sumpsit the defendants were at liberty to question the validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it originated. In Armstrong v. Toller, 11 Wheat. 258, it is held that where a contract grows immediately out of, and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. So if the contract be in part only connected with the illegal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it." Where however the promise or undertaking, on which suit is brought, is not connected with the illegal contract, the rule is different. As in the case put by Lord Mansfield in Faikney v. Reynous, 4 Burr. 2069, if one person pay the debt of another at his request, an action may be sustained to recover the money, although the original contract was unlawful, and though the person who paid the money knew that it was paid in discharge of a debt not recoverable at law. Johnson v. Heilings. Opinion by Gordon, J. [Decided May 25, 1883.]

MECHANICS' LIEN-ATTACHES TO EQUITABLE ESTATE -LANDS HELD UNDER PAROL AGREEMNT FOR SALE, WHEN EJECTMENT LIES.—(1) Where improvements are made upon land by one in possession; under a parol contract of purchase the purchaser has an equitable estate to which a mechanics' lien will attach. Although

the earlier decisions do not harmonize with each other, yet it is now undoubtedly held that all parol contracts for the sale of lands are not invalidated by the statute of frauds. Where possession has been taken in pursuance of the contract, and there has been such part performance that the purchaser cannot reasonably be compensated in damages, the case is taken out of the statute. Possession and payment of purchase-money only are not sufficient, for the vendee may be compensated in damages; but when to possession is added permanent improvements of considerable value, which cannot be thus reasonably compensated,

the rule is held otherwise. This constitutes such a part performance as to take the case out of the statute. McGibbeny v. Burmaster, 3 P. F. Smith, 332; Whack v. Sorber, 2 Whart. 387. When a party has induced another on the faith of his promise, though verbal, to expend his cash or labor for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promisor to give such deed or

make valuable improvements and afterward by collusion or other unfair practice, regains the possession. Harris v. Bell, 10 S. & R. 39; Dixon v. Oliver, 5 Watts, 509; Gregg v. Patterson, 9 W. & S. 208; Wykoff v. Wykoff, 3 id. 481; D'Arras v. Keyser, 2 Cas. 249. Eberly v. Lehman. Opinion by Mercur, J. [Decided Oct. 4, 1882.]

KANSAS SUPREME COURT ABSTRACT. JANUARY TERM, 1883.*

DAMAGES-BREACH OF CONTRACT OF SALE.-In an action on a contract for the sale of real estate, in which the vendor's failure to perform is tainted with fraud or bad faith, the measure of damages is not limited to the consideration paid and interest, but may include all the actual damages sustained by the vendee. Tracy v. Gunn. Opinion by Brewer, J.

LIBEL CHARGE OF ADULTERY ACTIONABLE.- In Kansas words charging adultery are actionable per se. Whatever may have been the rule at common law or in any other State, there adultery is a crime punishable by imprisonment or fine, or both. Henicke v. Griffith. Opinion by Brewer, J.

PARTNERSHIP-PARTNER'S POWER TO SELL FIRM PROPERTY, AND LIMIT OF.-Where a partnership is not strictly a trading one, and where the business in which the firm is engaged renders it indispensable for the ownership of the partnership property to be continued in the firm until a dissolution of the firm, or other arrangements are made, one partner has no power to sell and dispose of all the joint property his copartner. Where the member of a partnership, without the consent and in the temporary absence of not strictly a trading one, without authority so to do, undertakes to sell without the consent of his copartner, and in his temporary absence, all of the joint property of the partnership, such sale is not valid against his copartner, but is binding upon the partner making the sale, and thereby the partner selling disposes of all his interest in the joint property of the partnership. Sloan v. Moore, 37 Penn. St. 217; Kimball v. Insurance Co., 8 Bosw. 495; Kirby v. Ingersoll, Harr. Ch. (Mich.) 172; North v. Mudge, 13 Iowa, 496; Christy v. Sherman, 10 id. 535; Rhodes v. Amsick, 38 Md. 345; Tapley v. Butterfield, 1 Metc. 515; Arnold v. Stevenson, 2 Nev. 234; Sutlive v. Jones, 61 Ga. 676. Blaker v. Sands. Opinion by Horton, C. J.

