WISCONSIN SUPREME COURT ABSTRACT. ASSIGNMENT FOR CREDITORS-ASSIGNEE NOT LIABLE TO MORTGAGEE FOR RENTS COLLECTED.-An assignee for creditors collected the rents on mortgaged property, and distributed it among the creditors, but did not pay the taxes on the property. Held, that he was not liable to account to the mortgagee for such rents. See Argall v. Pitts, 78 N. Y. 239. Even when the law was such as to make the title of the mortgagee absolute on condition being broken, yet then, it was said in effect by Lord Chancellor Hardwicke, that where a mortgagor was left in possession, upon a bill brought by the mortgagee for an account, rent and profits would not be allowed for any of the time prior to the filing of such bill. Higgins v. York Buildings Co., 2 Atk. 107. To the same effect are Colman v. Duke, 3 Ves. Jr. 25; Drummond v. Duke, 5 id. 433; Hele v. Bexley, 20 Beav. 127. So it has been held that the heirs of a deceased insolvent were entitled to the rents and profits of the estate of the deceased until it was sold for the payment of the debts; or if it were mortgaged until entry by the mortgagee. Gibson v. Farley, 16 Mass. 280. So it has been held that the rents and profits actually received by the mortgagor, or equitable owner in possession, or which had accrued before an order of sequestration was made, could not be recovered from him by the mortgagee. Clarke v. Curtis, 1 Grat. 289. So it has been held that a receiver, appointed in a suit to foreclose a mortgage, could not maintain a suit to recover earnings of the road accruing before his appointment. Noyes v. Rich, 52 Me. 115. So it has been held that a mortgagee is not entitled to the rent of the mortgaged premises from the tenant of the mortgagor till he takes possession, or requires the tenant to attorn to him, and that prior to such time the mortgagor or purchaser of the equity of redemption is entitled to the rent. Long v. Wade, 70 Me. 358. "So long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate. He is not liable for rent. His contract is to pay interest and not rent." Jones Mortg.,§ 670. In Re Snedaker,4 N. B. R. 168, the mortgaged premises had been sold, and the mortgagee had proved up his claim for a deficiency, but it was held that products of the mortgaged premises reduced to possession by the mortgagor's assignee in bankruptcy, prior to sale of the mortgaged premises, are to be treated as assets, to be distributed under the bankrupt act, and the mortgagee cannot claim that a deficiency after sale on his mortgage shall be paid in preference to the claims of other creditors." In Foster v. Rhodes, 10 N. B. R. 523, it was held that "where an assignee in bankruptcy receives the rents of mortgaged property, it must be distributed among the general creditors of the bankrupt. If the mortgagee desires it to be applied specifically to his lien, he must not only show the insufficiency of his security, without the pernancy of the rents and profits, but he must also intercept the rent before it can reach the assignee.' In that case the mortgagee petitioned that the assignee be directed to repay him, out of the rents so received by him, the amount of certain taxes on the mortgaged premises which he had been compelled to pay in foreclosure proceedings to his detriment; but the prayer of the petition was denied, and the judge said he could 'see no principle by which the rents in the hands of the assignee can be held to be charged with the taxes so paid." In Re Bennett, 12 N. B. R. 257, it was held that "the filing of a bill for the sale of the property free from incumbrances does not have the effect to give the mortgagee a right to the rents thereafter collected. The assignee is entitled to the rents 46 of mortgaged property until the mortgagee claims them. The filing of a petition in court and notice thereof to the assignee is sufficient to entitle the mortgagee to rents thereafter accruing." To the same effect is Ellis v. Railway Co., 107 Mass. 1. Upson v. Milwaukee National Bank. Opinion by Casso day, J. JUSTICES' COURT-INTEREST IN LAND-RIGHT OF WAY.-The rule is well settled in this court, as well as in the courts of other States, that a right of way, either public or private, is an interest in land, and that under the statute conferring jurisdiction upon justices' courts, the existence of such right of way cannot be tried in such courts because it involves the question of title to real estate within the meaning of the statute. Ashbough v. Walter, 24 Wis. 466; Barteau v. City of Appleton, 23 id. 414; State v. Huck, 29 id. 202; State v. Doane, 14 id. 483; Manney v. Smith, 10 id. 509; Heaton v. Ferris, 1 Johns. 146; Striker v. Mott, 6 Wend. 465. Lowitz v. Leverenty. Opinion by Taylor, J. PARTNERSHIP-NOTICE OF DISSOLUTION.