work of the defendant, he should in such case be credited with this addition, Winchester v. Craig, 33 Mich. 205. This rule is reasonable, and is graunded in plain principles of justice, and it is clearly applicable to the case at bar. Order affirmed. Hinman v. Heyerstadt. Opinion by Vanderburgh, J. [See 36 Am. Rep. 770; 29 id. 293; 33 Eng. Rep. 639.-ED.] [Decided June 30, 1884.]

-

AGENCY PURCHASE OF WHEAT LIABILITY OF AGENT.-Plaintiff sent money to defendant, a commission merchant, with which to buy wheat for it, writing to him, "We will want you to buy sound wheat; do not want damp or musty grain;" and he accepted the employment. Held, that this imposed on defendant only the duty and liability of an agent, and he is not liable, without proof of want of proper care or skill, for the fact that the wheat proved to have been damp when purchased. The contract was one of employment. It created the relation of principal and agent. In the absence of express agreement or a usage of the business modifying them, the law attaches to the relation certain rights, duties and liabilities. On the part of the agent he is to obey the instructions of his principal, and to exercise in his employment reasonable skill and ordinary diligence; that is, the degree of skill ordinarily possessed and employed by persons of common capacity engaged in the same business, and the diligence which persons of common prudence are accustomed to use about their own business and affairs. Story Ag., § 183. For a loss to his principal from neglect of these duties he is liable. But he is not an insurer of success in the business. He does not, by merely accepting the employment, guarantee his principal against such incidental losses as may occur in the course of the employment, "because," says Mr. Justice Cooley, in Page v. Wells, 37 Mich. 415, "these are incident to all avocations, and no one by implication of law ever undertakes to protect another against them." If the principal desires to hold his agent liable for such losses he must make his contract of employment accordingly. Lake City Flouring Mill Co. v. McVean. Opinion by Gilfillan, C. J. [Decided July 18, 1884.]

EVIDENCE-CONTRACTING PARTY CANNOT BE SHOWN BY PAROL WARRANTY BREACH OFFER TO RETURN. It is incompetent to prove by parol that a written contract was made on behalf of one not named in it, unless there be words (such as "agent," "trustee," or the like) affixed to the name of the contracting party, which may indicate that he is contracting for another. Although the authorities are not in harmony on the point, the weight of them is to the effect that it cannot be done by parol. Ewell's Evans Ag. 248, and note. A departure to some extent fron this rule was established in this State by the cases of Pratt v. Beaupre, 13 Minn. 187 (Gil. 177), and Bingham v. Stewart, 14 Minn. 214 (Gil.153), followed by Deering v. Thom, 29 Minn. 120, in which the court acted upon the ""trusproposition that when words (such as "agent,' tee," or the like) which may be either descriptive of the person or indicative of the character in which he contracts, are affixed to the name of a contracting party, they are prima facie descriptive only, but it may be shown by extrinsic evidence that they were used to determine the character in which the party contracts. The same proposition is stated in 1 Pars. Cont. 54, that it may be determined "in each instance and with whatever technical inaccuracy the signature is made, from the facts and the evidence, that a party is an agent or a principal in accordance with the intention of the parties to the contract, if the words are sufficient to bear the construction." In other words, when upon the face of the contract it is doubtful with what purpose the terms "agent," "trustee," or the

like were used, it may be shown by parol. The cases we have referred to go as far as is safe in that direction. Where in a warranty is this clause, "If said machine will not bear the above warranty it is to be returned after a trial of two weeks to the place of delivery, and another substituted that will answer such warranty, or the money and notes immediately refunded," the warrantee cannot maintain an action for a breach without returning or offering to return the machine. Rowell v. Olson. Opinion by Gilfillan, C. J.

[Decided July 10, 1884.]

LANDLORD AND TENANT--COVENANTS IN LEASE--ERASURE-CONSTRUCTION.-Parties prepared a lease upon a printed form. In the form was a covenant not to sublet without the lessor's written consent. Following the covenants were conditions, one reserving the right to re-enter in case of subletting without the lessor's consent. Before executing they erased the clause containing the covenants, but left that containing the condition unchanged. Held, that the erasure of the covenant did not raise an inference that they intended the condition to be of no effect. Pond v. Holbrook. Opinion by Gilfillan, C. J. [Decided July 10, 1884.]

