for which he is liable becomes due, and after his principal has made default, the surety may maintain a suit in equity to compel his principal to pay his debt. Irick v. Black, 2 C. E. Gr. 189; King v. Baldwin, 2 Johns. Ch. 554. Equity gives this remedy to the surety, because, as was said by Lord Keeper North, it is unreasonable that a man should always have such a cloud hang over him. Ranelaugh v. Hayes, 1 Vern. 189. But this is his only remedy. Until he pays something his principal is under no liability to him, and owes him no duty except to pay his debt to their common creditor. Delaware, etc., R. Co. v. Oxford Iron Co. Opinion by Van Fleet, Vice-Chancellor.

INSURANCE-ASSESSMENTS-BY-LAWS-REINSTATING MEMBER.-The by-laws of an unincorporated mutual insurance association provided that in case a member had, for failure to pay an assessment promptly, been dropped from the association by the secretary, the board of directors should have power to reinstate him on his presenting to them a reasonable excuse for such failure, and paying the sum in arrear. A member being delinquent, appeared before them and offered a sufficient reason for his delinquency, and the board refused to reinstate him, because they alleged that his health was then precarious. He died very soon afterward. Held, that this court might, after his death, examine into and determine the adequacy of the reason so offered, and in a proper case compel the association to pay the amount of insurance to which the delinquent's widow is entitled. Van Houten v. Pine. Opinion by Runyon, Chancellor.

WILL-POWER OF SALE-EQUITABLE CONVERSION.— A testator by his will provided as follows: "On the death of my said wife I do give, devise and bequeath all my estate, both real and personal, to my executors hereinafter named, in trust, nevertheless, for the following use and purpose, that is, in trust for my children, to be divided among them, share and share alike, as follows: To my sons I direct my said executors to pay their respective shares as they arrive at the age of twenty-one years; the respective shares of my daughters I do order and direct my said executors to hold in trust to pay to them, respectively, the income arising from their respective shares, in halfyearly payments during their natural lives, free from the control of any person or persons whatsoever, and to their own and sole use; and on the death of either of my said daughters, to pay the share of such deceased daughter to her heirs at law." Held, that it was quite clear that the testator intended that the land should be converted into money. The fee is given to the executors. The real and personal estate are blended together in the disposition of them, and the executors are to divide them among the children to pay the sons their shares and the daughters the income of theirs for life. The direction to pay the sons' shares implies a direction to convert, and so of the direction to pay the income of the daughters' shares; it implies a direction to invest, which involves the necessity of converting the land. The following cases are in point: Van Ness v. Jacobus, 2 C. E. Gr. 153; Wurts v. Page, 4 id. 365; Haggerty v. Lanterman, 3 Stew. Eq. 37; Zabriskie v. M. & E. R. Co., 6 id. 22. The executors undoubtedly have the power to sell. Belcher v. Belcher. Opinion by Runyon, Chancellor.

MARRIAGE-DIVORCE-DESERTION.-On

April 21,

1879, a husband so grossly abused his wife that she went to her parents' home. The next day he followed her there, and calling her out of the house, shot her. He then absconded, but was in the summer of 1879 arrested, tried and convicted, and sentenced to imprisonment in the State prison for five years, where he was accordingly confined. He was released after this suit was begun. Held, that his absence from his wife since

April 22, 1879, was not "willful, continuous and obstinate desertion," so as to entitle her to a divorce. Wolf v. Wolf. Opinion by Runyon, Chancellor.

MARRIAGE-DIVORCE-EVIDENCE OF ACCUSED-SUFFICIENCY OF EVIDENCE.-(1) While the evidence of the accused parties in actions for divorce, grounded on adultery, is, as a general rule, entitled to but little weight, yet in a doubtful case it should be given sufficient weight to defeat a divorce. (2) No general rule defining what circumstances will constitute sufficient evidence of adultery can be laid down which will furnish a safe guide for every case, yet this much may be safely said that the circumstances must be such as will lead the guarded discretion of a reasonable and just mind to a satisfactory conviction that the crime has been committed. Culver v. Culver. Opinion by Van Fleet, Vice-Chancellor.

