CURRENT TOPICS.

There is an ominous silence on the part of the secretary of state, in regard to his proposed action under the smuggled provision for extending the contract for publishing the court of appeals reports. It has been rumored for some time that he has extended the contract, but we do not believe it; because we do not believe that any man, even ordinarily honest, "as the world goes," would voluntarily make himself a party to a fraud so gross and an outrage so palpable. Should the secretary conclude to sanction the extension, we trust that he will have the courage to let the fact be known, as it is a matter in which several thousand people of the State have something more than a passive interest.

Next to the czar of Russia commend us to Washington officials, as specimens of autocracy. To say nothing of the pension bureau and the patent office, the revenue department will answer as an illustration. Directly after a new commissioner is inducted into office, he sets himself to work to reverse the decisions of his predecessor, which is perhaps of little consequence; but not satisfied with this coup d'état, he goes about reversing the decisions of the courts. Some time ago, Judge Strong, of the United States supreme court, sitting at circuit, decided that the United States was not entitled to recover from railroad corporations the tax on dividends declared within the first seven months of 1870 (see 2 Albany L. J. 296); but the new commissioner, Douglass, has reversed that decision, and directed his subordinates to collect the tax, "without reference to the decision of Judge Strong."

The commercial colleges of the country have adopted a system of education that might be usefully adopted by the law schools-a combination of the theoretical and practical. Most law schools pretend to turn out "ready-made lawyers" at every commencement, which every body knows they never do. Their graduates are usually full of theoretical law, so to speak, but know nothing of its practical application. Their moot-courts, of which so much is said, are nothing more than debating societies, where questions of law are discussed. These discussions, undoubtedly, help to fix the law in the mind, and, perhaps, give the student a certain amount of training that may be useful to him in arguing an appeal before the court in banc- -a duty which lawyers seldom have to perform in the early stages of their professional life. Undoubtedly, a knowledge of the law is the first thing to be acquired, but there is no reason why a knowledge of the practice should not be acquired at the same time. Indeed, there are strong reasons why it should, and one of them is, that the mind is scarcely able to retain the abstract and theoretical; or if it does retain it, to apply it at the proper time and to the proper state of facts. Give a student a

particular subject to master, say restraining the transfer of negotiable instruments; and a few days after propose a case to him containing a state of facts calling for the application of the principles of that subject, and ask him what advice he would give a client having such a case. The chances are that he will fail to discover the application of the principles and will answer incorrectly. Now, it seems to us that there is no difficulty in the way of our law schools combining the practical with the abstract. The first thing to be done is to require every student to so familiarize himself with the ordinary forms of instruments, from a summons to a will, that he will be able to draft them at any time without the aid of a form book or printed blank. Let the instructor put himself in the place of a client, desiring, for example, an action commenced or a will drawn, and let him state the facts and require his pupils to draft a complaint or a will, and then let him examine these drafts and point out the errors therein. In the second place, nisi prius courts should be formed, with the instructor as judge, and a portion of the students as jurors. A supposed case should be prepared for the plaintiff, and defense for the defendant. Counsel should be assigned,

summons

issued, pleadings prepared, witnesses instructed, jury impanneled, the case tried, summed up, verdict rendered, judgment entered, and appeal taken precisely as is done in actual practice. This scheme may seem chimerical, but, having seen it successfully and beneficially operated, we know that it is not. In this manner, and this only, can the student familiarize himself with the details of practice and the examination of witnesses, a lack of familiarity with which is so apt to mar the reputation and impede the progress of a young lawyer. We have thrown out these hasty suggestions with the hope that they may lead to a more practical, and, therefore, more thorough, teaching of the law.

GENERAL TERM ABSTRACT. SUPREME COURT-SECOND DEPARTMENT.

ABSTRACTS OF TITLE.

