with his second wife. Held, that the divorce must be denied, on the ground of acquiescence and connivance. Ross v. Ross, L. R., 7 P. & D. 734; Thomas v. Thomas, 2 Sw. & Tr. 113; Nichols v. Nichols, 10 C. E. Gr. 60; Singer v. Singer, 41 Barb. 139. Yorston v. Yorston. Opinion by Rnnyon, Chancellor.

EASEMENT -RIGHT OF WAY BY PRESCRIPTION WHEN EQUITY WILL PROTECT.-A right of way acquired by prescription is commensurate with and measured by the use, and the owner of the land has no right to do any thing which will hinder or obstruct such use. An owner of the land erected a gate in a lane that had been used without such gate for more than twenty years. Held, that equity would relieve and protect the owner of the easement in his use of the lane unobstructed by such gate. Shivers v. Shivers. Opinion by Runyon, Chancellor.

WILL-CONSTRUCTION OF LEGATEE OF PERPETUAL ANNUITY TAKES FUND.-Where an intention to give a perpetual annuity is apparent in the will, the legatee will be held entitled to the fund itself. Testator gave, after other bequests, to his nieces and to their heirs and descendants an annuity of $200 each. Held, that the residue of testator's estate, his nieces being dead, some of them leaving children, went to such children. The rule is, that when the interest or produce of a legacy is given to, or in trust for, a legatee, or for the separate use of such legatee, without limitation as to continuance, the principal will be considered as bequeathed also. 2 Roper on Leg. 1476; Craft v. Snook, 2 Beas. 121; Gulick v. Gulick, 10 C. E. Gr. 324; S. C., 12 id. 498. And where the intention to give a perpetual annuity is apparent in the will, the intention will prevail, and the legatee will be held to be entitled to the fund. 2 Roper on Leg. 1482; Stoker v. Heron, 12 Cl. & Fin. 161; Clough v. Wynn, 2 Madd. 188; Phillips v. Chamberlaine, 4 Ves. 51; Parsons v. Parsons, L. R., 8 Eq. 260. The words, "or their descendants," or "their heirs and descendants," are merely words of substitution. Jones v. Torin, 6 Sim. 55. A gift to A. " or to his heirs," "or to his representatives," is an absolute gift to A. on condition that he is alive at the death of the testator, but if he dies in the life-time of the testator, the gift takes effect in favor of the other persons described as substitutes of the primary legatee. Gittings v. McDermott, 2 Myl. & K. 73; 2 Wms. on Ex'rs, 956, et seq.; Brokaw v. Hudson, 12 C. E. Gr. 135; Yates v. Madden, 16 Sim. 613; Potter v. Baker, 15 Beav. 489; Taylor v. Martindale, 12 Sim. 158. Huston v. Read. Opinion by Runyon, Chancellor.

TATES-PARTIAL

WILL-TRUSTS NOT EXHAUSTING ESTATE, TRUST IN SURPLUS RESULTS TO NEXT OF KIN― EQUITABLE ESINTESTACY WHO ENTITLED TO SHARE IN ESTATE WIDOW.-It is a settled doctrine of equity jurisprudence that where personal estate is given by will to a trustee, upon certain trusts, and the purposes of the trust do not exhaust the whole estate, or the trusts fail, the trustee shall not take the surplus for his own benefit, unless such appears to have been the intention of the testator, but a trust will result in favor of those who are entitled under the statute of distribution as the next of kin of the testator. Equitable estates are treated in equity as legal estates, and are held to be subject to the same incidents, properties and consequences that similar legal estates are at law. In cases of partial intestacy, both the next of kin and the widow take under the statute of distribution, and one cannot acquire a right to distribution unless the other does also. In cases of partial intestacy, the persons entitled to distribution take, not in pursuance of the intention of the testator, but by force of law, and regardless of what his intentions may have been. The widow is entitled to participate in the distribution of that part of a testator's estate as to which he dies intestate. 2 Williams on Ex'rs, 1475; 1 Perry on Trusts,

S$ 152, 155, 158; Story's Eq. Jur., § 1208; Hill on Trust, 113; Nickerson v. Bowley, 8 Metc. 430; Cushing v. Blake, 3 Stew. Eq. 695; Handy v. Marcy, 1 id. 59; Davers v. Dewes, 3 P. Wms. 40; Dicks v. Lambert, 4 Ves. 725; Oldham v. Carleton, 2 Cox, 399; Ex parte Kempton, 23 Pick. 163; Dale v. Johnson, 3 Allen, 364. Skillinger's Executors v. Skillinger's Executor. Opinion by Fleet, Vice-Chancellor.

