new act. Ex parte Yerger, 8 Wall. 105. In Wood v. U. S., 16 Pet. 362, Mr. Justice Story, speaking for the court upon a question of the repeal of a statute by implication, said: That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the narrow inquiry whether it has been repealed by necessary implication. We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new laws and those of the old, and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy." In State v. Stoll, 17 Wall. 430, the language of the court was that "it must appear that the latter provision is certainly and clearly in hostility to the former. If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, and

RAILROAD-FENCES-INJURY TO CATTLE-ONUS ON PLAINTIFF NONSUIT PROPER.— -Under section 1810 of the Revised Statutes (ch. 193, L. 1881), in order to recover for the killing of an animal upon a railroad track at a point where it was unfenced, the owner must show that such animal got upon the track at a point where the company is bound so maintain a fence, and had neglected to do so. So where there was nothing in the evidence to show that the animal did not go upon the depot grounds, which the company was not bound to fence, and thence along the track to the place where it was killed, a nonsuit should have been granted. Bremmer v. Green Bay, etc., R. Co. Opinion by Cassoday, J. [Decided Sept. 23, 1884.]

SHIP AND SHIPPING-ADMIRALTY JURISDICTION— PART OWNERS OF STEAMBOAT-ACCOUNTING-SALE

only in that event, the former law is repealed in part MINNESOTA SUPREME COURT ABSTRACT. or wholly, as the case may be." See also Ex parte Crow Dog, 109 U. S. 570; S. C., 3 Sup. Ct. Rep. 396; Arthur v. Homer, 96 U. S. 140; Harford v. U. S., 8 Cranch, 109. The entire argument in support of the judgment below proceeds upon the erroneous assumption that Congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the act of 1882, including those, who like the plaintiff in error, were here when the last treaty was concluded, but were absent at the date of the passage of that act. We have stated the main reasons which in our opinion forbid that interpretation of the act of Congress. To these may be added the further one, that the courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature. In U. S. v. Heth, 3 Cranch, 413, this court said that "words in a statute ought not to have a retrospective operation unless they are so clear, strong aud imperative that no other meaning can be annexed to them, or unless the intention of the Legislature caunot be otherwise satisfied;" and such is the settled doctrine of this court. Murray v. Gibson, 15 How. 423; McEwen v. Den, 24 id. 244; Harvey v. Tyler, 2 Wall. 347; Sohn v. Waterson, 17 id. 599; Twenty per cent cases, 20 id. 187. Chew Heong. Opinion by Harlan, J. [Decided Dec. 8, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

AGENCY-MIDDLEMAN-COMMISSIONS

FROM BOTH PARTIES.-One who in the sale or exchange of property, acts merely as a middleman to bring the parties together, they making their own contract, may recover compensation from both parties. Herman v. Martineau, 1 Wis. 151; Stewart v. Mather, 32 id. 344; Barry v. Schmidt, 57 id. 172; Rupp v. Sampson, 16 Gray, 398; Mullen v. Keetzleb, 7 Bush, 253; Siegel v. Gould, 7 Lans. 177; Shepherd v. Hedden, 29 N. J. L. 334. But where the person so doubly employed is more than a mere middleman, and acts as broker or agent in effecting the sale or exchange, he cannot recover; especially where the party sought to be charged was at the time ignorant of the employment by the other party. Meyer v. Hanchett, 39 Wis. 419; S. C., 43 id 246; Shirland v. The Monitor, 41 id. 162; Scribner v. Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133. Here the evidence on the part of the plaintiff showed that Sweet acted as a middleman merely. Orton v.