CORPORATION-POWER OF State to AMEND CHARTER--ACCEPTING ALTERATION-INCREASING NUMBER OF DIRECTORS-DUTY OF.-Subject to some extent to an exception in favor of the right of the State to amend the charter of a private corporation, under an express reservation of authority to do so, or in the exercise of its police power, the rule is that the amendment of snch charters, to become binding and effectual, must be accepted on the part of the corporators. Altera tions in such charters, which are not fundamental, and are authorized by the Legislature, may be effectually accepted by a majority of the stockholders; that is to say, by a majority per capita, when the right to vote is per capita, and by a majority of stock, where each share of the stock is entitled to one vote. Alterations which change the nature and purposes of the corpora tion, or of the enterprise for which it was created, are fundamental, while those which work no material change are not fundamental. In support of these propositions we cite the following authorities: H. & N. H. R. Co. v. Croswell, 5 Hill, 383; Stevens v. R. & B. R. Co., 29 Vt. 546; Curry v. Scott, 54 Penn. St. 270; K. R. & R. I. R. Co. v. Marsh, 17 Wis. 13; Pierce, R. R. 66 et seq.; Nugent v. Sup'rs, 19 Wall. 241; Everhart v. W. C. & P. R. Co., 28 Penn. St. 339; N. H. & D. R. Co. v. Chapman, 38 Conn. 56; Joy v. J. & M. Plank road Co., 11 Mich. 156; Clearwater v. Meredith, 1 Wall. 25; Union Locks & Canals v. Towne, 1 N. H. 44; Martin v. Railroad Co., 8 Fla. 382; Witter v. M., O. & R. R. R. Co., 20 Ark. 463; Hester v. M. & C. R. Co., 32 Miss. 378; Winter v. Muscogee R. Co., 11 Ga. 438; Hoey V. Henderson, 32 La. Ann. 1069; Banet v. Alton & S. R. Co., 13 Ill. 504; Zabriskie v. H. & N. Y. R. Co., 18 N. J. Eq. 178; Mowrey v. I. & C. R. Co., 4 Biss. 78; Field Corp., §§ 81, 388. The principle upon which these cases appear to go is that alterations, or as they are sometimes called, amendments, which do not change the nature, purpose or character of a corporation or its enterprise, but which are designed to enable the corporation to conduct its authorized business with greater facility, more beneficially or more wisely, are auxiliary to the original object, and that therefore when one becomes a stockholder, he impliedly assents that such alteration or general amendment may be made. Stev ens v. R. Co., supra; N. H. & D. R. C. v. Chapman, supra; Banet v. A. & S. R. Co., supra; H. & N. H. R. Co. v. Croswell, supra; Kenosha R. Co. v. Marsh, supra; Joy v. J. & M. Plank-road Co., supra. We may add what appears to be an obvious consideration, that

if no alteration or amendment of a corporate charter can be made, even in matters of administrative detail, or as to the means and agencies through which the corporate enterprise shall be carried on, except with the consent of every stockholder, the result would be not only great public and private inconvenience, but in many cases a complete practical failure of the enterprise itself. Certainly this is not in accordance with the understanding nor the practice of the courts, of the profession, or of those who have been engaged in carrying on our great corporate undertakings. The alteration proposed in the present case, by increasing the number of directors from five to nine, is clearly not fundamental within the definition above given and sanctioned by the authorities cited. It in no way changes the nature or purpose of the boom company, or of the enterprise for which it was created. It is a change respecting modus operandi merely; a change, not of the nature or purpose or character of the company, or of the company's enterprise, but a change of the instrumentalities and agency-the machinery by which that purpose is to be effected and that enterprise carried on. Everhart v. W. C. & P. R. Co., supra, was a case in which a charter amendment providing for the election of three additional managers, i. e., directors, was upheld. N. H. & D. R. Co. v. Chapman, supra, was a case of an amendment authorizing two of the directors to be appointed by the city of New Haven, a subscriber for stock. Joy v. J. & M. Plank-road Co., supra. It is argued that if the four additional directors are elected it will be in the power of the board, and the board will manage the business of the corporation for the private advantage of some of the directors, and against the interest of the corporation and of the stockholders, and particularly of this plaintiff. We see no reason why this might not be done with five, the present number of directors, The plaintiff owns a little over one-third of the shares. Although this makes him a large stockholder, he is still in the minority. But the danger apprehended is common to all corporations, and the remedy lies, not in withholding the power to make amendments to the charter, but in enforcing the responsibility of the directors for abuse of trust. They have no right to run the corporation for the individual benefit of any of their number, to the detriment of the stockholders, and if they do, or attempt to do this, the law furnishes a remedy, as in other cases of abuse of trust or disregard of legal duty. Pierce R. R. 43, and cases cited; Ewell's Evans Ag. [276]. Mower v. Staples. Opinion by Berry, J.