JUDICIAL SALE-RIGHTS OF PURCHASER-JUDGMENT -COLLATERAL ATTACK.-A court of general jurisdic tion may misconstrue, misapply or plainly disobey the law in pronouncing judgment, yet so long as its judg ment remains unreversed it unalterably binds the parties and pronounces the law which defines and determines their rights in that particular case. A purchaser of land sold pursuant to the decree of a court of gen. eral jurisdiction assumes no responsibility for the correctness of the legal principles on which the decree is founded. All he need do is to see that the court had jurisdiction of the parties and of the subject-matter of the suit, and that the decree pronounced was within the scope of the pleadings. A record showing these facts must be accepted by every domestic tribunal as an indisputable verity. Even a subsequent reversal of the decree will not affect him, for it is a principle of manifest justice, as well as of established law, that rights acquired by a third person in the enforcement of a decree of a court of general jurisdiction, shall endure, though the decree be afterward reversed. Rorer on Jud. Sales, § 431. In such case the injured party must look for redress to the person who got the money for the land, and not to the person who paid his money for the land under the sanction of a judicial sentence. So great is the faith imposed in judicial records that it has been held that a bona fide purchaser at a judicial sale is entitled to hold the land he has purchased and paid for, though the defendant had be fore the sale paid the debt on which the judgment was founded, but left the judgment to stand open and unsatisfied on the records. Nichols v. Dissler, 5 Dutch. 293; S. C., on error, 2 Vroom, 461. But this case presents no question for discussion. The principle which must control its decision is authoritatively settled. Chief Justice Beasley, speaking for the Court of Errors and Appeals, in McCahill v. Equitable Life Assurance Society, 11 C. E. Gr. 531, said: "The decision of a domestic court of general jurisdiction, acting within the scope of its powers, has inherent in it such conclusive force that it cannot be challenged collaterally, and such decision definitely binds all persons embraced in it, unless on objection made to such court itself, or in a direct course of appellate procedure. Such judicial act may be voidable, but it is not void. If even admittedly erroneous, such error cannot be set up against the decree in a collateral proceeding founded upon the decree." The petitioners are not parties to this suit, and they cannot therefore challenge the decree by appeal. If they attack it at all, they must do so collaterally, and this method of attack, it has been settled from the earliest times, is not open to them. It is undoubtedly true as a general rule, that a suitor who seeks relief against an infant defendant must prove his whole case, and that nothing can be taken or admitted against him, either by his default or on the answer of his guardian ad litem.

* *

Mills v. Dennis, 3 Johns. Ch. 367; Holden v. Hearn, 1 Beav. 445. Shultz v. Sanders. Opinion by Van Fleet, Vice-Chancellor.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

ASSIGNMENT-PARTIAL-MUNICIPAL CORPORATION -CLAIMING THROUGH.-A partial assignment of a claim upon a municipal corporation is not binding upon the corporation, and the holder thereof has no claim that he can enforce against the general creditors of the assignor. Such an assignment is only an agreement to pay out of a particular fund. Christmas v. Russell, 14 Wall. 70; Gibson v. Stone, 43 Barb. 285; Rogers v. Hosack, 18 Wend. 319; Trist v. Child, 21 Wall. 447; Jermyn v. Moffitt, 25 P. F. S. 399. In Mandeville v. Welch, 5 Wheat. 277, the rule is thus clearly stated by Mr. Justice Story: "When the order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft." It is useless to multiply authorities. Aside from this it has been repeatedly held that upon the distribution of an assigned estate, a claimant upon the fund must claim by and through the assignment. He cannot claim adversely to it. Okie's Appeal, 9 W. & S. 156; Jefferis' Appeal, 9 Casey, 39; Bush's Appeal, 15 P. F. S. 366; Wylie's Appeal, 11 Norris, 196; Strickler's Appeal, 10 Weekly Notes, 535; Williams Bros.' Appeal, 13 id. 217. In the last case it was said in the opinion of the court: "An auditor appointed to adjust and settle the accounts of a voluntary assignee for creditors is confined to the accounts between the assignee and the cestuis que trust. Third persons claiming adversely cannot interfere in the settlement, but must resort to adversary proceedings." Schroeder's Appeal. Opinion by Paxson, J. [Decided Jan. 7, 1884.]

