and Assessments.

RECOUPMENT.

This action is brought by the plaintiffs, as assignees of J. B. Hughes, to recover certain margins reserved by the defendant upon two contracts made by him with Hughes for the purchase of kerseys, and also to recover whatever balance might be due on a third contract, known as the Murphy contract, the cause of action as to which was discontinued upon the trial. In relation to this contract, the referee found that the balance was in favor of the defendant, but that it could not be recouped or set off against the margins due the plaintiffs as assignees of Hughes upon the other two contracts. In relation to these two contracts, he found that the margins had been reserved and retained by the defendants, as alleged, and were due and payable to the plaintiffs as assignees of Hughes. From the judgment entered in accordance with his report on appeal, held, that the right of the plaintiffs to recover the margins assigned to them must depend upon the state of the accounts between the parties at the date of the assignment, subject to any deduction from each margin for any deficiencies or claims legally arising from the particular contract in which such margin arose. The referee finds that the two contracts had been executed and completed, except so far as waived by the mutual consent of the parties. If the contracts had been completed, except in parts that were waived by mutual consent, the balance of margins remaining or held belonged to Hughes, or his assignee if assigned, without being subject to any deduction. A letter of defendants introduced in evidence shows the intent of the parties to be that the margin in each case was to be controlled by the transactions of that individual contract, and that the margins were not to be held indiscriminately as security for all. The margin on one contract was not liable to make good a deficiency which might subsequently accrue on another contract, but on the completion of each contract Hughes was entitled to receive his margin retained on that contract, and an assignment by him at that time will transfer his right to recover the same, free from any claims which might subsequently arise against Hughes on other contracts. From these conclusions it is apparent that the only question remaining is, whether the damages sustained by the defendants upon the Murphy contract could be set off against the margins which the plaintiffs claimed on the other contracts. It is very clear that they could not be claimed by recouping the same as damages, because they did not arise out of the contracts on which the plaintiffs sought to recover. It could only be by set-off, if at all, that the defendants could be entitled thereto. To warrant this the damages should have accrued previous to the date of the assignment.

and the same should have been claimed by way of setoff or counterclaim in the answer. There is no proper pleading of the claim as a set-off in the answer, and in the absence of such a pleading the claim could not be allowed as a set-off, even if it was shown to have existed prior to the assignment. Judgment affirmed. Bailey et al. v. Martin. Opinion by Ingraham, P. J.

REFERENCE.

When proper. The complaint in this action in its third and fourth sections showed that the property, the subject of the suit, was to be held and applied not only in liquidation of the indebtedness mentioned in the complaint, but of all future advances which the defendants might make; that further advances were made by the bank by payment of calls on the certificates which it is sought to redeem; and an account will have to be taken of these advances and also of the payments made by the plaintiff. Held, that this account is necessary to be taken before judgment, and makes the case referable, and if so, the discretion of the judge granting the motion should not be reviewed on appeal. Ludlow v. The American Exchange Bank. Opinion by Cardozo, J. STATUTES, CONSTRUCTION OF. See Mortgages; also Taxes and Assessments.

REMOVAL OF CAUSES.

In the case of Pitt Cooke v. The State National Bank of Boston, the general term affirmed the decision below on the merits of the case. Cardozo, J., before whom at special term this case was on motion to remove it to the circuit court of United States, refers to his opinion at the special term already published, and dissenting from the decision of the general term, now rendered, gives his reasons as follows: Even if, which was not the fact, the objection had been raised upon the motion that all the defendants did not unite in the application to remove, I should have thought the point not well taken. The statutes of the United States upon this subject are predicated upon the common law. At common law the maker and indorser of mercantile paper could not be joined in one action. It is only by force of a statute of one State that an action against them jointly can be maintained. Laws of 1832, ch. 276, p. 489. It never can be that the right to remove a suit to the federal jurisdiction can be defeated by a State law, which, altering and contrary to the course and practice of the common law, authorizes the joinder in one action of persons who could not be so sued at common law. So far as the right to claim the jurisdiction of the United States courts is concerned, the action in the State court must be regarded as if each of the defendants were sued separately; in other words as if, though in form but one, there were in reality, as there would have to be at common law, two distinct suits. This being so, the right of the bank to apply alone to remove the action is clear. Concurring with my brethren upon the principal question involved in the merits of the trial, I still feel it to be my duty to dissent from the judgment which they propose to pronounce. Believing, as I do, that the case is removed to the United States circuit court, and that all the proceedings in this court subsequent to the removal are coram non judice and void, therefore I dissent. Cooke v. State National Bank of Boston. Opinion by Cardozo, J., dissentiente.

