such appeal. 5. While the order is interlocutory and does not determine the final rights of the parties, it is an order and not a judgment, and upon appeal $10 costs only will be allowed.

When, by the order, liberty is given a party to amend or to demur over, the court is at liberty to fix and determine what costs, or the amount which must be paid as a condition; and this is so whether such conditions be imposed by the special term or by the general term on appeal. Per Bockes, J. Hoffman v. Barry, 254.

DEED.

Construction of: exceptions and reservations in title: injunction.-S., the owner of lands, conveyed to J. the exclusive right and privilege in all the cement stone in or on such lands, and covenanted that "J., his heirs," etc., may at all times quarry and remove said stone," etc., "for the term of twenty-four years." S. further covenanted to, if J. or his heirs, etc., should nót, within the time named, remove all the stone, that he or his heirs, etc., would execute a further lease of twelve years at a price to be determined "for the purposes mentioned." Before the expiration of the twenty-four years, he conveyed to A. a part of the lands, "excepting and reserving for" the grantees of J. "the privilege of quarrying and conveying off the cement stone, which they hold by virtue of a certain lease for the same." Subsequently S., by instrument granted to L., who had acquired J.'s interest, the same rights, previously granted for twentyfour years for a further period of twelve years. Held, that, in his conveyance to A., S. granted all the title he then had in the lands conveyed; that the right to quarry cement stone upon those lands for the additional term could be granted only by A., or those deriving title from him, and that plaintiff, who so derived title, was entitled to an injunction restraining L. from taking stone from such lands under the lastnamed grant of S. Held, also, that such taking of stone by S., without license from plaintiff, was a trespass in the nature of waste. Norton v. Snyder, 330.

DEMURRAGE.

66

Construction of contract: delay in unloading canal boat: what constitutes a day."- Plaintiff contracted to transport coal by canal from W. to S., consigned to defendant, the consignee, "to have three full working or week days after boat arrives at their dock, in, which to discharge cargo, and to pay master for any time (exclusive of Sundays) boat is detained for discharging after the expiration of said three days, $10 per day, and at the same rate for portions of days." Plaintiff arrived at S., near defendant's dock, and informed defendant that he was ready to unload. He was told to lie still until they called him, and was detained eight days and eight hours on account of other boats ahead of his discharging at the same dock. In an action for the excess of five days and eight hours beyond the three working days the defense was that plaintiff's boat did not "arrive at defendant's dock," within the meaning of the contract, until the day it was unloaded. Held, that plaintiff having arrived in the immediate vicinity of the dock and offered to deliver the cargo, his contract was performed, and defendant was liable for any detention after the lapse of three days. In estimating the damages for the detention, twentyfour hours should be reckoned a "day" instead of ten hours. Wiles v. New York Central, etc., R. R. Co., 264.

Writ of possession in: presumption as to levy: time of levy: redemption after re-entry.— Upon a judgment for re-entry in an action of ejectment for the nonpayment of rent, an execution directing the delivery of possession, was issued January 17, 1867, under which, on May 10, 1867, the sheriff entered upon the premises in controversy, which were yielded up by the occupant peaceably, and placed plaintiff in possession. After this defendant took forcible possession of the premises, and another execution was issued directing the sheriff to put plaintiff in possession, etc., under which the sheriff acted.

Held, (1) that, in the absence of evidence, the presumption was that a levy under the first execution was made within sixty days from its issue; and, (2) that, as the judgment and not the execution constituted the lien on the property, the execution could be carried out after the sixty days.

Held, also, that, as the judgment determined plaintiff's right to re-enter the premises, he might enter without a writ, and having taken peaceable possession, on the 10th of May, the time within which defendant was entitled to redeem, under 2 R. S. 506, § 34, then commenced to run. Witbeck v. Van Rensselaer, 282.

ESTATE.