-The rule is well established that "publication of notice of the dissolution of a partnership in a newspaper, at the place where the business is carried on, is not sufficient to relieve a retiring partner from liability for subsequent transactions in the firm name with one having dealings with the firm prior to the dissolution. In such case notice must be brought home to the dealer, or it must appear that facts came to his knowledge sufficient to advise him or to give him reason to believe that a dissolution has taken place." Austin v. Holland, 69 N. Y. 571; Zollar v. Janvrin, 47 N. H. 324; Lyon v. Johnson, 28 Conn. 1; Little v. Clarke, 36 Penn. St. 114; Kenney v. Altvater, 77 id. 34; Johnson v. Totten, 3 Cal. 343; Ennis v. Williams, 30 Ga. 691; Hutchins v. Hudson, 8 Humph. 426; Prentiss v. Sinclair,5 Vt. 149; Dickinson v. Dickinson, 25 Grat. 321; Laird v. Ivens, 45 Tex. 622. This rule has even been extended to a dormant partner, where the creditor, dealing with the supposed firm, had previously known that such dormant partner was a member thereof. Farrar v. Deflinne, 1 Carr. & K. 580; Park v. Wooten's Ex'rs, 35 Ala. 242. It is true, the defendant was not bound to prove formal notice to the plaintiff. Any notice which reached the plaintiff in any way so as to advise him of the fact of dissolution, or which was sufficient to put him upon inquiry, was sufficient. Young v. Tibbits, 32 Wis. 79. It has been held that the publication in a newspaper taken by the plaintiff at the time is a fact from which the jury may infer actual notice; but that is not conclusive. Treadwell v. Wells, 4 Cal. 260. Gilchrist v. Brande. Opinion by Cassoday, J. PARTNERSHIP-AGREEMENT AS TO SHARE IN PROFITS -USURY-INTEREST ON INTEREST.--(1) In case of an actual partnership, where there is a risk that the principal contributed may be lost, an advantage to be taken out of the trade may be measured in any way agreed on without subjecting the arrangement to the charge of usury, because the money is not lying at interest, but is employed in making profits, subject to losses. Tyler, Usury, 185. In Fereday v. Hordern, 1 Jacob Ch. 144, there was a deed by which A., B. and C., partners in trade, in consideration of £4,000 paid to them by D. in augmentation of their capital, agree to admit him into partnership with them for a term. It was agreed that D. should receive in lieu of profits a clear sum of £550 per annum, and all the property of the concern was charged with the payment of this sum quarterly, and of the £4,000 at the determination of the partnership. A., B., and C. were to pay rent, taxes, wages, and the other outgoings of the trade which was to be carried on by them, and in their names only; and D. was not to be required to attend to it. D. was at liberty to retire on giving 12 months' notice; and on his retiring, or at the end of the term, the £4,000 and the arrears (if any) of the £550 per annum were to be paid to him by A., B., and C. by installments, to be secured by their bonds, and they were to indemnify him from the debts of the partnership. Lord Eldon held this deed not usurious. In Gilpen v. Enderbey, 5 Barn. & Ald. 954, by deed A. and B. covenanted to become partners in the business of army clothiers for 10 years, and that A. should advance £20,000 as part of the capital for carrying on the business, and that B. should find a like sum; that A., during the continuance of the partnership, should have out of the profits, if sufficient, and if not out of the capital, £2,000 yearly for his share of the profits. B. then covenanted that, on the determination of the partnership by effluxion of time, the sum of £20,000 should be repaid to A.; that B. should guarantee all debts and pay all losses. In an action brought upon this deed to recover the £20.000 at the expiration of 10 years, the defendant pleaded that the deed was executed, by way of shift, in pursuance of a usurious agreement. That plea, upon issue joined, was negatived by the verdict of the jury, and judgment was given by the court of C. B. for the plaintiff. Held, upon error in K. B., that after that finding the deed must be taken to disclose the real intention of the parties, and that it was not in that case void upon the ground of usury. (2) A contract for interest upon interest was not favored by the ancient authorities, mainly because it was deemed a hard and oppressive exaction. Courts refused to enforce such a contract on grounds of public policy. Mosher v. Chapin, 12 Wis. 453. But that rule has been greatly relaxed in many modern cases. Where it appears that the parties have adjusted their accounts, have agreed that interest due shall be turned into principal and draw interest, this court has adhered to the doctrine that such a transaction was not illegal or wrong. Austin v. Bacon, 28 Wis. 416. Case v. Fish. Opinion by Cole, C. J. FINANCIAL LAW. BANK-TITLE TO DEPOSIT OF CHECKS AND CASHINSOLVENCY-COUNTERCLAIM-USAGE.