Pet. 504,505; Boston v. Lecraw, 17 How. 426. "A man cannot lose the title to his lands," it is said in this case, "by leaving them in their natural state without improvement, or forfeit them by non-user. P. 436. McMurry v. Baltimore, 54 Md. 103. Potomac Steamboat Co. v. Upper Potomac Steamboat Co. Opinion by Matthews, J.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

ADMIRALTY-ACTION BY ADMINISTRATOR FOR NEGLIGENCE NOT COGNIZABLE IN.-A State statute which gives to the administrator of one who has been killed by an accident a right of action for damages for the benefit of "husband, wife, parent, and child" of the deceased, against the person or corporation responsible for the accident, thereby creates a right which, though the killing be a marine tort, is not maritime, and a libel in rem brought by the administrator against a ship for the damages cannot be maintained. A statute which gives a right of action in personam does not thereby give a right of action in rem in a similar case in admiralty. The States of this Union cannot create maritime rights, or rights of action in admiralty; nor can they endow with a maritime right one who is not entitled to that right by the law maritime. U. S. Dist. Ct., E. D. Virginia, January, 1884. The Manhassett. Opinion by Hughes, J.

PARTNERSHIP-USE OF NAME OF ONE NOT PARTNER. -A partnership which is suffered by any one to use his name as a part of the firm style and title, though it may acquire by such license an exclusive right to the use of the name so long as the partnership continues intact, cannot, upon its dissolution, confer the same privilege upon its successor. Acquiescence by any person in the wrongful use of his name will not estop him from asserting his rights in equity, unless he has notice during such acquiescence of the facts rendering the use of his name wrongful. U. S. Cir. Ct., Indiana, Dec. 29, 1883. Horton Manufacturing Co. v. Horton Manufacturing Co. Opinion by Woods, J.

REMOVAL OF CAUSE-SUIT INSTITUTED BY STATE.A suit instituted by a State in one of its own courts against a citizen of another State is not removable on the ground of a diversity of citizenship of the parties. Such a suit is not a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment or Revised Statute, section 641, and removal on that ground. U. S. Cir. Ct., M.D. Alabama, July, 1883. State of Alabama v. Wolffe. Opinion by Bruce, J.

TELEGRAPH-NOTICE LIMITING LIABILITY AS TO MESSAGE. The printed conditions on the half-rate message blanks of the Western Union Telegraph Company are reasonable and valid, to the extent of protecting the company from damages for any error or mistake occurring in the transmission of a half-rate message, unless it is shown affirmatively that such error or mistake was the result of gross negligence or fraud; and mere proof of the fact that there is a mistake of a word or a figure in the message as delivered is not in itself sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties. Western Union Tel. Co. v Neill, 57 Tex. 283; S. C., 13 Cent. Law J. 475; Aikin v. Western Union Tel. Co., 5 S. C. 358; Pinckney v. Western Union Tel. Co., Sup. Ct. S. C. MS. Op. Nov. Term, 1882; Ellis v. Amer. Tel. Co., 13 Allen, 226; Grinnell v. Western Union Tel. Co., 113 Mass. 299; Schwartz v. Atlantic & Pacific Tel. Co., 18 *Appearing in 18 Federal Reporter.

Hun, 157; Becker v. Western Union Tel. Co., 11 Neb. 87; S. C., 23 Alb. Law J. 277; Sweatland v. Ill. & M. Tel. Co., 27 Iowa, 455; White v. Western Union Tel. Co., 14 Fed. Rep. 710. U. S. Cir. Ct., E. D. Arkansas, Oct., 1883. Jones v. Western Union Telegraph Co. Opinion by Caldwell, J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
SEPTEMBER, 1883.

