to B., treasurer. The note was taken by the vicepresident of the company, when B. was not present; and according to the usage of the company it was made payable to B. because he was treasurer of the company. It was afterward sent to B., and held by him as treasurer, to receive payment thereof. Suit was brought on the note by the company in the name of B., treasurer. On objection by the defendant it was held, that the suit was properly brought in the name of B., treasurer. Van Ness v. Forrest, 8 Cranch, 31; Baldwin v. Bank of Newberry, 1 Wall. 234; Ford v. Williams, 31 How. 287; Whiteford v. Burkmyer, 1 Gill. 127. Hymer v. Ijams. Opinion by McGruder, J.

PARTNERSHIP - - APPROPRIATION OF FIRM FUNDS TO

PAY PRIVATE DEBT PRESUMPTIVELY FRAUDULENT.

An appropriation of partnership funds or effects by one partner, without the previous knowledge and consent of his co-partners, to the payment of a debt which the creditor knew at the time was the private debt of the particular partner, is presumptively fraudulent. 3 Kent Com. 42; Shirreff v. Wilks, 1 East, 48; Ex parte, Bonbonus, 8 Ves. 540; Rogers v. Batchelor, 12 Pet. 221; Livingston v. Roosevelt, 4 Johns. 251. The presump tion of fraud or mala fides however in respect of such transaction, may be rebutted by proof of authority given by the other partners, or of their knowledge and consent, or of their ratification. Williams v. Brimhall, 13 Gray, 462. See also, Cotzhausen v. Judd, 43 Wis. 213; Locke v. Lewis, 124 Mass. 1. If partnership funds or credits have been appropriated by one partner to the payment or settlement of his own private debts without the authority or consent of his co-partner, the separate creditor knowing or having sufficient reason to know that such funds or credits belong to the partnership, such attempted appropriation can form no bar to an action instituted in the name of the partnership against the separate creditor for the recovery of the partnership funds or credits in his hands. Whether such authority or consent was given by the co-partner is a question for the jury. See Jones v. Yates, 6 B. & C. 532; Wallace v. Kelsall, 7 M. & W. 264; Gordon v. Ellis. 7 Man. & Gr. 607; Henderson v. Wild, 2 Camp. 561; Farrar v. Hutchinson, 9 Ad. & El. 641; Dob v. Halsey, 16 Johns. 34; Gram v. Cadwell, 5 Cow. 489; Evernghim v. Ensworth, 7 Wend. 326; Noble v. McClintock, 2 Watts & Sergt. 152: Purdy v. Powers, 6 Penn. St. 492; Cotzhausen v. Judd, 43 Wis. 213; Burwell v. Springfield, 15 Ala. 273; Hall v. McIntyre, 31 id. 532; Perry v. Butt, 14. Geo. 699; Buck v. Mosley, 24 Miss. 170; McNair v. Platt, 46 Ill. 211. Johnston v. Crichton. Opinion by Alvey, J.

SUNDAY-CARRIAGE OF CATTLE ON, BY RAILROAD NOT VIOLATION OF LAW CARRIER LIABLE FOR DELAY IN FORWARDING- ESTOPPEL- WHEN TIME ESSENCE OF CONTRACT-DAMAGES-LONG MARKET.

(1) The Maryland Statute forbids all persons to "work or to do any bodily labor on the Lord's day, commonly called Sunday;" and it provides that no person shall command or willingly suffer any of his servants to do any manner of work or labor on that day works of necessity and charity always excepted-and a small penalty is prescribed for a breach of the statute. In an action to recover damages for delay in transporting cattle which were delivered to the defendant railroad company, a common carrier by a connecting line, for transportation, it appeared that the defendant had arrangements with the connecting line for the immediate transportation of cattle received on Sunday. Upon demurrer to the complaint, held, that the Sunday statute had no application to the case; that according to the principles of the common law applicable to common carriers, the defendant having accepted the stock to be transported over its road in the usual

