able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.

This was a suit for an injunction to restrain the defendants from carrying on certain mining operations on a creek, in the territory of Montana, known as the "Ten-Mile Creek," by which it was alleged that the water, diverted by the plaintiff from the stream for mining purposes, is deteriorated in quality and value. The plaintiffs are the owners of two ditches or canals, known respectively as the Helena water-ditch, and the Yaw-Yaw ditch, by which the creek mentioned is tapped and the water diverted and conveyed a distance of about eighteen miles to certain mining localities, known as the Last Chance and Dry Gulches, and then sold to miners. The court applied the principles above enunciated to the circumstances of the present case, and came to the conclusion that an injunction was not allowable.

RECENT ENGLISH DECISIONS.

ATTACHMENT OF DEBTS.

Debts between judgment creditor and garnishee-Common-law procedure act, 1854, 17 & 18 Vict., c. 125, §§ 61, 63. Under the common-law procedure act, 1854 (17 & 18 Vict., c. 125, §§ 61, 63), where a debt due from the garnishee to the judgment debtor has been attached, the garnishee has no right to retain the amount of any debt due to him from the judgment creditor, and the judge must order execution to levy the whole amount due from the garnishee to the judgment debtor. Sampson v. Seaton and Beer Railway Company, L. R., 10 Q. B. 28.

CANAL.

Overflow. The defendants, owners of a canal, being threatened by an overflow of flood water from a neighboring river, and fearing damage to their premises situated on the banks of the canal, placed across it, at a point above their premises, planks reaching from the bottom of the canal to the coping stone, which was some inches higher than the surface of the canal water. The flood water afterward broke into the canal at a point above the barricade of planks, and opposite to the plaintiffs' premises, which were also situated on the banks of the canal above the premises of the defendants, and, being penned back by the planks, the water rose in the canal until it flooded the plaintiffs' premises. In an action brought to recover dam

principals. With this knowledge the plaintiffs' clerk sent an affidavit of proof of the debt due to them against the estate of B., whose affairs were being liquidated by arrangement. The plaintiffs endeavored to prevent the affidavit of proof from being filed, but were unsuccessful; held, that the mere filing of the affidavit of proof formed no obstacle to the plaintiffs suing the defendants for the price of the goods sold to B. Curtis v. Williamson, L. R., 10 Q. B. 57.

NEGLIGENCE.

Railway company: insurance: damages. — In an action for injuries caused by defendants' negligence, a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages. Bradburn v. The Great Western Railway Company, L. R., 10 Ex. 1.

NEW TRIAL.

Inadequacy of damages: compromise amongst jury: slander. -A new trial will be granted for inadequacy of damages in an action for slander where the smallness of the amount shows that the jury have made a compromise, and, instead of deciding the issues submitted to them, have agreed to find for the plaintiff for nominal damages only. Falvey v. Stanford, L. R., 10 Q. B. 54.

SEAWORTHINESS.

Marine insurance: deck cargo. - The warranty of seaworthiness implied in a contract of marine insurance is a warranty that the ship is seaworthy for the purposes of the particular subject-matter of the insurance. Therefore, in the case of a policy of insurance on deck cargo, it is not a compliance with the warranty of seaworthiness that the ship is fit to encounter ordinary rough weather with safety to herself because the deck cargo is such as may be readily jettisoned in such weather. Daniels v. Harris, L. R., 10 C. P. 1.

TRESPASS.

Animal, owner liable for trespass of: negligence. — The defendants' horse having injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendants'; held, that there was a trespass by the act of the defendants' horse, for which the defendants were liable, apart from any question of negligence on the part of the defendants. Ellis v. The Loftus Iron Company, L. R., 10 C. P. 10.

ABOUT ENGLISH LAWYERS.

ants were not liable, on the ground that the water which did the mischief was not brought there by them, and that there is no duty on the owners of a canal analogous to that on the owners of a natural watercourse, not to impede the flow of water down it. Nield v. London and North Western Railway Company, L. R., 10 Ex. 4.

CONTRACT BY AGENT.

