and the same was appraised. Held, that plaintiff acquired title to the note as a gift, not as a part of her husband's estate at the time of his death; and that she was not put to her election between the note and the provision for her in the will, but was entitled to both. Also, that while the fact that plaintiff gave the note to the appraisers as a part of her husband's estate was evidence tending to show that she had released to him her right of survivorship, it was not conclusive, and did not estop her from claiming the note, in the absence of evidence that the position of any party has been changed in consequence, or that any transaction was had in reliance thereon. Sanford v. Sanford. Opinion by Grover, J.

RAILROAD.

Injury to passenger; liability of purchasers of bankrupt railroad. This action was brought to recover damages for the negligent killing of plaintiff's intestate, while he was a passenger on defendant's road on December 24, 1872. It appeared that the defendant was adjudged a bankrupt against its will, July 19, 1872, and B. was appointed special receiver of its property and franchises, with power and direction to run the road. B. qualified as receiver, and took possession of and ran the road. On October 22, 1872, B. was appointed assignee, and continued to run the road till December 7, 1872. An order of sale of defendant's road, property and franchises was made November 19, 1872, and they were all sold December 7, 1872, to holders of the first mortgage bonds given by defendant, and secured by mortgages on all defendant's stock, property and franchises. The sale was duly confirmed January 22, 1873, and a deed executed and delivered in accordance therewith. Held, that B. was not the agent or servant of the defendant, and that it was not liable for damages occasioned by his negligence.

It seems, that on the sale by the assignee the corporation, as a legal entity, did not vest in the purchasers, and they did not become stockholders or corporators therein. Nor are the purchasers liable for damages resulting from the negligence of those operating the road, intermediate the time of sale and the confirmation by the court. Comm. v. C. P. R. Co., 56 Penn. 506, distinguished; Metz, adm'x, etc., v. B., C. & P. R. R. Co. Opinion by Grover, J.

SHERIFF.

Poundage and fees: Marine Court.-This action was commenced in the Marine Court of the city of New York. Plaintiffs recovered a judgment and a transcript was filed in the county clerk's office, judgment there docketed and an execution issued thereon to the sheriff who levied on certain goods of defendant. Defendant paid the judgment and applied to have the sheriff's bill taxed. The latter presented his account and claimed to be allowed the fees and poundage allowed in the Marine Court, and also expenses and disbursements for keeping and watching the property, boxing and removing the same, for storage and insurance, and for cataloguing and other preparations for the sale. Held, that under the provisions of section 68 of the Code, after the filing of the transcript and the issuing of the execution to the sheriff, the judgment is deemed to be a judgment of the Court of Common Pleas and is to be enforced in the same manner, and the sheriff is not entit ed to charge poundage as allowed upon executions from the Marine Court, nor for the item of expenses above stated, but is restricted to his statutory allowances.

The poundage and fees allowed to a sheriff by statute upon an execution are in full compensation for his services and expenses in executing the writ. Crofut et al. v. Brandt. Opinion by Folger, J.

ses.

SPECIFIC PERFORMANCE.

Contract to convey: deed in escrow: equity. - This action was brought to compel the delivery of a deed of certain premises in R., which was alleged to have been placed in escrow with defendant B., and to compel defendant M. to surrender up possession of the premiIt appeared that one Mrs. M. entered into a contract with S., by which, in consideration that he would move to R., with his family, and take care of and support her during her life, she agreed to assure to him and his family her house and lot after her death, and to secure the title by placing a deed in escrow or by will; the title was to be given to such members of the family of S. as she might choose. S.'s family consisted of himself and wife and four daughters. Held, that S. could not maintain an action for a specific performance of the contract, because of the want of certainty in respect to the persons to whom the conveyance or devise was to be made, unless by some act of Mrs. M. irrevocable or unrevoked during her life she made the designation.

As to whether a court of equity, when called upon to enforce the specific performance of a contract, will in all cases regard that as done by the party seeking the relief which he was ready to do, but was prevented from doing by the other, and administer the relief as though there had been actual performance, quere.