course of transit, it at once became its duty to forward the same without unnecessary delay or detention: that its obligation was to carry according to its public profession, and the conveniencies at its commard. And if injury were sustained by reason of any neglect of this duty, or other wrongful act in the carrying and delivery of the cattle, the fact of their having been received to be carried or having been carried on Sunday could afford no excuse to the defendant, or exoneration from liability; that the carrying forward of the cattle by the defendant on Sunday was not illegal; it was fairly and justly a work of necessity, and therefore excepted from the operation of the statute. Johnson v. Midland R. Co., 4 Exch. 367; Powhatan Steamboat Co. v. Railroad Co., 24 How. 247, 253; Carroll v. Staten Island R. Co., 58 N. Y. 126; Flagg v. Millbury, 4 Cush. 243. (2) That even upon the supposition that the plaintiffs were violating the law in having their cattle transported on a Sunday, the defendant could not avail itself of such infraction of the law by the plaintiffs, as a defense to an action for the consequences of a wrong or negligence of its own. Phil. Wilm. & Balt. R. Co. v. Steam Towboat Co., 23 How. 209; Mahoney v. Cook, 26 Penn. St. 342; Sutton v. Town of Wauwatosa, 29 Wis. 21; Carroll v. Staten Island R. Co., 58 N. Y. 126. (3) There is a duty to deliver, safely and in time, but they are distinct obligations. The time of delivery is often a matter of distinct contract; but when as in this case there was no express contract, there was an implied obligation to deliver within a reasonable time; and that meant a time within which the carrier could deliver, using all reasonable exertion and taking all reasonable precaution to avoid delay. Balt. & Ohio R. Co. v. Brady, 32 Md. 333; Smith v. Railway Co., 12 Allen, 531; Mynard v. Syracuse R. Co., 71 N. Y. 180. The same principle, though not necessarily involved, nor expressly decided, was recognized in Bankard v. Balt. & O. R. Co., 34 Md. 197. See also Parsons v. Hardy, 14 Wend. 215; Taylor v. Great North. R. Co., L. R., 1 C. P. 385. (4) In this case it was sought to charge the defendant with the consequences of the delay, and the failure to use such degree of diligence in forwarding the cattle as would have secured their arrival at their destination in time for the cattle market of Monday. Held, that it was material and necessary that it should be shown that the defendant had knowledge, or from the circumstances of the case and the course of the trade it might have reasonably been inferred, that the cattle were intended for the market of that day. The defendant at least should have had an opportunity of contemplating the special consequences of a breach of duty, or of making some special provision against incurring the liability therefor; and without notice this could not well have been done. Hadley v. Baxendale, 9 Exch. 341; Great West. R. Co. v. Redmayne, L. R., 1 C. P.. 329; Horne v. Midland R. Co., L. R., 8 C. P. 131; Grindle v. Eastern Exp. Co., 67 Me. 317. Philadelphia Wilmington & Baltimore Railroad Company, v. Lehman. Opinion by Alvey, J.

CONNECTICUT SUREME COURT OF ERRORS ABSTRACT.*

CONSTITUTIONAL LAW-STATUTES REGULATING DOGS AND COMPENSATION FOR SHEEP KILLING VALID.— A statute provides that damage done by dogs to sheep in any town, proved to the satisfaction of the selectmen, shall be paid by such town, and that it may recover such damages, when paid, from the owner of the dog, if a resident of the town; but if not such resident, that than the selectmen may institue a suit against the town where he resides, unless he or such town shall

* Appearing in 48 Connecticut Reports.

on notice pay to the treasurer of the former town the amount of such damage; and that any town which shall be obliged to pay any such damage may recover the same from the owner of the dog. Held, that the statute was not void on the ground that it did not provide for an adjudication upon the fact and amount of the damage, as it is fairly implied that if the matter is not settled without suit, the fact of the injury and the amount of the damages are to be determined in the suits for which the statute provides. The provision for the liability of towns in such cases is one of police regulation which cannot well be made effectual except through the agency of the towns. They receive the license fees which the owners of dogs are required to pay, and have besides a remedy over for what damages they pay. They have also, and throughout the legislation of the State have had power that could be used to prevent or diminish the nuisance. Courts should uphold the validity of statutes where it can be done by any reasonable interpretation, even though it be not the most obvious one. See Blair v. Forhand, 100 Mass. 140; Woolf v. Chalker, 31 Conn. 121; Mitchell v. Williams, 27 Ind. 62; French v. Teschemaker, 24 Cal. 518; People v. San Francisco R. Co., 35 Cal. 606; Bigelow v. West Wisconsin R. Co., 27 Wis. 478; Duncombe v. Prindle, 12 Iowa, 1; Colwell v. May's Landing W. P. Co., 4 C. E. Green, 245; Iowa Homestead Co. v. Webster County, 21 Iowa, 222; Roosevelt v. Godard, 52 Barb. 533; Hepburn v. Griswold, 8 Wall. 603. Town of Wilton v. Town of Weston. Opinion by Loomis, J.

