detainers," 2d Rev. Stat. 508, requires that to "institute these proceedings before a judge a complaint shall be made; and section 3 declares, "that such complaint shall be in writing, and accompanied by an affidavit of such forcible entry or forcible holding." The making and presentation of such complaint are essential to give the judge jurisdiction. The complaint in this case was sufficient, but no affidavit was made to accompany it. The affidavit should be positive and state facts positively, or, if founded on information and belief, should give the source of such information and belief. The form of verification prescribed by the Code does not necessarily imply that the facts in the pleading are true, and a complaint without an affidavit is not a compliance with the statute. People ex rel. Decker v. Whitney. Opinion by E. D. Smith, J. 2. That the proceedings subsequent to the objection, if the impaneling of the jury, the finding of the inquisition and the traverse were no waiver of the objection, such traverse must, under section 14 of the statute, be made within 24 hours after the inquisition was found to stay the proceedings, and it would be unreasonable to require the defendant to make out the necessary papers and move for a certiorari within that time, or submit to the temporary deprivation of his property. Ib. 3. As these proceedings are summary and statutory they must strictly conform to the statute, and are open to technical objections. Proceedings reversed. Ib. RECEIVER. Receiver's bond.- Where the plaintiff was appointed a receiver in supplement proceedings and required by the order appointing him to execute a bond with sureties, and executed an obligation, not under seal, with one surety, and brought an action as receiver, and it was objected that such bond was not a compliance with the order appointing him, and the judge sustained the objection and directed a nonsuit. On appeal, held, that the appointment of a receiver is perfected by the filing of the order for his appointment, with the report of the referee and the security required by such order and report. The order required the execution of a bond with sureties. No title passed to the receiver until compliance with the order. Two sureties at least were required by the order, and that is the usual number unless the court dispenses with one. 2. A bond is an obligation under seal and nothing else is one, and a bond was required in this case. Judgment affirmed. Johnson, receiver, etc., v. Martin. Opinion by E. D. Smith, J. TRESPASS. Taxation: public officer.- Where, in an action for trespass for taking plaintiff's wood by defendant, as collector of school taxes, defendant justifies as such collector, and plaintiff was the owner of real estate in said school district, but resided without it, and on judgment before a justice of the peace, in favor of defendants, a new trial was had in the county court, and the judgment affirmed, from which judgment an appeal was taken to this court. Held, that under § 66, Laws of New York of 1864, p. 125, as amended by § 17, Laws of 1867, "providing that the trustees shall apportion the tax on all the taxable inhabitants of said district and upon corporations and persons holding property therein," the plaintiff was liable. Judgment affirmed. Tiffany v. Farr. Opinion by E. D. Smith, J. GELPECKE et al. v. QUENTELL. Duties of agents to third parties after revocation of his authority. Exceptions directed to be heard in the first instance at General Term. DAVIS, J.-When this case was here before, the only question presented arose upon the construction to be given to the following clauses of defendant's letter of 24th Dec., 1859: "This credit is intended for advances on consignments of merchandise to my address, and you will please keep the same in force for the coming year, 1860. It is not, however, required that bills of lading accompany the advice of the drafts." The court held that the latter of these clauses operated to dispense with the necessity of the bills of lading accompanying the drafts, and thereby relieved the plaintiffs from the duty of inquiring whether drafts presented to them were, in fact, drawn against consignments of merchandise to defendant's address. On that trial the court "required that the plaintiffs should first prove that the several bills were actually drawn against shipments consigned to the defendant," and, plaintiffs not having given such proof, their complaint was dismissed. See case reported, 59 Barb. 250, 252. That decision fully, and, as we think, correctly, settles the law of the case upon the question there presented. Upon the trial of the case now under review it appears that, on the 18th of January, 1860, the defendant wrote to the plaintiffs from Bremen a letter, recalling his former letter of credit and revoking the authority of the plaintiffs to accept the drafts of Rodewald & Co., and requesting plaintiffs to communicate to Rodewald & Co. the revocation. This letter contained the following clause: "If, however, in the mean time, up to the arrival of this letter, acceptances should have been made against it, this, as a matter of course, is for my