-The doctrine that whenever a banking association gives credit upon its books to a depositor for the amount of a check or regotiable paper deposited for collection, the title to the check or paper immediately passed to the bank, aud it became the holder of the same for value, is not true, without qualification. When the deposit was made and credited in order to make good an overdrawn account of the customer, or where the amount thus credited was immediately drawn against, the bank is undoubtedly to hold the check, at least, until the overdraft of the account is made good from other sources, or the cash drawn on the strength of the credit has been returned. The first of these conditions existed in Titus v. Mechanics' Nat. Bank, 6 Vroom, 592. Unlike checks, cash deposited by customers with the bank ceases to be the property of the depositor, and becomes the property of the bank, creating at once the relationship of debtor and creditor. The indorsement by the customer of a check, deposited for collection, is only intended to put the paper in such shape that the bank may collect it, and not to thereby pass the title to the bank. The practice which has grown up among banks to credit deposits of checks at once to the account of the depositor, and to allow him to draw against them before the col lection, is a mere gratuitous privilege, which does not grow into a binding legal usage. In this case the plaintiffs seek to offset the amount of their credit on the books of a defunct bank, against the promissory notes received by the bank for discount before its failure. Held, that if the bank held the notes at the time of its failure and was entitled to receive the amounts due thereon when they matured, such offset might be made; but an offset of this kind cannot be allowed where it appears that the notes were not the property of the bank at the time of its failure, but had been indorsed away for value. No knowledge by any of the officers of a bank, of its insolvency, is sufficient to avoid transactions between the bank and its customers, on the ground of fraud, unless the evidence clearly shows that the directors, who represent the corporation, also had such knowledge. U. S. Cir. Ct., New Jersey, March, 1883. Balback v. Frelinghuysen. Opinion by Nixon, J. (15 Fed. Rep. 675.) NEGOTIABLE INSTRUMENT-CLEARING HOUSE DUE BILL IS.-A clearing house due bill read as follows: "Due by the Merchants' National Bank to banks one thousand nine hundred dollars. This due bill is only good when signed by one and countersigned by another authorized person, and is payable only in the exchange through the Clearing House the day after issue." Held, to be a negotiable instrument, and if lost, the one liable upon it may require a bond of indemnity as a condition for payment. The authors of American Leading Cases, Hare & Wallace, 1 Am. Lead. Cases, 386 (5th ed.), have suggested the test to determine this case. Say they, "the test perhaps consists in the inquiry, whether the transaction is a deposit or an immediate debt and engagement to pay." Unlike the instrument sued upon in Patterson v. Pointdexter, there is in this case an absolute agreement to pay $1,900 a day after the instrument was issued, subject to no contingency, and without a condition which is of any legal signification. This is not therefore "a mere certificate of deposit on special terms," but an agreement to pay so much money on demand; true, the place of payment is named, only in the exchange through the Clearing House; that is, by a bank; but the amount is fixed, and the time at which the paper is payable is also certain, and it is also payable in dollars; that is, the legal currency of the country. It is payable to " banks," but it has been settled time and again, that words equivalent to "order" or "bearer are sufficient. Thus in United States v. White, 2 Hill, 59, it was held that, "words in a bill, from which it can be inferred that the person making it, or any other party to it, intended it to be negotiable, will give it a transferable quality against that person." See also Raymond v. Middleton, 29 Penn. St. 530. And the whole tenor of this instrument, together with the usual custom of the banks, and of the mercantile community, tends to establish the fact that these instruments are regarded as payable to " bearer," as such deposited as cash, and paid on presentation by the bank of issue, through the Clearing House. All the cases in Pennsylvania, from Patterson v. Pointdexter down, proceed upon the principle, that the various instruments of writing sued upon, although in some instances bearing the words "order" or "bearer," had about them, in terms, language indicating a mere intent to "deposit upon special terms, and subject to a particular stipulation as to the manner and time of payment, and accompanied with a collateral engagement to allow