COMPROMISE-CON

WILL FAMILY SETTLEMENT SIDERATION.-A testator by his will gave his widow the income of his residuary estate so long as she remained his widow, and in case of her remarriage onehalf of the income during life. At her death or remarriage, he gave his mother the income of the residue for life, and after the death of the wife and mother, he gave the residue to his brothers and sisters. The mother afterward died, and subsequently the widow remarried. For the purpose of avoiding litigation as to the disposition of the onehalf of the residue during the widow's life-time, the brothers and sisters joined with the widow in an agreement that the income from the whole residue should be paid, one-half to the widow, and the other half to the brothers and sisters share and share alike. Subsequently at the audit of the executor's account, upon demand by the brothers and sisters for the pay. ment of the moiety of the residue before the widow's death, held, that the agreement being in settlement of a family dispute, was founded on a consideration favored in law, and was binding upon the parties thereto. The law is thus laid down by Mr. Bispham in his work on Equity at p. 192: "And family compromises, especially if they are made in good faith, and with full disclosure, are favored in equity, and may be sustained by the court, albeit perhaps resting upon grounds which would not have been considered satisfactory if the transaction had occurred between strangers." It was said by Thompson, J., in Walworth v. Abel, 2 P. F. S. 370, that "family arrangements are favorites of the law, and when fairly made, are never allowed to be disturbed by the parties

or any other for them." See also Burkholder's Appeal, decided at the present term, 14 Weekly Notes, 234. We might multiply authorities upon this point, but the law is too well settled to require it. Held, that the moiety of the income from the whole of the residue as provided by the agreement being possibly more to the widow's advantage than the whole income from one half the residue of the estate as set apart, it could not be said that she has no standing to object to a division contrary to the terms of the agreement, and that the estate should therefore be disposed of according to the terms of such agreement. Wilen's Appeal. Opinion by Paxson, J. [Decided Feb. 4, 1884.]

LIMITATIONS-OPENING JUDGMENT TO LET IN DEFENSE-EVIDENCE-AMENDMENT.-(1) Judgment having been entered upon a judgment note more than ten years after date, without complying with a rule of court requiring a special application to the court, accompanied by an affidavit, for leave to enter judgment in such case, it is within the discretion of the court on application of defendant to permit such judgment to be opened, so that the statute of limitations may be pleaded. There was a time when the statute was regarded with so much disfavor that it was said in Brown v. Sutter, 1 Dall. 239, that the court would never open a regular judgment to let in the plea of the statute of limitations, but as was held by Chief Justice Gibson in the later case of Ekel v. Snevily in 3 W. & S. 272: "As the plea of that statute has since been considered in Shock v. McChesney, 4 Yeates, 507, and The Bank v. Israel, 6 S. & R. 294, to be no longer an unconscionable one, the rule of practice would hardly be held so now." And there seems a propriety in the present case of opening the judgment to let in the plea of the statute, inasmuch as the judgment was entered without leave of court, or the affidavit required thereby, upon a note which upon its face was then barred by the statute. In any event it was a matter in the discretion of the court, and we see no error in opening the judgment. (2) A judgment as above was entered upon a joint and several judgment note against two of the makers, the third being dead. The court, on application of one of the defendants opened the judgment as to all of them, and an issue was made up at bar, the note to stand for the declaration and defendant to plead the statute of limitations. Held, that plaintiff should have been allowed to put the note and record in evidence, in. order to enable him to follow the same up with evidence tolling the statute. (3) The above offer of evidence being refused, plaintiff offered to prove a payment on account by one of the defendants, and also moved to amend the issue at bar so that it should stand as against the defendant alone making such payment. Held, that the amendment should have been permitted. Herman v. Rinker. Opinion by Paxson, J.

[Decided April 14, 1884.]

NEGLIGENCE-INSURANCE EVIDENCE AS TO KEEPING WATCHMAN-FIRE FROM ENGINE.-(1) In an action for damages for the loss by fire of the contents of a building, brought by several insurance companies in the name of the insured whom they have.indemnified, evidence is admissible to show that the building, owned by a third party, was insured in one of the said companies, and that the policy of insurance contained a clause requiring the insured to keep a watchman employed, which requirement was not fulfilled. (2) Although ice companies have the right to use shavings in their business, yet if they use them in such a careless manner as to render it possible that they should be set on fire by the engine of a neighboring railroad company, they are guilty of contributory negligence;

The Albany Law Journal.

MR.

ALBANY, DECEMBER 6, 1884.

CURRENT TOPICS.