STATE COURT.-S. owns one-third of a steamboat plying upon the navigable waters of the United States, and K. the other two-thirds. K. had for several years run the same for himself and S. There being a difference between them as to the state of the accounts of her earnings and expenses, and S. being dissatisfied with K.'s management of the boat and its business, and apprehensive of loss from its continuance, S. may maintain an equitable action in a District Court of this State for a partition of the boat by sale, and for an accounting, and upon a proper showing the court may properly direct an accounting, a sale, and the appointment of a receiver to effect it. The directing of au accounting between persons occupying the relations of plaintiff and defendant, the appointment of a receiver and the partition of personal property by sale or otherwise, are not common-law, but equitable remedies. Judd v. Dike, 30 Minn. 380; Freem. Co-tenancy, §426; Pom. Rem., § 221; 3 Pom. Eq., § 1329. They are therefore properly sought in the present action (Judd v. Dike, supra), and properly given by the judgment appealed from, unless relating as they do to a vessel plying upon the navigable waters of the United States, they are such as are afforded in "civil causes of admiralty and maritime jurisdiction," or what must be an equivalent expression in "civil causes," in the words of the Federal Judiciary Act (Rev. Stat. U. S., § 563), or civil cases," in the synonymous expression of the Federal Constitution (art. 3, § 2) in courts of admiralty. If the remedies sought in this action are not afforded in admiralty then the subject-matter of the action is not within admiralty jurisdiction. Spear Fed. Jud. The following propositions appear to be well settled: First. A court of admiralty will not direct the sale of a vessel for the purpose of effecting a partition between different owners, except (1) as between two persous, each of whom owns one-half of the vessel, in which case, since the rule giving control to a majority interest cannot operate, the court will interfere out of regard for the public interest, in commerce or navigation; or except (2) (as some authorities hold), upon the application of a majority interest in the vessel under special circumstances. Steamboat Orleans v. Phoebus, 11 Pet. 175; Tunno v. The Retsina, 5 Am. Law Reg. 406. Second. A court of admiralty will not order an accounting as a separate and independent mode of relief, but only as incident to other matters of which it has admitted cognizance. Curt. Pr. 273; Tunno V. The Betsina, supra; Kellum v. Emerson, 2 Curt. C.C. 79; Steamboat Orleans v. Phoebus, supra; Davis v.

be

Child, Davies (2 Ware), 78; The Larch, 3 Ware, 28.
Third. It hardly need be added the appointment of a
receiver in this case is a mere incident of the sale, and
hence of course something of which a court of admi-
ralty would have no jurisdiction, in the absence of
jurisdiction to order the sale itself. From these three
propositions it follows that the subject-matter of the
present action - the remedies sought and afforded in
it do not fall within the purview or scope of civil
causes in cases in admiralty and maritime jurisdic-
tion. Swain v. Knapp. Opinion by Berry, J.
[Decided Nov. 25, 1884.]

CORRESPONDENCE.

DENIALS ON INFORMATION AND BELIEF.
Editor of the Albany Law Journal:

The communication of "H." (31 A. L. J. 159) suggests the remark that the language of the old Code as to the contents of an answer is the same as that of the new. They both say that the answer must contain a denial of the controverted allegations or (a denial) of any knowledge or information thereof sufficient to form a belief (of such allegations). The answer has nothing to do with such knowledge or information as may be sufficient to form a disbelief. It follows that denials and belief are superfluous, denials of knowledge or information being what are demanded. Where the answer denies any knowledge or information of a fact alleged sufficient to form a belief of it, such fact is not admitted and the plaintiff is put to his proof, and that conforms to the old chancery practice, and is all that the Code requires or intends. Respectfully,

NEW YORK, April 7, 1885.

B. W. HUNTINGTON.

PROVING WILLS IN TESTATOR'S LIFE-TIME. Editor of the Albany Law Journal:

In view of the discussion lately carried on in the newspapers and Legislature of New York about a pro

in a decision just rendered by the Supreme Court of testators, there may be some interest for your readers this State, declaring inoperative the Michigan statute relating to that subject. Public Acts, 1883, p. 17.