[Decided July 9, 1884.]

DAMAGES BREACH OF EXECUTORY CONTRACT PROFITS.-Upon the breach of an executory contract, whereby the injured party is prevented from performing on his part, and from realizing a profit which was contemplated by the terms of the contract as a result of the performance of it, a recovery of damages may be had equal to the profit which would have accrued directly from the performance of the contract. Morrison v. Lovejoy, 6 Minn. 319 (Gil. 224); Fox v. Harding, 7 Cush. 516; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Devlin v. Mayor of New York, 63 N. Y. 8; Royalton v. Royalton & Woodstock Turnpike Co., 14 Vt. 311; McAndrews v. Tippett, 39 N. J. 105; Richmond v. D. & S. C. R. Co., 40 Iowa, 264; S. C., 33 id. 422, 501, 502; Hoy v. Gronoble, 34 Peun. St. 9; Burrell v. N. Y. & Saginaw Salt Co., 14 Mich. 34; U. S. v. Speed, 8 Wall. 77; Cook v. Com'rs Hamilton Co., 6 McLean C. C. 612. But one seeking a recovery must show by proof both his right to recover, and the measure or extent of the loss or injury for which he demands compensation. It was necessary for the plaintiff to prove that he would have sold the land for a

price exceeding $36,000, within the time fixed by the contract, if his authority had not been terminated. It was not necessary however that the evidence should show this to an absolute certainty. Proof establishing the facts in the estimation of the jury to a reasonable degree of certainty would be sufficient. Goebel v. Hough, 26 Minn. 252; S. C., 2 N. W. Rep. 847; Allison v. Chandler, 11 Mich. 542; Chapman v. Kirby, 49 Ill. 211; Simmons v. Brown, 5 R. I. 299. See also cases previously cited. In the cases we have cited, as in this case, the result depended upon facts which were not susceptible of certain, absolute proof, such as the profits which might have accrued from an established mercantile business; what it would have cost to manufacture machinery to construct salt vats; to build a bridge; to erect a court house; to quarry and transport stone during a period of years; to construct a tunnel in the earth; the profit which might have resulted from the cultivation of a farm, or from the manufacture and sale of cloth. A case more precisely like that before us was Alexander v. Breeden, 14 B. Mon. 154. The defendant, the owner of real estate, by contract made the plaintiff his agent to sell it for the price of $2,050. The plaintiff was to have $50 as his compensation. A purchaser called upon the agent and procured a description of the property, the price, and the name of the owner. He then went to the owner and purchased from him for $2,000. The plaintiff sued to recover the $50 agreed upon as his compensation for a sale. The court, reviewing the facts proved, considered that there was no positive testimony that the agent could have made the sale for $2,050, but that the circumstances persuasively showed that he could have done so. A recovery was therefore allowed. When the power of this plaintiff to sell was terminated by the sale of the property by the defendant, thirteen days remained of the sixty days during which, as the proof tends to show, plaintiff had an exclusive right to sell. The market value of the property, as appears by all the evidence, exceeded $36,000, the sum which defendant was to realize from any sale that might be made. Of several witnesses testifying as to value, only one places it as low as $37,500; others make it $45,000 or more, a sum $9,000 in excess of the amount which defendant was to receive out of the purchase price if plaintiff had effected a sale. The evidence tended to show that the land was then rising in value; that the real estate market was active; that property in this vicinity was easily salable for its value; that nearly every piece of property in that vicinity that was put upon the market was readily sold at the time; and that before defendant sold the property the plaintiff had offered it to the same person, who became the purchaser. This evidence was such as might have established the fact, with reasonable certainty, in the minds of the jury, that the plaintiff would have effected a sale for an amount largely in excess of $36,000, if his alleged contract right had not been interrupted, and from it the jury would have been warranted in determining upon some certain sum for which in all probability a sale would have been made, and which would have determined the amount of the plaintiff's recovery. Fairchild v. Rogers. Opinion by Dickinson, J. [Decided July 7, 1884.]