TRIAL-RIGHT TO BE HEARD BY COUNSEL-RESTRICTION OF RIGHT.-When a controverted question of fact either party has an absolute right to be heard by his is to be submitted to a jury for its determination, the court may impose reasonable restrictions as to the counsel in argument thereon to the jury; and while

ance of a purchase, it is subject to all the considerations that would affect a bill for that purpose in the contemplation of a chancellor. Brawdy v. Brawdy, 7 Barr, 158. It will lie to enforce execution of articles of agreement on the part of the vendee who has never been in possession. Tyson v. Passmore, 2 Barr, 122. When the plaintiff relies on an equitable title, tender of the money due must generally precede the action,

yet the rule has its exceptions. It does not apply

when the vendor, before payment, has put the vendee into possession under the contract and induced him to

time to be occupied by the argument, that is the limit of its power. Garrison v. Wilcoxson, 11 Ga. 154; Peo

10 Metc. 263; Commonwealth v. Austin, 7 Gray, 51; Wilkins v. Anderson, 11 Penn. St. 399; Dobbins v. Oswalt, 20 Ark. 619; Tobin v. Jenkins, 29 id. 151; Brooks v. Perry, 23 id. 32; Bertrand v. Taylor, 32 id. 470; Cory v. Silcox, 5 Ind. 370; State v. Page, 21 Mo. 257; Freligh v. Ames, 31 id. 253; Trice v. Railroad Co., 35 id. 416; Bierson v. Mahoney, 6 Baxter (Tenn.), 304; Coldwell v. Brower, 75 Ill. 516; Slate Co. v. Meyer, 8

Daly, 61; Millerd v. Thorne, 56 N. Y. 402. Douglass v.

Hill. Opinion by Brewer, J.

Appearing in 29 Kansas Reports.

ILLINOIS SUPREME COURT ABSTRACT.

MAY 10, 1883.

ATTORNEY-EVIDENCE OF VALUE OF SERVICES.-In an action by an attorney to recover for professional services for the defendant, such services resulting in a favorable compromise of litigation, opinions of other attorneys may be received as to the value of the services rendered; but opinions as to the benefits of the compromise to the defendant in his business in the future are not admissible. While the amount involved in the litigation may not improperly be considered in fixing the value of the services of an attorney in the case which led to a settlement of the matters in dispute, and the securing of certain rights and privileges to his client, yet it is not admissible to go into an inquiry concerning prospective benefits which may accrue in the future to the client from such settlement. In proving the value of legal services of an attorney in the defense of a suit, and attending to other matters, leading to a favorable settlement of the litigation, it is not proper to present to the view of the jury the settlements made with other persons by those settling with the client, either by direct evidence or by the form of a hypothetical question to witnesses. It is not proper to show that the settlement with the client was much more favorable than with other parties. Such comparisons should not be permitted. See Egleston v. Boardman, 37 Mich. 18; Robbins v. Harvey, 5 Conn. 341. Haish v. Payson. Opinion by Sheldon, J. Two judges discent.

GIFT-DELIVERY OF BONDS WITH RIGHT TO RECLAIM SAME IS NOT-LIMITATION.-(1) Where a party delivers bonds to another under a written acknowledgment, from which it is evident the party making the delivery intends to retain his right to call for them if circumstances should make that course desirable, the transaction cannot be regarded as an absolute gift, even though he never expected to call for them. In such case it matters not what may have been his motives for such action. (2) If bonds are delivered by one person to another under a written contract to return the same "whenever called for," no duty to return the bonds or their proceeds will arise until an actual demand for the same is made, and no right of action will accrue to the lender until after such demand is made, and the Statute of Limitations will not commence to run until the cause of action accrues. Selleck v. Selleck. Opinion by Dickey, J.

NEGLIGENCE-MUNICIPAL CORPORATION NOT LIABLE FOR NEGLIGENCE OF FIREMAN.-A master is liable for injury to others caused by negligence of his servant while in the performance of acts within the line of his duty. But cities are not liable for the negligent acts of the officers or men employed in their fire departments while in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior. This exemption from liability is placed upon the ground that the service is performed by the corporation in obedience to an act of the Legislature, and is one in which the corporation has no particular interest, and from which it claims no special benefit in its corporate capacity, and because the members of the fire department, although appointed and paid by the city, are not the agents and servants of the city for whose conduct it is liable, but act rather as officers of the city charged with a public service, and because sound public policy forbids any liability in such a case. Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; Maximilian v. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 513; Jewett v. New Haven, 38 Conn. 368; Ogg v. Lansing, 35 Iowa, 495; Field v. Des Moines, 39 id. 575; Heller v. *To appear in 107 Illinois Reports.