At one

But

CONFLICT OF LAW ACTION UNDER LAW OF ANOTHER STATE-FORECLOSURE AND DEFICIENCY.-(1) A statute of the State of New York provides that "after a bill of foreclosure shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings shall be had at law for the recovery of the debt secured by the mortgage or any part thereof, unless authorized by the Court of Chancery." Held to pertain to the remedy only and not to enter into the contract, and therefore to have no application to proceedings in this State. See Scofield v. Doscher, 72 N. Y. 491; Equitable Life Insurance Co. v. Stevens, 63 id. 341; Suydam v. Bartle, 9 Paige, 294; Taft v. Ward, 106 Mass. 518; Gott v. Dinsmore, 111 id. 45. time it was held that the extent of the remedy was to be determined by the law of the place of the contract, and in the case of Melan v. Fitzjames, 1 Bos. & Pul. 138, a suit was brought in England upon a contract made in France, where the defendant was not liable in personam but only in rem, and where no arrest could be made, and it was so held in England. this case was soon after overruled in England. The doctrine was distinctly repudiated in this State in Woodbridge v. Wright, 3 Conn. 523, and the contrary doctrine seems now everywhere well settled. Imlay v. Ellefsen, 2 East, 453; De la Vega v. Vianna, 1 Barn. & Adol. 284; Smith v. Spinolla, 2 Johns. 198; White v. Canfield, 7 id. 117; Sicard v. Whale, 11 id. 194; Peck v. Hozier, 14 id. 346; Hinkley v. Marean, 3 Mason, 88; Wood v. Watkinson, 17 Conn. 500. (2) Under the laws of New York the mortgaged property is sold after foreclosure and the proceeds of the sale applied on the mortgage debt. Held, that the defendant in an action in this State to recover the balance of the mortgage debt after a foreclosure and sale of the mortgaged property in New York, could not show that the real value of the property was greater than the amount for which it was sold. (3) The statute of this State, with regard to the application upon the mortgage debt of the value of the property taken by the mortgage upon a foreclosure, does not apply to the case of property foreclosed and sold under the laws of another State. The proceeds of the sale are all that the mortgagee receives

under the latter proceeding, and all that he is to be charged with in determining the amount to be recovered here as the balance of the mortgage debt. Belmont v. Cornen. Opinion by Loomis, J.