Vesting of: distinction between real and personal. A testator, by his will, gave to his wife the use of his real estate for life, and directed his executors, after her death, to sell such estate and divide the amount among several persons named. M., one of the persons, married and died intermediate the death of testator and testator's widow, leaving her husband but no issue surviving. Held, that the interest of M. in the estate vested, at the death of testator. That, during the life of testator's widow, and before the sale, directed in the will, it continued an estate in remainder in the real estate which could not be converted into personalty by the doctrine of equitable conversion. But the gift to M. was nevertheless a money legacy, and the death of M. before the death of testator's widow and the sale did not change its character, and it was to be distributed in the same manner as personal estate and would go to M.'s husband as survivor. Ross v. Roberts,

318.

EVIDENCE.

Presumption of genuineness of negotiable bonds.— On the trial of an action to recover the interest on negotiable bonds, the bonds and coupons were read in. evidence without objection. Judgment having been obtained by the plaintiff, on appeal by defendant it was objected, that there was no evidence of the identity of the bonds produced on the trial with those described in the complaint. Held, (1) that possession of the bonds was prima facie evidence of plaintiff's ownership; and (2) as the plaintiff had possession, the burden of proving that the bonds were not genuine was with the defense. Wickes v. Adirondack Co., 250.

EVIDENCE - PRACTICE.

Evidence: in action upon contract: reference: clerical error of referee: pleading: unsupported count in complaint.-On February 10, R., the owner of a farm, made a written contract with defendant by which he sold defendant a certain quantity of timber standing ou the farm, to be cut within specified limits. On March 15, while defendant was cutting, R. agreed, verbally, to sell the farm to plaintiff subject to the right of de

fendant to cut and remove the timber. On April 1, the deed was delivered and R. assigned to plaintiff all claims which should arise by reason of defendant cutting more than the specified quantity of timber. In an action to recover for the excess of timber cut by defendant the complaint contained a count for damages for an unlawful entry and cutting and carrying away the timber. Held, (1) that as the complaint was sufficiently sustained by the testimony a nonsuit was not authorized on the ground that a cause of action being otherwise set forth in the complaint, it also contained an allegation suited to an action ex delicto; (2) that a finding of the referee that the excess of timber was cut and carried away between April 15 and 30, whereas these acts were done between March 15 and 30, was no ground for reversing a judgment in favor of plaintiff, the error appearing to be clerical; (3) that it was proper to exclude evidence that at the time the contract between R. and defendant was made, it was talked between them that defendant might cut more than the amount specified in the written contract; and (4) that it was proper to admit evidence to show that plaintiff had given defendant notice not to cut more than the specified quantity of timber, although plaintiff had not, at the time of giving notice, received his deed. Veeder v. Cooley, 245.

JUDGE THEODORE MILLER. Theodore Miller, for Judge of the Court of Appeals is a nomination which meets with general approval. Though last on the ticket, the office for which he is nominated is equal to the first in public importance. If he were running for local office, the bare mention of his name would be sufficient to call to his support the people of his district, without distinction of party, PS on other occasions has been demonstrated. But in the position now assigned him the State at large becomes his constituency, and it is therefore not out of place to give him a broader introduction Judge Miller is a native of this city, and has always resided among us. His father, the late Cornelius Miller, was an eminent lawyer of his time, and had for his cotemporaries Martin Van Buren, Elisha Williams, William W. Van Ness, and other prominent men of that day. He was a man of sterling integrity and regarded as a leader in his profession. His son Theodore inherited all his better qualities to a remarkable degree. Admitted to the bar early in life, with but little means at his command except a thorough education, an indomitable will, and a mind and habits well suited to his profession, by industry, hard study and perseverance he gradually won his way to the front rank of his profession. His legal acquirements and success at the bar attracted public attention, and in 1861 he was nominated for Justice of the Supreme Court for the Third District, and elected by a majority which attested his popularity. In this county he received the largest vote ever given to any candidate for office, and nearly the entire vote of the city where he has always resided. So satisfactory was his first judicial term, that in 1869 he was re-elected to the same office without opposition. For the last four years Judge Miller has been Presiding Justice of the General Term of the Supreme Court of the Third Judicial Department, consisting of the 3d, 4th and 6th Judicial Districts, embracing some twenty-eight counties.

