such belief proved its claim as a general creditor, equity ought to permit the withdrawal of such claim, and the pursuit of an appropriate remedy, adequate under the circumstances, to restore its property, unless the action of the appellant has wrought a change in the position of affairs, working legal detriment, that would render it inequitable for the appellent to pursue now a different course. We understand this to be the rule established, whether the mistake may be deemed a mistake of law or a mistake of fact. (Pom. Eq. Jur., sec. 512; Wells v. Robinson, 13 Cal. 134; Ward v. Ward, 134 Ill. 417, 25 N. E. 1012; Becker v. Walworth, 45 Ohio St., 173, 12 N. E. 1; Johnson-Brinkman Commission Co. v. Central Bank of Kansas City, 116 Mo. 558, 22 S. W., 813; Nysewander v. Lowman, 124 Ind. 584, 24 N. E., 355; In re Woodburn's Estate, Appeal of McMannis, 138 Pa. St., 606, 21 Atl., 16; Macknet v. Macknet, 29 N. J. Eq., 54; Dunham v. Ewen [N. J. Ch.] 15 Att., 245). We are of opinion that the facts charged in the bill to be relied upon by the receiver to create an estoppel are not such as work a legal detriment to the rights of the creditors. So far as respects the mere matter of change in the books which would be necessitated, that is not a matter of moment in this connection. If some labor will thereby be imposed in the correction of the accounts it is inconsequential and ought not to be permitted to prevent the equitable relief sought if the appellant be otherwise entitled. ties so fraudulently obtained by the bank (Railway Co. v. Johnston, 133 U. S. 566, 10 Sup. Ct. 390), or it might treat the bank as a debtor for the amount. It proved its claim as a general creditor, treating the bank as its debtor. This was done, as is alleged, in ignorance that it had the right to pursue the proceeds, and upon the supposition that it could only share pro rata with the other creditors. The question is, therefore, whether and under what circumstances, a party may be relieved from an illadvised election of a remedy, when the election was made in ignorance that a better remedy was permitted by the law. It is one thing whether a contract will be reformed because entered into through ignorance and mistake of the law by one party, and quite another and different thing whether one may be relieved from an improvident election of a remedy occurring through his ignorance of possessing a better remedy. "Election," says Dyer, "is the internal, free and spontaneous separation of one thing from another, existting in the mind and will." (3 Dyer, 281.) That designed selection cannot occur if the party be ignorant of his rights. He cannot deliberately select one of two or more remedies if he know of but one to which he is entitled. Therefore it is, as stated by Kerr, that "an election made by a party under a mistake of facts, or a misconception as to his rights, is not binding in equity. In order to constitute a valid election, the act must be done with a full knowledge of the circumstances of the case, and the right to which the person put to his election was entitled" (Kerr, Fraud & M. [Am. ed., notes by Bump], 453). Of course, the obtained from the appellant. This fund was disassertion by the appellant of a general claim against the bank was, in a sense, inconsistent with its assertion of right to pursue the proceeds of the drafts, and it cannot be allowed to shift its position, if the change would impose detriment, in a legal sense, upon the opposing party. It would then be estopped by its conduct. But if there be no estoppel, if no injury has resulted from the remedy pursued, to deny one the right to change position would be to say that a litigant must in the first instance, and at his peril, elect his remedy, and that he may thereafter pursue no other, although the law affords him a better one, which, through ignor-tributed among the creditors. In such case equity ance or misconception, he had failed to adopt, notwithstanding his opponent has suffered no detriment from the mistaken course pursued. We do not understand the law to justify so harsh a rule. If the appellant, in ignorance of its legal rights, believed that no other course was available than to prove its debt as a general creditor; that it had no right, because of the fraud of the bank, to retake from the receiver the proceeds of the paper tortiously obtained by the bank, the avails of which had come into the possession of the receiver, and in The fund for the creditors was increased by the amount of the proceeds of the securities tortiously tributed in dividends to the creditors, and it would seem about the time the appellant was advised of its right to pursue the proceeds of the securities, and declined to accept its proportionate share. The fact of such distribution