note, or other chose in action, not negotiable under existing laws," may sue upon it in his own name (How. St., § 7344), and we have held that even actions for torts, if they were such as would survive to the personal representatives, are within the statute, Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 id. 154; Grant v. Smith, 26 id. 201; Finn v. Corbett, 35 id. 318; but the present is not a case sounding in tort, and it is within the reason of the statute as well as its terms." Felt v. Reynolds, etc. Opinion by Cooley, C. J. [Decided Feb. 8, 1884.]

ΝΟ

MALICE-SAME ON

DAMAGES RULE WHERE CONTRACT OR TORT - PROFITS-CHATTEL MORTGAGEVOID FOR WANT OF FILING.-(1) There is a distinction between actions on contract and of tort, where malice is an element, but where parties are litigating disputed rights in good faith and there is a choice of remedies, the rule of damages ought not to depend on the form of the remedy selected. Estimates of profits are generally so unreliable as to be worthless as a means of arriving at the actual damages, and cannot be so used in the present case. The plaintiff delayed the replevy of the mill for three months, and he claimed on the trial to recover as damages the profits he might have made in the interval. The defense objected to the proofs offered, and referred to the decisions in Allis v. McLean, 48 Mich. 428; S. C., 12 N. W. Rep. 640, and McKinnon v. McEwan, 48 Mich. 106; S. C., 11 N. W. Rep. 828, as authority against them. These cases are said not to be applicable, because they were suits upon contract, while the present is a suit sounding in tort. A distinction is undoubtedly to be taken between actions upon contract and actions of tort, in all cases where malice, express or implied, is an element; but where parties are in good faith litigating disputed rights, and there is a choice of remedies, the rule of damages ought not to depend upon the form of remedy the party has selected. This plaintiff elected to retake the property in an action sounding in tort; he might have waited until a sale and sued in assumpsit for the proceeds; but in either case the facts in controversy would have been the same, and the measure of damages ought to be by the same rule. The real question is, by what sale shall we with most certainty arrive at a knowledge of what they actually were? It was shown in the two cases just referred to that estimates of profits are generally so unreliable as to be worthless as a means of arriving at the actual damages; and in McKinnon v. McEwan, it is said that "the profits of running a saw-mill are proverbially uncertain, indefinite, and contingent. They depend on many circumstances, among which are capital, skill, supply of logs, supply and steadiness of labor, and one man may fail, while another prospers, and the same man may fail at one time and prosper at another, though the prospective outlook seems equally favorable at both times. Estimates of profits seldom take all contingencies into the account, and are therefore seldom realized; and if damages for breach of contract were to be determined on estimates of probable profits no man could know in advance the extent of his responsibility. It is therefore very properly held in cases like the present that the party complaining of a breach of contract must point out elements of damage more certain and more directly traceable to the jury than prospective profits can be.” (2) A mortgage of chattels or a conveyance intended as such, not accompanied by delivery and continued changes of possession, is void as against creditors of the mortgagor and subsequent purchasers in good faith, unless a true copy shall be duly filed. Good faith in the mortgagee does not protect the unrecorded transfer which comes under this statute. Haynes v. Leppig, 40 Mich. G07; Fearey v. Cummings, 41 id.

383; S. C., 1 N. W. Rep. 946; Cooper v. Brock, 41 Mich. 491; S. C., 2 N. W. Rep. 660; Sutton v. Rowley, 44 Mich. 113; S. C., 6 N. W. Rep. 216; Anderson v. Brenneman, 44 Mich. 198; S. C., 6 N. W. Rep. 222; Wallen v. Rossman, 45 Mich. 333; S. C., 7 N. W. Rep. 901. Talcott v. Crippen. Opinion by Cooley, C. J. [Decided Feb. 8, 1884.]

AGENCY-EXCEEDING AUTHORITY

TITLE OF VEN DEE. Where a husband, as agent for his wife, sells her goods upon terms not authorized by her the sale passes no title to the vendee (until ratification by the wife), and he cannot set up against the attaching creditors of the wife any claim that he cannot set up against her. Newburn v. Woods. Opinion by Campbell, J.

