THE PRACTICE IN SPECIAL ACTIONS IN THE COURTS OF RECORD OF THE STATE OF NEW YORK, UNDER THE CODE OF CIVIL PROCEDURE. J. Newton Fiero, Albany, Matthew Bender, 1888.

These two books cover sections 14962471 inclusive, of the Code of Civil Procedure, and constitute in our opinion a very valuable addition to the already extensive commentary that has grown up around this Code.

The first was published in 1887, the second in 1888.

The plan adopted is in both cases the same. It can be best seen by giving a synopsis of a chapter-for instance that on Mandamus. First there is an interesting and able discussion of the origin and history of the writ, the definition given by High in his "Extraordinary Remedies" is approved and adopted. This is followed. by very compact discussion of the cases in which the writ will lie to state officers, to county officers, to boards of supervisors, to municipal corporations and officers, to town and village officers, to corporation, to inferior courts and tribunals, and cases in which it will not lie.

Then follow the sections of the Code, the commentary on them based on judicial decisions cited in the text, and forms appropriate to the section. This is a specimen chapter and gives a fair idea of the scope of the book.

The plan seems to us to be the best one possible. It avoids the necesssity of continually referring to a code or to another part of the book. It collects all the information that the book gives in one place, and one is not compelled to go searching through the by-ways and hedges of finely printed notes, in order to find the information he desires. Special proceedings cover sections 1991-2471 of the code, beginning with the State Writs and ending with Proceedings Supplementary to an execution.

The second volume "Special Actions, "-covers sections 1496-1990 of the code; it is designed to supplement and complete the commentary begun by the work on Special Proceedings.

The above sections include some of the most important as well as some of the most litigated of the code-those formulating the procedure in the actions of ejectment, partition, dower, foreclosure, nuisance, replevin, divorce, separation, actions by and against corporations, executors and administrators. The value of a book that collects the decisions on these sections would be very great to the practitioner if it did nothing more.

In short we consider these two of the best books published on the New York Code.

MEASURE OF DAMAGES OBSTRUCTING HIGHWAY.-The plaintiffs were engaged in buying wheat at a warehouse owned by them on the line of the defendant's railway for manufacturing into flour at their mill to which the wheat was shipped, and in selling the products of

the mill at the same warehouse, and, while so engaged, and for a considerable time, their business was interrupted and interfered with by the obstruction of a street leading to the same by the unlawful occupation thereof with the defendant's cars and trains. Held that, in estimating

plaintiffs' damages caused by such obstructions, evidence of the diminution of the profits of their business including the manufacture of flour was incompetent, as embracing too many elements of uncertainty to form a basis for estimating damages. -Todd vs. Minneapolis & St. L. Ry. Co., Sup. Ct. Minn., 39 N. W. Rep. 318.

PRINCIPAL AND AGENT.-Drafts of trav elling salesman drawn on his principal were, on two occasions, indorsed by a firm with whom he had dealings, in order that he might have them cashed at bank, and were paid; the salesman was subsequently discharged by his employer, and afterwards secured the indorsement of a third draft by the same firm, who were ignorant of his discharge, which last draft was dishonored; the indorsement

was a personal accommodation to the agent and his employer was not liable for the amount paid to take up the protested draft.-Groneweg vs. Kusworm, S. Ct., Iowa, Sept. 10, 1888.

STRIKES BOYCOTTS-COMMON CARRIERS. Duty to receive cars from connecting lines. The duty imposed upon railroad companies in Iowa by the laws of that State and by the "Interstate Commerce Act" (Act Cong. Feb. 4, 1887; St. at Large, 1885-87, p. 379) of receiving from connecting roads freight and passengers, is one which the Federal courts sitting in that State will enforce by mandatory injunction where the injury resulting from its non-performance is continuing; and it is no defense to such relief that a strike of locomotive engineers and firemen has been ordered on plaintiff's road, and that if defendant's road should accept cars from the "boycotted" road its own men would be called out.-Chicago, Burlington & Quincy vs. Burlington, Cedar Rapids

& Northern Ry. Co., U. S. Cir. Ct. S. D. Iowa, 4 Railw. & Corp. L. J. 349.