interest." Clearing House due bill is not a mere certificate of deposit creating a contract of bailment, but is as negotiable an instrument as a check payable to bearer, or as a promissory note payable to order or bearer, is absolutely unfettered by any special condition or stipulation, is also "simple in terms, "certain" in amount and manner of payment, "unconditional," and subject to no "contingency." It cannot, in the language of Judge Sharswood, in Woods v. North, 3 Norris, 410, be subject to the criticism applied by Chief Justice Gibson to an agreement to confess judg This ment, which he called "luggage, which negotiable paper, riding as it does, on the wings of the wind, is not a courier able to carry." Philadelphia Common Pleas, March 7, 1883. Dutton v. Merchants' Nat. Bank. Opinion by Ludlow, C. J. NEW YORK STATE BAR ASSOCIATION. A special meeting of the New York State Bar Association will be held at the Academy of Music, in the city of New York, on Thursday evening, 11th of October next, at eight o'clock. for the purpose of receiving and paying respect to their distinguished guest, the Right Honorable Lord Coleridge, Lord Chief Justice of England. The secretary is requested to notify the members. WM. C. RUGER, President. SYRACUSE, August 25, A. D., 1883. The secretary complies with the above order by sending out this notice. He has also been requested by the committee of arrangements to say, that the admission to the Academy of Music will be by card, and that in due time, to each member of the association, the official invitation and card of admission will be sent. PEYTON F. MILLER, ALBANY, August 27, 1883. OUR NOTES. UR distinguished visitor, Lord Chief Justice Coleridge was born in 1821. His grandfather, Rev. John Coleridge, was the father of Samuel Taylor Coleridge, the poet, as well as of the Right Hon. Sir John Taylor Coleridge, father of the chief justice, and eminent among the judges of England. Lord Coleridge was educated at Eton and Oxford. He was called to the bar in 1846, and entered upon his career with every possible advantage, excepting his strong repugnance to being obliged as an advocate sometimes to defend guilt. Upon the western circuit he soon attained a prominent position, and in a short time became its leader. Nine years after his call to the bar, he was appointed recorder at Portsmouth. His position as judge was much more congenial, and his success assured. In 1861 he was made queen's counsel, and nominated a bencher in the Middle Temple. Entering pariiament he was made one of the chief advisers of the crown, and knighted, as is usual. In 1868, upon the formation of the Gladstone government he was appointed solicitor-general, and three years later succeeded Sir Robert Collier as attorney-general. Upon the death of Sir William Boville, Lord Chief Justice of the Common Pleas, that office fell to Coleridge by tradition, and in November, 1873, he was sworn in. A year later he was raised to the peerage of the United Kingdom. By the judicature act of 1870, which as solicitor-general, Coleridge did much to promote, the titles of Chief Justice of the Common Pleas and Chief Baron of the Exchequer were merged in the great title of Lord Chief Justice of England. Upon the death of Sir Fitzroy Kelly, Lord Chancellor Selborne announced the proposal of the government not to fill the office of Lord Chief Baron, then for the first time vacant, to allow the chief justiceship of the Common Pleas to lapse, and to have one division to be called the Queen's Bench division, of which all the commonlaw judges were to be members. But it is a curious fact that the letter in which Lord Selborne communicated the final decision of the government only reached Lord Cockburn, then the Chief Justice of England, a few days before his death. Two important offices were thereupon at once vacant, and it only remained to instal Lord Coleridge as president of the amalga mated divisions to carry out the changes enacted by the new law. This was done in November, 1880, since which time he has borne the title and fulfilled the du ties of lord chief justice. His scholarship is of a remarkably high order, and he is an elegant and polished speaker. He was counsel for the defense in the case of Saurin v. Starr, involving a discussion of the whole discipline of the Catholic church; and as attor ney-general his name is associated with the celebrated Tichborne case. This was not only his longest, but his most profitable case, as the trial lasted 188 days, and the costs amounted to £60,000 sterling, a good proportion of which fell to the attorney-general. As a parliamentary debator he stood very high, for his classic eloquence, deep scholarship and uniform courtesy. He is also a writer of repute. He finds time to cultivate society, and is interested in many things, and is interesting to many men. One of