EJECTMENT-LIABILITY OF TENANT OF DISSEISOR FOR MESNE PROFTS.-A disseisee who has recovered possession of the premises by any lawful means may maintain trespass for mesne profits against a party who has occupied the premises as a tenant of the disseisor, although he was ignorant of the disseisee's claim of title and has in good faith paid rent to the disseisor. The disseisor cannot give to any person occupying under or taking title from him any better rights than he had himself. Trespass will lie for mesne profits upon the fiction of law that the disseisee after re-entry has been in continuous possession during the period of the disseisin. In Holcomb v. Rawlyns, Cro. Eliz. 540 the court said that plaintiff by his re-entry is remitted to his first possession, and as if he had never been out of possession; and then all who occupied in the meantime by what title soever they come in shall answer unto him for their time. See also Doe v. Whitcomb, 8 Bingh. 46: Emerson v. Thompson, 2 Pick. 473; Green v. Biddle, 8 Wheat. 1; Storch v. Corr, 28 Penn. St. 135; Bradley v. McDavid, 3 Jones (N. C.), 128; Jackson v. Stone, 13 Johns. 448; Morgan v. Varick, 8 Wend. 587. It is true that the principle has not had the unanimous support of courts in England or this country. In Liford's case, 11 Coke, 51 (1615,) there is a dictum of Lord Coke, C. J., to the effect that the disseisee after a re-entry cannot recover in an action for mesne profits against the feoffee or lessee, or disseisor of the first disseisor, giving as reasons that "this fiction of the law, that the freehold continued always in the disseisee, shall not have relation to make him who comes in by title a wrong-doer vi et armis;" that "it is to be presumed that the feoffee has given consideration or recompense to the disseisor and that the lessee has paid rent to him or other consideration, and therefore in reason the disseisor is to be charged with the whole;" and in respect to the disseisor of the disseisor that the "fiction of law as to the action extends only to the first disseisor, and if the disseisee should punish the second disseisor he should be twice charged." Lord Coke refers to several ancient cases in support of his opinion, acknowledging that "there was a great variety of opinions in the books" upon the point. See Symons v. Symons, Hetley, 66; Viner's Abr. Trespass, R. 4, pl. 5; Bro. Abr. Trespass, pl. 35; Keilway, 1 pl. 2; see also Sanderson v. Price, 1 Zabriskie, 637. In 2 Rol. Abr. 554, Trespass per relation, the law is declared to be as laid down in Holcomb v. Rawlyns, supra, in Gilbert's Tenures, 47, 50, and in Comyn's Digest, Trespass, B. 2. Buller in his Nisi Prius, 87, speaking of the doctrine of Liford's case, says "it may admit of doubt, for there are cases to the contrary, and the reason of the law seems to be with them." In Emerson v. Thompson, supra, Wild, J., says: "So far therefore from feeling myself bound by Liford's case as an authority, I am of opinion that the weight of authority is opposed to the decision in that case; and that this is the opinion also of the English courts may be inferred from their well known practice in relation to the action for mesne profits consequent to a recovery in ejectment." Trubee v. Miller. Opinion by Pardee, J.

SURETYSHIP-OBLIGORS ON REPLEVIN BOND NOT RELEASED BY DEFECTS IN PROCESS OR BOND.-Obligors in a replevin bond cannot escape liability on the ground of irregularities in the institution or prosecution of the replevin suits or of technical defects in the bonds themselves. Rowan v. Stratton, 2 Bibb, 199; Nunn v. Goodlett, 5 Eng. (Ark.) 90; Jennisous v.

Haire, 29 Mich. 208; Bigelow v. Cornegys, 5 Ohio St. 256; Roderbaugh v. Cady, 1 West. L. M. (Ohio) 599; McDermott v. Isbell. 4 Cal. 113; Buck v. Lewis, 9 Minn. 317: Moors v. Parker, 3 Mass. 310; Wolcott v. Mead, 12 Met. 517; O'Grady v. Keyes, 1 Allen, 284; Shaw v. Tobias, 3 N. Y. 192; Decker v. Judson, 16 id. 339. Nichols v. Standish. Opinion by Hovey, J.

CORRESPONDENCE.

THE GEORGIA CODE.

Editor of the Albany Law Journal:

I have been following with much interest the discussion in your columns regarding the proposed Code. No allusion has been made by the friends of the measure to codification in Georgia.

From all the sources of investigation at my command I am warranted in saying that this State was the first to adopt a Code: not "the Code" (of Procedure), but as near as may be, a complete embodiment of the principles of the law. The commission was appointed in 1859, and the work mainly performed by Thomas R. R. Cobb, of whom Georgians devoutly believe that in the double capacity of lawyer and publicist the world has not seen his superior. All law was his province; he was learned alike in the common and the civil law. To an attentive student of his work it seems that there was no Gordian knot, no conflict of authorities that was not present in his mind during his labors. This is the key to the work it is an attempt to incorporate along with the statutes of the State the cardinal principles on each topic of the law, with special reference to this object-to settle by codification questions which by reason of variant decisions elsewhere were open, and which would inevitably have come before the courts for determination. The beneficent effect of this work has been two-fold: 1. It has formulated a great body of law in intelligible and compact shape, and rendered it accessible to the people. The Code is found in the offices of business men and corporations, as well as of lawyers. It is distributed by the State to the magistrates of every "militia district" whose courts are always open. The Code belongs to the State, not to the J. P., and the people consult it whenever they wish. 2. The formulation of so much law, while it has unavoidably left room for litigation in its application to the circumstances of particular cases, has settled in advance, it is not extravagant to say, one hundred thousand cases which would have gone to the Supreme Court upon points on which "the authorities, like Swiss troops, may be found fighting on both sides." Much of the law is thus put beyond cavil; and the lawyer who takes to the Supreme Court of this State a question covered by the Code pays damages for his pains.