Abstracts of title: when to be retained by mortgagee.The plaintiff had applied for a loan upon certain of his property, to Mrs. Cutler. Defendant was her attorney. Searches were to be made by defendant at plaintiff's expense, the searches so made to belong to Mrs. Cutler. To save the expense of a portion of this search, the abstract of title in question was delivered by plaintiff to defendant. No search was made as to the premises covered by the abstract. The loan was made. On appeal from judgment in favor of plaintiff, for return of the abstract, held, that the disputed abstract was a part of the security for the loan. In case of a sale of the mortgage, or of a foreclosure, it would be necessary that Mrs. Cutler should have it, or that another should be made. Plaintiff substituted his abstract in place of one to be made by defendant, and he must pay his mortgage before he is entitled to its return. Judgment reversed. Holm v. Wost. Opinion by Barnard, P. J.

APPEAL.

CITY OF BROOKLYN. See Real Estate; Also, see Statutes.

COMMON CARRIERS.

1. An appeal brings up only the papers on which the judgment in the court below is founded. The court on appeal has no jurisdiction to grant a new trial upon the ground of newly discovered evidence, by motion, in the first instance. The affidavits accompanying the appeal papers, in this case, not having been presented to the court below, cannot now be received. Wood v. Ross. Opinion by Barnard, P. J.

2. Case on appeal: failure to serve may be remedied by order.-Defendant had appealed in good faith, but, by misapprehension, had neglected to serve his case as required by the rules and practice of the court. The court below allowed defendant to do this after the time for so doing had expired. Held, that the court below properly granted defendant the right to serve his case; that it was in furtherance of justice, and without such order the appeal would have been of no practical importance. Order appealed from affirmed. Ib.

ASSAULT AND BATTERY. See Damages.

ASSIGNMENTS. See Evidence.

BILLS, NOTES, ETC.

1. Bona fide holding for value.-On the trial of this case, the court held, as a matter of law, that the plaintiffs were not bona fide holders for value of the note in suit. It appeared that Vail, from whom the plaintiffs obtained the note, was indebted to the plaintiffs for rents collected, in the sum of $289, immediately payable. The note amounted to $15 more than this debt. The note was taken in settlement of the debt so due, and by allowing Vail to retain $15 out of the next months' collections of rents, to be made by him for plaintiffs, which was so collected and retained before the maturity of the note. Held, that the ruling of the court below was erroneous. The transaction, if done in good faith, and without notice of the fraudulent diversion of the note by Vail, constituted plaintiffs bona fide holders for value within the cases. Plaintiff's settled their claim against Vail, extended the time of payment and advanced a new consideration. There was nothing in the fact that Vail was in arrear $30 for the rents due the preceding month, which, as a matter of law, made it the duty of plaintiffs to inquire as to the note. Mason et al. v. Hickox et al. Opinion by Barnard, P. J.

2. The plaintiffs, in the usual course of their business and for value, discounted for Balch & Co., a draft made by defendants, and payable to their own order, and directed to Balch & Co., before maturity. On appeal from judgment in favor of plaintiffs for amount of draft, held, that it is immaterial whether Balch & Co. used a portion of the proceeds to take up a note of their own, either just due or about to mature at plaintiffs bank. In either case the plaintiffs would be bona fide holders for value. Assuming that Balch & Co. fraudulently used the draft to which they had no real title as against defendants, it makes no difference. The draft was, as to plaintiffs, lawfully in Balch & Co.'s possession. In such cases commercial necessity requires that the bona fide holder be protected. The rule claimed by defendants, that Balch & Co. could, themselves, sue no one on the draft, and were, therefore, not the apparent owners, cannot be accepted as correct. Judgment affirmed. Central Bank of Brooklyn v. Hammett & Neill. Opinion by Barnard, P. J. See also Consideration.