the most important and interesting contributions to the law is his charge in the recent prosecution for blasphemy, which is distinguished for wisdom, liberality and humanity, as well as for legal learning and clear expression. At the recent meeting of the American Bar Associa tion at Saratoga, the following officers were elected for the ensuing year: President, Cortlandt Parker, of New Jersey; secretary, E. Otis Hinkley, of Maryland; treasurer, Francis Rawle, of Pennsylvania; Executive Committee-Chairman, Luke P. Poland, of Virginia; Simeon E. Baldwin, of Connecticut; William Allen Butler, of New York; vice-president, D. S. Troy, Alabama; G. B. Clark, Arkansas; A. P. Hyde, Connecticut; Thomas F. Bayard, Delaware; H. H. Wells, District of Columbia; Edwin M. Randall, Florida; L N. Whittle, Georgia; C. C. Bonney, Illinois; Benjamin Harrison, Indiana; George G. Wright, Iowa; William Preston, Kentucky; E. P. Poche, Louisana: Nathan Webb, Maine; S. Wilmer. Maryland; George O. Shattuck, Massachusetts; H. B. Brown, Michigan; G. E. Cole, Minnesota; Lock E. Houston, Mississippi; S. Barclay, Missouri; James M. Woolworth, Nebraska; William S. Ladd, New Hampshire; Anthony Q. Keasbey, New Jersey; John F. Dillon, New York; Thomas B. Keogh, North Carolina; Rufus King, Ohio; George W. Biddle, Pennsylvania; W. P. Sheffield, Rhode Island; H. E. Young, South Carolina; Andrew Allison, Tennessee; R. G. Street, Texas; Daniel Roberts, Vermont; J. Randolph Tucker, Virginia; E. B Knight, West Virginia; Silas U. Pinney, Wisconsin.-The following telegraphic correspondence took place: SARATOGA, NEW YORK, Aug. 24, 1883. To Lord Chief Justice Coleridge, care of Elliott F. Shepard, Esq. The American Bar Association, convened in its annual meeting at Saratoga Springs, being advised by telegraph of the arrival this day in New York of Lord Chief Justice Coleridge, extends to him on behalf of the entire Bar of the United States, Federal and State, as here represented, a most respectful and cordial welcome, with the expression of the earnest wish that the interest taken by the American Bar in his visit to the United States, marked by their sincere esteem for his personal character and eminent professional and public services, as well as by their respect for his high office, may in some degree con tribute to the pleasure and satisfaction which it is hoped may attend his sojourn in this country. By the order and unanimous vote of the Association. A. R. LAWTON, President, The Lord Chief Justice of England desires to return his cordial thanks for the welcome which has been sent him. None could be more grateful to him in regard of the sentiments conveyed nor of the body which conveys them. August 24, 1883. The Albany Law Journal. ALBANY, SEPTEMBER 8, 1883. CURRENT TOPICS. HE current number of the North American Revier contains two articles by emineme leur yers. The first is entitled "State Regulation of Corporate Profits," and is by Judge Cooley. The writer says, in respect to railways, that "large profits will not necessarily determine their charges to be unreasonable," but "it is not by any means certain that their profits may not justly be used as a test of the reasonableness of their charges," and concludes: "But charges can only be regulated for the future; and this must necessarily be done either by the company or by the State, upon estimates of the business likely to be done and its cost. That the company could not be exclusive judge in doing this even at the common law, has already been seen; and as no third power can intervene except by mutual consent, it seems to follow of necessity that the State may limit profits as well as charges. The judicial decisions go to this extent, that when the State establishes a maximum of charges, these charges are to be deemed, prima facie at least, reasonable. In respect to telegraph companies he observes: "A telegraph company, for example, is not a common carrier, and therefore does not come under the rules which control the carrier's business. But there is precisely the same reason why the State should regulate its business and keep its charges within the limits of reason that applies to the business of railways. The telegraph exists only by permission of the State, and is only constructed by the aid of the eminent domain. The main object in granting the aid is to promote the public convenience and welfare, by means of the telegraph as a public agency; but incidentally, and as a consideration for its service to the public, the company is expected to make a profit for its members. If the charges that are to produce this profit may be imposed at discretion, the State is at the mercy of the agent it has created; the main purpose is subordinated to the incidental. There can never be any implication that this was the intention in any grant for a public purpose. A fair and