Principal and agent: proof by creditor upon estate of insolvent agent: election to treat agent as debtor after undisclosed principal discovered. - The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal, after that undiscovered principal is known to the creditor, is not a conclusive election by the creditor to treat the agent as his debtor. B. purchased certain goods of the plaintiffs; he was the agent of the defendants, his undisclosed principals. B. became insolvent, and the plaintiffs then became aware that the defendants were

published presents some features sufficiently striking to deserve comment. London is the center of all legal professional organization, that is to say, organization among lawyers, and we apprehend that wherever the profession has any footing out of England, Wales, Ireland, and Scotland, the continued existence of two separate branches (the preservation of the Rubicon between which is still insisted on in quarters where prejudice outweighs expediency) is looked upon with some surprise. As yet we have never lent our pen to advocating amalgamation as well because public opinion in this country is by no means ripe for it, as because the expediency of such a course if the consequences may be prejudged with any degree of accuracy is a matter of considerable doubt; insisting only, nay, demanding, the removal of obstructions to a passage from one branch to the other, which owes its existence to a policy which has very naturally been fruitful of ill effects upon the very body of men whose

The plaintiff purchased a cargo of coal by the bill of lading and the representation of defendants that it was "good coal well adapted for generating steam." In a suit for defect in the coal, held, that evidence that the coal had much dirt in it and it took an increased quantity to generate steam was inadmissible. Whitaker v. Eastwick, 75 Penn. St. 229.

2. Rescission: insolvency of vendee. - Insolvency of a vendee of goods and his knowledge of it are not alone such fraud as will set aside a sale and enable the vendor to rescind and replevy the goods after they have come fairly and fully into the possession of the vendee. To avoid the sale there must be artifice, trick or false pretense as a means of obtaining possession, bad faith and intent at the time to defraud the vendor. Insolvency and a knowledge of it at the time of the sale are evidence for the jury with other facts of intended fraud. The doctrine in New York on the question of rescission on the ground of insolvency does not obtain in Pennsylvania. Rodman v. Thalheimer, 75 Penn St. 232.

USURY.

Intent of lender. — An intent on the part of the lender to stipulate for an unlawful rate of interest is essential to render usurious a contract to pay more than a legal rate. But where it is shown that the lender knowingly accepted and retains such a contract, the intent is conclusively established. Grant v. Merrill, Sup. Ct. Wis.

For a loan of $900 the lender's agent took defendant's note for $1,000 with interest at ten per cent (the nighest legal rate), and gave such note to the principal, who then knew the amount thereof and of the loan, and the lender transferred such note to a third person, taking therefor his note for the same amount. Held, in an action on the first-mentioned note, that it was error to submit to the jury the question of the lender's intent. Ib.

Demand of payment: goods sold on commission.· This action was brought to recover the purchaseprice of a quantity of goods alleged to have been sold by plaintiff to defendant. Defendant's answer set up, among other things, that a portion of the goods were left with defendant to be sold upon commission, that they had not all been sold, and as to so much as he purchased, it was expressly agreed that they should be paid for at his store on a day named, and that he had always been ready and willing to pay for them at his store, but that plaintiff had never demanded payment there. Held, that no demand by plaintiff at defendant's store on the day agreed upon was necessary before the commencement of this action.

If defendant had been ready to pay at the time and place, and if he had kept ready, by paying the money into court, and setting these facts up in his answer, he could have shielded himself from liability for interest and costs. Locklin v. Moore. Opinion by Earl, C.

BANK.

Bona fide holder of promissory note: receiver. - This action was brought against the maker of a promissory note, who had delivered it to the payee to be discounted for his, the maker's, benefit, and which was indorsed and presented by the payee to a bank for discount. At the time the bank refused to discount the

note, but agreed that it should be done thereafter, and upon that understanding the note was left, the bank having also agreed that in the meantime the payee might draw against it, which he did. The case was tried before a referee, who found that the bank had no notice of the maker's interest. Held, that the maker was liable for the sums drawn, the payment of which was in effect a discount of the note to the amount so paid. The result would be the same if it should be considered that the note was simply pledged for the sums paid upon the drafts.

In an action brought by the receiver of a national bank, as such, a certificate of the comptroller of the treasury, approved and concurred in by the secretary of the treasury, reciting the existence of all the facts of which the former is required to be satisfied by the national currency act (§ 5013, U. S. Stat. at Large, 99), is sufficient evidence of the validity of the appointment of such receiver. Platt, receiver, etc., v. Beebe, impleaded, etc. Opinion by Gray, C.