It also appeared, that when Mrs. M. executed the contract, B., her counsel, who drew it, advised her that she could end it when she chose to do so, subject only to a liability for damages, and she relied upon this advice in entering upon it. A few days after, she executed and delivered to B. a deed of the premises to the four daughters, together with a written declaration to the effect that she had executed the deed pursuant to the contract and delivered it in escrow to B. for the use of the grantees at her decease, subject to the performance of his contract by S. The latter did not know of the character of the deed and was not a party to the transaction. Subsequently Mrs. M. notified B. that she had changed her mind and directed him to destroy the deed and papers and never to deliver them. B. did not destroy them. Held, that Mrs. M. had a right to reserve dominion over the deed and to withdraw it; that her declaration did not preclude defendants from showing that the authority conferred was given subject to the right on her part to revoke at any time, which fact was to be inferred from the evidence, and the subsequent direction to B. to destroy the deed amounted to a revocation, and from that time the deed became a nullity.

Also held, that the condition upon which a deed is placed in escrow may be expressed in writing or rest in parol, or be part in writing or part oral. Stanton et al. v. Miller et al. Opinion by Andrews, J.

TRADE-MARK.

What words will not be protected. This action was brought to restrain defendant from the use of certain words claimed by plaintiff as a trade mark. It appeared that plaintiffs prepared a medicine, the principal ingredients of which were iron, phosphorus and elixir of calisaya bark, which they named "Ferro-Phosphorated Elixir of Calisaya Bark," and so labeled the bottles containing it. Held, that this phrase could not be protected as a trade-mark; that words or phrases in com

mon use and which indicate the character, kind, quality and composition of an article of manufacture cannot be appropriated by the manufacturer exclusively to his own use as a trade-mark, and this is so although the form of words or phrases adopted also indicate the origin and maker of the article, and were adopted by the manufacturer simply for that purpose. The combination of words must express only the latter to authorize its protection as a trade-mark. Caswell v. Davis. Opinion by Folger, J.

VENDOR AND VENDEE.

Fraud: bona fide purchaser. — This was a motion for a re-argument. The case is reported 55 N. Y. 456. The facts are as follows: One J. contracted, through his broker, to sell defendants 1,800 bags of linseed. On the same day, pursuant to the contract, defendants mailed to J. their notes for the amount of the purchase, which J. received and immediately pledged as collateral for a loan. On the same day, J. entered into a contract with plaintiffs to purchase of them 1,800 bags, and three days later plaintiffs, induced by the fraudulent representations of J., delivered to him an order on a warehouse for 1,370 bags, which he received and shipped to defendants in part fulfillment of his contract with them. He took a bill of lading of the goods deliverable to defendants, which he forwarded to them on the day following. On the arrival of the seed plaintiffs demanded it, but defendants refused to give it up. Held, that defendants were not purchasers for value, and could not hold the property as against plaintiffs. That a vendor who has been induced to part with property by the fraud of the vendee, can only be defeated of his right to reclaim the same within a reasonable time by one who has paid value, or made advances, or incurred responsibilities upon the credit of the apparent title of the vendee, and without notice of the fraud or knowledge of circumstances to put him upon inquiry. Barnard et al. v. Campbell et al. Opinion by Allen, J.

RECENT ENGLISH DECISIONS.

PRACTICE.

Death of plaintiff after nonsuit: abatement of action: right of defendant to enter judgment nunc pro tune: common-law procedure act, 1852 (15 and 16 Vict. c. 76), § 139: rule 56 of Hilary Term, 1853.-In an action against the defendant for negligently allowing an area to remain open in a highway, whereby the plaintiff (an infant, suing by next friend) was injured, the case was tried after term, and a nonsuit directed, on the ground that there was no evidence of negligence; the judge staying the execution to enable the plaintiff to move to set aside the nonsuit. During the vacation the plaintiff died. In the following term, the plaintiff's next friend obtained a rule nisi to set aside the nonsuit, on the ground that there was evidence of negligence, and the defendant a rule nisi to tax his costs, or why the court should not allow judgment to be signed for him nunc pro tune. Held, that the action having abated by the plaintiff's death, a motion to set aside the nonsuit could not be entertained. As, however, the judge by staying execution had intimated that he regarded the question as to the defendant's liability a doubtful one, judgment nunc pro tunc ought not to be entered for the defendant. The defendant's rule must be discharged, without costs, and the plaintiff's rule allowed to drop. Hemming v. Batchelor, L. R. 10 Ex. 54.

STATUTE OF FRAUDS.