What is a delivery to a common carrier.-It appeared in this case that an expressman took the trunk in question to the depot of defendant about noon. It was marked "Israel Rogers, Riverhead, Long Island." He found inside of the depot gate two or three men unloading freight, of whom he inquired who took care of baggage. They told him the man in the office. He went to see the man in the office, and told him there was a trunk outside. He replied "all right," and immediately sent two men to take care of it. The trunk was left by the expressman in the place where the baggage was kept and near the baggage crate, which at the time was locked. The man in the office had been defendant's ticket agent for some years. At about three o'clock in the afternoon the plaintiff went to the office and bought his ticket for Riverhead and asked the agent for his trunk. He said he had seen a trunk answering the description, a short time before, but he did not know where it then was. The employees of the company subsequently informed plaintiff that the trunk had been given to an expressman who had a check corresponding to the one on the trunk. Held, that the case should have gone to the jury. It is enough to establish a delivery, in the first instance, to prove that an agent of the company received and accepted the property for transportation, even if there be, in fact, another person who is proved to be the actual agent having charge of the receipt of freight. The case of Grosvernor v. N. Y. Central R. R. Co. does not control this case. Rogers v. Long Island R. R. Co. Opin. ion by Barnard, P. J.

CONSIDERATION.

The defendants made an agreement with one Miller, by which Miller was to do work for defendant. Miller partially performed, and failed to complete the contract. Defendant desired to employ others to complete the work. It seems that there was an agreement or understanding among the persons doing the same kind of work which Miller had agreed to do, that they would not take an unfinished contract and complete it without the payment by the employer of the contractor who had failed to perform the work, or without the consent of such contractor. In order to induce the contractor to give such consent, plaintiff gave him his promissory note. Held, the only consideration for the note in suit was the consent of the contractor that some other one might finish the work. It was not sufficient to uphold the note. It had no legal value. Miller parted with nothing. Defendant got nothing. Judgment reversed and new trial ordered. Willis v. Rollin. Opinion by Barnard, P. J. Also, see Notes.

Liability of stockholders under the general manufacturing act.-The Empire Planing and Moulding Company was incorporated under the general manufacturing act. Its capital stock was never paid in, and no certificate that it had been so paid in was ever filed as required by said act. The certificate of incorporation states the capital at $100,000. Action against defendant, a stockholder, on his alleged personal liability to pay the debts of said corporation. On appeal from judg ment in favor of defendant, held, that the capital

stock must be paid in money. The amendment of 1855, authorizing the trustees to purchase necessary property and issue stock therefor, does not repeal the law of 1848. If the trustees were authorized by this amendment to take property in lieu of capital in money, they could not legally issue stock beyond the value of the property so taken. In this case they issued stock for $100,000 for property of not half that in value. Defendant is liable to pay the plaintiff's debt. Judgment reversed. Boynton v. Hatch. Opinion by Barnard, P. J.

Also, see Common Carriers.

COSTS.

In this case defendant pleaded title before the justice, and gave the requisite undertaking, with his answer. The justice had no jurisdiction to try the issue made by the defendant. Plaintiff brought his action in the supreme court and recovered a verdict of $5.00 for a trespass upon the lands to which defendant had set up a claim of title. By section 304 of the code, costs are allowed, of course, to the plaintiff upon a recovery "in the actions of which a court of justice of the peace has no jurisdiction." Plaintiff was entitled to costs. Randals and ano. v. Thornton. Opinion by Barnard, P. J.

COVENANTS. See Life Insurance.

DAMAGES.

Evidence in cases of assault and battery: vindictive damages. Action for damages caused by an assault and battery. The assault grew out of a dispute as to certain property. Held, that the court erred in rejecting the evidence offered as to the possession of the property which was the subject of the dispute between the parties. The evidence offered in no way justified the assault and battery, but the damages for the injury had to be assessed by the jury. Such damages might be made up of the actual damages sustained, and if the case were a fitting one, of punitive or vindictive damages. It was of the utmost importance in assessing vindictive damages that the jury should know whether the assault was committed wantonly and without cause, or under a belief that the defendant was asserting a legal right. Such a belief would not affect the actual damage, but might destroy every thing but such actual damage. We cannot say that the jury gave no vindictive damage. If they did, they should have had before them the rejected evidence. Judgment reversed and new trial granted. Linde v. Elias. Opinion by Barnard, P. J.