CONTRIBUTION.

Co-sureties.-This action was brought by a surety upon a promissory note against his co-surety for contribution. A judgment was obtained against all the parties to the note, and execution was issued thereon and paid by plaintiff. Defendant set up in his answer, among other things, that plaintiff was indebted to W., the principal, upon an account, which should be applied. Held, that defendant could not avail himself of any such defense.

It seems, that in such case, if the principal was insolvent, defendant could commence an action in equity against plaintiff and the principal and have their accounts adjusted, and the amount due the former applied so as to save him from loss. Blenis v. Kearing. Opinion by Earl, C.

CORPORATION.

Organization: liability of stockholder.-This action was brought against defendants, who, with plaintiff, were stockholders in the Mexican Ocean Mail and Inland Co., a corporation organized under chapter 228, Laws of 1852, providing for the incorporation of companies to navigate the ocean by steamboats. No certificate that the capital was paid in was filed as required by section 7 of said act. The corporation became insolvent and several judgments were recovered against it, suits were brought thereon against plaintiff as a stockholder and judgments obtained against him, which he paid and brought this action for contribution. Held, that plaintiff could maintain this action, and that it was no defense that the corporation was not legally organized, as to those who participated as stockholders in its acts of user as a corporation de facto, and who appeared upon its books as stockholders. Aspinwall v. Sacchi, impleaded, etc. Opinion by Earl, C.

COSTS.

Offer of judgment.- This action was brought to recover for services rendered. Before the trial the defendant served an offer to let judgment be entered under section 385 of the Code, for $105, which offer was not accepted. The case was tried by a referee, who, six months, less one day, after the offer, reported in favor of plaintiff for $106 damages, he considering the same as unliquidated. Plaintiff's costs were taxed as if no offer had been made. An order was made at special term that they should be re-adjusted, and costs to plaintiff disallowed, and that defendant should be

allowed costs accruing after the offer. This order was reversed by the general term. Held, no error; that in such a case, in determining whether the judgment obtained is more favorable than that offered, interest cannot be added to the sum offered. A defendant cannot by offering a sum less than plaintiff is entitled to, and then by persisting in his defense and postponing a recovery, until that sum, with interest added to it, exceeds the recovery, obtain the benefits of section 385 of the Code. Johnston v. Catlin. Opinion by Gray, C.

HIGHWAY.

Taking land for street improvement: action on award. -This action was brought against the corporation of the city of New York to recover an award for lands

the hides were weighed, and the title having passed the action was not prematurely brought, as the number of sea-damaged hides was a subject of controversy and could only be determined by action. Even if the damaged hides were excepted the title to the others passed, as the two classes of hides could be identified and separated, and were as completely distinguishable in point of law as though in separate bales. Bacon et al. v. Gilman. Opinion by Dwight, C.

BOOK NOTICES.

The Practice at Law, in Equity, and in Special Proceedings, in all the Courts of Record in the State of New York, with appropriate Forms. By William Wait. Vol. V. Albany: William Gould & Son, 1875.

of the act of 1813 (§ 183, chap. 86, Laws of 1813). The award was made by the commissioners of estimate and assessment to "unknown owners" (§ 178), and paid in to the defendants. The plaintiffs were not named in the report. An application was made for payment which was refused, and thereupon this action was brought. Held, that upon plaintiffs proving their right and title to the property, they were entitled to recover the amount of the award. It was not necessary that the names of the plaintiffs should appear as owners in the report of the commissioners of estimate and assessment. The provision of section 184 of said act, authorizing the corporation in such case to pay the money into court, does not prevent an action to recover the award, or bar such recovery, unless the payment was actually made and the same is interposed as a defense and proved on the trial. Fisher et al. v. Mayor, etc., of New York. Opinion by Lott, Ch. C.

SALE.