Mayor, 53 Mo. 159; Howard v. San Francisco, 51 Cal. 52. Wilcox v. City of Chicago. Opinion by Walker, J.

VERMONT SUPREME COURT ABSTRACT. JANUARY TERM, 1883.*

CHATTEL MORTGAGE-OF GROWING CROP-VALIDITY OF AGAINST CREDITORS-SUFFICIENCY OF DESCRIPTION. (1) The owner of land may make a valid chattel mortgage of a growing crop that he has planted, which is superior to the lien acquired by another creditor's subsequent attachment. The mortgagor of a farm, in possession, and after condition broken, may make a valid chattel mortgage of the growing grass thereon, which is superior to the lien acquired by another creditor's subsequent attachment. In the language of Hobart, C. J.: " Land is the mother and the root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant." Grantham v. Hawley, Hob. 132; Evans v. Roberts, 5 Barn. & Cress. 836. Although the cases are not uniform, there is abundant authority holding or recognizing the distinction to the effect that crops like corn, wheat, rye, potatoes, etc., called fructus industriales, are considered as the representatives of the labor and expense bestowed upon them, and regarded as chattels while still growing; and as such go to the executor instead of the beir, and may be seized on execution as chattels, and may be sold or bargained by parol; while growing grass and trees and fruit on trees, called fructus naturales, are in contemplation of law, a part of the soil of which they are the natural growth, and descend with it to the heir, and until severed cannot be seized on execution, and under the statute of frauds cannot be sold or conveyed by parol. Jones v. Flint, 10 Ad. & E. 753; Dunne v. Furguson, 1 Hayes, 541; Whipple v. Foote, 2 Johns. 422; Stewart v. Doughty, 9 id. 112; Austin v. Sawyer, 9 Cow. 39; Cutler v. Pope, 13 Me. 377; Bryant v. Crosby, 40 id. 21; Ross v. Welch, 11 Gray, 235; Kingsley v. Holbrook, 45 N. H. 313, Howe v. Batchelder, 49 id. 204, 208: Marshall v. Ferguson, 23 Cal. 65; Davis v. McFarlane, 37 id. 634; Bernal v. Hovious, 17 id. 541; Graff v. Fitch, 58 Ill. 377; Bull v. Griswold, 19 id. 631; Carson v. Browder, 2 Lea, 701; Buck v. Pickwell, 27 Vt. 157; Bellows v. Wells, 36 id. 600. But if the owner of the fee of the land by a conveyance in writing sells these natural products of the earth, which grow spontaneously and without cultivation, to be taken from the land, or sells the land reserving them to be cut and reequivamoved by himself, the law regards this as lent to an actual severance. If an absolute sale operates a severance in contemplation of law, then a chattel mortgage executed after condition is broken must have the same effect. (2)The description in the mortgage was: "also all the grass and oats and coru now growing on two hundred and thirty acres of said farm," the farm being properly described; held, prima facie sufficient. Kimball v. Sattley. Opinion by Veazie, J. CONSIDERATION-FORBEARANCE TO OPPOSE PROBATE OF WILL WILL SUPPORT CONTRACT TO PAY. - The plaintiff was heir at law of the defendant's testator, but received nothing under the will. The defendant was executor, and his wife and daughter legatees. The plaintiff claimed that he had determined to contest the will on the ground that it had been obtained by undue influence, that he had given notice of his intention to the Probate Court, that he had employed counsel, and had been advised by him to make opposition; that this was known to the defendant; that the defendant promised to pay the plaintiff $5,000 if he would desist in such opposition; that the plaintiff in consideration *To appear in 55 Vermont Reports.

of such promise, did forbear; and that the will was approved without delay. Held, in an action to recover the five thousand dollars, the plaintiff was neither bound to allege, nor prove that undue influence had been used to procure the making of the will. But the consideration was sufficient if he was able to show that he honestly thought he had good and reasonable ground for making the claim that the will, so far as it related to him, was the production of undue influence, and for that reason he honestly and in good faith intended to oppose its establishment. A doubtful right compromised to be a good consideration for a promise, must upon reasonable grounds be honestly entertained. There must be a yielding of something by each party. Bellows v. Sowles. Opinion by Ross, J.