CORPORATION-MAY RECOVER FROM ONE PROCURING TRANSFER OF SHARES ON FORGED CERTIFICATE—

BROKER.-A. owned five shares of stock in the plaintiff railroad company. Defendants purchased the shares from a broker who was in possession of the certificate, and a forged signature to a power of attorney purporting to authorize their transfer. On the faith of this power of attorney plaintiff transferred the shares to defendants and issued to them a certificate. Subsequently plaintiff transferred the shares to a purchaser from defendants at their request, and issued to the purchaser a new certificate. Plaintiff was afterward compelled to procure for A. five shares of stock and to pay her accrued dividends. Held, that plaintiff was entitled to recover of defendant the value of the stock and dividends. A. never parted with her property in the shares, and therefore the plaintiff was obliged to procure shares for her and also pay her the dividends Pratt v. Taunton Copper Co., 123 Mass. 110. It is settled that the corporation has no remedy against the person who purchased of the defendants, because as to him the corporation is estopped to deny its certificate issued to the defendants and transferred to the purchaser. Machinists' National Bank v. Field, 126 Mass. 345. It is familiar law that in a sale of chattels a warranty of title is implied unless the circumstances are such as to give rise to a contrary presumption. Shattuck v. Green, 104 Mass. 42. The possession and offer to sell a chattel is held equivalent to an affirmation that the seller has title to it. This is founded upon the reason that men naturally understand that a seller who offers a chattel for sale owns it. The same rule has been extended to the case of a sale of a promissory note. The seller impliedly warrants that the previous signatures are genuine. Cabot Bank v. Merten, 4 Gray, 156; Merriam v. Walcott, 3 Allen, 258. So it has been held that if one, honestly believing himself to be authorized, acts as agent for another and procures money or goods upon the credit of his supposed principal, and it turns out that he is not authorized, he is liable for the value of the money or goods. Jefts v. York, 10 Cush. 392. In numerous other cases the remedy is said to be an action on the case for falsely assuming to be an agent. Bartlett v. Tucker, 104 Mass 336; May v. Western Union Tel. Co., 112 id. 90. See also Simm v. Anglo American Tube Co., L. R., 5 Q. B. D. 188; Hambleton v. Central Ohio R. Co., 44 Md. 551; Brown v. Howard Ins. Co., 42 id. 384. Boston & Albany Railroad Co. v. Richardson. Opinion by Morton, C. J.

DEFINITION "HEIRS AT LAW "-TRUST.-A deed in trust of personal property directed the trustees to pay over the income during life to beneficiaries named and upon their death to divide between H. and others. The deed directed that the share of H., if he was then deceased, go "to his heirs at law." The trustees were authorized to invest the fund in real estate as well as personal property. Held, that the words "heirs at law" were to be taken in their literal sense. It is true that Sweet v. Dutton, 109 Mass. 589, can only be reconciled with this construction by laying hold of

Jersey v. Mehan. Opinion by Beasley, C. J. (Supreme.)

SURETYSHIP--BANK OFFICER'S BOND-DISCHARGECOVENANT-JOINT OBLIGORS.-(1) A surety upon the bond of a cashier of a bank is not discharged by the mere fact that the cashier was, at the time the bond was given, a defaulter. Nor will the neglect of the bank to ascertain that fact discharge him. The books of the bank, and the statements of the bank sent to the comptroller of the currency under the National Banking Law, are not admissible in evidence to prove the negligence of the bank officers, nor as tending to establish the fact of knowledge on the part of the bank of the existence of the defalcation. Tapley v. Martin, 116 Mass. 275; Wayne v. Commonwealth National Bank, 52 Penn. St. 343; Brandt on Suretyship, § 367. (2) A covenant given to one of several obligors, which provides that if suit should be brought against him the instrument should become a good bar thereto, and operate as an absolute release and acquittance of the bond as to him, and which declared that it was not intended thereby to release or discharge the other sureties, is a covenant not to sue, and not a release. Dean v. Newhall, 8 T. R. 168; Thompson v. Lack, 3 M., G. & S. 540; Crane v. Alling, 3 Green, 423. Bowen v. Mount Holly National Bank. Opinion by Runyon, C. (Errors.)