Construction of contract: "sea-damages." - This action was brought for goods sold and delivered. On February 19, 1859, plaintiffs contracted to sell defendant a quantity of hides then in store in New York. A bought and sold note was executed, stating the sale of 4,045 hides. "No allowance, except for sea-damaged, price 12 cents per pound, cash." Upon plaintiffs' order 1,867 sound hides and 98 sea-damaged were delivered on February 28. Defendant paid $2,500 on account on March 4, and thereafter the balance of the hides in bales were weighed and delivered. Defendant did not open these bales until April 22, when he claimed that 1,309 were sea-damaged, and notified plaintiffs that unless they took away the hides claimed to be sea-damaged that they would be sold on their account. Four days after, May 4, this action was commenced. Defendant claimed that the sea-damaged hides were excepted from the sale, and until they were separated the hides sold were not identified, and the title did not pass and the action was prematurely brought. The case was tried by a referee, who found that 130 of the hides were sea-damaged, and as a conclusion of law, that the intent of the parties as evidenced by the contract was to pass the title to all, with a deduction from the price for those that were sea-damaged, that the title did so pass, and that the action was not prematurely brought, although commenced before the precise number of sea-damaged hides was ascertained. Held, no error; that the word "allowance" meant simply a deduction on the price for sea-damage, and the whole expression was used to exclude all claims for deductions based on any other grounds; that assuming the contract was executory it became executed as soon as

prises Parts XV and XVI of the great work which he has undertaken, and treats of actions or proceedings relating to real estate, and actions or proceedings of a special nature, whether legal or equitable. These subjects are treated with the same minuteness and completeness which have characterized the previous volumes. No New York case bearing on the subjects discussed has been omitted, and many analogous decisions in England and in the various States are cited. Every step is accompanied by forms adapted to the wants of the practitioner. We think the present volume is more valuable to the profession than any of the preceding, on account of the elaborate treatment of such titles as "Habeas Corpus,” “Mandamus," hibition" and "Quo Warranto"-branches of practice with which the profession at large have only a limited acquaintance.

" Pro

It is quite obvious that Mr. Wait's Practice is the most extensive which has been produced in this State. The detail, the minuteness, the analysis, the division and subdivision are quite unequaled, and these, combined with the great research which is exhibited, render these volumes a monument of Mr. Wait's ability and industry, which is creditable to himself and valuable to the profession.

A Digest of the Reports of the United States Courts and of the Acts of Congress. By Benjamin Vaughan Abbott. Vol. VI. New York: Diossy & Company, 1874.

This volume is the second supplement to "Abbott's National Digest," and embraces the reports and statutes from May, 1872, to November, 1874. It is an epitome of the decisions reported by Wallace, Lowell, Blatchford, Dillon and the other United States Court reporters, together with the decisions found in the National Bankruptcy Register and the Current Law Magazines. Even the opinions of the Attorney-General, the Acts of Congress, and the decisions of the Court of Claims are represented. The titles "Bankruptcy" and "Patents" are particularly full and valuable. The volume appears to be uniform with the preceding volumes in accuracy and fullness. This series deserves the patronage which it receives at the hands of the profession.

Theodore Tilton v. Henry Ward Beecher. Action for crim. con., tried in the City Court of Brooklyn, Chief Justice. Joseph Neilson, presiding. Vol. I. New York: McDivitt, Campbell & Co., 1875.

The report of the greatest of American trials, which is given in the daily newspapers, affords all that is requisite for the ordinary reader. But for the lawyer and publicist, who may desire to preserve the records of this marvelous case, something more permauent than the work of the journalist is desirable. The pub

lishers of this volume are supplying this desire by the publication of the proceedings verbatim in book form. This volume contains the portraits of Judge Neilson, Mr. Tilton, Mrs. Tilton, Mr. Fullerton, Mr. Morris, Mr. Pryor and Mr. Moulton. The testimony for the plaintiff is mainly included in this volume. The proceedings of each day are prefaced by a summary and a description of the scenes of the court-room, as given by the reporter of the New York Tribune. It is unnecessary to speak of the great professional, as well as public, importance of the records of this trial. Every point is contested with vigor and ability, and the debates between counsel on the admissibility of evidence are splendid specimens of forensic eloquence and legal acumen. Long after the trial is ended, the case will be read with absorbing interest by layman and lawyer.

Banker's Almanac and Register for 1875. Edited by B. Homans, Jr. New York: Office Banker's Magazine. This almanac contains a large amount of interesting financial matter. It gives among other things a list of all banks and bankers in this country; the premium on gold at New York for each month in the years 18691874; the price of United States bonds from 1863; the interest laws of the States; an alphabetical list of cashiers in the United States; list of Insolvent National banks; list of foreign banks and bankers; railroad in default, etc. There are also a number of very handsome designs for bank buildings.