In opinions by Judges Cooley and Campbell, the law is criticised as making no sufficient provision for its own enforcement, without conflict with other statutes not meant to be repealed. This first attempt in our jurisprudence to compel a living person, as a condition of relief, to enter upon a contest with those who until his death can have no recognition anywhere, and who after his death are presumed to represent him and not any hostile interest, is said to remove none of the difficulties aimed at, but rather to make them worse. It is not conceived possible that a proceeding can be dealt with as judicial, when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called ou to act at all. The result is that the courts cannot be called on to administer the law.

NEGLIGENCE-SUBMISSION OF QUESTION TO JURY—
EVIDENCE-FAILURE TO RING BELL.-In an action to
recover damages for injuries from a collision at a rail-
way crossing with the wagon in which plaintiff was
riding, her evidence tended to show that the team was
driven with care, and that plaintiff and the driver
were watching the road, and looking and listening for
indications of danger as they approached the crossing;
that they heard no signal, and had no warning of the
approach of an eugine from the west, but were unex-
pectedly overtaken by a switch engine from that di-
rection, running backward down grade at a high rate
of speed, with steam shut off, and without signals of
its approach, which they did not discover till too late
to avoid a collision. They were going east, the rail-
road being on their left, and approaching the street at
a sharp angle, and above there was a cut which par-posed law for establishing wills during the life-time of
tially obscured the vision, terminating about 200 feet
from the crossing. The evidence also shows that they
had previously looked several times up the road in that
direction, the last time when at a point from 50 to 70
feet from the crossing, and in the interval of about 10
seconds they were listening for signals or indications of
a coming train, their attention being also arrested by
the presence of another switch engine standing below
the crossing apparently ready to move. Held, that
whether the plaintiff was in the exercise of that de-
gree of care which persons of ordinary prudence and
intelligence would exercise in a similar situation de-
pends upon the consideration of a variety of circum-
stances and inferences of fact which were proper for
the judgment of a jury. And for substantially the
same reasons that controlled the decision of this court
in Loucks v. Railroad Co., 31 Minn. 530, we think this
case was properly submitted to the jury. French v.
Railroad, 116 Mass. 540; Chaffee v. Railroad Corp. 104
id. 116; Stackus v. Railroad Co., 79 N. Y. 467; Ochsen-
bein v. Shapley, 85 id. 224; Baldwin v. Railroad Co.,
18 N. W. Rep. 884; Butler v. Railroad Co., 28 Wis.
504; Gaynor v. Railway Co., 100 Mass. 212. Excep-
tions were taken by defendant's counsel to certain in-
structions given by the court, to the effect that the
failure to ring the bell or sound the whistle, and to
keep a lookout for the crossings, if so the jury found
the fact to be, was evidence of negligence, as it also
was to run the engine at a dangerous rate of speed.
Under the circumstances these exceptions were prop-
erly overruled, both because such evidence was proper
to establish defendant's negligence, and also as bear-
ing upon the question of plaintiff's conduct in the
premises. Plaintiff in the discharge of her own duty
to proceed with caution, and exercise due diligence to
avoid danger, was, as we have before observed, entitled
at the same time to expect the exercise of like reason-
able care, and not culpable negligence, on the part of
the defendant. Loucks v. Railroad Co., supra; Con-
tinental Co. v. Stead, 95 U. S. 161: Gaynor v. Railroad
Co., 100 Mass. 213; Wylde v. Railroad Co., 53 N. Y.
161: Eppendorf v. Railroad Co., 69 id. 197; Owen v.
Railroad Co., 35 id. 518; Shear. & R. Neg., § 31.
Hutchinson v. St. Paul, etc., R. Co. Opinion by Van-
denburgh, J.

[Decided Oct. 13, 1884.]

While it was to be expected that this new and singular statute might be faulty, the learned judges point out difficulties more radical than have before been pub

licly suggested; and it may well be doubted if the law
will ever recognize that new anomaly-what shall we
call it a living testator with will aunexed?
Yours truly,

JAMES C. SMITH, JR.
DETROIT, MICH., April 11, 1885.