(1) The general principle is that parol evidence is admissible to show that notwithstanding the delivery of an instrument not under seal, the intention of the parties was that it should not become operative as a contract except upon the happening of a future contingent event. Pym v. Campbell, 6 El. & Bl. 370, and Wallis v. Littell, 11 C. B. (N. S.) 369; Westeman v. Krumweide, 15 N. W. Rep. 255. (2) In an action for damages where the defendant had falsely assumed authority to sell and convey property, held that the measure of damages was the difference in value between what plaintiffs would have got if the assumed authority had existed, and what they did get. If the assumed authority had in fact existed, plaintiffs would have got the right to acquire title upon payment of the price, whereas in the absence of the authority, they got no right to the property at all. Their loss was the difference between the value of the price which they agreed to pay, and the market value of the property at the time when the agreement was made. The rule entitling plaintiffs to the loss of bargain, when authority to sell has been falsely assumed, is supported by Spedding v. Nevell, L. R., 4 C. P. 212; Taylor v. Bradley, 39 N. Y. 129. Skaarass v. Finnegan. Berry, J.

[Decided July 17, 1883.]

Opinion by

MASTER AND SERVANT-LIABILITY OF MASTER FOR INJURY FROM DEFECTIVE MACHINERY-KNOWLEDGE OF SERVANT.-If a servant before he enters a service, knows or afterward discovers that the instrumentalities furnished for his use are defective, and understands, or by exercise of ordinary observation ought to understand the risks to which he is thereby exposed, and if notwithstanding such knowledge, he, without objection, and without any promise on the part of the employer that such defects will be remedied, enters or continues in such service, he cannot recover for injuries resulting therefrom, but will be deemed to have assumed all the risks of the employment thus known. But it is now well settled that if a servant who has knowledge of defects in the instru

mentalities furnished for his use gives notice thereof to his employer, who thereupon promises that they shall be remedied, the servaut may recover for an injury caused thereby, at least where the master requested him to continue in the service, and the injury occurred within the time at which the defects were promised to be remedied, and where the instrumentality, although defective, was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use it. Under such circumstances his subsequent use of the defective instrument would not necessarily, or as a matter of law. make the servant guilty of contributory negligence, but it would be a question for the jury, whether in continuing its use after he knew of the defect, he was in the exercise of ordinary care. Clarke v. Holmes, 7 Hurl. & N. 948; Hough v. Railway Co., 100 U. S. 213; Patterson v. Railroad Co., 76 Peun. St. 389; Laning v. Railroad Co., 49 N. Y. 531; Snow v. Railroad Co., 8 Allen, 441; Holmes v. Worthington, 2 Foster & F. 533. See also Ford v. Railroad Co., 110 Mass. 240; Greeuleaf v. Railroad Co., 29 Iowa, 14; Kroy v. Railroad Co., 32 id. 357. Greene v. Minneapolis & St. Louis Railway Co. Opinion by Mitchell, J. [Decided Nov. 24, 1883.]

RECENT ENGLISH DECISIONS.

RESERVATION OF MINERALS IN LEASE

CUSTOM FLINTS NOT MINERALS.-The appellant let to the respondent a farm in a chalk district, reserving by the agreement "all mines and minerals." In the course of husbandry the tenant turned up flint stones by the plough, which he collected off the land and sold. Evidence was given that it was necessary that the stones should be removed from the land in the course of good husbandry, and the tenant alleged a local custom that they might be sold by the tenants. The landlord applied for an injunction to restrain him. Held (affirming the judgment of the court below), that assuming the custom to be proved, it was not unreasonable, and that the reservation in the lease was not sufficient to exclude it. House of Lords, June 15, 1883. Tucker v . Linger. Opinions by Lords O'Heagan, Blackburu, and Fitzgerald. (49 L. T. Rep. [N. S.] 373.)