is urged as a sufficient reason to deny the relief sought. It doubtless would have that effect if no assets yet remained. The bill, however, charges that the receiver has in possession assets of the bank from which he will realize moneys largely in excess of the proceds of the paper wrongfully obtained by the bank from the appellant, and which went to swell the fund dis should compel restitution of that which has been diverted, and being unable to lay hold of the specific moneys improperly received, will seek to make restitution out of the assets which remain. The receiver is a trustee holding these funds for distribution among the creditors of the bank according to their respective rights. He is an officer of the law. Equity will not permit a trustee to avail himself, as against a cestui que trust, of a mistake of law on the part of the latter, when it is possible to correct the error without injury to the trust estate. "Never sign your own name as plaintiff or defendant, but only as counsel. "One class of persons would as soon expect to find a baby that never cried, a woman that never talked, a Shylock loaning money without interest, a Mormon advocating celibacy, a gentleman without a cent opposed to an income tax, or a candidate for the presidency hurrying to express himself on the silver question, as an honest lawyer. "I admit that lawyers do not support themselves by planting potatoes or plowing corn, though there is many an attorney who would bless himself and bless the bar and bless all of us if he struck his name off the court rolls and entered it on the books of an agricultural society. "We are not as a profession, physically speaking, like Pharaoh's lean kine. Those pictures which Dickens, that prince of slanderers, and others like him, draw and call attorneys, are nothing but atrocious libels. "From time immemorial, size physical, as well as mental, has been considered one of the qualifications of a judge. Justice and corpulence seem to dwell together. There appears to be a mysterious and inexplicable connection between legal lore and large abdomens. I do not know why this is, unless it be that in order that justice may not easily be moved by the foibles and passions of men, she requires as firm and broad a foundation as possible. "George Washington's hatchet is not popularly regarded as one of the heirlooms of the legal family. I can say that for over thirty years I have been a judge, and of the many thousands of lawyers who have appeared before me I have never found but a single one upon whose word I could not depend. "While other professions and vocations are constantly putting on striped clothes, how seldom does any lawyer respond to a warden's roll-call! "The business man needs us to draw his contracts, the laborer to collect his wages, the doctor to save him from the consequences of his mistakes, the preacher to compel the payment of his salary, the wife to obtain a divorce and the widow to settle her husband's estate. The people need us in the Legislature and in Congress to hold the offices and draw the salaries. Every convention and public meeting needs us to fill the chair and occupy comfortable seats on the platform. Every man accused of crime needs us to establish his innocence through be said of us, in the language of the itinerant the verdict of twelve of his peers. In short, it may vender of soap, 'everbody needs us,' and, like that very useful article, nothing tends to keep society so clean as the presence of a lawyer. "Blot from American history the lawyer and all that he has done and you will rob it of more than half its glory. Remove from our society to-day the lawyer, with the work that he does, and you will leave that society as dry and shiftless as the sands tha sweep over Sahara." THE GARFIELD ACT. THAT the Garfield corrupt practice act, which Twas passed by our last Legislature, is not thoroughly understood by the numerous politicians and candidates for the various public offices, is true beyond a question of doubt, and since it has gone into effect, some very interesting and somewhat embarrassing questions have arisen regarding some of its provisions. As, for instance, during the recent convention that was held in Toledo, in which there were two candidates for nomination for the office of prosecuting attorney of Lucas county, both being very desirous of securing the nomination, and both were well aware of the fact that only one could be nominated, so in order to compromise the matter amicably a representative of one of the candidates made a proposition to the other candidate, by which the latter was promised the position of assistant prosecuting attorney in the event of the former's election, in consideration of his withdrawal from the race for prosecuting