PUR

CONDITIONAL SALE OF CATTLE TITLE OF CHASER FROM CONDITIONAL VENDEE.-The plaintiff sold a herd of cattle conditionally, taking a note therefore for $837.50, and a lien by which they were to remain his until the note was "fully paid." The vendee without the knowledge of the plaintiff, sold a part of the cattle to the defendants, who paid him, and he paid the plaintiff, the plaintiff endorsing it on the note. In an action of trover, the note remaining unpaid, held, that the defendants were liable; and that the money paid by them could not be allowed in mitigation of damages. The lien was recorded; the title was in the plaintiff till the whole debt was paid; the defendants were charged with notice of these facts; and their good faith cannot help them. Evidence was not admissible in mitigation of damages to show that the identical bank bills paid for the cattle were sent to the plaintiff, he being ignorant of the sale. Thrall v. Lathrop, 30 Vt. 307; Coles v. Clark, 3 Cush. 399. The case is distinguishable from Plevin v. Henshall, 25 E. C. L. 21 (10 Bing. 24.) Morgan v. Kidder. Opinion by Veazie, J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER, 1883.

NEGLIGENCE-INJURY TO TRAVELLER ON HIGHWAYTRAVEL MUST BE ON PROPER PART OF HIGHWAY.-It is the duty of the traveller on the highway to remain in the travelled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence if without necessity, or for his own pleasure or convenience he voluntarily deviates from the travelled track, which is in good condition, and in so doing meets with an accident from some cause outside of the travelled track, the town will not be responsible for any damage or injury which he may thus sustain. Sykes v. Pawlet, 43 Vt. 446; Matthews v. Baraboo, 39 Wis. 674; Cremer v. Portland, 36 id. 92. Cartwright v. Town of Belmont. Opinion by Lyon, J.

NEGLIGENCE OF RAILROAD COMPANY SETTING FIRE -EVIDENCE AS TO-LEAVING COMBUSTIBLE MATERIAL ON GROUND.-(1) In an action against a railroad company for setting fire by locomotive sparks where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to be authority in reason. Ross v. Boston, etc., R. Co., 6 Allen, 87, it was held competent to show that the engine in question emitted burning sparks a fortnight previous to the fire in question, and that other similarly constructed engines had emitted sparks which set fires. Where there is no proof of what particular engine set the fire, and the

In

circumstantial evidence is such that there is a strong probability that some engine on the road did set the fire, then it may be proper to show the engines on that road generally emitted sparks, or that some one or more of them did so at other times and places. Sheldon v. Hudson River R. Co., 14 N. Y. 221; Field v. New York, etc., R. Co., 32 id. 339; St. Joseph, etc., R. Co. v. Chase, 11 Kan. 47; Huyett v. Philadelphia, etc., R. Co., 23 Penn. St. 373; 1 Thomp. Neg. notes, 160. Testimony showing that some of the company's locomotives had previously or subsequently scattered fire is not admissible unless it is also shown that the locomotive which caused the fire was one of them, or was similar in construction, state of repair, or management. Boyce v. Cheshire R. Co., 42 N. H. 97; Phelps v. Conant, 30 Vt. 277; Malton v. Nesbit, 1 Car. & P. 70; Hubbard v. Railroad Co., 39 Me. 506; Standish v. Washburn, 21 Pick. 237; Collins v. Dorchester, 6 Cush. 396; Robinson v. Railroad Co., 7 Gray, 92; Jordan v. Osgood, 109 Mass. 457; Smith v. Railroad Co., 37 Mo. 287; Railroad Co. v. Doak, 52 Penn. St. 379. In Pennsylvania R. Co. v. Stranahan, 79 id. 405, the court said: "This was not a case where a certain engine had thrown out the sparks which set fire to the plaintiff's barn, but it was where the engine was unknown. Yet the cause of the fire was clearly traced to the railroad track, and left the belief that some one of the engines of the defendants had emitted the coals which set the barn on fire. Hence it was necessary to permit the party to show that the emitting of coals and sparks in unusual quantities was frequent, and was permitted to be done by a number of engines." (2) It is a question of fact whether in any particular place it was negligence to so leave material on or near the track on the grounds of the company, liable to be ignited by the sparks emitted by engines. It is not per se, or as a question of law, negligence, but a question of fact to be determined by the jury in any given case. Pierce Railw. 434; Sear. & R. Neg. 404; Ohio & M. R. Co. v. Shanefelt, 47 Ill. 497; 1 Redf. Railw. 477, and notes; Smith v. Lind & S. W. R. Co., L. R., 5 C. Pl. 98; Karsen v. Milwaukee & St. P. R. Co., 29 Minn. 12; Toledo, etc., R. Co. v. Wand, 43 Ind. 476; Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 id. 150; Kansas P. R. Co. v. Butts, 7 Kans, 308. Gibbons v. Wisconsin Valley Railroad Co. Opinion by Osborn, J.