POLICE POWER.-Imitation Butter-Statutes regulating sale of.-A statute prohibiting the sale of imitation butter unless colored pink has for its object the prevention of fraud on the public in the sale of provisions, and is therefore within the purview of the police power of the State.State vs. Marshall, Sup. Ct. N. H., 6 N. Eng. Rep. 914.

WITNESS.-Privileges-Trade Secrets. Where a witness for plaintiff testifies, on direct examination, only as to the uses and effects of "Moxie," or "Moxie Nerve Food," he cannot on cross-examination be required to disclose the particular ingredients of that preparation, that being a trade secret, the disclosure of which would

injure plaintiff's business.-Moxie, etc.,

Co. vs. Beach, U. S. Cir. Ct. N. D. Mass., 18 Fed. Rep. 465.

EVIDENCE.-Comparison of FeaturesBastardy-Infant.-In bastardy proceedings it is error to allow an infant, six weeks old, to be introduced in evidence, and viewed by the jury, to enable them to judge from a comparison of its appearance, complexion, and features with those of the defendant, whether any inference could be legitimately drawn therefrom as to its paternity.-Clark vs. Bradstreet, 15 Atl. Rep. 56.

INFANT RESEMBLANCES.-It is our belief that most infant resemblances are due to the imagination of the observers or the desire to compliment the parents. We once saw a babe which was the living image of the first Napoleon, and if it had been borne about sixty years earlier, and had been put in a basket and left at his door over night, nothing would have convinced the jealous Josephine that her

husband, instead of mounting barbed steeds to fright the souls of fearful adversaries, had not been capering nimbly in a lady's chamber to the lascivious pleasings of a lute, say in the apartments of Madame de Remusat, or the Duchess d'Abrantes, or some other of the fool women of the empire who left memoirs apparently to apprise future ages that the great conqueror sustained a repulse by their arms as decided as that of Leipsic or 'Waterloo. There can be no doubt that

"heaven lies about us in our infancy." There would be as much sense in tracing a resemblance between the voice of the child and that of the putative father as between their faces, or rather more, in fact, for the voice of infants is frequently more mature than the face. Such evi

which has accumulated in the treasury. An infinitesimal fraction of this troublesome surplus might be usefully and honorably employed in increasing the salaries of some of the underpaid judges of the great republic, beginning with the Supreme Court." This would be more sensible than the proposal of the colored campaign orator, who asked in stentorian tones, "Why don't dey take dat surplus and pay dat Mills bill?"

PRACTICE BY THE EAR. An anecdote related by the Buffalo Express, of Mr. Cleveland when he was practicing law in that city, will be appreciated by a good many of his professional brethren Among the friends of the present occupant of the White House was a bright fellow, but with the bump of laziness abnormally

LEGAL ANTIQUITIES.

"Did you kill the dog in self defence?" asked a lawyer of a colored defendant who was testifying in his own behalf. "No, sah! I shot him as he was climbing de fence, and he fell over de fence."

A ward statesman, whose testimony was needed in an election fraud case, was put on the witness stand. "Raise your right hand," said the court; “do you solemnly swear to tell the truth, the whole. truth and nothing but the truth, so "Hold up judge," interrupted the witness, "can't you mitigate that sentence just a little? you know I've been in politics for a good long while."

A USEFUL WAY OF DISPOSING OF THE SURPLUS.-The Montreal Legal News says:

lawyer, and whenever it was necessary for him to use a decision bearing on any point it was his habit to lounge into Mr. Cleveland's office and casually worm the desired information out of his friend's mental storehouse. The latter was not so dull as not to appreciate the fact and to resent the sponging-not so much because the process was worthy of that name as because he wished to spur his friend on to more energetic work. One day the friend came in on his usual errand, and when Mr. Cleveland had heard the preliminaries usual to the pumping process, the latter told his questioner that he had given him all the information on law matters that he was going to impart. "There are my books," said Cleveland, "and you're quite welcome to use them, You can read up your own cases." "See here, Grover Cleveland," said the friend, "I want you to understand that I don't read law. I practice entirely by ear, and you and your books can go to thunder."

American Law Review.

In order to grasp fully the salient features of a subject as broad as the one now before us, it is necessary to gain a clear and accurate conception of the limitations which are imposed upon the various State legislatures acting in the capacity of law making bodies, and at the same time understand aright the meaning of the term "private corporation."