THE INTEREST QUESTION.
Editor of the Albany Law Journal:

If "Inquirer" will consult the statutes of the computation of time, and of the interest of money, he will find a complete answer to his "interesting inquiry "in to-day's issue. By the first statute (1 R. S. 606) time shall be computed in this State by the Gregorian or new style. By that style years vary in length from 365 to 366 days, and the years are divided into twelve calendar months which vary iu length from 28 to 31 days. Consequently from any day of one month to the corresponding day of the following or of any succeeding month is one, two, or more calendar months. And in the case supposed from October 28 or any later day in the same month to February 28 (not bissextile)

is four calendar months; and to March 19, 4 months and 19 days.

By the second statute (1 R. S. 773, § 9) for the purpose of calculating interest, a month (by force of first statute a calendar month) shall be considered the twelfth part of a year * * * and interest for any number of days less than a (calendar) mouth, shall be estimated by the proportion which such number of days shall bear to thirty. It would seem then that the only correct and legal method for Inquirer to compute his sum in interest by is to reckon interest for a year, and for the time supposed, take fourtwelfths plus nineteen-thirtieths of one-twelfth of it. The time supposed from October 25 to March 19 (no intercalated day intervening) would by the same rule be 4 months and 22 days. If our early answer helps Inquirer we are gratified; only next time "give us something a little harder." PRO TEM.

ELMIRA, N. Y., April 11, 1885.

NEW BOOKS AND NEW EDITIONS.

A very useful little pocket manual containing the rules and calendar practice of the Court of Appeals of the State of New York, and the United States Supreme Court; also the rules for the admission of attorneys and counsellors at law, and other useful information in relation to the courts, has been compiled aud published by Thomas W. Stevens, attendant upon the Court of Appeals, in a neat form, selling at fifty cents per copy. The book is well printed and neatly bound, and for completeness and accuracy the book is unequaled.

All orders addressed to Thomas W. Stevens, Albany, N. Y.

tral Railroad, appellant; Frank A. Miner, administrator, etc., respondent, v. City of Buffalo, appellant; Joseph Audrade and others, administrators, appellants, v. Samuel M. Cohen, administrator, respondent; People ex rel. Joel W. Mason, appellant, v. John McClave, respondent; Elizabeth J. Graham, executrix, appellant, v. Lewis H. Meyer, respondent; In re Settlement of account of Martin H. Yates, executor; Peter J. Ferris, appellant, v. Roswell R. Burrows, executor, respondent; Henry S. Dermott, executor, appellant, v. State, respondent; Susan A. Wheeler, administratrix, respondent, v. Delaware & Hudson Canal Company, appellant.- -Appeal dismissed without costs-Ansonia Brass & Copper Co., appellant, v. Wm. C. Connor and others, executors, respondent; George H. Converse, by guardian, appellant, v. Artemas B. Walker, respondent.Order of General Term reversed, judgment of Special Term affirmed, with costs, payable out of the funds in the hands of the executors - Edgar Williams and others, executors, respondents, v. Laura R. Freeman and another, appellants; Edm. M. Freeman and others, respondents. Judgment of General Term modified by striking out provisions relating to the "brick-house" property, and restoring as to that the judgment of the Special Term, and by changing the option for two years for one of six months, with permission during that period to apply to the Supreme Court for leave to deal with the tax titles or protect them from destruction, and as so modified affirmed, without costs to either party in this court-Jefferson Jackson, executor, respondent, v. Benjamin Andrews and others, appellants.- -On appeal of plaintiff; judgment of General Term affirmed with costs. On defendant's appeal, judgment of General Term reversed, new trial granted, costs to abide the event-Daniel R. Lyddy, executor. v. Selah Chamberlain, respondent.

