realized on sale and his manner of stating the facts makes the case seem more complicated than it really is.

ing young and old, sick and healthy, great preparations had to be made, and an extension of time was necessary. This also being accorded, another day was appointed, and again no rats appearing, Chasseneuz objected to the legality of the summons under certain circumstances. A summons from that court, he argued, implied full protection to the parties sum

ure, "Midsummer" being a careful lawyer, and hoping to realize enough to pay all the parties, made his client B the plaintiff, and C and A defendants. What decree should he have taken?

C was first on the record, and knowing nothing of A's mortgage, he (C) of course comes in ahead of A; but C knowing of B s mortgage, he must postpone his lien to that. Hence the decree provides that as between C and A, C's mortgage must be first paid; but as between C and B, the proceeds shall first be applied to the payment of B's prior lien. This in no way prejudices C, for he gets all the law gives him, viz., the proceeds subject to the prior lien of B. Then B, although prior to A on the record, knew that A has his unrecorded mortgage; hence the amount set apart for B must, as between him and A, go first to pay A's mortgage, residue, if any, to B's.

Applying this distribution to the facts, the money goes as follows: "Midsummer" gets his costs and allowances (he has well earned them), his client B gets nothing (not an unusual case), and C gets his $5,000, and A the residue. Yours truly,

SUBSCRIBER.

PORT RICHMOND, S. I., August 23, 1880.

To the Editor of the Albany Law Journal:

I answer "Midsummer's" question as to priority of mortgages, asked in ALBANY LAW JOURNAL of August 31, 1880, at page 160, as follows, viz.: A's mortgage was not recorded and C had no knowledge of it, therefore the mortgage of C has preference of payment over that of A. A stood ahead of B as between A and B, but lost his priority, which went to C, who stood behind B. As C, who stood behind B, worked ahead of A, by reason of A's NEGLECT in not recording his mortgage, B now can claim the payment of his mortgage over A, and A is out in the cold.

Yours, SAUGERTIES, August 25, 1880.

NOTES.

EGBERT WHITAKER.

THE Popular Science Monthly, for September, contains an interesting article by William M. Ivins, on Comparative Jurisprudence. The writer concludes that two great lessons of this science are the exact nature of the relation of custom to law, and the exact nature of the relation of custom and law to legislation. From Legal Prosecutions of Animals, by William Jones, in the same periodical, we extract the following: "The citation contained a description of the animals; thus, in a process against rats in the diocese of Autun, the defendants were described as dirty animals in the form of rats, of a grayish color, living in holes. This trial is famous in the annals of French law, for it was on that occasion Chasseneuz (who wrote a work in 1588, on the excommunication of animals), the famous advocate, won his first laurels. The rats not appearing on the first citation, Chasseneuz, their counsel, with true legal subtilty, argued that the summons was of a too local and individual character; that

as all the rats in the diocese were interested, all the rats should be summoned. This plea being admitted, the curate of every parish in the diocese was instructed to summon every rat for a future day. The day arriving, but not any rats, Chasseneuz declared that as all his clients were summoned, includ

but his clients, the rats, though most anxious to appear in obedience to the court, did not dare to stir out of their holes on account of the number of evil disposed cats kept by the plaintiffs. Let the latter, he continued, enter into bonds, under heavy pecuniary penalties, that their cats shall not molest my clients, and the summons will at once be obeyed. The court acknowledged the force of this plausible plea, but the plaintiffs refusing to be bound over for the good behavior of their cats, the period for the attendance of the rats was adjourned sine die, and thus Chasseneuz and his clients came off victorious."

The Law Magazine and Review for August contains articles on the Decline of Circuit Life, by John Kinghorn; Parliamentary Drawing and Conveyancing, by F. S. Reilly; Study of Jurisprudence, by Albert V. Dicey; Legal Relations between a Stockbroker and his Customer, by F. T. Piggott and Frederick Whinney; Lord Chief Baron Yelverton, by Waldron Burrowes - an unusually interesting number. We notice that the Central Law Journal agrees with us in opinion, that the decision in the Ah Chuey case, where the prisoner was compelled to exhibit tattoo marks on his person to the jury, on the question of identity, is wrong.