SPECIFIC PERFORMANCE-MISREPRESENTATION DEFEATING-LEASE.-The plaintiffs advertised for sale by auction a hotel, stated in the particulars to be held by a "most desirable tenant." The defendants sent their secretary down to inspect the property and report thereon. The secretary reported very unfavorably, stating that the tenant could scarcely pay the rent (4001), rates, and taxes. The defendants however relying on the statements in the particulars, authorized the secretary to attend the sale and to bid up to 5,000. The property was bought in at the sale, and the secretary purchased it by private contract for 4,7002. It appeared subsequently that the quarter's rent previous to the sale had not been paid; the previous quarter had been paid by installments, and six weeks after the sale the tenant filed his petition. It appeared however that the hotel business was as good during the last year as previously, and that the month of the tenant's failure was the best he had had. The plaintiffs brought an action for specific performance, relying (in answer to the defense and counter-claim for rescission on the ground of misrepresentation) on the fact that the defendants had made their own inquiries. Held, that the statement that the property was held by a "most desirable tenant" could not be treated as "simplex commendatio," and that the defendants, having relied thereon, were entitled to rescission of the contract, on the authority of Redgrave v. Hurd, 45 L. T.

Rep. (N. S.) 485; 20 Ch. Div. 1. Ch. Div., July 26, 1883 Smith v. Land and House Property Corporation. Opin ion by Denman, J. (49 L. T. Rep. [N. S.] 532.

CRIMINAL LAW.

BASTARDY-EVIDENCE MUST BE BEYOND A REASONAble doubt.-A bastardy proceeding is quasi-criminal, and the defendant must be proved, beyond a reasonable doubt, to be the father of the child before he can be compelled to contribute to its support. A finding by the court, in such a case, that the defendant is guilty "upon a preponderance of the evidence but not beyond a reasonable doubt," is equivalent to an acquittal. Wisconsin Supreme Court, January 29, 1884. Van Tassel v. State of Wisconsin. Opinion by Cole, C. J.

CONFESSION -OBTAINED BY THREAT OR PROMISE INADMISSIBLE.-Where a prisoner was visited during the night in his cell by three persons in succession who were none of them officials, but who held out promises of favor in order to obtain a confession, held, that admissions of guilt thus obtained were inadmissible. No reliance can be placed upon admissions of guilt so obtained; for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them. State v. Phelps, 11 Vt. 116; S. C., 34 Am. Dec. 672; State v. Walker, 34 Vt. 296; Hector v. State, 2 Mo. 166; S. C., 22 Am. Dec. 454; State v. Bostick, 4 How. 563; State v. Guild, 10 N. J. Law, 163; S.] C., 18 Am. Dec. 404; Spears v. State, 2 Ohio St. 583; Commissioner, etc., v. Taylor, Cush. 605; Commissioner, etc., v. Tuckerman, 10 Gray, 190; Smith v. State, 10 Ind. 106; Miller v. People, 39 Ill 457; Cain v. State, 18 Tex. 387; Davis v. State, 2 Tex. App. 588; Van Buren v. State, 24 Miss. 512; Jordan v. State, 32 id. 382; People v. Barrie, 49 Cal. 342; State v. York, 37 N. H. 175; Miller v. State, 40 Ala. 58; Porter v. State, 55 id. 95; State v. Whitfield, 70 N. C. 356; State v. Hagan, 54 Mo. 192, and Flagg v. People, 40 Mich. 406. Michigan Supreme Court, October 24, 1883. People of Michigan v. Wolcott. Opinion by Cooley, J.

--

ADMISSIBILITY

THREATS AND

CONFESSION PROMISES.-The sheriff and State's attorney talked with the respondent while in jail. The sheriff first testified that no inducements to confess were held out, but afterward he said "that he presumed he and the State's attorney both told the respondent it would be better for her to tell the whole story, and the punishment would be likely to be lighter." Held, that his testimony was admissible. Vermont Supreme Court, May Term, 1883. State of Vermont v. Day. Opinion by Veazie, J. (55 Vt. 510).