-Judgment affirmed, without costs to either party on this appeal-George Hyland and another, administrators, appellants, v. Bernard Baxter and others, respondents. Order affirmed-Petition of the N. Y., L. E. & W. R. Co. lands of steamboat company. Order of General Term reversed, that of Special Term affirmed, with costs-Henry D. Kuight, respondent, v. N. Y., L. E. & W. R. Co., appellant. Judgment affirmed and judgment absolute ordered against defend

Order granting new trial affirmed, and judgment absolute entered against the defendant on the stipula-ant, with costs-Mary L. Peck, respondent, v. William tion, with costs-Edward Ellsworth, executor, etc., respondent, v. St. Louis, Alton & Terre Haute R. Co., appellant. Order of county judge and of Supreme Court at General Term reversed as to the judgment debtor, with costs-James A. Buchanan, respondent, v. L. Victor Hunt, appellant.-Judgment reversed, new trial granted, costs to abide the event-Richard Burke, administrator, respondent, v. Silas H. Witherbee and others, appellants; Robert R. Westover, executor, respondent, v. Ætna Life Ins. Co., appellant.Judgment affirmed with costs-Maria J. Myres, exec'x, appellant, v. Mutual Life Ins. Co., judgment affirmed, and judgment absolute for defendant on stipulation, with costs; Alice J. Tiers, appellant, v. Alex. H. Tiers, executor, respondent; Malinda Mangan, administratrix, appellant, v. City of Brooklyn, respondent; Chas. G. Alvord, administrator, appellant, v. Syracuse Savings Bank, impleaded, respondent; Stephen Lee and another, respondent, v. Lewis A. Stegman, sheriff, appellant; Randolph Burt, respondent, v. Hugh J. Jewett, receiver, appellant; John F. Peppard, v. Albert Daggett, sheriff; Minerva J. Dudley, administratrix, appellant, v. N. Y., L. E. & W. Railroad, respondent; Wm. H. Ellis, administrator, etc., respondent, v. N. Y., L. E. & W. Railroad, appellant; Isaac I. Cole, general assignee, appellant, v. Germania Fire Ins. Co., respondent; Mary C. Langley, respondent, v. Richard Wadsworth, executor, appellant; Cyrus H. McCormick, jr., executor, respondent, v. Pennsylvania Cen

Vandemark, executor, appellant.- -Judgment of General Term affirming judgment of trial court affirmed, with costs-People ex rel. Edward T. Wood, appellant, v. E. Henry Lacome, respondent.-Judgment reversed and complaint dismissed, with costs-Elisha Carpenter, executor, etc., respondent, etc., v. N. Y., L. E. & W. Railroad, appellant.-Judgment affirmed and judgment absolute ordered against the plaintiffs, with costs-Sarah H. Peck, executrix, appellant, v. Andrew J. Peck, respondent.-Judgment of General Term, so far as it reversed the decree of surrogate, reversed and decree of surrogate affirmed, with costs to the appellants against the respondents, Mr. and Mrs. Stimson, In the Supreme Court and in this court. Dennis v. Stimson, executor, and others, respondents, v. Frederick C. Vrooman and others, appellants.Judgment modified without prejudice to the rights of any party in any subsequent proceeding to determine rights of Lucinda Comstock, whether upon an accounting before the surrogate, or otherwise, and as so modified affirmed, with costs, to be paid by the appellants, Bolton and Scriber, to the respondent, Gray-Ezra Caulkins, respondent, v. Danforth D. Bolton and others, administrators, appellants.-Order of General Term affirmed and judgment absolute ordered against the defendant on the stipulation, with costsHenry D. Babcock, assignee, respondent, v. George R. Read, appellant.-Appeal dismissed-People, appellant, v. Charles E. Poucher, respondent.

A

The Albany Law Journal.

case.

ALBANY, APRIL 25, 1885.

CURRENT TOPICS.

i. e.

write

in this city, painted by Mr. Penny, a work of exceptional merit, not only in its fidelity as a likeness, but in its strength, brilliancy, and absence of conventionalism as a painting.