account, and your drafts for re-imbursement will be promptly honored on my part." The letter of revocation was received, it appears, on the morning of the 6th of February, 1860, and, on the same day, the plaintiffs wrote to Rodewald & Co., informing them that, according to instructions that morning received from defendant, the credit opened in their favor had been recalled, and was, therefore, canceled. This letter was sent on the same day, by mail, to New Orleans. None of the drafts in suit had, at that time, been accepted by the plaintiffs. On the 8th of February a draft of $3,000, drawn at New Orleans on the 1st of February, was presented and accepted. On the 10th of February drafts for $5,000, drawn on the 4th of February, were presented and accepted, and on the 13th of February five drafts of $5,000 each, drawn on the 7th of February, were presented and accepted. The several acceptances were paid at maturity by plaintiffs, and the defendant refused to refund plaintiffs, on the ground that the acceptances were made after the revocation of their authority. The recall of the letter of credit, and consequent revocation of the authority of plaintiffs to accept, was complete on the 6th day of February, at which time the letter of defendant, written for that express pur drawn under this letter would fall within the plaintiff's promise to accept, which the law will find in this letter or imply from its contents. It is apparent, as it seems to me, that they must be drafts at sixty days sight, and must be against shipments of consignments to the address of defendant. We are seeking now for the promise of plaintiffs made to Rodewald & Co., and upon which the holding a draft drawn by that firm may stand to enforce it against plaintiffs, because of the promise asserting that he received it in reliance upon the promise, and therefore may legally claim pose, was received. An acceptance subsequent to such To do this it was necessary to establish that what had taken place between themselves and Rodewald & Co. was of such a character that parties who had received the drafts of the latter firm upon plaintiffs had a legal right to insist upon an acceptance, or to sue as upon an acceptance, or for damages for non-acceptance. In short, it was their duty to be able to show that, notwithstanding the revocation, their relations of legal liability to the holders of the several drafts in question were such that the subsequent acceptance was equivalent in its operation on the obligation of the defendant toward them to one made before the recall of authority. The court erred in holding that the plaintiffs were not bound to show that state of facts, but, as this case is presented, we may properly look at all the facts proved or conceded, to see whether upon them sufficient appeared to justify the recovery. It was shown that after receiving the letter of defendant by which the credit to be drawn against was created in which the defendant indicated that the drafts were to be drawn against consignments of merchandise, but relieved the plaintiffs, as the court has held, from the duty of inquiring whether drafts presented under the authority had been so drawn, the plaintiffs wrote to Rodewald & Co., advising them of the credit. This letter is as follows: NEW YORK, 17th January, 1860. Messrs. HENRY RODEWALD & Co., New Orleans, La. We hereby have the pleasure to inform you that our mutual friend, Wm. Ed. Quentell, Esq., of Bremen, has opened a credit with us in your favor, for the sum of $50,000-say fifty thousand dollars, to be used by your drafts, sixty days sight, against shipments of consignments to the address of said friend. In confirming this credit, we hope you may have soon occasion to make use of it. Your drafts will meet with prompt protection. Meanwhile, we are, gentlemen, Yours, respectfully, GELPECKE, KENTGEN & REICHELT. This letter, so far as the case discloses, contains the only authority conferred by plaintiffs on Rodewald & Co. to make the drafts in question, and in it is to be found the only obligations of the plaintiffs, express or implied, which Rodewald & Co., as drawers, could communicate to parties purchasing or receiving their drafts, and upon which the latter could claim to base a promise to accept, enforceable against plaintiffs. It is essential, therefore, clearly to understand what drafts One who was simply told by Rodewald & Co. that they had the authority to draw may, perhaps, claim the benefit of whatever promise the actual authority contained, although he did not in fact see it, but can he claim any more than the authority would have disclosed to him if shown to and read by him? The holder of the drafts must be deemed to have seen and acted upon the letter for their waiver, or neglect to see it, cannot interject another promise than there actually contained in or implied from it. When Rodewald & Co. drew the drafts for $25,000, which it appears in the case were made to pay a like amount of their own previously dishonored drafts upon other parties in favor of the person to whom these were delivered, nothing more could be claimed by that drawee as against plaintiffs, than that he saw and