attorney. After the deal had been consummated, and both of the candidates have congratulated themselves that by making it they saved a long fight in the convention, and got all they were after, at that. The parties could not have had in mind the act, at the time, for, if they had, they would not have been so hasty to make such an arrangement, which may, after all their scheming and compromising, thwart their very object. But to call the attention of the would-be successful candidates, and for the benefit of others, we give that part of the act which pertains to the above case, omitting such words as are inapplicable: "Section 1. No candidate for any public office created by the constitution or laws of this state to be filled by popular election, shall, by himself, or by or through any agent or agents, * * * or person or persons whatsoever, in the aggregate, pay out, give, contribute, or expend, or offer, or agree to pay, give, contribute, or expend any money, or other valuable thing, in order to secure or aid in securing his nomination or election, or * both such nomination and election * in excess of a sum to be determined upon the following basis. * Any payment, contribution or expenditure, or agreement, or offer to pay, contribute, or expend any money, or thing of value * not merely that information shall be given, but also that the person who gives it, and who is to share in what may be recovered, shall himself recover the property or actively assist in the recovery of it by procuring evidence or similar means, the is hereby declared to be unlawful, and to make void arrangement is contrary to the policy of the law. the election of the person making it." When the candidate for prosecuting attorney for Lucas county, and his would-be assistant, come to look at this provision of the act and study it carefully, will they not have to stop and ponder awhile in determining whether or not the courts might hold that a position paying $1,500 a year is not such a thing of value as is contemplated by the act? If the position of assistant prosecuting attorney is a thing of value, and which we think it is, then the nomination of the successful candidate is illegal, and should his name still remain on the ticket, and his ticket be elected, still, according to the act, his election would be void. For, if these propositions are all true, the law explicitly declares that the election of the person making the agreement to give, or promise anything of value for such purpose, shall be declared void. Undoubtedly, when the parties to the above deal become aware of this situation, they will deny having made any such agreement. Just what the courts would hold in such a case as this is hard to tell, as the courts as yet have not been called upon to pass on any of the provisions of this act, therefore we cannot say just how favorably they will regard this new law, which is, without question a good law, and should be enforced.-Ohio Legal News. Notes of English Cases. BUILDING ESTATE.—Before granting equitable relief by enforcing a restrictive covenant the court will look not only to the words of the covenant, but to the object to attain which it was entered into; and if, owing to circumstances which have occurred since it was entered into such object cannot be attained, the relief will be refused. But there is no rule that if a restrictive covenant for the preservation of a building estate is not enforced in all cases it cannot be enforced in equity in any. (German v. Chapman, 37 L. T. Rep. 685; 7 Chan. Div. 271, applied; Decision of Romer, J., 74 L. T. Rep. 188; [1896] 1 Ch. 653, affirmed, Ct. of App.; Knight v. Simonds, 74 L. T. Rep. 563.) In such a case the agreement is not the less contrary to the policy of the law because the property is in the hands of trustees or in court, and no hostile action may be necessary to recover it, though the criminal offense of champerty may not have The defendant, a next of kin agent, discovered that certain real estate in New Zealand passed on the death of an intestate to two co-heiresses at-law who were widows in poor circumstances, unac quainted with business affairs, and aged seventy and seventy-two respectively. The property was of considerable value, and was in the hands of the public trustees, at Wellington, New Zealand, where an order had been obtained in favor of another claimant of the property whose claim had been prosecuted by the defendant. After obtaining from this client a promise not to communicate on the subject with the co-heiresses the defendant had an interview with them at which he informed them that they were entitled to certain property, but he did not disclose its value. The defendant then induced them to sign two documents whereby they agreed that he was to have