29 Car. 2, c. 3, § 17: sale of goods: memorandum in writing: variation by seller in performance of one of terms: ratification by buyer. - The defendant's son, H., junior, gave a verbal order in London on the 18th of February, 1870, to the plaintiffs to send three cases of leather-cloth to the defendant at Cologne; the plaintiffs had been in the habit of forwarding goods to the defendant through H. & P., Rotterdam, and H., junior, being informed that the port of Rotterdam was blocked with ice, directed that the three cases should be sent through Messrs. G., Ostend. When the plaintiffs had executed the order, Rotterdam was again open, and Messrs. G. had given up their Ostend route. The plaintiffs therefore forwarded the three cases through H. & P., via Rotterdam; and on the same day, the 1st of March, they forwarded the invoice from the plaintiffs to the defendant, giving the price, etc., with a letter, in which they said: "Inclosed we hand you invoice of three cases leathercloth. This order came through Mr. H., junior, who instructed us to send it through Messrs. G., Ostend, but as they have given up that route we have sent it through H. & P., Rotterdam, as before." The defendant received but did not answer this letter, but gave further orders for goods to the plaintiffs, which were forwarded via Rotterdam. The ship by which the three cases were sent was stranded and the goods damaged. On the 28th of June the plaintiffs wrote to the defendant, inclosing the statement of account, and requesting payment; and on the 5th of July defendant wrote to plaintiffs, acknowledging the receipt of the statement, and saying, "In looking over your statement I find you have charged me for goods which have been entirely lost in the sunk ship, being sent via Rotterdam. You state in your letter of March 1, that Mr. H., junior, instructed you to send the goods through Messrs. G., via Ostend, but on account of their having given up that route you sent, without any instructions, the goods via Rotterdam." Further correspondence ensued, and defendant having refused to pay for the three cases, an action was brought, and the above facts and correspondence appeared on the trial. The judge ruled that there was sufficient memorandum in writing, signed by the defendant, of the contract; and left it to the jury to say, from the silence and subsequent conduct of defendant, whether or not there had been an assent by him to the change of route from Ostend to Rotterdam before the loss; and they found in the affirmative, and a verdict passed for the plaintiffs. Held, that there was sufficient memorandum of the original contract; and that there was evidence from which the jury might find that the defendant had assented to the substituted performance in the change of route, which assent need not be in writing. The Leather-cloth Company v. Hieronimus, L. R., 10 Q. B. 140.

The Hon. Dwight Loomis has been elected judge of the Supreme Court of Connecticut in place of Judge Phelps, resigned. Judge Loomis was on the bench of the Superior Court at the time of his election.Judge Grover, of the Court of Appeals, was, at last accounts, somewhat better, and it is hoped he will ultimately recover his strength. Judge Mullin, of the Supreme Court of this State, sailed for Europe on Saturday last.

BOOK NOTICE.

THE Forum Law Review (Diossy & Co.) for April has

THE

been lying on our table for some, but as there was very little good to be said of it we have not hastened to notice it. It contains only one article of any valuethat by Francis Wharton, on "Presumption of Malice"--whether original or copied from some other source, we have no means of knowing, for the Forum, in its earlier days, was so accustomed to appropriate without due credit that we do not place much reliance upon appearances. Dr. Wharton combats with great force the doctrine that an intent to kill will be presumed from the act of killing, and concludes with eleven topics on which the public authorities must take the initiative whenever an alleged crime is reported: "1. Character and relations of the parties implicated. 2. Motives which may have led either of such parties to the commission of a crime. 3. Subsequent conduct of either of such parties, e. g., escapes or evasions of justice. 4. Attempts by any parties to fabricate or destroy evidence. 5. Prior attempts or antecedent preparations by any parties. 6. Marks of violence on the person, indicating whether the wound was suicidal or homicidal, whether it was passionate or premeditated; including herein inferences from the wound as to the character of the weapon. 7. Inferences from the instrument of death viewed as an independent source of proof. 8. Position of the deceased as bearing on the questions of homicide or suicide; and on that of passion or premeditation. 9. Circumjacent implicatory facts, such as footprints, marks of violence on dwelling or of a struggle on the ground; blood-stains. 10. Liability of deceased to attack; including exposure to jealousy, revenge, cupidity. 11. Materials for commission of offense, as in Ruloff's case, burglar's weapons, and as in Palmer's case, ingredients of poison." There is an article by George Fred. Holmes, of the University of Virginia, on "Primitive Law," which is of the least possible interest and value. The other articles are "The Entirety of Contracts," and a short biographical sketch of the late B. R. Curtis, which is accompanied by a fairly executed portrait. Abstracts of recent American and English decisions are given, but they are so badly arranged, if they can be said to have an arrangement, that we venture to say that very few will ever attempt to read them. The fact is the editorial labor on the Forum" is of a very inferior kind. We have refrained from saying it for a long time, in the hope of improvement, but there is none. There are two or three "Book Notices," of which the following extract from the notice of Lacey's Digest, is a fair sample: "There are a class of men in the profession to whom great thanks, if not actual reverence, should be given. We do not mean the reporters who collate, arrange and publish the decisions of the various courts, nor the text-book writers who gain the glory of having their work referred to in the argument of counsel, cited by the court in the opinion, or be the means of teaching the young idea' what law is. We refer to the compilers of digests." The man who can write such stuff can never possibly make a success of a quarterly review.