[Decided Feb. 8, 1884.]

DEED BREACH OF COVENANT - PERSONAL CLAIM OF GRANTEE SUBSEQUENT GRANTEE CAN ONLY SUE AS ASSIGNEE.-Where land is conveyed to a married woman by warranty deed, and there is a mortgage on the land, which is paid off by the husband of the grantee, said grantee having previously conveyed the land to her husband by a deed with no covenants, the husband has no right to recover under the covenants of the first deed. The default of the mortgage gives the wife a personal claim against her grantor, which the husband could only claim as assignee, and the deed to the husband conveyed only the land and not this claim. Nothing in the record indicates any intention to convey the claim. Post v. Campau, 42 Mich. 90; 3 Neb. Rep. 272, distinguished. Davenport v. Davenport. Opinion by Cooley, C. J. Decided Feb. 6, 1884.]

CORRESPONDENCE.

IN WESTMINSTER HALL.

Editor of the Albany Law Journal:

In my day the most conspicuous figure in Westminster Hall was Lord Chief Justice Cockburn. He was a little old man, with the most intellectual face I have ever seen-high, broad forehead, clear, brilliant eyes, and a most musical voice. His detractors said he was too fond of displaying his own powers, and too ready to take a strong view of one side of a case, but if there was some little foundation for these complaints, none could deny his rapidity of apprehension, clearness of thought and expression, and never-failing courtesy. His very faults arose from his desire to do justice. He could not sit on the bench a dummy and see the weaker made to appear the better reason to a befogged jury. Cockburn was generally admitted to be facile princeps in the strongest Queen's Bench Court that England has had for many years.

His coadjutors were Blackburn, Lush, Mellor, Quain and Hannen. Blackburn, a master of the common law, profound and exact, but justly unpopular with the bar for his bullying tendencies and merciless treatment of unknown jurors, a fault the more inexcusable in one who had himself been promoted from obscurity to the bench. Lusk, a gentleman really beloved by all who practiced before him, modest and unassuming, but withal having a quiet dignity which stood him in far better stead than his colleague's sneers and impertinences. Mellor, a sound, steady, thorough lawyer, rather prolix, but always equal to his work, and Quain and Hannen, both men who wanted years rather than ability to make them equal in weight with their more prominent brethren.

Outside the Queen's Bench the two best known and ablest judges were Brett and Bramwell. Brett was reputed the best man on the bench for a shipping or commercial case, and Bramwell had a fame all his

own for strong common sense, and a rough, pithy way of putting things. Perhaps no judge was a more general favorite than Bramwell, both with the bar and the public, and none cared less for popularity. Then there was poor old Kelly, the chief baron, the wreck of a splendid advocate, now capable of nothing but “words, words, words."

In the equity courts, which, by a legal fiction we may treat as being at Westminster, where indeed they sat once every term, Romilly's somnolent tendencies were still an unforgotten jest, and his great successor, Jessel, was commencing that magnificent but too short lived career which remains the wonder and admiration of the English bar. Malins, an able lawyer, but a peppery and undignified judge, was constantly kicking up his heels, and sedulously kept up the title of his court as the "Chancery Bear Garden." Still he got

THE SPEAKERSHIP. Editor of the Albany Law Journal:

As to the speakership of the House of Representatives, the facts are these: There have been twentynine speakers to the present time. They are classified as follows: One medical doctor, 1 merchant, 1 minister, 2 journalists, 6 politicians, 18 lawyers.

Of the lawyers re-elected, James K. Polk served two terms; Andrew Stevenson, four; and Henry Clay, five. Both Stevenson and Clay were re-elected more often than any other name on the list.

The lawyers have had their share, Mr. Editor.
ALBANY, April 14, 1884.
R. W. THOMAS.