one-half of the property recovered. The women had no independent advice and were allowed no time for consideration. From the evidence it appeared that, though the documents did not so stipulate, the defendant represented to the women and induced them to believe that he would recover the property for them, and also that if they once signed they could never escape from the contract. The agreement was made in May 1889. and was never repudiated by the two women, who both died in 1893. time to time they received payments in respect of the property on the footing of the agreement. From In an action brought by the respective legal personal representatives of the two co-heiresses-atlaw to set aside the agreement, Held, first, that the transaction ought not to stand, having regard to the principles acted upon by courts of equity, and that the right to rescind had not been lost by delay and acquiescence on the part of the two women; and Held, secondly, that the agreement was in the nature of champerty and void. (Chan. Div.; Rees v. De Bernardy, 74 L. T. Rep. 585.) Notes of American Decisions. ADMIRALTY-LIENS GIVEN BY STATE STATUTES.A lien given by a State statute for labor done in the original construction of a vessel, even after she is launched, is not enforceable in the federal admiralty courts, for the contract is not of a maritime nature, the vessel not yet having become engaged in commerce. (Marmann v. The William Windom [U. S. D. C., Iowa], 73 Fed. Rep. 496.) ASSIGNMENT FOR BENEFIT OF CREDITORS-PARTNERSHIP. Where an assignment for the benefit of creditors has been made by a firm, and also by the partners as individuals, the holder of a note executed by the firm and the members individually is entitled to have the estates of the partnership and of each partner kept separate, and to receive a dividend from each, though the note was given for a firm liability. (In re Carter [Iowa], 67 N. W. Rep. 239.) CIVIL RIGHTS-REMOVAL OF CAUSES.-The denial of, or inability to enforce in a State tribunal, rights secured by a law providing for the equal civil rights of citizens, on account of which a criminal prosecution may, under Rev. St. § 641, be removed from a State court, is primarily, if not exclusively, a denial of such rights or an inability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at the trial of the case. (Murray v. State of Louisiana [U. S. S. C.], 16 S. C. Rep. 990.) CONSTITUTIONAL LAW-CHINESE EXCLUSION ACT. -Act May 5, 1892, section 4, providing that a Chinese person adjudged to be not lawfully entitled to remain in the United States, shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States, in effect provides for such imprisonment upon the adjudication of a justice, judge or commissioner upon a summary hearing, and conflicts with Const. U. S. Amends. 5, 6, declaring that no person shall be held to answer for a capital or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, and that the accused shall enjoy the right to a speedy and public trial by an impartial jury. (Wong Wing v. United States [U. S. S. C.], 16 S. C. Rep. 977.) CONTRACTS — ACCEPTANCE — MUTUALITY.-There can be no valid contract for the sale and conveyance of the land, unless the parties have mutually assented to the same conditions, until there is a clearly defined offer on the one hand, and an acceptance on the other of the very terms offered. (Heiland v. Ertel [Kans.], 44 Pac. Rep. 1005.) ELECTION OF REMEDIES-ASSIGNMENT FOR BENEFIT OF CREDITORS.-A creditor who at first refuses to recognize a general assignment, made by his debtor, and brings suit and attaches assigned property, but who releases it before trial, pays the costs of the attachment, and recognizes the validity of the assignment, does not lose his right to participate with other creditors in the assigned estate. (Jones v. Burgess [Ala.], 19 South. Rep. 851.) EXECUTION IMPRISONMENT FOR DEBT.-Rev. St. Ill. 1895, chap. 72, §§ 30, 31, which provide that creditors who have caused their debtors to be imprisoned upon writs of ca. reps. or ca. sa. must pay their board weekly in advance, or the debtors will be discharged, is a restriction on imprisonment for debt, within the meaning of Rev. St. U. S. § 990, which declares that all modifications, conditions and restrictions upon imprisonment for debt, provided by the laws of any State, shall be applicable to the process issuing from courts of the United States to be executed therein." (Stroheim v. Deimel [U. S. C. C., Ill.], 73 Fed. Rep. 430.) FEDERAL COURTS JURISDICTIONAL AMOUNT — -When the interest eviPRINCIPAL AND INTEREST.