SALE OF CHATTELS OF SPECIFIED QUALITY-MUST BE SEPARATED FROM OTHERS BY VENDOR TO MAKE DELIVERY.-In a contract for the sale of lumber of a specified quality, held that it was the duty of vendor to separate and set apart the lumber from inferior lumber of different dimensions so as to be capable of identification, and until this should be done, there would not be a sufficient offer to deliver to put the vendee in default for refusing to accept and carry it away. To constitute a delivery of chattels sold, the articles must be set apart so that possession can be taken by the purchaser, without any further act on the part of the seller, except in the case of such articles as wine, oil or grain of common quality, and as are incapable of identification. Kimberly v. Patchin, 19 N. Y. 333; Ward v. Shaw, 7 Wend. 404; Downer v. Thompson, 2 Hill, 137; 2 Pars. Cont. 160; 2 Kent, Comm. 496; Veazy v. Harmony, 7 Greenl. 91; Isherwood v. Whitmore, 11 Mees. & W. 345; Avery v. Stewart, 2 Conn. 69. Hoffman v. King. Opinion by Orton, J.

TOWN-BOUNDARIES BY PRESCRIPTION-IRREGULAR ACTION OF COUNTY BOARD ACQUIESCED IN.-Where the proceedings of a county board in attaching territory to a town were irregular to such a degree as would justify a court in holding them void in an action in which they might have been drawn in question, com

menced within a short time after the attachment, held, that after the public had acquiesced in the action of the county board for twenty years or more, it was too late to question the right of the town to exercise its jurisdiction over such territory. The lapse of time must be held to cure a defect of this kind in the organization of towns. Swain v. Comstock, 18 Wis. 463. In People v. Magnad, 15 Mich. 470, it was held that where a town was organized by an act of the Legislature which was unconstitutional, yet the town having acted as a town for ten years or more, and been recognized as such, it was too late to question its rightful organization. The court said: "If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty; but inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections which might have availed them if not waived. But in public affairs where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements and exercising their usual functions, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer questioned." The doctrine laid down in this opinion is sustained by an abundance of authority, and is undoubtedly most salutary. See Rumsey v. People, 19 N. Y. 41; Jameson v. People, 16 Ill. 257; People v. Farnham, 35 id. 562; Bow v. Allenstown, 34 N. H. 351; Stuart v. School-dist., 30 Mich. 69; Fractional School-dist. v. Joint Board, 27 id. 3. Sherry v. Gilmore. Opinion by Taylor J.

INSURANCE LAW.

FIRE POLICY-ON GOODS LOST BY CARRIER-SUBROGATION OF COMPANY TO INSURER'S CLAIM AGAINST CARRIER.-Where A. employs B., a common carrier, to transport goods to C., and B. employs D. to transport them part of the way, and they are lost in transitu, while in D.'s possession and through his negligence, B. is liable for the loss to A., or any one who may become subrogated to his rights. Where a carrier becomes liable to a shipper for the loss of goods, and an insurer pays the shipper the amouut of the loss, becomes subrogated to his rights, and sues the carrier for the damages sustained, the carrier cannot avail himself of defenses which might have been interposed by the insurer in an action at law against it. Where goods insured "from St. Louis to New Orleans "" are lost while beiug transported from East St. Louis to St. Louis, preparatory to a final start by the carrier which has undertaken to transport them to New Orleans, the loss is within the terms of the policy for the purposes of such a case; the harbor of St. Louis ought to be regarded as extending to the opposite shore. U. S. Circ. Ct., E. D. Missouri. Sept. 24, 1883. Sun Mutual Insurance Co. v. Mississippi Valley Transportation Co. Opinion by McCrary, J.(17 F. R. 919).