In Palmer v. Alleyne, recently tried at Liverpool, before Mr. Justice Lindley and a jury, the plaintiff had obtained a grant of exclusive burial in a cemetery, had there buried his wife, had gone away leaving the grant with the defendant, and in his absence the defendant had in the same grave buried his mother, stepmother of the plaintiff's dead wife. The plaintiff brought trespass, but the case was settled. Healey v. Jeffries, tried before Mr. Justice Fry and a jury, the defendant was master of a work-house, who had detained the plaintiff, a lady's maid, on a charge of delirium tremens, which turned out to be hysterics. This cost the defendant 801.

In

The High Court of Justiciary in Scotland has had to decide a curious charge of cruelty to animals preferred nder the Prevention of Cruelty to Animals (Scotland) Act, which is in the same terms as the corresponding English act. The appellant and his wife were

walking in Leith with two dogs which were attacked by a larger dog. The dogs were separated once, but began to fight again. Neither the appellant, nor his wife, nor his servant, nor a policeman, were able to The appellant, having destroyed his separate them. umbrella in his efforts for the protection of his own dogs, fetched a knife from his house, which was close by, and inflicted several stabs on the large dog, from the effects of which it died on the following day. The police magistrate fined him thirty shillings, and it was argued in support of the conviction that the appellant had committed an offense within the statute, since he had been guilty of wanton cruelty, and had inflicted needless pain by causing the dog to die a lingering and painful death. The court, however, allowed the appeal. The Lord Justice Clerk, after observing that "it is not comfortable to try to separate dogs which are fighting," held that there had been no cruelty within the act, which was only aimed against persons who niake an animal suffer without cause. The court, however, expressly abstained from expressing an opinion as to whether the appellant was liable to an action at the suit of the owner of the deceased dog.- Solicitors' Journal.

Law Journal.

The Albany Law

ALBANY, SEPTEMBER 11, 1880.

CURRENT TOPICS.

and beloved friends of the Virginia bar, arraying themselves on the side of good sense, law and order, moral courage and christianity, against the false idea of chivalry and the infraction of human and divine law involved in duelling.

The apparent disadvantage of living in a country like where have no

N the current number of the Virginia Law Jour

lett-grandson of Patrick Henry of Revolutionary fame who died in 1870, aged 45. He seems to have been a brilliant popular orator, a lawyer engaged in important causes, a leading politician, and a statesman of promise. At the present time we find an appropriate text in the following extract:

"In 1859, Patrick Henry Aylett challenged and fought a duel in North Carolina with the chivalrous and lion-hearted O. Jennings Wise, whose untimely

fall at Roanoke Island lost to his native State a son whose valor and brilliant genius shone with meteoric splendor along the short path of his early manhood. Mr. Wise was editor of the Enquirer, and Mr. Aylett was writing for the Examiner; their articles, and the antagonism which they aroused, excited so much heat, that all efforts at amicable adjustment proved abortive, and a hostile meeting became unavoidable. Escaping the Richmond police, they got upon the Danville train some distance in the country, and fought with pistols early next morning, just over the North Carolina line. Mr. Aylett's bullet narrowly missed the person of Mr. Wise. Mr. Wise fired in the air. This ended the combat, as Mr. Wise's noble and magnanimous behavior disarmed every feeling of resentment in the brave and manly bosom of his antagonist. As Mr. Wise, in his duel with Hon. Sherrard Clemens, fired at and wounded him, it was never known why he should have discharged his pistol in the air in his fight with Mr. Aylett, unless it was because his adversary was very near-sighted, and was, moreover, a married man with several small children. Both gentlemen bore themselves before the duel, upon the field, and afterward, in a manner worthy of their names and ancestry. In courtesy, valor, and magnanimity, neither Richard of the IronHeart nor Ivanhoe could have surpassed them."