reasonable use of the grant must always be understood, and obviously what the public shall pay for the conveniences which the grant secures for it is matter of the highest moment. It is just as much within the proper police authority of the State to keep a telegraph company from abusing its powers in the matter of charges as it is to prevent other abuses. And this may be done in strict accord with the principles of the common law, and by virtue of powers which are inherent in every sovereignty." The judge, however, counsels moderation of legislation on this subject, observing: "But scheming men make periodical attacks upon corporations existing for these and similar purposes, and with a popular | VOL. 28-No. 10. * * * cry for their watchword they can always enlist local interest in their favor. If they succeed in obtaining a rival franchise, the subsequent history is commonly this: a war of rates for a season, and then either a sale of one franchise to the owners of the other, or a division of the territory, or an agreement upon charges. The final result is that the two supply the market at a greater cost than the one, and the additional cost is paid by the public. The true policy of the State is to give due and full protection to corporate property, and at the same time to insist on the faithful performance of corporate duties. It is no more for its interest to invite and encourage raids on corporations than it is to countenance vast corporate profits for which no adequate return is made. In some kinds of business competition will keep corporations within the limits of reason in their charges, in others it will not. When it will not it may become necessary to legislate upon profits. If the business is simple, like the supply of light or water, this can be done by prescribing a tariff of rates, but sometimes a tariff of rates prescribed by law could only be mischievous. It would generally be so in railroad transportation of property, except in the case of mere local roads. * * * To prescribe tariffs of rates for one road, or the roads of one State, which the competitors are not obliged to observe, would be like prescribing in advance by law the movements of an army, while the enemy was at liberty to maneuver at discretion. Railroad competition is an earnest strife, if not a warfare, and experience hitherto has shown that all that can be done by common arrangements and understandings is simply to prevent the strife becoming mutually destructive." The other paper is by Chief Justice Jackson, of Georgia, entitled "Shooting on Sight." There is very little of the subject in the paper, hardly any thing in fact, save a lament over its existence, but the paper is an earnest protest against duelling. The writer traces the origin of the custom to the judicial combats, approved by the common law, to determine questions of property and personal grievances, and says: "From the ordeal by battle or single combat to try land titles, or felonies, or military disputes, by an easy leap sprang the ordeal by the 'code' to settle affairs of honor. If the law of the land authorized the settlement of a disputed title, or a theft of goods, or a point of military etiquette, by duel, why should not an insult, a slander, a libel, a defamation of character, an offense to honor, a larceny of reputation, be settled in the same way?" He instances among great English men who have fought duels, the Dukes of Marlborough and Wellington, of York and Richmond, Fox, Pitt, Castlereagh, Canning, Sheridan, Grattan, Curran, O'Connell, Peel, Disraeli and Jeffrey. 'But," he continues, "great men have at last ceased to fight duels. Such men as General Charles Lee and Colonel Lau rens, Generals Cadwallader and Conway, General McIntosh and Button Gwinnett, of Revolutionary fame, have retired from the lists. No Alexander and 68 convictions of murder in the second degree, Hamilton, or De Witt Clinton, or William H. Craw- while in 300 trials for burglary in a single county ford now sacrifices or risks a life that belongs to in Connecticut there were 273 convictions. In the country, on the altar of a strange god-strange Providence county, Rhode Island, (in which State to the very breath of true christianity, and to the the death penalty does not prevail), in 27 trials for civilization which that breath is everywhere warm- murder in the first degree there were 17 convictions. ing into peaceful and beautiful life. No illustrious It was stated in the House of Commons in 1881 that naval officer like Decatur is likely again to fall be- in the last 20 years the convictions of murder were fore the fire of a dueling pistol in the hands of a 49 per cent, and of all other crimes 76 per cent. brother officer, or a stranger to the service. No From these statistics the essayist argues that there man like President Jackson will again live to