FIRE POLICY-FRAUD-INDUCING INSURED TO COMPROMISE CLAIM BY MISSTATEMENT OF LAW-OPINIONS

NOT FRAUD.-In an action by the assured, alleging that he had sustained a loss by fire upon property insured to the amount of one thousand dollars, and was induced by the false representations of the company's

agent, to the effect that the non-occupancy of the building insured rendered the policy void, to settle and discharge his claim for two hundred and fifty dollars, and had thereby sustained a loss of seven hundred and fifty dollars, held, that if the declarations of the agent are regarded as statements of the law of insurance, they are not actionable, though false; that it be said that the representation of an increased risk, by non-occupancy, rendering the policy void, was one of fact and not of law, still it was only the expression of an opinion and does not sustain an action. When the whole subject in fact rests upon the opinion of the parties and cannot reasonably be understood otherwise, false expressions on either hand do not generally constitute fraud in law. See Rashdall v. Ford, L. R., 2 Ev. 750; Stubbs v. Johnson, 127 Mass. 219; Belcher v. Costello, 122 id. 186; Birdsey v. Butterfield, 34 Wis. 52; Etna Ins. Co. v. Reed, 33 Ohio St. 283; Mayhew v. Phoenix Ins. Co., 23 Mich. 105. Maine Sup. Jud. Ct. March 30, 1883. Thompson v. Phænix Insurance Co. Opinion by Symonds, J.(75 Me. 55).

INSURANCE STATUTES-CONSTITUTIONALITY OF STATUTES DEPENDENT ON LEGISLATION OF OTHER STATES -RETALIATORY LEGISLATION.-While the legislative power of the State is by the Constitution vested in the Legislature, yet that body has authority to pass a law whose operation is by its terms made to depend on a contingency, even though that contingency be some action on the part of the Legislature of another State. Section 17 of the act relating to insurance (chap. 50a, Comp. Laws 1879) so far as it provides that when the laws of any other State impose upon the corporations of this State applying to transact business within its limits other and more ouerous burdens and conditions than those prescribed by the general provisions of said chapter for corporations seeking to transact business in this State, the same burdens and conditions shall be imposed upon corporations from that State applying to enter this, is a complete and absolute expression of the legislative will, and though its operation depends on the contingency of legislative action in other States, it is not thereby rendered unconstitutional. The fees and charges required by said section are to be considered in the nature of licenses, and as such not subject to the constitutional provision as to equality of taxation. The contingency named in said section arises when the laws of another State impose the additional burdens and conditions, and is not delayed until some corporation of this State is actually subjected to such burdens and conditions. Kansas Supreme Court. January Term, 1883. Phoenix Insurance Co. v. Welch. Opinion by Brewer, J. Horton, C. J., dissenting (29 Kan. 672).

NEW YORK STATE BAR ASSOCIATION.

N

taking the chair at the annual meeting on the 8th instant, Governor Cleveland spoke as follows: GENTLEMEN OF THE ASSOCIATION:-At a late hour I was solicited to preside at your meeting. I should certainly have felt that I must decline the invitation, but for two considerations: I was assured that no address would be expected of me, and that even a little speech ou assuming the chair might be dispensed with. This disposed of one objection to my consent. The other consideration sprang up in my mind when I reflected that there would be here an assemblage of my professional brethren, and the impulse was irresistible to be among them for a time, though necessarily brief, and to feel about me the atmosphere from which for a twelvemonth I have been excluded. I beg to assure you, gentlemen, that in the crowd of official duties which for the past year have surrounded me, I have never lost sight of the guild to which I am proud

to belong; nor have I lost any of the love and care for the noble profession I have chosen. On the contrary as I have seen the controlling part which the lawyers of the State have assumed in the making of her laws and in all other works that pertain to her progress and her welfare, I have appreciated more than ever the value and usefulness of the legal profession. And when I have seen how generally my professional brethren have been faithful to their public trusts, my pride has constantly increased.