It is commonly stated that the law-making power of a State legislature is sovereign, in so far as it does not conflict with the provisions of its own State constitution or that of the United States. Some writers even go so far as to say that aside from constitutional restrictions, it is "absolute, unlimited and incapable of being controlled." (See Smith's Commentaries on Statutory and Constitutional Construction, Chap. VII.) But this statement is by not means entirely correct; for it is now pretty well settled that there are restrictions upon legislative power over and above those resting on constitutional grounds. Restrictions of this nature are

enforced through the medium of the courts, who, in certain rare and exceptional cases, go beyond their customary power of interpretation, and by virtue of certain laws being contrary to the nature of the civil compact, the natural rights of man, or the general theory of our republican government, interpose to arrest or nullify the action of the legislature. (Smith's Commentaries, Sec. 148; Sedgwick on Constitutional and Statutory Law. page 177; Taylor vs. Porter, 4 Hill, 140.) From this brief survey of the subject, it is seen that while other restrictions may and do exist, the great general rule is, that the State legislatures are practically unlimited in their law-making powers save by constitutional provisions. Let us now consider the meaning of the term "private corporation. Mr. Waterman, in his recent work on corporations (Section 17) defines it as follows: "A corporation is private when the whole interest does not belong to the Government, or the corporation is not created for the administration

of political or municipal power." To apply this abstract definition to concrete examples, it would include corporations. created for the purpose of building railroads or canals, for carrying on any branch of manufacturing or mining, and all corporations which from their object suppose a division of profits among the stockholders. (Waterman on Corpora

tions, Sec. 17.)

Having outlined in this general manner the scope of the subject under consideration, let us now take it up with a view to its systematic development. As a preliminary to this and with reference to what has already been said, it should be stated that the limitations imposed by the various State constitutions upon the law-making power of the legislature are in their turn subject to the further limitation contained in the Constitution of the United States. (Story on the Constitution, Vol. II., § 339.) In consequence of this fact, one is forced to look to the provisions of the United States Constitution in order to discover the uniform and ultimate restrictions which govern and control all our State legisla tures in the exercise of their law-making powers. Therefore, turning our attention to this instrument, it may be said that practically the entire subject of legislative control over private corporations depends upon the construction which the Supreme Court of the United States-as the final interpreter of the Constitution-has given to that portion of Section 10, Article I. of the Federal Constitution, which ordains that no State shall pass any law impairing the Obligation of Contracts. (Waterman on Corporations, Sec. 139.) Confining ourselves then, to this one clause, the subject divides itself logically into three heads:

I. Origin of the Constitutional Doctrines upon the Subject of Impairing the Obliga

tion of Contracts.

II. Historical Development of these Constitutional Doctrines.

III. Present Status and Tendency of the Same.

I. First then, let us consider the "Origin of the Constitutional Doctrine upon the Subject of Impairing the Obligation of Contracts." Three cases may be said to form the basis upon which rest all the constitutional doctrines relative to the meaning of the phrase "impairing the obligation of contracts;" these are Fletcher vs. Peck, (6 Cranch, 87, decided in 1810); Dartmouth College vs. Woodward, (4 Wheaton, 518-1819); and finally Charles River Bridge Co. vs. Warren Bridge Co., (11 Peters, 420-1837). Before considering these cases separately, it should be remarked that up to the time of the decision in Dartmouth College vs. Woodward, the importance of this constitutional provision against impairing the obligation of contracts was but little appreciated, and its real meaning not fully understood. With this introductory remark one is better able to comprehend the suggestive rather than actual effect of the decision of the Supreme Court in Fletcher vs. Peck, which related to the power of a State to repeal an act containing a grant of lands, and under which individual titles of bona fide purchasers had become vested. It was there held that a grant from a State is a contract within the meaning of the clause forbidding the passing of any law by a State which impairs the obligation of contracts. Within a few years after the rendering of the important decision in Fletcher vs. Peck, came the famous case of Dartmouth College vs. Woodward, which may truly be said to constitute one of the great landmarks in American law. Without rehearsing the familiar facts of this case, it may simply be stated that it was there held that an incorporating charter of a