R. DAVID DUDLEY FIELD has issued in a pamphlet the fourth part of the Code of Civil Procedure of 1849, treating of the subject of evidence. This has always seemed to us the most admirable of the work of the commissioners of that period. The subject is peculiarly adapted to codification, and there are no such objections to such a codification as may be raised against general codification. The vital principles of evidence are here expressed in two hundred and thirty short sections. The adoption of this part of the code, and the publication of it, with references under each section, would furnish the most complete, concise and convenient treatise on evidence ever given to our profession in this country. Whatever else may fail, we hope this will be adopted this winter. Mr. Field in a prefatory note, says, one framed upon the model of the New York report was adopted in California, Oregon and Dakota more than ten years ago, and as I am informed, has there proved successful."

A privately printed memorial of the late Judge

Addison Gardiner has reached us. It contains the tributes of the Court of Appeals, and of the Monroe county bar, with the address of Mr. William F. Cogswell, on behalf of that bar, and the address of the Rev. Charles E. Robinson, of Rochester. It is prefaced by a fine steel engraving of the deceased. He was a strong, wise and upright judge, and all that is here said of him is true, and in good taste.

Among the curiosities of legislation may be cited the English Post-office Protection Act of 1884, a most remarkable example of the prescription of excessive punishment. It denounces a fine or imprisonment of possibly twelve months for sending certain articles through the mail. The London Law Times gives us an idea of the act, as follows: "It is of course an unwise thing to send a postal packet containing a pair of scissors 'not properly protected,' and a judicious person will stick them into a cork, and wrap them round with cotton wool; but it is surprising to find that carelessness of the above description is punishable with a fine or imprisonment, with or without hard labor for a period not exceeding twelve months, although the offending packet may have been detained at the post-office so that no evil could possibly have happened. A post-office letter box is likewise protected from every kind of contamination under similar penalties. It will be observed that there are no words such as 'wilfully or 'maliciously,' so that no mens rea or guilty intent will be required. There is not even the word 'negligently.' We are quite unable to see why VOL. 30- No. 22

such Draconian legislation is necessary to protect the government servants and property in a commercial undertaking like the post-office." The Times very justly says that this act "is really a specimen of savage legislation, and extraordinary punishments for trivial misconduct." Such legislation generally defeats itself, and becomes a dead-letter.

--

In the case of the Mignonette cannibals, Baron Huddleston charged the grand jury strongly against the defendants, and they found an indictment for murder, and on a trial a special verdict was taken, subject to the opinion of the court in banc. In his charge the Baron said: "It is impossible to say that the act of Dudley and Stephens was an act of self-defense. Parker, at the bottom of the boat, was not endangering their lives by any act of his; the boat could hold them all, and the motive for killing him was not for the purpose of lightening the boat, but for the purpose of eating him, which they could do when dead, but not while living. What really imperiled their lives was not the presence of Parker, but the absence of food and drink. It could not be doubted for a moment that if Parker was possessed of a weapon of defense say a revolver-he would have been perfectly justified in taking the life of the captain, who was on the point of killing him, which shows clearly that the act of the captain was unjustifiable. It may be said that the selection of the boy as indeed Dudley seems to have said- was better, because his stake in society, having no children at all, was less than theirs; but if such reasoning is to be allowed for a moment, Cicero's test is that under such circumstances of emergency the man who is to be sacrificed is to be the man who would be the least likely to do benefit to the republic, in which case Parker, as a young man, might be likely to live longer, and be of more service to the republic than the others. Such reasoning must be always more ingenious than true. Nor can it be urged for a moment that the state of Parker's health, which is alleged to have been failing in consequence of his drinking the salt water, would justify it. son is permitted, according to the law of this country, to accelerate the death of another. Besides if once this doctrine of necessity is to be admitted, why was Parker selected rather than any of the other three? One would have imagined that his state of health and the misery in which he was at the time would have obtained for him more consideration at their hands. However it is idle to lose one's self in speculations of this description. I am bound to tell you that if you are satisfied that the boy's death was caused or accelerated by the act of Dudley, or Dudley and Stephens, this is a case of deliberate homicide, neither justifiable nor excusable, and the crime is murder, and you therefore ought to find a true bill for murder against one or both of the prisoners." The cannibalism might

No per

be regarded with more toleration if the adults had given the boy a chance for his life by casting lots, or if the boy and one of the adults had

sacrificed the other adult without resort to lot. But the two elders seemed to have realized the selfishness of "guzzling Jack and gorging Jemmy," in Thackeray's Ballad of 'Little Billee," without the providential rescue in that case.