COURT OF APPEALS DECISIONS.

no few well considered decisions to modern equity jurisprudence.

day, April 22, 1884:

Judgment reversed, new trial granted, costs to abide event-Maria M. Miller, appellant, v. Marilla Mackenzie and another, administratrix, etc., respondents; Charles Stanford, assignee, appellant, v. Willston B. Lockwood, et al., respondent.-Order affirmed with costs-William Ashemoor, respondent, v. Samuel Emmert, appellant; in re petition of Edward Roberts to vacate, etc.; in re application of George C. Genet, etc., Buffalo Lu

The House of Lords itself I only saw once in legal session. Jessel, then solicitor-general, was delivering his famous argument in the Mordaunt divorce case. Benjamin, if I remember rightly, was his opponent, and his little figure appeared to be utterly swallowed up in the full-bottomed wig which it is de rigueur to wear before their lordships. On the woolsack was the chancellor in lonely majesty. Immediately before him were three or four common-law judges, wearing their huge wigs with an air of sulky resignation, and on the benches around in ordinary civilian dress were the Law Lords Hatherly, Chelmsford, Selborne and one or two others whom I have forgotten. The whole scene was strangely like morning service in an empty cathedralthe full, sonorous tones of Jessel-the sacrificial vestments of the judges, and the great spaces of blank emptiness in the gorgeous chamber, partially lit up in many columns by the morning sun struggling through the stained glass, whilst the law lords themselves, in their lounging attitudes and evident jauntiness, suggested the little group of dilettanti always to be found around the choir waiting for the anthem.

I fear I have unconsciously trespassed upon your space. Possibly however the space trespassed on will be your waste-paper basket. Time will show. Any way here is a full stop to my scribble. A. B. M.

PROVISION THAT LEGATEE CONTESTING WILL SHALL FORFEIT HIS LEGACY.

Editor of the Albany Law Journal:

erest, impleaded, respondent.- Appeal dismissed John C. Phillips et al., respondents, v. Cornelius A. Wortendyke, appellant.-Motion to advance cause to date of filing first; return granted without costs.-Nathan Pakalinski, an infant, v. The N. Y. C. & H. R. Co. Denied without costs-Hebrew Free School Association v. The Mayor of New York.- Motion to stay proceedings; denied without costs-William H. Hills v. The Peekskill Savings Bank.- -Motion to correct remittitur; denied without costs-In re will of John Hancock. Motions for reargument; denied with costs-Josephine Todd v. Albert Weaver and others, executors; Mary Jane Peck v. Patrick Callahan.

-Motion to put criminal case on calendar; granted. -The People v. Bernardino Carmano.—— Motion to correct remittitur. The court having ordered that the appeal be dismissed with costs, and not having ordered absolute judgment for the plaintiff, and the remittitur being unauthorized in the shape in which it was sent down, the court below, upon such terms as may seem just, in view of all the circumstances, is requested to cause the remittitur to be returned to this court, to the end that it may be made to conform to the decision actually made-Susan A. Rogers v. The Village of Sandy Hill.-Motion to advance cause; granted without costs-A. Barton Hepburn, executor, v. William H. Montgomery and others.-Motion to open default; granted upon payment of $10 costs and the disbursements consequent upon the default, the printed papers to be served within ten days from the entry of this order-Erastus B. Searles v. The Manhattan Ry. Co. Motion to withdraw appeal; grauted on payment of costs and disbursements on appeal to the Court of Appeals, except the fee for argumentThomas Vernon and others v Albert Palmer.-Motion to correct remittitur; granted, and remittitur

such contestant shall forfeit his legacy, I beg leave to cite Jackson v. Westerfield, decided by Judge Van Vorst, of New York, in August, 1881, and reported in 3 Law Bulletin, 83.

In that case Judge Van Vorst held such a clause void, on the ground that it imposed a restraint upon proper inquiry into testamentary capacity, and the legal validity of dispositions of property. ALBANY, April 14, 1884.

J. T. M.

Term of the Supreme Court is reversed, and that portion of the judgment of the Special Term appealed from to the General Term is reversed, and the complaint is dismissed as to all matters and claims as to which such appeal was taken, with costs to the appellants and to the guardian ad litem of the infant defendants, appellants."-Mary E. Johnson, executrix, v. John J. Lawrence and others, trustees.-Motion to dismiss appeal; denied with $10 costs In re estate of David M. Peyser.-Motion to set cause down for day certain; denied, but counsel is permitted to submit brief in the pending cases within ten days, brief to be served upon counsel in these cases-Elisha Carpenter v. The N. Y., L. E. &. W. R. Co.