(Concluded next week.)

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF INDIANA.* CORPORATION.

Promissory note.-A corporation known as "The Aurora Brewing and Malting Company" executed a note signed "C. C. Kelsey, Assistant Secretary Aurora Brewing and Malting Company." Held, that this was the note of the corporation, and not that of C. C. Kelsey, personally. Gaff et al. v. Theis.

EVIDENCE.

1. Declaration of agent or servant. - In an action against a railroad company by an administrator, to

*From Hon. James B. Black, State Reporter, and to appear in 33 Indiana.

recover damages for the death of his decedent occasioned by the collision of a locomotive and train of cars, and a wagon in which said decedent was crossing the track of the defendant upon a public highway, held, that the declarations of a fireman employed on the locomotive at the time of the collision, made upon the arrival of said train, bearing the body of the deceased, at a station one mile from the place of the accident, the train having been stopped at the scene of the accident, and the body having been placed upon it and carried thereon to said station, that the train was running between forty and sixty miles an hour; that he could not tell any difference between the signal and the collision; that the deceased was sitting with his back toward the train; that he did not think the deceased saw or heard the train or knew there was any train in reach of him; that the deceased never moved out of his position till he was struck; that there was no signal, were not admissible in evidence as part of the res gesta. The Bellefontaine Railway Company v. Hunter, administrator.

2. Presumption as to improper evidence.—Where error has occurred in the admission of improper evidence material to the issue, it will be presumed that it worked injury, unless the contrary affirmatively appear; and the action of the court in overruling a motion for a new trial assigning such error for cause is not presumptive evidence that the error worked no injury. Ib.

3. Cross-examination: alteration of written instrument. On the trial of an action on a promissory note given for a quantity of barley sold by the payee to the maker, where the question at issue was, whether the note was executed for the sum specified therein or was made for a sum one hundred dollars less and altered by the payee to the greater sum, the maker, called as a witness by the plaintiff, testified, that the signature was his, but, over the plaintiff's objection, further testified that the note had been so altered by the payee after its execution; that the maker could not read English writing; that the note was written by the payee and by him read to the maker as for the smaller sum; whereupon, the payee on his own behalf testified, that the sum of one hundred dollars was to be paid in cash on the barley; that when he was writing the note, the maker said he could not then pay the one hundred dollars, whereupon he wrote the note for the larger sum. On cross-examination the payee was asked, whether, when he wrote the note, and before it was signed, he stated to the maker that it was for the smaller sum, and whether he did not so read the note to the maker, which question being objected to as not proper cross-examination the court refused to permit it to be answered. Held, that such refusal was error. Schneider v. Rapp.

NEGLIGENCE.

Railroad. No neglect of duty on the part of a railroad company will excuse any person approaching on a highway a crossing of the track of said company from using both the senses of sight and hearing, where either of these may be available; and injury to such person where the use of such faculties, would have given sufficient warning to enable him to avoid the danger, conclusively proves negligence, and there can be no recovery for such injury, unless the railroad company has been guilty of such conduct as to imply an intent or willingness to cause the injury; and this can be attributed only where the company has notice of the particular emergency in time to avoid the collision by the use of

ordinary diligence, the means being at hand. If the injured person had such warnings and opportunities of knowledge as would, with ordinary caution in such circumstances, have saved him from the danger, he will be held to have knowingly contributed to his own injury. The failure of a railroad train to give any signal when nearing a public crossing is not of itself negligence, in this State, unless the peculiar circumstances, the concealment of the train or the like, may render it necessary and proper. The Bellefontaine R. R. Co. v. Hunter.

Collision: consequential damage: contributory negli gence. -Two vessels came into collision, and one of them being rendered helpless, was driven ashore by a gale of wind, and three of her crew were killed and others injured. The other vessel was to blame. Held, that the other vessel was liable in damages for the loss of life and injuries, as they were the natural consequences of the collision. The crew might have gone on board other vessels before the wreck, but it would have been attended with great risk. Held, that as they were not bound to run any such risk, they did not contribute to their own loss or injuries. The George and Richard, Adm., 24 L. T. R. 717.