acted in full reliance on this letter to his drawers. He must therefore be held to have seen that the promise of plaintiffs to Rodewald & Co., was to honor drafts drawn "againts shipments of consignments to the address" of defendant, and he must be held to have known that his dishonored paper was not a shipment of that character. If the plaintiffs had refused to accept those drafts, I can conceive of no ground upon which the holder could have maintained his action under the statute. He had notice that the drafts were not drawn within the instructions given by plaintiffs. The question now before us is not the one that would have arisen had the drafts been accepted by the plaintiffs prior to the revocation of the letter of credit. In that case the plaintiffs, acting in good faith, could say, as before held by this court, that they were not bound to inquire whether the drafts were drawn against consignments of merchandise to defendant's address, because he had himself waived that duty. But an acceptance, after the authority itself had been revoked, must stand, upon the ground of plaintiffs' personal liability created by the authority with which they armed the drawees in New Orleans. I see no good reason why the plaintiffs might not have required the drafts to be drawn against consignments of merchandise to defendant, although he did not require them to have bills of lading accompany the drafts; nor why they might not refuse any draft not so drawn, because not within their instructions to Rodewald & Co. The waiver of accompanying bills of lading was a personal matter between plaintiffs and defendant. It would not have justified the acceptance of a draft known to plaintiffs not to be drawn against consignments. Good faith was still required, although acceptances in good faith without certain evidences of the character of the draft were to bind defendant. Hence, there can be no sound reason, as it seems to me, why plaintiffs could not limit their obligation to accept to the very kind of drafts which the defendant advised them he contemplated, by requiring the drafts which they would accept to be against consignments. And when the question is one as to what sort of promises to accept the plaintiffs had outstanding at the time of the revocation of the letter of credit, which bound them to go on and accept, notwithstanding such revocation, that question is to be solved by the authority they had given, and with reference to which dealers with Rodewald & Co. may be assumed to have acted. I think the evidence offered by defendant should have been received, to show that the drafts were not of the kind which plaintiffs were bound to accept. That the defendant was clearly entitled to a verdict in respect of the five $5,000 drafts drawn on the 7th of February, on the evidence which was received, showing the purpose for which these drafts were given. There should be a new trial, with costs to abide the event. Ingraham, P. J., concurs. of cases more speedily, it also imposes a considerable expense, as they are required to pay for the same matter over again with each succeeding edition. One very excellent feature about Mr. Brightly as a digester is his power of compression-his abstracts are exceedingly concise and yet generally sufficiently clear and intelligible. This enables him to give in a comparatively small space what others would spread over pages. The digest includes not only the cases in the regular reports, but also those published in the numerous periodicals and papers. CORRESPONDENCE. BOOK NOTICES. A Manual of Medical Jurisprudence, by Alfred S. Taylor, M. D.. F. R. S., Fellow of the Royal College of Physicians, and Professor of Medical Jurisprudence and Chemistry in Grey's Hospital, Seventh American Edition, revised from the author's latest notes and edited with additional notes and references, by John J. Reese, M. D., Professor of Medical Jurisprudence and Toxicology in the University of Pennsylvania, Fellow of the College of Physicians of Philadelphia, and Honorary Member of the New York Medico-Legal Society. Philadelphia, Henry C. Lea, 1873. Taylor's Medical Jurisprudence had previously passed through six editions in this country, and has long been recognized, both in England and in this country, as the standard English work upon the subject. Those who wish to go farther into the various subjects of course prefer the larger work of Mr. Taylor, in two volumes, which has just been reprinted in this country by Mr. Henry C. Lea, the publisher of the Manual before us. The work opeus with a dissertation upon the duties of physicians and surgeons in acting as witnesses, with rules as to the examination of experts, which to any physician or lawyer is worth the price of the volume. It would be useless for us to attempt to speak of the merits of Dr. Taylor's work. It is so widely and so well known to both the medical and the legal professions that nothing from us could add to the estimation in which it is held by both. It is what it was designed to be, par excellence, the hand book for daily and constant use, and as an authority stands as high as any which has ever been written upon the subject. A