The Albany Law Journal.

WE

ALBANY, MAY 3, 1884.

CURRENT TOPICS.

E very much regret that a bill has passed our Senate excusing a large class of our best citizens from jury duty. We speak of a bill excusing presidents, vice-presidents, cashiers and tellers of banks from jury duty. These certainly constitute a numerous and highly respectable and intelligent class. What reason can there be for excusing them? They are no more essential to the affairs of banks than scores of other classes are to other kinds of business. Indeed, it seems that they form a class peculiarly adapted to take one another's places in their business in case any of them should be summoned on a jury. The vice-president is appointed to take the place of the president, and either can easily act as cashier, and the cashier can act as teller, if the occasion should arise. It is much more important to have such men liable to jury duty than it is to save bank officers trouble and annoyance. These rich corporations and these wellsalaried officials derive their safety and ease from the society which protects them, and they owe society some duty in return. One of the greatest defects in our jury system is 'the excusing of the better classes from the performance of jury duty. This practice has been growing insensibly, until a very large portion of the best material is unavailable for this purpose. This is a short-sighted policy. The community ought to excuse an entirely different class of men, and ought to insist on the services of the best. If the Berner jury at Cincinnati had been composed of such citizens as our struck juries are drawn from, there would have been no such verdict, and no riot, and Cincinnati would have been saved some millions of dollars, which the bankers will now be compelled to help to pay. We know it is very annoying to such gentlemen to be dragged from their comfortable chairs in their luxurious offices to sit in stuffy court-rooms, and to listen to the story of revolting or ignoble crimes or petty quarrels among their neighbors; and yet if these same gentlemen should have suits of their own they would think it very hard that their interests should be put to the arbitration of our average jurymen, and would wag their heads sadly over the corruptibility and ignorance of our juries, and the general degeneracy of our institutions. There are very few who ought to be excused from jury duty. We would excuse physicians because their places cannot well be supplied to their patients; we would excuse clergymen and lawyers and policemen because they are not fit, and we do not at this moment think of anybody else whom we would excuse, unless it may be firemen and teachers in public schools. We may depend upon it, the radical reformation that our jury system needs is to put a better class of men into the box.

VOL. 29-No. 18.

The New York Times shows that there are in the city of New York only 15,450 persons liable to jury duty. Of 5,646 members of the produce, cotton, stock and petroleum exchanges, less than five per cent are liable. Seventy thousand escape by not having the property qualification, 30,000 by physical disability, and 20,000 by military service. The Times well says: "If jury service is to be handed over to the ignorant, the vicious, and the dissatisfied, the day will soon come when other cities will be taught the lesson which Cincinnati has learned."

It is very gratifying to see that the recent Republican convention at Utica nominated Judges Andrews and Rapallo for re-election to the Court of Appeals. These gentlemen (are the only remaining members of the court elected fourteen years ago. Four are dead and one has resigned. These two deserve re-election for every conceivable reasonexcellent abilities, long experience, pure character, toilsome and devoted public service. They differ in politics, and this renders the action of the convention one of the most hopeful signs of the times. It looks as if politicians were earnestly desirous of freeing judicial nominations from party influences. Such was the design of the judiciary act under which this court was constituted in 1870, by which the party in the minority was represented by two judges. If these two nominees should be re-elected

the bench would stand four Democrats to three Re

publicans, which certainly would not be an unfair proportion in any event. We believe that politics have had as little influence as possible upon this court from the foundation, and we rejoice that the party managers have had the grace to recognize the fact. It is taken for granted that the Democratic convention will do likewise. They could not decently do otherwise, and we shall not permit ourselves to doubt concerning their action.