FINANCIAL LAW.

AGENCY -AUTHORITY TO MAKE TIME AND SIGHT DRAFTS NOT AUTHORITY TO MAKE POST-DATED ONES. A general agent had authority to draw drafts in the name of his principal on sight or time. Held, that this did not give him authority to draw post-dated drafts, and that where he obtained the discount of a draft post-dated, accompanied by a draft of the date of the day of the discount, as collateral, to be used only in case the agent should die before the date of the discounted draft, the post-dating of the draft was sufficient to put the bank discounting it upon inquiry as to the agent's authority. To charge the transferee of negotiable paper with the equities, he must have had actual notice of them, or at least, he must have had knowledge of such facts and circumstances as would have made his taking the paper with the intention of enforcing it an act of bad faith. Goodman v. Simonds, 20 How. 343; Murray v. Lardner, 2 Wall. 100; Phelan v. Moss, 67 Penn. St. 62; Hamilton v. Vought, 34 N. J. 187; Magee v. Badger, 34 N. Y. 247; Crosby v. Grant, 36 N. H. 273; Farrell v. Lovett, 68 Me. 326; Commercial Bank v. First Nat. Bank, 30 Md. 11; Spooner v. Holmes, 102 Mass. 503; Mathews v. Poytheers, 4 Ga. 287; Bottomley v. Goldsmith, 36 Mich. 27. But no banker, to whom paper should be presented for discount by a third party before the time of its date, would look upon the offer as so far an ordinary occurrence that he would take it with the same promptitude as he would any other paper of equal apparent responsibility, and on the supposition that he had as little occasion to inquire into the circumstances of its issue. But in this case the paper was not only post-dated, but it was issued under a claim of agency, and the question of power was involved. It was the plain duty of a party proposing to take it to take notice of whatever was unusual, either in the form of the paper, or in the accompanying circumstances, which might tend to raise doubts in his own mind whether the authority which was asserted had in fact an existence; and among the most important of these circumstances would be those which indicated that the paper afforded special opportunities for fraud upon the alleged principal. He would not be at liberty to look exclusively at the facts which lead to one conclusion, and to disregard merely suspicious circumstances because in themselves they were inconclusive; for the fact of authority or apparent authority is one to be deduced from all the circumstances, and he must at his peril take them all into consideration. It is no doubt the fact that a post-dated draft, purporting to be payable at sight, is for all the legal purposes of presentment, demand, protest and payment, a draft payable a certain time after date. But in order that authority to make time paper shall be held to cover post-dated paper, their legal effect must not only be the same but all their incidents so far identical that we may fairly suppose both were in mind when the authority was given; for the authority is not to be construed on technical reasoning but by intent. Is this the case? Unfortunately judicial decisions throw but little light upon the subject. In Foster v. Mackreath, L. R., 2 Exch. 163, it was decided that authority to draw a check did not authorize drawing a post-dated check, because, "so far as regards its practical effect, a post-dated check is the same thing

as a bill of exchange at so many days' date as intervene between the day of delivering the 'check and the date marked upon it." And see re Brown, 2 Story, 502; Andrew v. Blackley, 11 Ohio St. 89. But while a bill of exchange is usually allowed days of grace, a postdated check is not. Mohawk Bank v. Broderick, 10 Wend. 304; S. C., 13 id. 133; Salter v. Burt, 20 id. 205; Taylor v. Lip, 30 N. J. 284. The proposition, therefore, that authority to draw bills would include authority to draw post-dated checks is one which could not be supported. The two classes of instruments are similar, but they are not in legal effect identical. But a post-dated bill differs also from a bill payable a corresponding number of days after it is drawn. It is true that the question of the right to days of grace might be settled by the terms of the bill itself, but there would be an important difference in this, that the time bill would be subject to be sent forward for acceptance while the post-dated bill would not. The latter must stand upon the responsibility of the drawer until the time of date arrives. It could not be dishonored by refusal to accept it before its date, because the drawer does not undertake to have funds in the drawer's hands to meet it before that day arrives; and the drawee, if he were in funds to meet it, could not retain them for the purpose as against other bills drawn and payable before the date arrived. Godin v. Bank of Commonwealth, 6 Duer, 76; Champion v. Gordon, 70 Penn. St. 474, 476. Michigan Supreme Court, Octo

ber 13, 1880. New York Iron Mine Co. v. Citizens' Bank. Opinion by Cooley, J.