book purely American usually fails to give us a comprehensive view of the condition of medical jurisprudence in England, while one purely English does not furnish much desirable information upon the subject from an American stand-point. The present work combines both. To Dr. Taylor's eminent labors in England are added those of Dr. Hartshorne, Dr. Penrose and Dr. Reese, all eminent in their profession here. Considering its cost and size it is one of the most valuable works on the subject ever published in this country. Brightly's Federal Digest, vol. II, second edition. Philadelphia, Kay & Brothers, 1873. This volume contains a digest of the decisions from 1868 to and including a portion of the current year. The first edition contained the cases up to 1870, and covered about 230 pages. The same matter is, of course, repeated in this issue, and about the same number of pages have been added. While this method of building up a volume enables the profession to obtain the notes TOWN BOND SUITS AND ATTORNEY'S FEES. The large amount of bonds issued by the several towns of this State, in aid of railroads, is likely to produce serious litigations by the towns to get rid of those bonds. In several cases litigations have already commenced. The question then arises, what are the rights of counsel employed by the supervisors to bring or defend such suits? In the case of Brady v. The Supervisors of New York, 10 N. Y. 260, it was held that an attorney and counsel was obliged to present his bills to the supervisors and take what they allowed. Does that rule now apply to towns? Under the provisions of the Revised Statutes it did not, but since then the statute has been amended, and the provisions now in relation to towns are substantially the same as they then were in relation to towns. The Laws of 1835, page 311, chapter 271, changed that rule as to the towns in several counties, and making it the duty of the board of town auditors to audit all charges and claims payable by their respective towns, thus placing accounts against the towns in those counties, on the same condition as claims against the county. In 1840 (see Laws of 1840, page 251, chap. 305), the same rule was made applicable to all the towns in the State. This is a matter of some importance just now to the legal profession, and one worthy of their attention. There does not seem to be any escape from the conclusion, that attorneys and counselors for towns must take for their services just what an interested town board of auditors may allow. Mr. Isaac Grant Thompson, in his Supervisors' Manual, at page 44, in speaking of town charges, says: "Where no fixed and definite sum is prescribed as a compensation for services, the board (board of town auditors) have a discretion, and may allow such sum as they may deem just. In auditing and allowing this class of accounts, they act judicially, and no proceedings can be had against them, or against the town, for an erroneous determination." A. COURT OF APPEALS. The following rule was handed down in the court of appeals on the 13th inst.: Ordered, Motions for re-argument will only be heard on notice to the adverse party, stating briefly the ground upon which a re-argument is asked, and such motions must be submitted on printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court, with proper references to the particular portion of the case, and the authorities relied upon, and counsel will not be heard orally. COURT OF APPEALS DECISIONS. The following decisions were announced in the court of appeals on Tuesday, the 18th inst.: Judgments affirmed with costs-Fullerton v. McCurdy, Root v. The Great Western Railway Company, Voorhees v. Burchard, Voorhees v. Henderhan. Judgment reversed and new trial granted - Coleman v. The People, etc. Order of general term reversed and order of special term affirmed with costs-Hathaway v. Johnston. - Order reversed and proceedings remitted for rehearing on further proofs, costs to abide the final decision of the court as to costs- Wilderming & Mount v. Fowler. Appeals dismissed with costs -The Board of Education of Cohocton v. Wait, Costello v. The Syracuse, Binghamton and New York Railroad Company. Appeal dismissed without costsPeople ex rel. Akin v. Hughitt. Appeal dismissed -People ex rel. Green v. Smith.- - Motion granted Fellows v. Heemans.- Ordered that motion stand over and be heard in commission of appeals-Miller v. Eggest. Motion denied with $10 costs - People ex rel. Dilcher v. German United Evangelical St. Stephen Church of Buffalo. NOTES. There is occasionally a little humor-grim humorabout our excellent contemporary, the London Law Times. A long while since we took the liberty to correct the statement of the Times to the effect that Philadelphia was in Illinois, or did some other equally rash thing, whereupon the Times suggested whether it would "not be expedient to consider the advantage to be derived from encouraging fires on the premises of the printers" of the Albany Law Journal. Now it is indulging itself in making fun of the practice of American lawyers of meeting on the occasion of the death of a brother lawyer and passing resolutions and making speeches " commemorative of the virtues of the deceased." The Times calls it a "high-minded weakness." Whether the Times does not believe in speaking well of anybody living or dead, or whether it does not believe that American lawyers have any virtues to commemorate, it does not say. But it has been suggested to us that perhaps the Times is actuated by a spirit of retaliation induced by the fact that we omitted the remarks of the Times' editor from our report of the "Proceedings and resolutions of a meeting of the attorneys and solicitors of London upon the death of Sampson Brass, Esq.," published in 3 A. L. J. 165. If this be so, we would assure the Times that the omission was purely accidental. THE NEW SOLICITOR-GENERAL OF ENGLAND.