costs-Barrett v. Zacharia. Judgment affirmed People v. Tweed.- -Judgment modified by requiring plaintiff to refund to defendant Moran the amount of judgment with interest, and as modified, affirmed without costs in this court to either party-McIntyre v. Sanford.- Appeal dismissed with costs - Murphy v. Moore; Doubleday v. Daily; Shean v. Matthews.Order affirmed with costs-The People, ex rel. Swinburne, v. The Trustees of the Albany Medical College; Whitman v. James; The People, ex rel. Trainor, v. Baker; In re Rockport & Buffalo Railroad Co., to use highway, etc.- Order of General Term confirming report of commissioners affirmed with costs In re Lake Shore & Michigan Southern Railroad Co., to change the route of the New York, Lackawanna & Western Railroad, four cases. -Order reversed and proceedings dismissed, with costs-In re New York, West Shore & Buffalo Railroad to acquire lands of Walsh and Christie. Motion to dismiss appeal granted, with ten dollars costs-Brooklyn v. Nodine.

Motion to advance cause denied - Cregur v. The Mayor, etc., of New York. Motion for reargument granted-Machin v. Lamar Ins. Co.; Machin v. Manufacturers' Ins. Co.- Motion to remit return to the court below for amendment denied (see opinion of Danforth, J.)-People's Bank of New York v. Mechanics' National Bank of Newark.- -Motion to amend remittitur denied (see opinion of Danforth, J.)-National Shoe and Leather Bank v. Mechanics' Bank of New York; Corn Exchange v. Same; West Side Bank v. Same. Motion to dismiss appeal denied, with ten dollars costs-Meirs v. Metropolitan Gas Light Co.-—— Motion to correct remittitur denied - Palmer v. Deering. Motion for reargument denied, with ten dollars costs-Whiting v. City National Bank of Rochester, In re Blodgett.-Motion to amend remittitur; ordered that remittitur be amended so as to show the case was affirmed without argument, upon stipulation of attorneys without this motion-Hansell v. Godfrey.Motion to amend remittitur denied on the ground that the questions suggested were not involved in our decision, with ten dollars costs-Chapin v. Thompson.Motion to dismiss appeal; order that appellants have twenty days from date to serve the printed papers required by the rules and that the case be put upon next month's calendar- Commonwealth Life Ins. Co. v. Bowman.

The court adjourned to meet in the Old Capitol, in the city of Albany, October 9, at 10 A. M.

NOTES.

IN in

Fain v. Commonwealth, 78 Ky. 183, the defendant,

Within the limits of this communication I have not space to do justice to the labors of Mr. Cobb's coworkers, Richard H. Clark and David Irwin. MACON, GA.

WALTER B. HILL.

in a hotel, and on being roughly awakened by a stranger, drew a pistol and killed him, imagining himself in danger. The court observed: "If the prisoner is and has been afflicted in the manner claimed and knew, as he no doubt did, his propensity to do acts of violence when aroused from sleep, he was guilty of a grave breach of social duty in going to sleep in the public room of a hotel with a deadly weapon on his person, and merits for that reckless disregard of the safety of others some degree of punishment, but we know of no law under which he can be punished. Our law only punishes for overt acts done by responsible moral agents. If the prisoner was unconscious when he killed the deceased, he cannot be punished for that act, and as the mere fact that he had the weapon on his person and went to sleep with it there did no injury to any one, he cannot be punished for that." Now is a man

who knows himself liable to violent attacks of insanity guilty of "a grave breach of social duty" in not incarcerating himself in an insane asylum?

The Albany Law Journal.

ALBANY, JULY 15, 1882.

CURRENT TOPICS.