— denced by a coupon is due, the demand based on the promise contained in the coupon is no longer a mere incident of the principal debt, but becomes a principal obligation, and hence is not "interest," within act March 3, 1887, conferring jurisdiction on the circuit court of suits between citizens of different States when the matter in dispute exceeds $2,000, exclusive of "interest" and costs; and the amount of such coupons may be added to the amount of the bond to confer jurisdiction. (Edwards v. Bates County [U. S. S. C.], 16 S. C. Rep. 967.) FEDERAL COURTS TIONAL AVERMENTS.-An averment, in a complaint seeking to set aside a mortgage foreclosure, that plaintiff, who owned the property, was not a party thereto, does not show that a construction of the constitutional provision as to due process of law is necessarily involved, so as to confer jurisdiction on the supreme court under act March 3, 1891, chap. 517, § 5. (Cornell v. Green [U. S. S. C.], 16 S. C. Rep, 969.) SUPREME COURT JURISDIC FEDERAL OFFENCE-VIOLATION OF POSTAL LAW S. There is no Federal statute providing a punishment for the mailing of letters which are free from lewd and indecent language, expressions or words, although they may have been written for the purpose of seduction, or to obtain meetings for immoral purposes. (United States v. Lamkin, U. S. C. C. [Va.], 73 Fed. Rep. 859. The Albany Law Journal. ALBANY, AUGUST 8, 1896. Current Topics. The Appellate Division of the Supreme Court on the 28th day of July, handed down a decision declaring the "Rapid Transit Act" constitutional. Judge Barrett wrote the majority opinion of the court, in which Justices Van Brunt and Williams concur. Justice Ingraham [All communications intended for the Editor should be ad- and Justice Rumsey dissent from this opinion, dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] In a case instituted by the Fairfield county bar, to disbar one Taylor for unprofessional conduct, Chief Justice Andrews, of the Supreme Court of Errors, in Connecticut, concludes his judgment as follows: "It is not enough for an attorney that he be honest. He must be that and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community wherein he practices. If he so conducts his profession that he does not deserve that confidence, he is no longer an aid to the court, nor a guide to his clients. A lawyer needs, indeed, to be learned. It would be well if he could be learned in all the learning of the schools. There is nothing to which the ingenuity of man has been turned that may not become the subject of his inquiries. Then, of course, he must be especially skilled in the books and the rules of his own profession. He must have prudence and tact to use his learning, and foresight and industry and courage. But all these may exist in a moderate degree, and yet he may be a creditable and useful member of the profession, so long as the practice is to him a clean and honest function. But possessing all these faculties, if once the practice becomes to him a mere "brawl for hire," or a system of legal plunder where craft and not conscience is the rule, and where falsehood and not truth are the means by which to gain his ends, then he forfeits the right to be an officer in any court of justice or to be numbered among the members of an honorable profession." The Connecticut courts have very properly adopted a high standard in measuring the professional conduct of members of the bar in that State. 66 It should be remembered, however, that the two cases are different and distinct. The motion denied on its merits was to approve of certain plans. The action of The Sun Printing and Publishing Association was to have the 'Rapid Transit Act" declared unconstitutional, and to restrain the Rapid Transit Commission from further action. In the decision it is held that the act is constitutional, and that the commissioners have a legal standing. The commissioners are, therefore, now at liberty to prepare any plan or scheme they deem feasible, but whatever plan or scheme they so devise must first be submitted to the Supreme Court for approval. This provision was part of the act which created the Commission. The principal points in the majority decision of the court relate, first, that the action was brought to prevent what was claimed would be a waste of public funds; that it is not necessary to specify the acts sought to be enjoined; that they all arise in carrying out rapid transit legis lation. "The general scheme of the act of 1891," says the decision, "creates a board of rapid transit railroad commissioners in each city of the State having over 1,000,000 inhabitants according to the last preceding national or State census, and prescribes how it shall be composed. Section 4 directs the different boards to consider the question whether a rapid transit railway or railways, in addition to any already in existence, are necessary to the interests of the cities in which these boards are appointed; |