SET-OFF. See Recoupment.

SPECIFIC PERFORMANCE.

1. In cases of part performance of contracts.-The plaintiff entered into a contract with the defendants,

whereby he agreed to sell to them for $14,000 "three lots of ground on south side of 87th street, commencing 225 feet east of 5th avenue, and known by the numbers 61, 62 and 63, on the ward map of the 12th ward; also assignment of three corporation leases for fifty years and three hundred years on lot 60 adjoining." The complaint alleges a tender of deed for the lots 61, 62 and 63, and of assignments of lease of lot 60, and that defendants failed to pay the sums due from them on such tender, and asks a decree of the court directing the delivery up and cancellation of the contract, and the execution of a proper instrument discharging said contract of record on payment to the defendants of the amount paid by them on execution of the contract. The answer denies the breach of contract by defendants, and alleges that the corporation leases of lot No. 60, referred to in contract, were worthless, in the respect that they had been superseded by a subsequent sale of the lot in question and therefore gave no title to it. It was also contended by the defendant that said leases were worthless for the further reason that lot No. 60 had been sold by the corporation for taxes in 1852, notwithstanding the fact that the corporation then was and had been since 1853 the owner thereof, and that it does not tax or assess its own property. Other objections to the validity of the leases were also alleged. Defendants ask judgment for the conveyance in fee to them of the three lots for the price of $12,500, and that the leases of lot No. 60 be adjudged to be of the value of $1,500, and for damages. The findings of fact by Barnard, J., at special he finds as conclusions of law that the plaintiff was term are substantially as stated by defendants above; bound to convey corporation leases which were alive and current, and that, in everycontract for the sale of a lease, there is an implied understanding that there is a valid lease in fact existing, with an unexpired term; that the leases in question were worthless; that defendants had a right to rescind the contract as regards the lease; that defendants were entitled to demand specific performance as to the three lots owned in fee; also that judgment should be rendered requiring the plaintiff to execute a conveyance of the three lots to the defendant Schlesinger, the assignee of the contract, on receiving from him the sum of $10,000, less the value of good and valid leases to the lot in question, viz., $1,750, etc. From such judgment on appeal, held, it may be a matter of some doubt whether, under the contract of sale in this case, the contract to assign a specific lease contained an implied covenant that the title thereto was valid. It was described as an assignment of the corporation leases for 50 years and for 300 years. These leases were to be transferred with the sale of the other lots. How far a previous lease held by the corporation invalidated those leases, sold by the corporation and executed by them to the purchaser, may also admit of much doubt. The corporation giving a lease under such circumstances might be estopped from setting up a prior lease to defeat the title under their own conveyance.

But, independent of these questions, I do not think a court of equity will divide a contract made as this was, of the sale of various pieces of property in one lot, and for one price, and decree a specific performance as to one lot and deduct an imaginary value for the other. The contract is entire, and only one sum is named for all. The vendee, if he wishes specific performance, must take the whole property as it is, or refuse performance and seek his remedy by way of damages. It has nowhere been decided, that we have been referred

to, that proof of value will be taken of the different parcels, and a single contract for a single price be on such proof divided, and performance as to one parcel be decreed on the price so ascertained. I am not satisfied that the defendant is entitled to any reduction from the price in the present case. If he is willing to take the whole property and pay the purchase-money as stated in the contract, the judgment can be so amended and performance ordered. If not, the judgment should be reversed, and new trial ordered. Gilbert v. Peteler, 38 Barb. 488, cited. Boyd v. Schlesinger et al. Opinion by Ingraham, P. J.