THE London Law Times contradicts the statement

THE

of a newspaper writer that "many of our judges jump off the bench, mount a hack at Westminster hall, and subsequently play lawn tennis until it is time to dress for dinner." The Times says: "Judges on their appointment, however young in years they may be, become old in their habits. Mr. Justice Chitty, on being made a judge, ostentatiously abandoned lawn tennis. Mr. Justice North abandoned his morning meerschaum down Oxford street. They necessarily shrink into themselves. They hold little intercourse with the bar, and notwithstanding their youth the habits of age are forced upon them." We must confess we should hardly like to see our judges skipping around at lawn tennis, looking cross and muttering morosely when they made ineffectual passes at the empty air. Still less should we like to see one puffing a pipe on the street like a dummy" engine. But there are dignified outdoor amusements, combining health and grace, and affording opportunity for the reflective and calculating faculties. We have already discoursed on horseback riding. Light may dawn upon a judge on horseback, as it did upon St. Paul. If an English judge should indulge in this however he would yearn to follow the hounds, and would bob up and down in his saddle after the ungraceful orthodox English fashion, as if converted into a human churn. Chancellor Kent was very fond of driving with a single horse and "buggy" and his wife Betsy. Chief Justice Marshall was an adept at quoits. We have seen one of our most eminent judges making a respectable figure at croquet. Fishing is a good amusement for judges. Daniel Webster rehearsed his last Bunker Hill oration to himself while fishing, and exclaiming, "Venerable men, you have come down to us from a former generation," jerked a large perch into a tree. judges, like the English, "hold little intercourse with the bar," but it is from necessity, not from choice. If counsel would shorten the official interviews in their speeches and briefs, there would be more time for social intercourse between the bar and the bench. We cannot say that we have noticed any disposition or tendency on the part of our judges to "shrink," socially, intellectually, or physically.

Our

has no intention to republish the papers in a book; he regards them only as "studies." In this we think him too modest. A collection of these essays would command a very distinguished if not a very numerous body of readers.

The Alabama Law Journal speaks of the case of McCutcheon v. Homer, 43 Mich. 483; S. C., 38 Am. Rep. 212, "in which the Supreme Court of that State asserts the astounding doctrine, that a city is not liable for an injury to an individual by neglect to keep its streets in repair. The opinion, unfortunately, does not state how the court arrived at this conclusion." This decision is founded on Detroit v. Blakeby, 21 Mich. 84; S. C., 4 Am. Rep. 450, which is almost if not entirely unique. We agree with our contemporary about the doctrine.

In Sergeant Ballantyne's Experiences of a Barrister he tells the following of Mr. Broderip, a magistrate: "I was then in some criminal practice, and appeared before him for a client who was suggested to be the father of an infant, and about which there was an inquiry. Mr. Broderip very patiently heard the evidence, and notwithstanding my endeavors, determined the case against my client. Afterward, calling me to him, he was pleased to say: 'You made a very good speech, and I was inclined to decide in your favor, but you know I am a bit of a naturalist, and while you were speaking I was comparing the child with your client, and there could be no mistake, the likeness was most striking.' 'Why, good heavens!' said I, 'my client was not in court. The person you saw was the attorney's clerk.' And such truly was the case." This furnishes a striking commentary on the decision in State v. Smith, 54 Iowa, 104; S. C., 37 Am. Rep. 192, that in a bastardy proceeding, the child, two years old, may be exhibited to the jury, and its resemblance to the defendant commented on.

Those

Iowa judges must be "naturalists." They should read the cases of disputed and mistaken identity in Mr. Fuller's Adventurers and Impostors.

There ought to be some provision for summarily disposing of contests for office. As the law now stands ingenious counsel may easily protract litigation until the term of office has expired, and the officer de facto has drawn his salary. Take for example the pending mayoralty contest in this city. The contestant, alleging that he was fraudulently "counted out," brings suit for the office. Counsel move to "make the complaint more definite and certain," or for a "bill of particulars." The motion is denied, an appeal is taken, and pending the appeal a stay of proceedings is granted. Before the motion can be worked through the Supreme Court and the Court of Appeals the term of office will probably expire; certainly before the case can be tried, in the ordinary course of procedure. The officer de facto certainly has a right to put the case through all its paces, and we do not blame counsel