CORRESPONDENCE.

Editor of the Albany Law Journal:

DEAR SIR-Section 23 of Art. VI of the Constitution ordains that "All laws and judicial decisions shall be free for publication by any person."

In view of this- the most solemn sanction of free reporting that can be devised in a republican government - the action of the judges at their late convention, whereby counsel are practically notified that they are to be tabooed in case they disregard the request not to publish, is arbitrary and inexcusable. The bar ought to take a determined stand in this matter and make common cause against such an infringement of constitutional prerogative.

Order of general term reversed and judgment on report of referee affirmed, with costs- Risley v. Indianapolis, Bloomington and Western R. R. Co.Appeal dismissed, with costs-Armstrong v. Weed. -Judgment affirmed with costs-Sammon v. New York and Harlem R. R. Co.; Sturgis v. New Jersey Steam Navigation Co.; Genet v. Davenport; The Pacific Iron Works v. Long Island R. R. Co.; Wheaton v. Fay; McLean v. McLean.- Judgment reversed and new trial granted, costs to abide event - Morgan v. Crocker.Judgment of court below modified by deducting therefrom the amount of the mechanics' liens, to be ascertained by court below, and, as so modifled, judgment affirmed without costs to either party in this court-Phillip v. Gallant.- - Order of general term affirmed and judgment absolute for respondent on stipulation, with costs - Judd v. Seekins.— Order affirmed, with costs-De Forest v. Altmeyer; De Forest v. Stetson.

NOTES.

NE of the most valuable of the continental legal pub

ONE of the most valpable de Législative Ancienne et

Moderne, published by M. Thorin, Paris, and edited by Messrs. Edouard Laboulaye and Eugéne de Roziére, both members of the Institute, Paul Gide, Professor in the Law Faculty of Paris, Rodolphe Dareste, advocate, Gustave Boissonade, Agrégé of the Law Faculty of Paris. The number for January and February contains, among other, an able paper in Roman Law on "Apparitio," and the second of a series of papers by M. Caillemer, of the Law Faculty of Grenoble, on the "Law of Succession at Athens."- - Messrs. Houghton & Co. have just issued a new and revised edition of Crocker's Notes on the General Statutes of Massachusetts, and also volume IV of Bigelow's Life and Accident Insurance Reports. A Canada barrister has recently issued a little book on the " Wrongs and Rights of a Traveler," which ought to be immensely popular in these days of summer traveling-especially so as no reading could be more enjoyable after a bout with an impertinent baggageman or an insolent conductor, than the perusal of the handsome verdicts that have occasionally been rendered against railway companies.

A correspondent calls our attention to some rather extraordinary and extra-judicial remarks made by Mr. Justice Daniels upon the recent trial in Buffalo of what was known as the "Indian case." The ́ defendant, Jones, was indicted for manslaughter in killing an Indian woman. "The evidence on the part❘ of the people, as to whether the blows given by the prisoner produced death, was" our correspondent says, "doubtful and unreliable," while the prisoner's counsel called two eminent physicians who testified that from a description of the wounds, etc., death could not have been the result of the blows. In his charge Judge Daniels laid down the following proposition: "It must be first determined whether any crime had been committed by the prisoner; if so, whether such crime was manslaughter in the second degree, manslaughter in the fourth degree, or simply assault and battery." The jury found the defendant guilty of assault and battery. Thereupon the judge, in passing sentence, said: "There is no doubt, Jones, but that the blows administered by you produced the death of Betsy Stevens. The jury, under the evidence, should have found you guilty of manslaughter in the second degree and I am sorry they did not do their duty. You have been convicted of assault and battery and we have thought, under the circumstances, that the sentence should be as severe as possible. We sincerely regret, in the interests of public justice, that we cannot make your punishment much heavier." This might remind one of some of Jeffreys' remarks upon the trial of Algernon Sidney, did we not know that Judge Daniels is a better, if not a wiser, man than Jeffreys.