We have italicised some words to point our reflections. The picture that we have is that of a lawyer and statesman, deliberately breaking the law, and sending a challenge on account of an editorial discussion, resisting friendly intervention, evading the officers of justice, fighting a duel, spared by his antagonist on account of his defective eyesight, and for the sake of his little children whom their father seemed to have forgotten, and compared by his biographer, his brother, to a brutal and cruel hero of a barbarous age. This picture would better have been omitted from the memoir of a lawyer and statesman. It seems out of place in a legal journal. We would fain believe that the senseless, unlawful, and wicked fashion of duelling is going out of vogue in the new South. It seems to be growing unpopular even in South Carolina. If New Yorkers boast of the fame of Alexander Hamilton, they do not dwell on the manner of his death. He died as the fool dieth. But then and now are different eras. We should be glad to see our esteemed contemporary, the Virginia Law Journal, and our learned VOL. 22.- No. 11.

"The

de Tilly at Poitiers. A contemporary says: countess confessed to throwing vitriol in the face of a young girl, destroying one eye and disfiguring her for life, having been told the terrible effects of the liquid by the chemist of whom she bought it. The jury, after a 'touching address from her advocate,' acquitted her, on the ground that the girl was her husband's mistress, that she had paid the medical expenses and made compensation, had learned Latin and Greek to teach her children, and was generous to the poor. But the French jury had an excuse for so glaring a non sequitur which an English jury would be without. The Comte de Tilly was charged with infidelity and cruelty; and in England his wife might have sued for a divorce. Where no such remedy exists, the wild justice which the countess wreaked on her rival is not unlikely to be followed by the equally wild justice which the jurymen bestowed on her." In this country we do better, for we not only have divorce generally, but we usually acquit every person who pleads a "sexual" reason for his violence.

A citizen has libelled the excursion steamer Sea Bird for the recovery of penalties for carrying a greater number of passengers than she was by law authorized to carry. The action was brought under section 4465 of the Revised Statutes, and section 4469 makes the penalty a lien on the vessel. The libellant is entitled to recover the amount of the fare and $10 additional for each and every passenger carried in excess of the number which the vessel is allowed by her certificate to carry. Pollock claims that the Sea Bird carried an excess of 371 passengers on July 11 from New York to the Highlands, and an excess of 237 on the trip made that day from Sandy Hook to Bay Ridge. The case was before Judge Choate, in the United States District Court, recently, for hearing on objections made by the defendants, the libellees. These objections were that the suit should be begun in the name of the United States; that the statute does not give a remedy by libel in admiralty against the vessel, but only against the master and owners personally, and that the libellant does not appear to have been a passenger or to have been damaged by the act complained of. The objections were overruled. The statute makes the penalty recoverable by "any person suing for the same." Whether this citizen is actuated by motives of public or of private good, the step is an excellent one. A few recoveries will do much to prevent such horrible catastrophes as that of the Sewanhaka. It is a pity that more private citizens will not interest themselves in the enforcement of the laws for public safety.

The employers' liability bill has passed the House of Commons. It provides for the liability of the employer to the workman for injury by reason of defective machinery or appliances; the negligence of a superintendent or any person to whose orders the workman was bound to conform; the act or omission of any person done or made in obedience to the employer's rules or by-laws, or in obedience to particular instructions given by any person delegated with the authority of the employer; the negligence of any person who has charge or control of any signals, points, locomotive engine, or railroad train. The right of action survives in case of death, and in that case the right and remedies are the same as if the workman had not been in the service of the employer. In case of defective machinery, etc., the liability does not arise unless original defect or the omission to repair it springs from the negligence of the employer or some one in his service charged with the duty. No rule or by-law approved or accepted by any department of government under authority of Parliament shall be deemed improper. No liability arises in case the workman knows of the defect or negligence, and neglects within a reasonable time to notify the employer or some superior to the workman, unless he knows that the employer or such superior already knows of the defect or negligence. No action is maintainable unless written notice of the injury or death is given within six weeks, and action is brought within six months; but in case of death the want of notice shall be no bar if the judge thinks the omission excusable. The recovery shall not exceed the estimated earnings of a person in the same employment, grade, and district, for the three years next preceding the injury; and shall be diminished by the amount of any sum previously paid by way of penalty for the same negligence under any other act of Parliament. perintendent is a person whose sole or principal duty is superintendence and who is not ordinarily engaged in manual labor; the term "employer" includes a body of persons, corporate or unincorporate; "workman" means a railway servant and any person to whom the Employers and Workmen Act of 1875 applies.