ΤΟ

INDICTMENT-COUNTERFEITING-ALLEGING INTENT

DEFRAUD. - (1) In an indictment for an offense created by statute, it is in general, sufficient to describe the offense in the words of the statute. "Certain pieces of false and counterfeit coin, in imitation of the silver coin current within the State by law and usage, to-wit, five pieces called twentyfive cent pieces, and five pieces called dimes," is a sufficient description in an indictment upon Gen. St., ch. 258, 9; State v. Goulding, 44 N. H. 284, 287; State v. Gove, 34 id. 510; Com. v. Cone, 2 Mass. 135; Wharton Cr. Law, 364; State v. Abbott, 31 N. H. 434; 2 Bishop Cr. Proc., 265, 266, 704; Commonwealth v. Stearns, 10 Met. 256; State v. Mahanna, 48 N. H. 377. (2) When a general intent to defraud is sufficient to constitute an offense, the allegation of a general intent to defraud is sufficient in the indictment, and it is not necessary to allege or prove an intent to de

Editor of the Albany Law Journal:

An argument in favor of the adoption of the Civil Code has just occurred to me which I have never seen expressed in this form, but which would seem to command the assent of all its opponents.

A Civil Code has been drawn, and criticised, and amended, for nineteen years. It is presented to us as a substantially correct epitome of the common law by Mr. Field, whom in every other connectiou, no man doubts to be an excellent lawyer, and by what is fairly claimed to be a majority, but is most certainly a large minority, of the lawyers of the State.

This work is proved by a pamphlet to contain, in one article (since entirely omitted, in submission to such criticism, though previously adopted at the recommendation of a "miscellaneous body composed of merchants, average adjusters, representatives of underwriters, chamber of commerce, and the like bodies [including lawyers] who assembled at different times in England and on the continent "), six positive errors, and numerous ambiguous expressions.

Or to adopt another form of expression, "it (the Code) is utter nonsense."

Or to state a mode of opposition adopted by another objector: There is no case in the eighty-fifth volume of the New York Reporter, of which it may be said, that if the parties in controversy had turned to the proposed Code, the point in controversy would have been found as decided in it."

This work, at the same time, is admitted to be the only codification of the common law in existence.

Now if the only codification of the common law. thus introduced as aforesaid, is in the opinion of the most ardent friends of the common law, thus surcharged with error, or this "utter nonsense,' or thus incapable of guessing at future controversies, and settling them, of what use is the common law as a rule of action? How can it keep a man to what is right, or enable him to escape what is wrong?

And if it cannot, what means of escape have we, except the reduction of the law to writing, and the resolution to arrive at a true reduction by indefatigable correction?

A practical experience of the need of a Code has just occurred to me. I have received the following letter from a lawyer friend:

"I want to examine in some large law library in your city, some authorities upon the question of how far are admissible the declarations of a murdered man, expressing fear, etc. It was done in the Hunter case in Jersey, which we have. Also in the Hayden case, for the murder of Mary Stannard in Connecticut. This we have not. In Burrill on Circums. Ev. 304,

which we have, we find references to State v. Carawan, Pamph. Rep. 42, 46, and Mr. Spooner's case, 2 Chand. Am. Crim. Trials, 19-21. Also discussed in the case against Dr. Webster. Will you go with me to some public library?"

We went to the New York Law Library. State v. Carawan was not in it. We found it cited a dozen times in Burrill, once as a North Carolina case, but no reference to it in the North Carolina Reports. We found Chandler Am. Crim. Trials not in the library. In short my friend added nothing to the information furnished by his native village, and had come the 120 miles to New York in vain. And this was the only library which I have ever been told claims to be complete. It is then a matter of proof that there is in America no place where a man can be informed of the law he is expected to obey?

PARTITION UNDER WILL WITH OUTSTANDING POWER OF SALE.

Editor of the Albany Law Journal:

I saw in your JOURNAL (Feb. 9, 1884) a very interesting article on the subject of "partition under will with outstanding power of sale." Among other things therein stated I noticed this: "And in Mott v. Ackerman, 92 N. Y. 540, we find that a power of sale with directions to pay debts or distribute passes to an administrator with the will annexed."

I have tried in vain to see 92 N. Y. I therefore concluded to take the liberty of asking you the following question: Does such power of sale pass to the administrator, C. T. A., in the absence of statutory provisions? Or is there in New York an act corresponding with the Maryland Statute of 1865 (i. e., transferring the power to such administrator)?