BILLS OF EXCHANGE.

Principal and surety: accommodation bills: giving time: discharge of surety. — A. accepted four bills of exchange for B., at a commission of four per cent. The bills were discounted by C., B. guaranteeing with C. to pay them at maturity. B. afterward requested C. not to press for immediate payment of the bills on arriving at maturity, and it was accordingly arranged that they should be held over during the currency of certain other bills which B. had deposited with C., as additional security. Held, that the four bills were not accommodation bills. Also, that there was no binding contract on the part of C. to give time to B., and, therefore, that A. was not discharged as surety. Oriental Financial Corporation v. Overend, Gurney and Co., Chan., 24 L. T. R. 774.

CONTRACT.

1. Breach of -inability to perform through illness. — A. having contracted to perform at a concert on a fixed day was taken so ill as to be unable to perform. A. informed plaintiff by letter that she was too ill to perform, which letter he received on the morning of the day fixed for the concert. Plaintiff put the concert

off and sued defendant, A.'s husband, for the breach of performance. Held, that defendant was discharged from the performance of the contract if A. was unable to perform; that the contract was a conditional one, depending on the state of A.'s health, and that the promise to perform was not an express one to perform at all events. Robinson v. Davidson, Ex., 24 L. T. R. 755.

2. Privity of: sale of shares by brokers: usage of stock exchange: indemnity against calls.-The defendant instructed his brokers to purchase 100 shares in a certain joint-stock company. On April 26th they accordingly entered into two contracts upon the stock exchangeone for seventy and the other for thirty shares in the company, for delivery on the next "account, the 15th May. On May 9th the plaintiff, by his brokers, sold on the stock exchange fifteen shares in the company, for delivery on the 15th May. On May 10th the company stopped payment, and next day resolved to wind-up. On May 14th (name day) the defendant's brokers handed to the jobber, from whom they had bought the shares, a ticket, with the name of defendant as buyer, having express instructions from the defendant so to do. This ticket was "split," or divided, among different jobbers; and a "split" for fifteen shares passed from hand to hand until it reached the brokers of the plaintiff, the "ultimate seller." On May 15th the plaintiff executed a deed for transferring the fifteen shares to the defendant, which was, together with the certificates of shares, handed to the defendant's brokers, who accepted and paid for them on behalf of the defendant, without any express authority from the defendant, but in accordance with the custom of the stock exchange. On May 18th the defendant refused to accept the shares, and the plaintiff, being subsequently compelled to pay a call as the registered holder of them, brought an action against the defendant for not indemnifying him against the calls. Held, that a contract had arisen between the plaintiff and the defendant from the dealings of their respective brokers, who had acted under authority and according to the usage of the stock exchange; and that, as that contract had been broken by the defendant, the plaintiff was entitled to recover. Bowring v. Shepherd, Exch., 24. L. T. R. 721.

FALE PRETENSES.

Remoteness of the pretense: evidence. An indictment for false pretenses charged that the defendant falsely pretended that he had a lot of trucks of coal at a railway station on demurrage, and that he required forty coal bags. The evidence was that defendant saw prosecutor and gave him his card, "J. W. and Co., timber and coal merchants," etc., and said that he was largely in the coal and timber way, and inspected some coal bags, but objected to the price. The next day he called again, showed prosecutor a lot of correspondence, and said, that he had a lot of trucks of coal at the railway station under demurrage, and that he wanted some coal bags immediately. Prosecutor had only forty bags ready, and it was arranged that defendant was to have them, and pay for them in a week. They were delivered to defendant, and prosecutor said he let the defendant have the bags in consequence of his having the trucks of coals under demurrage at the station. There was evidence as to the defendant having taken premises, and having a small business in coal, but he had no trucks of coal on demurrage at the station.

The jury convicted the prisoner, and, on questions