A su

The Employers and Workmen Act of 1875 defines "workman" as excepting domestic and menial servants, and including laborers, servants in husbandry, journeymen, artificers, handicraftmen, miners, or others engaged in manual labor. It will thus be seen that the new bill excludes domestic and menial servants, and does not cover the case of a servant suffering injury from the negligence of a mere fellow-servant, having no authority over him, except when in obedience to the employer's rules or by-laws, or his particular instructions to a delegate of his authority, or in case of certain railway employees. Now what is meant by "rules"? Does it mean only written rules, or does it include oral instructions? This seem to us extremely vague, and doubtless will give rise to considerable discussion in the courts. Take the case of a foundry under the direction of a superintendent. One of the work

men carelessly spills a pot of molten iron over another, while endeavoring to obey the superintendent's instructions. Is the master liable? If so, why should he be? He has not been careless, nor has his delegate, the superintendent. The master would not have been liable if the superintendent had not given "particular instructions." Why should the "particular instructions" make the master liable? It is probable that all the employers touched will now exact a contract of hiring, releasing them from these liabilities, in consideration of a trifling increase of wages, as Lord Bramwell has pointed out.

We publish in full the opinion of Judge Westbrook on the question of license to sell ale and beer. The question is not only important to a large body of people, dispensers and recipients of the beverages aforesaid, but gains interest from the fact that Judge Barnard disagrees with its conclusions. The point of disagreement seems to be this: when the act of 1870 extends the act of 1857, when not inconsistent with it, over the whole State, is the original act of 1857 alone extended, or does the extension also carry the amendment to that act passed in 1869? Judge Barnard holds that the extension does not embrace the amendment; Judge Westbrook holds that it does. Judge Barnard also holds that no beer license can now be granted outside the metropolitan police district, apparently overlooking O'Rourke v. People, 3 Hun, 225; 5 T. & C. 496. It is understood that Judge Erastus Cooke, of the Second Judicial District, sustains Judge Westbrook's view.

A

NOTES OF CASES.

DVANCE sheets of the 13th Rhode Island Reports bring us several interesting cases. In Bradbury v. Furlong, 14, F. owned and for purposes of repair controlled a yard occupied by a tenant. In the yard was a cistern on which F. had put a proper iron cover. This was removed without the knowledge of F., and a wooden cover weighted with a stone but claimed to be insecure was substituted. A child three years old living in a tenement, the yard of which was contiguous to F.'s yard and connected with it by an open gateway, fell into the cistern and was drowned. In an action by the administrator of the child against F., brought under the statute, giving a right of action for an injury inflicted by a wrongful act causing death, held, that F. was not liable. The court said: "This court has deIcided that in order to maintain an action under this section it is not necessary to prove that the injury was inflicted by the defendant in person, but that it is enough to prove that it was inflicted by his agent or servant, and also that it is not necessary to prove that the injury was purposely inflicted, but that it is enough to prove that it resulted from some act carelessly or negligently done by the defendant, his agent or servant. Chase v. American Steamboat Co., 10 R. I. 79; McCaughey v. Tripp, 12 id. 449. The court has gone thus far in compliance with the rule that remedial statutes are to be liberally con