The State Convention at Syracuse last week, recognizing his able and impartial administration of justice

for a period of thirteen years, nominated him for the highest judicial office in the State, with a unanimity and enthusiasm seldom accorded to a candidate.

Judge Miller has never sought or held office outside the line of his profession. He was reared in the atmosphere of the law library, surrounded by the most eminent lawyers of the past generation, and when a mere lad took naturally to the study of the legal profession. He may justly be termed a lawyer by birth, by intuition, and by education. He has made it the study and practice of his life, and it is generally conceded that few men in the State are better fitted for judicial position. His record, both public and private, is without a blemish, and his integrity and uprightness was never questioned. Judging from the past, and taking as a criterion for the present the flattering demonstrations at Syracuse, it is safe to predict Judge Miller's election by the same overwhelming majority that has heretofore been accorded him.- Hudson Gazette.

BOOK NOTICES.

A Treatise on the Law of Fire Insurance, by Henry Flanders, author of a "Treatise on Maritime Law,' "The Law of Shipping," etc. Second edition. Philadelphia: Claxton, Remsen & Haffelfinger, 1874.

Mr. Flanders' book is one alike useful to the lawyer and to those engaged in the general business of fire insurance. The law relating to the contract of insurance and its incidents and concomitants is clearly stated with the authorities on which they rest. The author does not attempt to grapple with doubtful questions or conflicting authorities, but gives the results of the cases as he finds them; he deals with the cases and not with principles. In this respect it is not a "learned work," but it may, nevertheless, be quite as useful as a hand-book to the practitioner. The 'present edition contains some fifty odd more pages than did the first edition, but this does not fairly indicate the additions that have been made to the notes.

The author in this as in the first edition takes no notice apparently of the many and sometimes important cases contained in the law papers and periodicals, some of which never appear elsewhere. Certainly no writer now-a-days, who pretends to include the latest cases, is justified in ignoring such papers as the Chicago Legal News and the Philadelphia law papers which are filled weekly with reports of late cases. Otherwise Mr. Flanders has displayed great diligence and industry in collecting the cases, and one may reasonably expect to find in his volume about all there is of importance on the law of fire insurance.

The American Law Review for October is in some respects an unusually good number. The leading articles are rather politico-legal than legal, but they are none the less interesting and valuable. The English and American copyright laws, so far as they concern foreign authors, are compared, in the opening article, and much is said that is new on a subject trite and, we had supposed, thread-bare-certainly enough is said to make any intelligent American ashamed of the narrow policy that has governed the legislation of the United States on the subject. The second article is a very graphic account of the trial of William E. Udderzook, a case seldom rivaled in dramatic incidents and interest. Follows an examination of the Wisconsin railroad acts, with a presentation of the arguments on both sides of the pending controversy. A discussion of the question is reserved for another article. An

article on the "Law of Adoption," the usual Digests, the Book Notices and the Summary of Events constitute the rest of the contents. One of the most valuable features of this excellent periodical is its quarterly digests of English and American cases.

OBITUARY.

HON. HENRY D. MAXWELL.

Intelligence has just reached us of the death on Saturday, the third instant, of the Hon. Henry D. Maxwell, of Easton, Penn., a lawyer widely known throughout New Jersey and Pennsylvania, having practiced in those States since 1833, and having in the latter held many offices of judicial and public trust to the satisfaction and approval of men of all political parties.

Judge Maxwell was that rarest of men in these times, a man of political and social prominence, the holder of high office, and at the same time a model, Christian gentleman, sans peur et sans reproche. Upon his tombstone may most fittingly the epitaph be inscribed: "Exegi monumentum perennius aere,”

CORRESPONDENCE.

REFEREES IN NEW YORK.

NEW YORK, Oct. 1, 1874.

Editor of the Albany Law Journal:

Rule 73 provides that "the Referee to be appointed in foreclosure cases shall be selected by the court, and the court shall not appoint as such referee a person nominated by THE party to the action, or his counsel."

Do you understand this rule as prohibiting the court from appointing a Referee on consent of ALL the parties?