Lord Selborne adheres persistently to his plan for the establishment of a SCHOOL OF LAW, and not long since again brought the matter to the attention of the Lords. After referring to the necessity of a better system of legal education, he said that in 1870 there was formed an association of persons desirous of establishing a larger and better system of legal instruction. They desired to have an establishment founded on comprehensive principles, in which students of all branches of the profession might be instructed. Three principles had been adhered to in the propositions he had made in the house, and in the bill which he laid on the table last year. The first of those was, that it was desirable that a general school of law should be established in the metropolis, by public authority, for the instruction of students intending to practice in any branch of the legal profession. The second was, that it was desirable, on the establishment of such schools, to provide for examinations, to be held by examiners impartially chosen, and to require certificates of the passing of such examinations as might respectively be deemed proper for the several branches of the legal profession as necessary qualifications - after a time to be limited --for admission to practice in those branches respectively. The third was, that the benefits of the course of study and of the examinations conducted under the Legal University should be open to all students, whether their intention was to follow the profession of the law or not. Those propositions had received the concurrence and support of a very large number of persons interested in legal education. They were communicated to the Inns of Court and also to the Incorporated Law Society, which latter body expressed its approval of them, with the condition that in the management of the proposed institution there should not be an undue

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preponderance of one branch of the profession over another. Two of the Inns-Gray's Inn and the Middle Temple gave in their adhesion to the propositions; but the other two- Lincoln's Inn and the Inner Temple - dissented from them. On the 11th of June, 1871, he moved a resolution in the House of Commons embodying those propositions, and he was supported by a petition numerously signed by members of the profession and, among other eminent persons, by the members of the Royal Commission of 1854. With respect to the present more narrow system, Lord Selborne continued: Although during the time this question had been in agitation the Inns of Court had added largely to their contributions and in many respects had improved their rules, increased their teaching staff, and made considerable efforts to prove themselves worthy of the exclusive position which they claimed he was bound to tell their lordships that, according to the information he had received, the attendance of students in the private as well as public classes had been and was declining, and so far from the scheme succeeding in proportion to the efforts made to sustain it, the result was very different. He hoped there was no man living who upon proper occasion would stand up more firmly for the honor, advantage, and importance of the Bar of England than he would. Certainly no man was under greater obligations to them than he was. But he could not see, as respected the honor, advantage, or importance of the Bar of England, what could be gained by the depression or disparagement of the other branch of the profession. That branch was much more numerous, and in its own way certainly not less important. If any thing was to be done, he could not think it would be wisely done upon principles so narrow as those which now found favor with the Inns of Court. But he did not at all despair of progress in that quarter. In 1871 two of the Inns of Court expressed themselves in favor of the views which he advocated. In 1869 compulsory examination was resisted by Lincoln's Inn, and yet a few years afterward, when this association was formed, Lincoln's Inn also agreed to compulsory examination, which was now the rule. He then introduced a bill which proposed to incorporate a School of Law to be governed by persons partly nominated by Her Majesty, partly by ex officio members filling important positions in the law, some of the judges, barristers, solicitors; partly by members to be nominated by the Inns of Court and the Incorporated Law Society, and partly by barristers and solicitors. That body was to superintend the examination and the instruction to be given in the School of Law. No one was to be required to pass a preliminary course of instructions in that or any other school. No one was to be admitted to practice at the bar or as a solicitor who had not passed a suitable examination in the School of Law. The Lord Chancellor favored an examining body rather than a teaching body.

Among the many "victims" of the GREVILLE MEMOIRS are a few not unknown in legal annals. Speaking of dining with the Chancellor, February 21, 1830, he said: "Lord Holland told stories of Lord Thurlow, whom he mimics, they say, exactly. When Lord Mansfield died, Thurlow said: I hesitated a long time between Kenyon and Buller. Kenyon was very intemperate, but Buller was so damned corrupt, and I thought upon the whole that intemperance was a less fault in a judge than corruption, not but what