PARTNERSHIP ACCEPTANCE OF DRAFT BY AGENT OF FIRM WHEN PARTNERSHIP ENDS-POWER OF PARTNERS AFTER DISSOLUTION ACCEPTANCE OF DRAFT AFTER DISSOLUTION. — −(1) Where one firm was indebted to another firm, and after dissolution of the first it employed a member of the latter firm to close and wind up its business and pay its debts, and such agent, acting in behalf of his own firm, drew drafts in the name of his firm, payable to themselves, and procured a person who had before been the manager of the first firm to accept the same in his own name as lessee, supposing he had such authority, but not giving or attempting to give such manager any authority to accept for his principals, it was held, that the first named firm was not liable on the acceptances, it appearing that such manager at the time had no authority to accept the drafts on behalf of his principals. (2) If a partnership is formed for a single purpose or transaction, it ceases as soon as the business is completed, or whenever there is an end put to the business; and although a partnership is entered into for one year, it may be terminated by mutual consent at any time the partners may choose. Where partners, by resolution, determine to leave the business and wind up the same, and appoint one of their number or a third party to take charge of the property and accounts and to dispose of their property and collect their accounts, this will amount to a dissolution of the partnership and the revocation of the powers of any other agent before that time acting for the firm. In the absence of stipulation to the contrary, in case of dissolution, every partner is left in the possession of the full power to pay and collect debts due the firm, to apply the partnership funds and effects to the discharge of their own debts, to adjust and settle the unliquidated debts of the partnership, to receive any property belonging to the partnership, and to make due acquittances, discharges, receipts and acknowledgments of their acts in the premises. While the dissolution does not revoke the authority to liquidate, settle and pay debts already created, it operates as a revocation of all

cannot thus bind the firm, or authorize another to do so. (3) Although a partnership may exist in the name of one as lessee, who is merely the agent of the firm, to transact a particular business, as the manufacture of brick, and not a member of the firm, it will not be bound by such agent, making or acceptance of commercial paper, without direct and specific authority from the firm, or some member thereof before dissolution, or unless the firm or some member during tho existence of the partnership, ratified the act of such agent. To hold the members of a partnership liable for commercial paper, executed or accepted by direction of one member after the dissolution, on the ground that the person taking and discounting such paper in the late firm name and style was ignorant of the dissolution, it must be shown that the members constituting the partnership were known to the person so discounting such paper previous to the time of taking and discounting the same, especially where the acceptance fails to show who composed the firm. Illinois Supreme Court, November 11, 1880. Bank of Montreal v. Page. Opinion by Scholfield, J.

INDORSEMENT - WHEN HOLDER OF NEGOTIABLE INSTRUMENT CANNOT RECOVER FROM ACCOMMODATION INDORSER.- Weller & Son made a negotiable note

payable to Callahan. Callahan indorsed his name on the back of the note and returned it to them, and they presented it at a bank and had it discounted for their own benefit. Held, that the bank could not recover against Callahan. The law will not presume that he indorsed it for accommodation, but will presume that it was paid. Long v. Bank, 1 Litt. 290; Beebe v. Real Estate Bank, 4 Ark. 546; Bank v. Hammett, 50 N. Y. 158. The cases holding the indorser liable were so held upon facts being established, distinctly showing the indorsement was made for the accommodation of the person by whom it was delivered to the holder. Woolfork v. Bank, 10 Bush, 504; Young v. Harris, 14 B. Monr. 556; Rogers v. Paston, 1 Metc. 643. Kentucky Court of Appeals, October 12, 1880. Callahan v. First National Bank of Louisville. Opinion by Cofer, C. J. WHEN INDORSER AFTER MATURITY NOT LIABLE.The indorsement of a note after matu

rity is in effect the drawing of a new bill, payable on demand; and to hold the indorser, demand and notice of non-payment are essential. Stuart v. Redfield, 13 Kans, 550. After the indorsement of a note after ma

turity, J., the indorser, held the note in his care and

custody for B., the indorsee, and at her instance, from March 1, 1874, to January 11, 1875, for safe-keeping in a bank of which J. was the president and cashier. The indorsee took actual possession of the note on