The English law journals are now exercised about the special verdict. They say the proper course would have been to direct a conviction, and reserve the point of law. They say the court cannot pronounce a verdict of guilty; that there is no such verdict, and they do not exactly see how the prisoner can again be jeopardized. This is a point of practice which ought to be well settled, and with which the Baron ought to be perfectly familiar, and we dare say he is right, although the proceeding does seem peculiar.

But it does not seem nearly so peculiar to the English press as the conduct of Justice Manisty in setting aside the verdict of the jury in the AdamsColeridge libel suit. We have no business with nor disposition to intrude upon the domestic phases of this affair. But we may say that if Mr. Adams did not want to marry Miss Coleridge he can hardly allege the efforts of the defendant to break off the match as injurious to him. We do not understand that he avers any other damage. Indeed, if he suffered it must have been through his own unnecessary any, promulgation of a private letter from the defendant to Miss Coleridge, put into his hands by the receiver. Technically however the writing of the letter was a libel, unless justified by its truth or its confidential character, and the latter could not save it if the motive was malicious; and the question of the motive was for the jury, and was properly left to them. Why then was their verdict, finding malice and assessing damages, set aside? We cannot as yet understand how the justice's action can be justified, unless on the ground of excess of damages. The damages certainly were grossly excessive. To compel a brother to pay $15,000 for writing a private letter to his sister, about her supposed suitor, when he was not her suitor, and it did not hurt him, seems to us to show something like malice in the jury. We think it would be hard to maintain such a verdict on this side of the Atlantic, although the rule is very liberal. Indeed, a verdict of such an amount in any case must have been a very rare occurrence among us. But as lawyers we are curious to know why the justice set the verdict aside. Perhaps our new London correspondent can tell us in his next letter. Our London exchanges are

silent on the case.

The death of Henry Smith has deprived the Albany bar of one of its recognized leaders, and the State of one of the greatest jury lawyers of the day. Mr. Smith was not a learned lawyer, although he was always master of the law essential to his case. But for native strength and ingenuity, for breadth and grasp of comprehension, for knowledge of

human nature, for tact, for wit and good-nature, for self-possession and ready resources, he was remarkable. In one point he was pre-eminentalmost unrivalled - namely, his power of statement, which of itself was better than most men's argument. He was remarkably handsome, reminding one of the portraits of Fox; he had a noble voice; his elecution was forcible, dignified and fluent; and he was a consummate actor and master of facial expression. In short, he was an easy master of the art of advocacy, and it was a delight to lawyers as His nature was genial and generous, and he had well as to juries and the people to listen to him. borne up bravely and cheerfully against a painful disease for several years, dying in harness, uselong to be regretted. ful to the last, affectionately to be remembered, and

Sunday, driving along the public road, his horse became frightened at a barrel and truck lying along the side of the road, which had been used by defendants for whitewashing their fence; the horse reared, plunged a few steps forward, fell to the ground, and instantly died. In falling he upset the carriage, which fell upon the plaintiff and caused the injuries for which he brought this suit. Held, that unless there was something unusual or extraordinary in the structure and appearance of the whitewashing apparatus, which would naturally tend to frighten horses of ordinary gentleness and training, it was not negligence to use it, and its reasonable use for no longer time than was fairly required along the highway in whitewashing defendants' fences would not subject the defendant to liability, even though some horses might take fright at seeing it. The court cited Mallory v. Griffey, 4 Norris, 275; Morse v. Richmond, 41 Vt. 435; Foshay v. Glen Haven, 25 Wis. 288; S. C., 3 Am. Rep. 73; Ayer v. Norwich, 39 Conn. 376; Card v. City of Ellsworth, 65 Me. 547; S. C., 20 Am. Rep. 722; Bartlett v. Hooksett, 48 N. H. 18; Young v. New Haven, 39 Conn. 435; Dimock v. Suffield, 30 id. 129; Com. v. Passmore, 1 S. & R. 219; City of Allegheny v. Zimmerman, 14 Norris, 287; and observed: "It seems to us it would be difficult to state a rational rule on this subject, unless it is accompanied with this limitation. For if persons are bound to guard against frightening skittish, vicious, timid and easily frightened horses, it will not be possible to state any limit of precaution which will be a protection against liability. The reason is that there is nothing as to which it can be definitely said that such horses will not frighten. On this subject the language of our brother Paxson, in the recent case of the Pittsburgh Southern Railway Co. v. Taylor, 41 Leg. Int. 84, is particularly apposite. He said: 'The frightening of a horse is a thing that cannot be anticipated, and is governed by no known rules