We do not see that any scheme has been suggested to our Legislature for the relief of the Court of Appeals calendar. The court stand as much in need of relief as General Gordon does. Municipal reforms and codifications have perhaps cast this matter temporarily out of mind, but it is only a little less important than these measures. It is rather more important than the robe question. The court can no longer keep up with its business. It must be enabled to do so, or the public interests and the cause of justice will suffer great detriment. Whose business is it to attend to this matter? Where is the New York City Bar Association, so interested in codification and in robes? Here is an excellent opportunity for it to do something useful. Whatever measure is suggested will probably necessitate a constitutional amendment, and this cannot be acted on until it has been approved by two successive Legislatures. It is rather late, but still perhaps not too late for action this session. At all events there is no excuse for not maturing some scheme for action next winter. If we do not see

some signs of movement in the matter soon, we shall call Mr. Bergh's attention to it.

We had fondly hoped that we had heard the last about the robes, but a correspondent in another column desires to argue after decision, and as we believe in the greatest liberty to the greatest number, we give him place. The American Law Review says

of us:

a judge of long service on the Federal bench, whom we happen to know, and admit to the witness-stand the most ignorant and depraved negro that can be found on the deck of a Mississippi steamboat. When Garibaldi died, and his red shirt was taken off, there were found upon his body the scars of thirteen wounds, every one of which had been received in fighting battles for the rights of The laws of England, of Canada, and of Pennsylvania, would have excluded that man from the witness-stand, and would, at the same time, have admitted to the witness-stand the most depraved scoundrel that had ever been turned out of a penitentiary. Such laws are a reproach to the age in which we live." This is a matter of serious moment, and we must postpone the expression of our own views.

6

The American Law Review says: "One of the Canadian law journals, the name of which has slipped our mind, is in ecstacies over the fact that the ALBANY LAW JOURNAL has admitted into its columns an article written by a Canadian barrister. The article in question was written by R. Vashon Rogers, Jr., on the subject of Upstairs and Downstairs Tenants.' It was reprinted in the Irish Law Times." The Review should also remember that Mr. John D. Lawson, of St. Louis, one of the best known and most excellent of the law writers of our day, a frequent contributor to this journal, and also to the Review, is a Canadian by origin. But doubtless the Review will say, as Johnson said of the Scotch, that much may be done with a Canadian if he is caught young.

We call attention to a striking article in another column, on the Abolition of Oaths, by Mr. Louis Claude Whiton. On this topic, the American Law Review, quoting some recent remarks of ours, observes: "The difficulty which surrounds the question lies deeper than the criticism of the ALBANY LAW JOURNAL. It is that bigotry and intolerance have excluded from the witness-stand a great many honorable and conscientious men, in whose minds an oath as administered amounts to no more than a declaration that the witness will tell the truth; and thereby the cause of justice is deprived of their testimony, and they themselves are denied the privilege of vindicating their rights by their own testimony, which privilege is accorded to the most superstitious and dishonest believer who is willing to take an oath. Take, for instance, such a state of the law as exists in Pennsylvania, unless it has been recently repealed. A judge in Philadelphia adopted a rule of excluding a witness on the ground of a want of religious belief, which rule would exclude

NOTES OF CASES.

IN Beardsley v. City of Hartford, Connecticut Su.

preme Court of Errors, 1883, 17 Rep. 520, it was held that open basement descents, being necessary to business buildings, the failure of a city to erect barriers in front of them is not negligence, and the city is not liable to a passer who without negligence falls down such a descent. The court said: "Is a city bound to maintain a railing in front of the numerous basements and basement steps that line its business streets? Such basements are used in every populous city for business purposes of almost every kind. In a large city like New York the first story of almost every business block is reached by steps, that extend to the line of the street, while on each side of them are steps leading down to offices in the basement. What is the duty of the city with regard to them? There is no practicable way of perfectly protecting the public but by a railing in front of them. Can it be regarded as the duty of a city to maintain such a railing? Are we to apply to the case without qualification the same rule that would be applied to a pit hole, like the cellar of a burned building, adjoining a sidewalk, where a railing would cause no inconvenience to the owner of the property? It is a well-settled rule that the law varies with the varying reasons on which it is founded. This is expressed by the maxim, 'cessante ratione, cessat ipsa lex.'

This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances. People collect in cities in large part for purposes of traffic, and to these purposes the central and most crowded streets of a city are almost wholly devoted. Must not the necessities of this business furnish the law that shall determine the action of the city in the matter of