And yet from the outside world I came within the grateful circle of professional life to say to you that much is to be done before the bar of this State will, in all its parts, be what we all could wish. We hold honorable places, but we hold places of power-if well used, to protect and save our fellows-if prostituted and badly used, to betray and to destroy. It seems to me that a profession so high and noble in all the purposes of its existence should be only high and noble in all its results. But we know it is not so. There is not a member of the bar in this assemblage who has not shuddered when he thought of the wicked things he had the power to safely do; and he has shuddered again when he recalled those whom he was obliged to call professional brethren who needed but the motive to do these very things. An association like this to be really useful must be something more than a society devoted to laudation of the profession. It should have duties to perform, earnest in their nature and not the less boldly met because they are disagreeable. Those who steal our livery to aid them in the commission of crime should be detected and exposed; and this association or branches of it should have watchmen on the walls to protect the honor and fair fame of the Bar of the State. Your words are fair, when in your Constitution you declare the object of this association to be "to elevate the standard of integrity, honor and courtesy in the legal profession;" and I have no doubt you have done much in this direction; but I hope I may be pardoned for reminding you here that frequently to insure health and vigor, the bad, diseased limbs of the tree must be lopped off.

My thoughts have carried me further than I intended. Be assured I have spoken in no censorious spirit. I congratulate the State Bar Association on all that it has done, and for one am determined to aid its work as well during my temporary professional exile as when I shall again gladly mingle in the contests of the bar.

CORRESPONDENCE.

RELIEF OF THE COURT OF APPEALS. Editor of the Albany Law Journal:

The Court of Appeals is suffering from a vicious system; a remedy cannot be found in treating symptoms.

Six independent and inharmonious General Terms pour their differences into the Court of Appeals. These antagonisms must be examined and composed in the interests of settled law. To borrow an analogy from trade, the raw material is produced more rapidly than can be utilized; result, a disturbance in the relation of supply and demand. We must limit the production of the raw material.

We are the creatures of too much court law. The common law encourages the courts in assuming legislative functions. Thus have the laws of the land grown into the thousands of volumes of reports of cases, compelling the employment of counsellors and attorneys to ascertain that which ought to be open to all, to wit: Knowledge of the law.

The limitation of appeals to such cases as involve a certain amount of money would to that extent relieve the court, but at the expense of justice. Whether

you limit or extinguish the right of appeal is only a difference in degree not in kind.

In the last volume of the Court of Appeals Reports, 92 N. Y., of the eighty cases reported in full, there were twenty-eight reversals. Now when we consider that if less than five hundred dollars had been involved in those cases, the law of the State of New York would not be what it is, we cannot draw conclusions favorable to the impartiality of justice.

Changes impairing the honor of the laws should not be entertained, and especially when it seems there is 80 straight a road out of our troubles.

Our present system leads to confusion. We may easily supplement it by one which will lead to order. Codification is the short road. Our present situation comes from confused law. Now any one knows that bad law is better than doubtful law.

A hastily prepared Code would at least let us know what the law is; when we know what it is, we have removed the necessity of asking the court to tell us, and to that extent lessened the burdens of the judges.

Codification means order, and the only branches of the law to-day we can point to with any pride are those which have been appropriated from the Codes.

Let the Legislature adopt a Code, and there will be no more of this trouble with the courts. There may be less necessity for lawyers, but that is no reason why we should prove ourselves no better than the Ephesians by clinging to our idols.

Editor of the Albany Law Journal: Permit me to suggest through the JOURNAL a plan for the relief of the Court of Appeals. Have the num. ber of judges increased, say to nine. Have all appeals to the court brought on and argued before the whole bench as now; at the time of the argument, let the judge then presiding designate five of the judges who shall take the case, and if these five agree, or no more than two dissent, let them or the majority who agree render the decision of the court. If more than two dissent, or if at the time of the argument the chief judge shall deem that the case is one that the whole court shall pass upon, in either case the whole court shall as now consider and decide the case. By this plan we shall still have a united court, and I think onethird more cases can be disposed of during a year. I am, etc., A. P. BATES.