The reason I ask the question is that some of the judges in the First Department are so exceedingly conscientious and so fearful of violating the rules that they refuse to appoint a referee on consent of ALL the parties, but by a remarkable coincidence, as Sam. Weller would say, invariably insert the name of some political hack in training as a standing referee, who is utterly incapable of performing his duties, and always charges higher fees than any one else, and invariably more than the law allows. In the good old days of Barnard and McCunn, some people would call this "ring" business and talk about reform, but we have changed all that, and what was then a sin is now a virtue. SUBSCRIBER.

NOTES.

Messrs. Diossy & Company have in press a treatise on the law and practice of Referees by the Hon. Murray Hoffman; they have also in preparation by the same author a treatise on Receivers, which will be ready about the beginning of the year.

Matters of ethics and morals usually have a certain weight of their own, but it is always well enough to have them backed up by a precedent; so for the improvement and information of our readers we quote the following, which is a headnote to Clay v. Hoysradt, 8 Kas. 74: "Fides servanda est." To attain the highest success in the profession of the law, good faith is of equal value with legal cunning. It is never to the credit of an attorney that he has taken an unfair advantage of the lesser knowledge of his client.""

The following are stated to be some of the provisions of the new penal code for the Canton of Geneva: Homicide committed voluntarily is to be termed murder, and punished with solitary confinement for from ten to twenty years; a murder committed by premeditation or with malice prepense is to be termed assassination, and is to be punished by solitary confinement for life; murder by poisoning is to be punished by solitary confinement for life, whether death is occasioned at once or by a slow process. If death does not result from the administration of poison, the penalty to be inflicted is to be imprisonment for a period ranging from ten to twenty years, or if the victim is subjected in consequence to a malady or inability to labor, for twenty years or upwards. In other cases the culprit is to be punished by imprisonment for a term of from five to ten years. Infanticide is to be punished by solitary confinement for a period not less than three nor more than ten years.

LEGAL NEWS.

The Supreme Court of Georgia has decided that raffling is a violation of the statute against gambling.

Judge Busteed, of the United States District Court for Alabama, has resigned, and will resume, it is said, his residence in this State.

The Eaton (Ohio) Democrat, speaking of a candidate for the bench of the Supreme Court of Ohio, says: "He is a good man socially, but his periodical sprees unfit him for the important position of Supreme Judge."

Robert Clarke & Co., Cincinnati, have just completed their republication of the Ohio State Reports, consisting of forty-three volumes, being the published decisions of the Supreme Court of Ohio complete.

Chief Justice McKean, of Utah, in his recent charge to the grand jury, urged them to look carefully into the institution of polygamy and to bring some of the most influential polygamists to the bar of justice; to bear in mind that the doctrine of polygamy goes hand in hand with the murderous doctrine of blood atonement, and to look more particularly after the principals than the agents.

The Court of Appeals has taken a recess until Tuesday, November 10. The following order has been issued:

Ordered, That the court take a recess until Tuesday, the 10th day of November next, and that a new calendar be made up and printed for that day, on which shall be placed all causes on the present calendar undisposed of, and all such causes as shall be noticed for argument for that time, and in which notes of issue with proof of service of notice of argument shall be filed with the clerk on or before the 25th day of October inst. E. O. PERRIN, Clerk.

The Supreme Court of the United States, on the 13th inst., heard the case of the City of New Orleans against the New York Mail Steamship Company, involving the decision of the question whether the military government erected in New Orleans after the capture had authority to lease the property of the city for a term of years extending beyond the termination of hostilities. The court below held that a lease executed by a mayor appointed by the military authorities, in pursuance of the former policy of the city, and in promotion of its commerce, was valid for the term given therein. That decision is now before the Supreme Court of the United States for review.

DELIVERY OF BONDS UPON CONDITION. The effect of the execution and conditional deliv- | ery of a bond by one of several obligors has been considerably discussed in the courts under various aspects. We shall briefly examine the doctrine in its application, first, between the obligor imposing the condition, and the obligee; secondly, between the obligee and obligors who have delivered the instrument unconditionally; and, thirdly, between the obligor imposing the condition and obligors delivering the instrument unconditionally.