antee the faithful performance of the contract. The goods were furnished not by A, but by the plaintiff. Held, (1) that the offer was conditional, and did not take effect without notice of acceptance; (2) that the plaintiff could not maintain an action on a transfer of the guaranty. The court said: "The instrument or writing relied on is not an absolute undertaking to pay for certain goods if the buyer does not. It is an offer made to the seller to be bound if the purchaser will comply with a certain condition. We think that being an offer, the defendant was entitled to notice at any rate that the condition had been complied with, on which condition he was to become liable. It is not an absolute promise to pay for such advances as a person may make to another, where the only condition, if it can be called a condition, is that the guarantee shall furnish the goods; but there is another condition, that a certain promise was to be made by the purchaser to pay out of certain funds, and the guarantor had a right to know that this promise was made in a manner to be available to him. See cases cited in Brandt on Suretyship, § 159, 161-3. There must always be an acceptance, but this may be express or implied. And if the guaranty be by letter for a future operation, especially of uncertain amount, then there should be distinct notice of acceptance. The guarantor should have an opportunity to know his liability and provide for it. 'And unless the transaction is such that it of itself gives him all the knowledge he needs at a proper time,' then he should have distinct notice. 2 Pars. on Cont. *14. And the relations of the parties, nearness of residence, are often mentioned as circumstances to be considered. And see 1 Chit. on Cont. (11th ed.) 742, note; Whitney v. Groot, 24 Wend. 82, 84; 2 Am. Lead. Cas. Ordinarily, a guaranty is not negotiable. It may indeed be made so, if such appears to be the intention of the guarantor. It may not be addressed to any particular person. It may be an offer addressed to all the world, as in the case of a reward offered. But if addressed to particular person, as in this case, we think it cannot be transferred so as to enable another to sue upon it in his own name. There may be good reasons why the guarantor should be willing to deal with one person and not with another; and there may be equities, or other dealings, between the guarantor and the guarantee which the former may desire to provide for, and has a right to provide for. Brandt on Suretyship, $ 96, 97; Taylor v. Wetmore, 10 Ohio, 490; Bleeker v. Hyde, 3 McLean, 279." As to the latter holding, see note, 28 Am. Rep. 347.

יי.75

INSURANCE ON STOCK OF GOODS — PARTICULAR EXCEPTION.

N Lancaster Fire Insurance Co. v. Lenheim, 89

consent written on the policy. The insurance clause was written; the exempting clause was printed. The insured kept for sale both turpentine and benzine, without such consent. Held, that the policy was avoided, although those articles might be part of the merchandise usually kept in such stores. The court said: "There is certainly no repugnancy in agreeing to insure a general stock of merchandise subject to the condition that gunpowder, petroleum, turpentine, and benzine, shall not form part of such stock. Surely there is nothing so unusual in reservations and conditions in contracts as to make them the subjects of unusual construction or of extraordinary consideration. Surely, without repugnancy, one may contract for the sale of a plantation of one hundred acres of land reserving thereout ten acres. Or suppose the contract in controversy to be for the sale of this general stock of merchandise, excepting the articles above mentioned, could any doubt but that the exception was good?"

The court relied on Insurance Co. v. Kroegher, 83 Penn. St. 64; S. C., 24 Am. Rep. 147. But that was not the case of an insurance of general merchandise usually kept in a country store, but of a "stock of merchandise contained in store." As counsel argued, in the principal case: "These are not words descriptive of a class of goods. argued that the word merchandise meant such as is usually kept in a country store, and here is where the case failed. They asked to have implied what we have expressed.”

It was

In Citizens' Insurance Co. v. McLaughlin, 53 Penn. St. 485, the insurance was of a patent leather manufactory. The policy permitted five barrels of benzole in a detached shed, but classed oils among hazardous and prohibited risks. The court said: "The company could not have expected" the business "to be suspended, nor to be carried on in any other than the customary modes." "The words of the policy descriptive of the subject-matter of the insurance, are 'the buildings of their tannery and patent leather manufactory,' and it must be intended that these words included whatever, not expressly excepted, was necessary and essential in conducting such a business." Citing the Harper case, infra.

In Franklin Fire Insurance Co. v. Updegraf, 43 Penn. St. 350, the insurance was on merchandise such as is usually kept in country stores. Hardware, china, glassware, looking-glasses, etc., were classed in the policy among hazardous risks, to be inserted in the policy, or the policy would be avoided. Held, that they were covered, if usually kept in country stores, and this was a question of fact.