January 11, 1875, and brought an action thereon against the maker. Failing to collect all the judgment from the maker, or the mortgaged property, on May 11, 1878, an action was brought against J., as indorser. No other demand was made than the institution of the suit on

January 11, 1875, no notice of non-payment was given, and such notice was not waived. Held, that the indorser was not liable. Braine v. Spaulding, 52 Penn. St. 247 distinguished. Kansas Supreme Court, July term, 1880. Shelby v. Judd. Opinion by Horton, C. J.

NEW BOOKS AND NEW EDITIONS. ABBOTT'S YEAR BOOK OF JURISPRUDENCE. The Year Book of Jurisprudence for 1880. By Benjamin Vaughan Abbott. A compend of the most Recent Statutes, Leading Cases and General Information upon the Progress of the Law. Boston: Little, Brown & Co. 1880. Pp. vi, 443.

2

double columns, under headings after the manner of a digest, and there is a table of cases. It is an interesting and useful compilation.

CURTIS' FEDERAL JURISPRUDENCE. Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States. By Benjamin Robbins Curtis, LL. D. Edited, with Notes, by George Ticknor Curtis and Benjamin R. Curtis. Boston: Little, Brown & Co. 1880. Pp. xviii, 298.

This is a volume of lectures delivered at the Harvard Law School in 1872-3, by the late Judge Curtis. The lectures were extemporaneous, but were taken down in short hand, and have been published without any change of text. References to statutes and decisions and some notes have been added by the editors. No man was better qualified to treat of this subject than the distinguished lecturer, and the lectures give a remarkably concise and comprehensible view of the subject. The style however is naturally somewhat familiar and diffuse, and might well have been occasionally pruned, by the editors, of matters appropriate in an oral lecture, but superfluous in a treatise. The volume constitutes a valuable member of the excellent "Students' Series."

CORRESPONDENCE.

DISAGREEMENT OF JURIES.

Editor of the Albany Law Journal:

In commenting on the proposal of the Kentucky Law Reporter, you remark that a jury of one man might be better than twelve, because he could never disagree. This reminds me of the anecdote of a case of the kind in a justice's court. A jury had been demanded, but there was difficulty about getting a jury together. One juryman had appeared and it was finally agreed by the court that they would try the case by a jury of one. Accordingly the case was tried and the jury (of one) retired to consult of their verdict, under the charge of an officer. After waiting an hour or two the jury were called into court to see if they had agreed on their verdict, and the foreman informed the court that they had not agreed and that there was no prospect of their agreeing. And the court sent the jury out again, and waited two or three hours longer for the result, when they were again called into court, and they informed his honor that they had not agreed and there was no prospect of any agreement. The hour being late the jury was then discharged without a verdict. This may have been a farce, but if it was, it was no more so than are one-half of our jury trials. DETROIT.

[See Albert Mathews' "Bundle of Papers " "The Divided Jury," noticed 19 Alb. L. J. 523. -ED. ALB. L. J.]

THE

NOTES.

IE current number of the Southern Law Review is very strong one. It contains the following leading articles: Modern legislation touching marital property rights, by Henry Hitchcock; Power of municipal corporations to borrow money, by Judge Dillon; Late works on private international law, by Dr. Wharton; Expert evidence, what it is, by F. J. Van Vorhis; a Study in the law pertaining to covenants of warranty, by James O. Pierce, the Panama Canal and the Monroe doctrine, by Charles R. Grant. Mr. Hitchcock's article is an excellent history of the status of married persons at common law as to property, and a review of the modern legislation in favor of the wife, with a pretty strong intimation that the wife has got more than her rights. Dr. Wharton, speaking of the recent works of M. Laurent, Mr. Westlake and Mr. Lawrence, says: "The chief characteristic of M. Lau