regret, is "an increasing aversion to capital punishment,” when crowned with all the honors of a great coun- and that "with rare exceptions juries refuse to try, that he had once encouraged a practice which enforce it." He also argues that if imprisonment duty to that country, and justice to its service re- for life were inevitable its deterrent effect would be quired him to repudiate and forbid. Never more greater than that of capital punishment. He says: shall patriotic statesmen and orators like Clay, Ran- "Imprisonment for life under the conditions which dolph and Benton make the walls of the capitol have been indicated, is a form of punishment which ring with eloquence, and yet risk the brain that may well appall the stoutest heart. A man conconceived, and the tongue that uttered such power demned to die and cherishing a hope, however faint, on the chance of a shot. * * * The day is past of a reprieve, may at the last, when all hope had when her public men who declined a challenge lost fled, brace himself by a supreme effort, against the their power and popularity." He attributes the brief agony of the gallows and meet his fate with a peculiar practice of duelling in the south to the prevcertain fortitude. But how if he look forward to valence of cavalier blood among its inhabitants, in the certainty of a lifelong seclusion from his fellowopposition to the puritan ancestry of the north. He men? There is no room here for mock heroism or makes some excuse for the early practice by reason bravado. There is no spectacle; there are no of the absence of statutes against it. But the chief spectators. Nothing which the world can give will justice fails to inform us why it is that duelling is ever minister to his enjoyment or comfort, or break still winked at, if not absolutely popular, in the the sad monotony of his weary days. There will be south, in spite of prohibitory laws. When we see those no tidings from home; he has no home but a cell; duelling editors of Richmond, and that murderer, no horizon beyond the prison walls. He is, in sober Col. Cash, of South Carolina, punished as their earnest, a man without a country.' To others, his crimes deserve, we shall be more apt to accept his punishment is a standing menace; a perpetual statement that "the mass of the southern popula- warning. The lessons taught by the gallows are tion are as honest and earnest for a peaceful Chris- short lived. The man dies and is forgotten. But tian civilization as the mass of the north. The the prisoner for life preaches from his lonely cell a echo of the public sentiment of a free people rever- daily sermon to deter from crime." But how can berates from the laws they make, and the men they the literal enforcement of a life sentence be insured? put into office to expound and enforce them." He answers: "By a constitutional provision, making release from confinement impossible, until before the court in which the prisoner was convicted, it shall be made to appear that he was innocent." Our own views on this topic can be found in 24 ALB. LAW JOURN. 484. The first annual convention of the "Ohio State Stenographers' Association" was held in Cleveland, Ohio, August 14, 1883. Several valuable papers were read. Mr. Elias Longley, of Cincinnati, the intimate disciple and friend of Isaac Pitman, of England, and father of phonography in the west, is president of the association, and his address from the NOTES OF CASES. N Sayers v. Collyer, Chancery Division, June, 1883, chair was pronounced exceedingly interesting. 48 L. T. Rep. (N. S.) 939, it was held that Among the papers presented on topics interesting to the legal profession, was one entitled, "Short Hand in the preparation of Bills of Exceptions," by Mr. H. J. Davies of Cleveland. We reproduce the greater part of this paper in another column of this issue. Professor Wayland, President of the American Social Association, at its annual meeting at Saratoga, on the 3d instant, read a paper on Capital Punishment. He presented some very significant statistics. For example: in 267 trials in Massachusetts and Connecticut, for murder in the first degree, there were 42 convictions of murder in the first degree, where a block in a building estate, subject to restrictive covenants mutually entered into by the purchasers of the several plots, and intended to preserve it as a residential property, has in course of time been allowed so to change its character as to become no longer "residential" (e. g., by the establishment of shops and the letting of single houses to more than one family), the court will not interfere at the instance of the occupier of one house, who can show no damage, to prevent the occupier of another house from using it in a manner contrary to the original covenants, e. g., as a public-house for the sale of beer under an off-license. Pearson, |