COURT OF APPEALS DECISIONS.

THE following decisions were handed down in the New York Court of Appeals on Tuesday, April 6, 1875:

Motion to dismiss appeal granted with costs-Smith v. Belden.—Motion to dismiss appeal denied without costs-In re petition of Edward Burke to vacate assessment; in re petition of Eugene Kettletas to vacate assessment.-Judgment affirmed with costs The People, etc., and ano. v. McGuire; The Mutual Life Insurance Company v. Howland; The Fisk Pavement and Flagging Company ». Evans; Driggs v. Simson; The People ex rel. Brooklyn Park Commissioners v. The City of Brooklyn et al.- -Order of General Term affirmed with costs-In re the application of the Commissioners of Public Parks to acquire title to land for parade ground.- -Order of General Term granting new trial reversed, and judgment on verdict affirmed with costs-Thurber v. The Harlem Bridge, etc., Railroad Company.-Judgment reversed and new trial granted, costs to abide event-Fraser v. McCloskey. -Appeal dismissed with costs-Hale v. Clauson and ors. Order of General Term reversed, and order of Special Term affirmed with eosts-In re petition of Helen E. Little to vacate assessment, etc., v. The Mayor, etc., of New York.

CORRESPONDENCE.

THE NEW UNITED STATES JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN.

DETROIT, April 3, 1875.

Editor of the Albany Law Journal:

The appointment of the Hon. Henry B. Brown to the

people at large. Judge B. is a graduate of Yale, has had about fifteen years' successful experience at the bar in this city, has been Assistant United States District Attorney, and has been judge of the Wayne County Circuit Court. He is particularly versed in admiralty law. He is under forty years of age, is a man of fine presence, a gentleman in every sense, an upright citizen of unexceptional habits; industrious and painstaking, and can scarcely fail to distinguish himself on the bench. Judge Brown visited in Europe in 1873. His firm, Pond & Brown, have done a very large business in the State and United States courts, including the United States Supreme Court. H.

NOTES.

MR. DAVID A. WELLS has written a letter to the

New York Evening Post in support of his position that a State ought not to tax its citizens upon their personal property situated beyond its boundaries; and that the decisions of the United States Supreme Court definitely settle that the provisions of law by which certain States do thus tax are unconstitutional and void. The Memphis Bar and Law Library Association has been formed the objects of which are stated to be to maintain the honor and dignity of the profession, to cultivate the science of law, to promote social intercourse among its members, to aid in the administration of justice, and to found a permanent law library. It is expected that within a year a library of 4,000 volumes will be secured.

Ex-Judge James J. Roosevelt of New York, formerly of the Supreme Court and Court of Appeals, died April 5, 1875.- John W. Longyear, judge of the United States District Court for the eastern district of Michigan, died on the 12th ult. Judge Longyear was born October 22, 1820, in Ulster county, New York. In 1844 he went to Michigan where he was admitted to the bar in 1846. In 1862 he was elected to congress and re-elected in 1864. In 1867 he served as a member of the Constitutional Convention. In 1870 he was appointed to the position which he held until his death.

- Under a construction of a late act of congress, it has been decided that Gen. Sickles retains the place on the retired list and is entitled to pay as a majorgeneral from the date of his resignation of the Spanish mission. -The Tichborne case has entered on a new phase. On the 18th ult. a declaration was filed, at the suit of Sir Roger Tichborne, the claimant, against Mr. Murray, clerk at the Petty Bag Office, Queen's Bench, for failing to issue a writ of error. Proceedings are in the form of an action of mandamus, under the sixty-eighth section of the Common Law Procedure act, 1854, and the damages are laid at £500,000.

The Echo says that "Charles Austin, the friend of Mill, the pupil of Bentham, the radical of radicals, has ended by founding a family,' by personal homage in his will to the practice of entail and strict settlement! The very successful barrister, of whom Mr. Tollemache, his latest biographer, says that some one wrote on the door of his chambers, 'Goue to California!' who, according to another writer, was once so very much 'retained' that he was met riding in the

year, the late eminent judge of the United States District Court for the Eastern District of Michigan, gives great satisfaction to the bar in general, and to the

clients,' has closed his career by leaving all his real estate to the use of his eldest son, Charles, for life, with remainder to his eldest son on strict settlement,