First, as between the obligor imposing the condition and the obligee. The question most frequently arises where one obligor delivers the instrument with the condition that it is also to be executed by certain others before it shall become effectual. It was formerly supposed that the same rule prevailed as in respect to deeds, and that the obligor could not impose any condition on its delivery when made to the obligee or his agent; and in the case of Millet v. Parker, 2 Metc. (Ky.) 608, the court held the same doctrine even when the delivery was by a surety in the bond to the principal obligor, on the ground that it enabled the latter to apply the bond as it was designed. This doctrine, however, was at an early day disavowed in this State. In Lovett v. Adams, 3 Wend. 380, C. J. Savage says: "If a bond be signed and put into the hands of the obligee, or a third person, on the condition that it shall become obligatory upon the performance of some act by the obligee or any other person, the paper signed does not become the act of the party signing the same until the condition precedent be performed. Until then there is no contract." This was followed in Bronson v. Noyes, 7 Wend. 188, which was also a case of delivery to the obligee. These decisions have been recognized and approved in People v. Bostwick, 32 N. Y. 445, which was a case of delivery to a co-obligor of a bond perfect on its face. In this case Judge Campbell very clearly shows, although perhaps obiter, the distinction between a deed and a bond in respect to conditional delivery. He says: "On the delivery of the deed of the grantor to the grantee, as and for the deed of the former, no matter what the verbal conditions, the title, eo instanti, vests in the grantee, and can only be divested by process of law or by the voluntary execution of a deed by the grantee. A deed once delivered and accepted, its re-delivery by the grantee will not re-vest

the legal title in the grantor. But a bond carries no title; it gives on its face only a right of action if the condition contained in it is not performed. Its return to the obligor as a matter of course destroys such right of action. While, therefore, a deed may not be given to a grantee in escrow, with verbal conditions, on the performance of which it is to take effect, a bond may be given with conditions to the obligee, because the obligee takes nothing by his bond but a right of action, which, to render available to him, he must enforce by action, and which may be resisted by the obligor, showing that the condition had not been performed, and therefore there was no debt- not urging the written contract, but showing that it never had any legal existence, having never in fact been delivered." Ch. J. Denio, who also wrote an opinion in this case, seems to base his decision more on the principles of agency, holding that "until the deed is delivered to the party in whose favor it is intended to operate, or to some person in his behalf and for his immediate benefit, it is in the power of the parties who are eventually to be bound by it, although they have signed and sealed it, to withhold the delivery altogether, or to create an agency for its custody, and to direct its delivery upon any contingency or condition which they may not see fit to prescribe." The cases cited by the chief judge from the courts of England, the Supreme Court of the United States, and the courts of Vermont, Alabama and New Jersey sustain his views, and effectually overrule Millett · v. Parker. The same principle was laid down in King v. Smith, 2 Leigh (Va.), 157, where A executed and delivered on condition that B should also execute, and B executed and delivered on condition that C should also execute, but C did not execute; it was held that neither A nor B was liable. The same principle was also recognized in Tindall v. Bright, Minor (Ala.), 103. The contrary doctrine has been adopted in Maine (State v. Peck, 53 Me. 184); in a late case in the United States Supreme Court (Dair v. U. S., 16 Wall. 1); and in Indiana (Webb v. Baird, 27 Ind. 368). The latter case followed the Maine case, and the case of Deardorff v. Foresman, 24 Ind. 481. This last case, however, was one of commercial paper, which is manifestly governed by different rules, and was distinguished for that reason by the court in its opinion from the case of Pepper v. State, 22 Ind. 399, which we shall allude to in another connection. These latter cases have been followed in that State in State v. Garton, 32 Ind. 1. In all these cases which are cited above as holding a different doctrine from People v. Bostwick, the bonds were executed by all the obligors whose names were recited in the body, and the obligees had no knowledge or notice of the conditional delivery. If these facts or either of them had been otherwise it was conceded that the rule would be the contrary.

In the second place, what are the rights of the obligee as against obligors signing unconditionally,