-Mr. Henry James, Q. C., M. P., who has just been appointed successor to the Right Honorable Sir George Jessel in the office of Her Majesty's Soliciter-General, is the youngest son of Mr. Philip Turner James, of Hereford, by Frances Gertrude, third daughter of Mr. John Bodenham, of the Grove, Presteign, Radnorshire. He was born at Hereford in the year 1820, and was educated at Cheltenham College. He was called to the bar in the Middle Temple in Hilary Term, 1852, and went the Oxford Circuit. He had already distinguished himself in the legal profession, having been Lecturer's Prizeman at the Inner Temple in 1850, and again in 1851. Mr. James was appointed a Queen's Counsel in 1869, in the early part of which year he ob tained a seat in Parliament as one of the members for Taunton, unseating, on a scrutiny, his opponent, Mr. Sergeant Cox, who had been returned at the general election of the previous December. In 1867 he was nominated to the ancient office of "Postman of the Court of Exchequer." THE PEOPLE AND THE CONSTABULARY FORCE. — It is shown by the special returns lately issued, that the total police and constabulary force consists of 27,999 constables, of whom 7,818 are constables of boroughs, 9,678 county constables, 9,798 metropolitan police constables, including the dock-yards and 705 constables of the city of London. The borough constables are in the proportion of one for every 770 of the population; the county constabulary, of one for every 1,323 of the population; the metropolitan (deducting the dockyards), of one for every 414 of the population of the metropolitan police district; and the city of London, of one for every 106 of the city population. LEGAL NEWS. It is thought probable that ex-United States Senator Lyman Trumbull will be appointed corporation counsel for Chicago. Judge Alex. G. Miller, of the United States district court of Wisconsin, who was appointed to the bench in 1838 by President Van Buren, has tendered his resignation under the act of April 15, 1869, authorizing any United States judge to be retired from active service after reaching the age of seventy. The New Jersey constitutional commission has adopted a proposition to establish courts with original jurisdiction over all cases of condemnation of lands and assessments for improvements, and also an amendment providing for the appointment of a vice-chancellor, the appointment to be made by the chancellor, and the term of office seven years. In the case of the libel of the scow General Cass for tonnage, in the United States district court for Michigan, to test the question whether water craft of her size are subject to the navigation laws, Judge Longyear has decided that the scows and similar craft, even though having no means of propulsion of their own, are treated as vessels in the various acts of congress, and are therefore subject to the navigation laws of the United States and its enrollment and license, or if not so enrolled and licensed are liable to vessel tonnage tax. Mr. Spofford, librarian of congress, having submitted to Solicitor Spence, of the post-office department, the question whether the first paragraph of the copyright act, approved July 8, 1870, requiring postmasters to give receipts for copyright matter for transmission through the mails, has been repealed by the act abolishing the franking privilege, that officer has rendered an opinion deciding in the negative, and says: "The first paragraph of the 96th section is a well-devised security to the proprietor of the copyright to protect him in case of accidents in the mail from the penalties imposed by the 94th section." The 94th section imposes a penalty of $25 for not mailing a copy of the book, photograph, or whatever the article copyrighted may be, to the librarian of congress. Postmasters are to be governed by this, and give receipts for all copyright matter received. The Albany Law Journal. ALBANY, NOVEMBER 29, 1873. RECENT TELEGRAPH CASES. In view of the important part that the telegraph has come to take in the business transactions of the age, it is of considerable moment that the relative rights and duties of the senders of messages and the telegraph companies should be definitely determined by the courts; and it is alike a matter of public policy and of public necessity that the companies should not be permitted too easily to escape from the reasonable demands of the business in which they have