2. The cases in which equity will divide a contract and compel part performance are, as where two parcels are sold in the same contract at separate prices, and the title to one fails, equity will then decree performance as to the other. So, where land is sold by the acre, and the number of acres sold fall short, or the title to a portion is defective, equity will decree performance as to the residue, because the price per acre shows the mode of arriving at the deficiency. So, if the land is sold free from incumbrance, and there are liens on the property, equity will decree performance and make an allowance from the price for the incumbrance. Ib. TAXES AND ASSESSMENTS.

The statute of 1870, chap. 383, is applicable to assessments made prior to its passage, and is not unconstitutional. The point was passed upon by Ingraham, J., In the matter of Beams, 17 How. P. R. 459, and was fully reviewed by the learned judge rendering the decision in this case in the matter of the Broadway assessment, decided at special term in April, 1871. In Eagers' Case, 3 Albany Law Journal, 129, the proofs had been taken previous to the passage of the statute, and in Remson's Case the petition had been presented. In those cases it was properly held that the statute was inapplicable. The application here, however, was made under the statutes as they existed when the petition was presented, and must be governed by the law as it stands now. The order below vacating the assessment should be modified, by directing that the assessment be reduced by the amount of the unlawful increase of expense included in the assessment, to be ascertained and calculated in the manner pointed out by the statute. In re Michael Tracy. Opinion by Cardozo, J.

DIGEST OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF INDIANA.*
BREACH OF PROMISE TO MARRY.

Exemplary damages.-On the trial of an action for breach of a marriage contract, where the evidence did not tend to show any fraud in the making of the contract or in its violation, the court instructed the jury as follows: "If the marriage contract and its breach by the defendant have been proved to your satisfaction in this case, and if you further believe from the evidence in the case that the element of fraud mingles in this controversy, as an ingredient in the act of the defendant, either in making the marriage contract with the plaintiff or in violating or breaking that contract, then you may award to the plaintiff, in addition to the actual loss sustained by her, such exemplary damages as shall tend to prevent a repetition of the injury, and to punish the defendant." Held, that

*From Hon. James B. Black, reporter, and to appear in 33 Indiana reports.

though the instruction stated a correct principle of law, yet, under the evidence, it was erroneous. Dryden V. Knowles.

CONTRACT.

Fraud: rescission in part.-A. sold to B. a farm, valued in the transaction at $6,300, in part payment for which he took from B. certain western lands at $1,300, upon false and fraudulent representations of B. as to their location, character, and value per acre. Pending the transaction, B. agreed with C. to exchange said farm for another owned by C.; and, at B.'s request, A. conveyed his said farm directly to C., who continued in possession thereof. Upon discovering the fraud, A. tendered to B. a conveyance of the western lands, and demanded from him $1,300. Held, in a suit by A. demanding a rescission of the contract, so far as the western lands were concerned, and judgment for $1,300, that he was not entitled to such rescission. Johnson and others v. Cookerly.

EVIDENCE.

1. Opinion of witness. On the trial of an indictment for desecrating the Sabbath, a witness stated as his own opinion, merely, that the defendant was over fourteen years of age, and testified that the defendant was keeping house, living with a woman as his wife, whom the witness supposed to be the defendant's wife; that they lived together as husband and wife; and that the defendant had a mustache. Held, that this evidence was sufficient to justify a finding that the defendant was at least fourteen years of age. Foltz v. The State.

Where the value of property, real or personal, comes in question, a witness who has a personal knowledge of the property, and who possesses the necessary information to enable him to form a proper estimate of its value, will be permitted to give his opinion in reference to it. Ferguson v. Stafford et al.

3. Waste. On the trial of an action for waste against one holding under a will till the youngest of the plaintiffs should come of age a witness having testified that he knew the premises, a farm, its improvements and condition, when the defendant took possession, and also its condition at the commencement of the suit, and having described its condition at each of these periods; held, that there was no error in permitting said witness, over the defendant's objection, to give his opinion as to the value of the farm at the time the action was commenced, and also what it would then have been worth if kept in ordinarily good repair and cultivated in a husbandlike manner, or in permitting him to give his opinion as to the cost, in detail, of putting the farm in good condition and repair. Ib.