rent's book is eloquent dissertation; that of Mr. Westlake is curt decision; that of Mr. Lawrence is accumulation of precious material. M. Laurent works as the orator in the lecture room; Mr. Westlake as the judge on the bench; Mr. Lawrence as the investigator in the library. M. Laurent kindles enthusiasm; Mr. Westlake gives direction; Mr. Lawrence imparts education." Judge Dillon's article is based on his remarks on the same subject in his forthcoming edition of his work on Municipal Corporations. Mr. Van Vorhis' article is an examination of the question whether an expert witness can be compelled to give his opinion in evidence without receivflicting cases of Buchanan v. State, 59 Ind. 1; S. C., 25 ing a satisfactory compensation. He cites the conAm. Rep. 619, note, and Ex parte Dement, 53 Ala. 389; S. C., 25 Am. Rep. 611; but he omits any reference to Summers v. State, 5 Tex. Ct. App. 365; S. C., 32 Am. Rep. 573, agreeing with the latter. St. Louis is growing as conceited as Boston. In a book notice in the Southern Law Review we find this "It is needless to add that the law-printing of the Riverside Press' almost rivals in excellence that done in St. Louis, but some superiority must yet be accorded to their western competitors." It would be hard to find handsomer law books than St. Louis produces, but their publishers learned their business in Boston.

In the Federal Supreme Court the attorney-general of the United States presented a series of Resolutions of the bar on the retirement of Mr. Justice Strong, accompanying them with appropriate remarks, to which the chief-justice responded as follows: "We are glad to receive from the bar this expression of their regard for Judge Strong. It is but simple justice to say that during the ten or more years he held a seat on this bench, he never for a moment forgot what was due to the place he so ably filled. His judgment was always the result of his honest convictions of what was right, and we, who have known him in the intimacy of long personal and official intercourse, shall ever bear witness to his purity of character as a man and of his eminent ability as a judge. We part with him on the bench with sincere regret. The resolutions of the bar, with the remarks of the attorney-general, in presenting them, will be entered on the records of the court, and we shall take pleasure in sending a copy to Judge Strong, as requested."

The author of the "Rye and Rock" brief is Mr. A. H. H. Dawson, of New York city. A number of trade-mark lawyers think his argument was sound, and that "Rye and Rock" would indicate rock candy dissolved in rye whisky only to those who happened to know it.We regret to learn that the Hon. Wm. Beach Lawrence is seriously ill from excessive mental exertion. His labors for many years have been very great, and their results extremely beneficial to the public. Our readers will join us in the hope that he may speedily find relief from the enforced repose which he is taking, and that we shall not be deprived of further results from his exceptional experience, learning, and devotion in the field of international law. It is said that Chief Justice Cockburn's relished.The Chief Justice of Austria, Dr. Anton searches upon the authorship of Junius will be pubfiftieth anniversary of the day on which he received von Schmerling, Knight, celebrated, on Nov. 17th, the the degree of "Doctor Juris" from the University of Vienna. Deputations from the Imperial Supreme Court, from the Department of Justice, from the Academy of Sciences, the University, the College of Doctors, the Bar Associations, the Notaries' Association and others, offered their congratulations. The University renewed the diploma, referring in the renewal to the eminent services of the Chief Justice to the State, particularly as Minister of Justice, which position he occupied some time ago.

The Albany Law Journal.

ALBANY, JANUARY 8, 1881.

CURRENT TOPICS.

[R. RICHARD GRANT WHITE ought to read

MR. RICHARD GRANT Wook on Homicide, North and South." In respect to this particular

offense it could not fail to convince him that education is not a promoter of crime. Mr. Redfield makes the following startling assertions (we copy from The Nation): "More men have fallen in per

sonal combat at the South since 1840 than were

killed in battle on both sides in the rebellion (P.

120); in the same section there have been more homicides since the war than there have been deaths from yellow fever (p. 196) — this number is at least 40,000 (p. 10). In Texas there were more assassina

tions in 1878 than homicides of all kinds in Massachusetts in 1877-78 (p. 64), and always there are

more manslayers at large than in confinement (P.