engaged. The earlier cases seem to treat the sending of messages by telegraph as largely a matter of chance, and to regard errors in transmission as presumptively the result of causes beyond the power of human agency to control. They held the most sweeping regulations of the company "reasonable," and discharged them from liability for errors which were clearly the result of their agents' negligence. The later cases have been a little more guarded, but in most of them the company has practically had its own way. The fruits of these decisions are already being gathered in increasing carelessness on the part of the companies, and in increased litigation in the courts. That there are causes tending occasionally to produce errors in the transmission of messages, and which are beyond our present means of control, is very likely true, but that most of the mistakes which have given rise to litigation were the results of sheer carelessness is more than probable. That atmospheric or other uncontrollable causes could substitute "Southampton" for "Hull," as was done in the MacAndrews Case (17 C. B. 3), or "hundred " for "hand," as in the Drysburgh Case (35 Penn. St. 298), or "175" for "125," as in the Ellis Case (13 Allen, 226), or "700" for 7000," as in the Breese Case (48 N. Y. 132; 8 Am. R. 526), or could drop out six words from the message, as in the Sweetland Case (27 Iowa, 432; 1 Am. R. 285), and all this without any negligence on the part of the operators, will hardly be believed by any one familiar with telegraphy. Such errors and omissions are, and ought to be held by the courts to be, prima facie evidence of negligence, and if the company seeks to shield itself under the plea of "the infirmities of telegraphing." the burden of proving that the mistake occurred through such infirmities, and not through negligence, should be cast upon it. The courts have, however, in a number of the cases, held quite the reverse, and have placed the burden of proving negligence on the sender of the message when the message was unrepeated. The true and reasonable rule as to the relative rights and duties of the public and the companies was laid down in the recent decision of the Supreme cases. Court of Illinois, in the case of Tyler v. The Western Union Telegraph Co., ante, p. 181, and the decision is one which we hope to see followed in all subsequent That rule is, that the usual regulations exempting companies from liability for errors in unrepeated messages exempts them only for errors arising from causes beyond their own control, and that the inaccuracy of the message being proved, the onus of relieving themselves from the presumption of negligence thereby raised is upon the companies. The opinion of Mr. Justice Breese in that case is one of the ablest and most sensible that has been rendered on the subject of telegraphy. While it pays all due deference to the precedent decisions, it indicates very clearly a conviction that telegraphy has reached such a degree of perfection and of mercantile importance as neither requires, on the one hand, nor justifies on the other, any further judicial swaddling. The courts have quite uniformly held that regulations requiring messages to be repeated were “reasonable." The usual pretext for such regulations is "to guard against and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy." The real object of these regulations is to increase the revenue of the companies. With complete apparatus, skilled and careful operators, mistakes in messages will very rarely occur. On this point Judge Breese said: "We have carefully read and considered all that has been written on the subject of the art of telegraphy, which our library can furnish, and we are not satisfied with the grounds on which a majority of the decisions of respectable courts are placed. "In the first place, modern telegraphy is not now an infant art. It sprang into existence from the teeming brain of one now no more, who had the boldness to attempt to render subservient to the wants of man the most subtle element of nature, and, by its mysterious potency, convey ideas, wants and wishes to the farthest limits of civilization, and with the speed of its kindred element. In its infancy it scarcely ever failed to perform its office. "Thirty years have witnessed vast improvements in the art, a higher knowledge of the subtle agent called into use more finished instruments and almost perfect skill in those who operate them, so that, setting aside atmospheric causes, which have not yet been provided against, it may be asserted as an incontestible truth that, given a line of wire properly established, the most perfect instruments, and skilled operators, who exercise their skill with proper care, a message started at Chicago for New York is as sure to reach its destination, exactly in the words and figures in which it was started, as the lightning is sure to strike the object which attracts it. Intelligent and skillful operators all admit this. There is no reason, the atmosphere being right, and all else right, why a message, correctly started, should not be correctly transmitted along the line to the end of the line, no |