Those who like ourselves believe in the system of the popular election of judges find occasion for regret now and then for the capriciousness of the electors. The recent defeat of Judge Cooley in Michigan furnishes such an occasion, and not only for regret but for astonishment. Judge Cooley is certainly one of the most learned and celebrated lawyers of this country. His legal writings have made him an authority and oracle in the department of Constitutional law; his works on Taxation and Torts are of standard excellence; his numerous opinions are not surpassed in learning and good judgment by those of any of his contemporaries. We have been led to entertain the highest opinion of his integrity and impartiality. His name would unquestionably be included among the dozen lead

CORRESPONDENT presents a novel scheme for the relief of our Court of Appeals. It is to make the judges do more work shorter opinions. The sufficient answer to this is that the judges do not write long opinions, except perhaps the Chief, who has not yet written opinions long enough to be able to make them short. In no other instance have we lately observed any undue tendency toward the reviewing and comparing of cases, and the like. It may also be remarked that the length of the opinion is not the criterion of the time necessarily spent in the examination of the It occurred to us while reading our correspondent's letter, that if the judges should write a very short opinion in a case in which his interlocutoring jurists of this country by those best qualified to was concerned, the critic would be as ready as any one to go about cursing the court. Our correspondent also suggests the compulsory shortening of arguments. We think he exaggerates the length of arguments in this court. Very seldom do counsel take their two hours in any case. never a whole session as he declares. But the idea that the court can, as he intimates, possess themselves sufficiently of the points in the average case in five minutes, and that they then yawn and look at the clock, is quite incorrect, and at once gives too much credit to the judges' quickness of apprehension, and too little credit to their courtesy. The suggestion for filing briefs preliminarily is in our opinion unwise. The court learn more of the case from a few min

utes oral statement accompanied by the brief than
from a long and tedious preliminary reading.
There is no escape from the conclusion that the
judges are not numerous enough to do the work.
But who is going to do any thing about it, or about
ameliorating our wretched and ridiculous "system
of law? The Legislature care very little for these
weighty matters. Is it because there is no money
in them? The welfare of the State is not always
most dependent on bills with money in them. We
would gladly see somebody in the Legislature evince

a little positive interest in promoting the State's
legal welfare. To those who oppose codification
we address this appeal-let us see if you cannot
suggest something better than what we have, and
do not content yourselves with a mere short sighted
opposition to what has been proposed.

The late Isaac N. Arnold, of Chicago, was a very distinguished lawyer, a patriotic and active citizen, and an accomplished man of letters. His Life of Lincoln has been published since his death, and has received high praise. We were pleasantly reminded of him by the view of a portrait of him now on exhibition at Annesly & Vint's picture gallery VOL. 31-No. 17.

name them. And yet this eminent man has been fairly "snowed under " in a recent popular election. The result will take the whole country by surprise. It must of course be presumed that there is some alleged reason for this result, and consistency would lead us to concede that the citizens of Michigan ought to know best about the matter. But it will be very hard to make the citizens of other States believe that there has not been a great mistake of judgment. A veteran judge ought not to be discarded in his old age on account of any popular caprice or clamor, and it is probable that those who have done this thing will regret their course within a short time. We do not even know who Judge Cooley's successor is, but we do know that whoever he is he must suffer in comparison with his great predecessor, for granting him equal in all mental qualities, he cannot have had that long experience which has made Judge Cooley strong, and cannot have attained that reputation which has made his judgments authoritative at home and respected

abroad.

The session of our Legislature is presumably drawing rapidly to a close, and we want to know what they are going to do about the Code. They owe it to the people of this State to do something about it to pass it, or reject it, or constitute a commission to amend it. The last disposition was what the last Legislature did with it, but the governor for some reason (or no reason) failed to appoint the commissioners. We believe, and so do about one-half the lawyers, and a great majority of the laymen, that the best thing to be done is to pass the Code, to take effect a year or two hence. This is the only way to get a Code that will approximate to satisfying everybody, Even this will not satisfy the small body of New York city obstructionists who are hostile to all codificațion a small body, but highly respectable, quite influential, ad