My reason for asking the question is this: Our Probate Court (Orphans' Court) is a tribunal of "limited and special jurisdiction," and as such cannot appoint an administrator with any such powers to carry out trusts in a will, were it not for that act of 1865. Nevertheless I claim, that inasmuch as said court is empowered to annex the will to an administrator (thereby annexing [not conferring] said power contained in the will to said administrator), such annexing is part of its · special” jurisdiction, and therefore independent of said act of 1865, or any other statute, the power would pass to the administrator, C. T. A., directly from the will as it did in the first place to the executor (who died or renounced as we have been supposing all along), and is thus mediately granted by said Orphan's Court, but immediately by the will which said court is specially authorized to annex.

I know that there are many cases holding that in the absence of any statutory provision, such power does not so pass, but if you will be so kind as to let me have your opinion on the subject, I shall be very much obliged.

It is stated in volume 3, of Wait's Actions and Defenses, page 261, that said power is a personal trust, and for that reason does not pass (in absence of statute), but what I insist upon, is that if our Orphans' Court is empowered to annex a will, it is thereby given that quasi equitable power to preserve any trust in that will, and that even if said power is a personal trust it passes by virtue of that annexing of the will, and that the act of 1865 is not necessary to give said Orphans' Court the extra or additional power. Please let me know whether the above case in 92 N. Y., rests upon statute or not.

Most respectfully,

E. R. JOHNSTON.

CUMBERLAND, MD., March 5, 1884. [We think it rests upon statute.

JOUR.]

THE

ED. ALB. Law

COURT OF APPEALS DECISIONS.

following decisions were handed down Tuesday, March 11, 1884.

Judgment affirmed with costs-Andrew Donlon, administrator, appellant, v. Long Island Railroad Company, respondent; John C. Derby, appellant, v. J. Earl Hulbert, as executor and administrator, respondent; Robert J. Livingston, indirectly, and another, executors, appellants, v. Russell Sage and others, respondents; Robert J. Livingston, indirectly and as executor, and appellant, v. Wm. H. Webb and others, respondents.

-Judgment reversed; new trial granted, costs to abide the event-John M. Carroll, executor, and respondent, v. Henrg A. Deimel and others, appellants; Elvira Vick, administrator and respondent, v. N. Y. C. & H. R. Railroad Co., appellants; Catharine Waldele, administratrix, respondent, v. N. Y. C. & H. R. Railroad Company, appellant.-Order of General Term and surrogate reversed and case remitted to the surrogate; costs of Supreme Court and of this court to be paid to the appellant out of the estates in case he shall be finally successful in the contest-In re. Probate of Will of Trust Felix Gourand, deceased. Order affirmed, with costs out of the estate- William Laytin and others, trustees and respondents, v. Ellen Louisa Davidson and others, appellants.-Appeal dismissed with costs-Cynthia Brouk, administratrix and appellant, v. N. Y. and N. H. R. R. Co., respondents.

-Judgment reversed and proceedings dismissed without costs-Clemence B. Bloomfield, respondent, v. Stephen A. Ketcham appellant.

NOTES.

THE HE American Law Review for January-February contains the following leading articles: Abuses of the writ of Habeas Corpus, by Seymour D. Thompson; Domicile as affecting Marriage and Divorce, by Hugh Weightman; Preferred Stock, by Leonard A. Jones; Peculiarities of Manx Law, by Roger Foster; address of M. Rivier, at late meeting of Institute of International Law, at Munich; Review of Causes in Courts of Last Resort, by Samuel Maxwell. The "Notes" continue excellent. The American has swallowed up not only the Western Jurist, but the Southern Law Review. We hope it will spare us the Central Law Journal. Notwithstanding the American's assertion is not the "hub,' we notice that on the retirement of Mr. Murfree from the editorial management of the Central, he is succeeded by a Boston man, Mr. Elisha Greenhood. A correspondent writes us: "Among your collection of funny names in the reports, have you 'Mr. Preserved Fish," who appears in the third volume of the New York City Hall, Recorder at page 129? He is certainly either an incestor of or of the same tribe as our friend 'Napoleon K. Oyster.'"