In

77). In South Carolina there were three duels in 1878, against none among the more than thirty millions of the Northern population (p. 90); and of a single affray in Edgefield, which leads us into accounts of seven different homicides,' all the survivors were acquitted on trial (p. 91). The number of homicides along the route of the Cincinnati Southern Railway from Cincinnati to Chattanooga, 'during its construction through Kentucky and Tennessee, I believe to be equal to half the length of the road measured in miles - that is, for every two miles of road there was a man murdered in the vicinity of the line' (p. 167). The population of three sample Southern States-Texas, Kentucky, and South Carolina is less than that of New England by half a million, but the homicides are eighteen times as numerous (p. 15); there are often more in Kentucky in a month than in Massachusetts in a year, and as many in South Carolina in two as in Massachusetts in ten years (pp. 14, 18), though the Northern State has much the larger population in each case. Massachusetts, the ratio of killing has decreased with the increase of population- ten per cent against eighteen per cent in 1869-78 (p. 154); in South Carolina, crimes against the person show no diminution under Hampton as compared with those committed under Chamberlain and Scott (p. 105). In Mississippi, according to the Vicksburg Herald of May 25, 1879, there is an average of a murder a day (p. 152). At the South the] highest ratio of homicide is in the country, at the North in the cities (p. 31). The foreign element forms less than two per cent of the population at the South (p. 15), and in Mississippi, for example, 'so far from the foreigners being the cause of so much murder, it is more probable that so much murder accounts for there being so few foreigners' (p. 153)." Mr. Redfield attributes this excess of homicides in the South to the practices of carrying concealed weapons and drinking whisky. There is, however, a great deal VOL. 23.- No. 2.

of the former practice at the North, and probably quite as much of the latter there as at the South. We should incline to attribute it rather to the warmth of the climate, and the consequent exuberance of the emotions and exasperation of the passions. This view is supported by the alleged fact, brought out by Mr. Redfield, that there is a similar excess in the southern half of Ohio, Indiana, and Illinois, as compared with the northern. These statistics cannot be accounted for in the South by the theory of a conflict of races, for they date from a time when the southern whites had a pecuniary interest in being careful of the lives of the blacks. Even now, although very few white men are killed

by the black, yet the white and the black seem to according to Mr. Redfield, in Texas, South Carolina, kili those of their own color without scruple. Thus, and Kentucky, in 1878, although only 16 whites were killed by blacks, and 109 blacks were killed by whites, yet 434 whites were killed by whites and 98 blacks by blacks. In connection with this subject, we remark the present prevalence of an epibeen 12 lynchings, of which eight were of colored demic of lynching. Since December 2d there have persons, and one was of a woman; eight were in the Southern States, two in New Mexico, one in Nevada, and one was in the peaceable State of Pennsylvania.

Mr. Brown, the Nebraska State reporter, has appended to the last volume of his reports two indexes, one of 61 pages, constructed in the ordinary manner, consisting of a literal reproduction of the head-notes, and another, of 19 pages, consisting of short references, similar to the head-lines and catchwords used by many reporters. In his preface he states his purpose to be to obtain the opinions of the profession as to the propriety of substituting the latter kind of index for the former, and he particularly calls our attention to this subject and asks our opinion on it. Mr. Brown says he "cannot see the utility in thus merely repeating the syllabi.” In this we agree with him, adding for ourselves the words, "such as most reporters construct.” If the head-notes were properly constructed, the reporter could not do better, we think, than to repeat them in his index. Most head-notes are altogether too long and intricate, giving not the facts in a concise form, with the legal conclusion, but the processes of legal reasoning, and too often omitting the facts altogether. The consequence is that the indexes are long. Taking a few of the last issues of the more prominent reports: 79 New York has an index of 98 pages; 127 Massachusetts, 70; 62 Alabama, 58; 95 Illinois, 81; 68 Indiana, 46; 51 Iowa, 40; 14 Bush, 124; 23 Kansas, 77; 69 Maine, 56; 50 Maryland, 79; 41 Michigan, 84; 69 Missouri, 83; New Jersey, 35; 89 Pennsylvania, 62; 34 Ohio, 61; 48 Wisconsin, 56; 32 Grattan, 41. Some of these reports have a much larger number of cases than others, particularly Michigan, Pennsylvania, Kentucky, and Massachusetts, whose head-notes are generally concise, particularly the two former. Others have an extremely small number of cases, as