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT--BONA FIDE HOLDER--DEFENSE OF USURY.-A promissory note,to be the subject of sale, must be an existing valid note in the hands of the payee, and given for some actual consideration, so that it can be enforced between the original parties. One who buys it of the payee with knowledge of the

fact that he sells it for the benefit of the maker takes the precise place of the payee with respect to the defense of usury. Hall v. Earnest, 36 Barb. 585. This doctrine has been fully recognized in our own State. Campbell v. Nichols, 4 Vroom, 81. Sup. Ct N. J., Feb., 1884. Zabriskie v. Spielman. Opinion by Van Syckel, J. (46 N. J. L. 35.)

CORRESPONDENCE.

DONATIO CAUSA MORTIS. Editor of the Albany Law Journal:

The case of Williams v. Schatz, abstract of which, from Ohio Supreme Court, is given in last number of your JOURNAL, p. 455, when compared with Grymes v. Hone 49 N. Y. 19, seems to warrant the soundness of Lord Eldon's opinion, that, "if among these things called improvements in the law, this donatio causa mortis was struck out of our law altogether, it would be quite as well." We are unable to discover even a nice shade of difference between the two cases. In the Ohio case, A., having executed in due form a deed of gift of real estate to his son, said to B., "take this deed and keep it. If I get well I will call for it; if I don't, give it to Billy," the grantee. A. was then ill, and died in a few days of same illness. B. then delivered the deed to the grantee. The court held there was no delivery, and the instrument was invalid.

In the New York case, the donor executed an assignment in writing to his granddaughter, of a certificate of shares of stock in a New York bank.

After signing the paper he kept it by him for awhile, and afterward handed it to his wife to put with the will and other papers in a tin box she had. When he "I intend this for gave to his wife the paper, he said: Nelly. If I die, don't give this to the executors, it isn't for them, but for Nelly; give it to her, herself." She asked, "why not give it to her now?" "Well," he said, "better keep it for the present; I don't know how much longer I may last, or what may happen, or whether we may not need it."

The donor was old and ill, but lasted five months. The court held this a valid gift mortis causa.

Did the donor in the former of the cases cited any more reserve the power of revocation, or any the less part with the dominion over the subject of the gift than in the latter?

A recovery from the illness would in either case have entitled the donor to reclaim the property given.

Does the law gather a different interpretation of the intentions of these respective donors, so far as to warrant these apparently antipodal decisions?

Was not the depositary of the instrument as much

sity of Rochester. New York and London; G. P. Putnam's Sons, 1884.

This work possesses more than ordinary interest, for it marks an epoch in American legal literature. The contributions of this country to Roman law are not numerous, and most of them have been issued at intervals widely apart. Outside of our French and Spanish provinces the contributions are few. Cooper's version of Justinian's Institutes, Professor Hammond's very able introduction, or excursus, prefacing the American edition of Sander's Justinian, Hadley's and Cushing's historical sketches, Kaufman's and Cropsey's translations of Makeldey readily occur to us as the most important instances of Roman law books published on this side of the water. Now comes "Morey's Outlines." Though it is of the handy volume series rather than of the technical order of Roman law books this volume possesses a considerable literary and technical merit. In its technical aspect it is an effort to apply the principles of Sir H. Maine to controverted questions of the origin of Roman law, and thus far it is of some value to the students of comparative jurisprudence. There is little doubt that Professor Morey is well adapted from a good training among the Ger man civilians to an accurate presentation of his subject. We know of no book in English-Amos' latest contribution, "Roman Civil Law," not excepted where the rudimentary facts relative to the development of Roman law are better or more tersely presented than they are in these "Outlines." The work is not so ambitious as that of Amos, nor can it usurp its place; but it contains a great deal of matter not hinted at by Amos. As a practical book of reference, that of Amos excels, for it contains references to the Pandects, and serves as a sort of abridgment index to original sources. But Morey's outlines may well serve as an introduction to Amos' work, and both together will point the student's way to the more mysterious recesses of the only jurisprudence which may now be seen from start to finish. That either Amos' or Morey's book is of great technical value, we presume, is not pretended, but they are of unquestionable value to English-speaking students, and of the two we prefer Professor Morey's, as it is the more condensed. We are in hopes that this little volume is but the precursor of others of a like character. The American faculty of civilians may yet solve for the world that interesting scientific problem, is it indeed so that the Roman law is the true common law of all Europe, and that our own Anglo-American common law is but a branch of the same tree, as Savigny always contended.

HE

COURT OF APPEALS DECISIONS.

the one case as in the other?

Were not the declarations of the donors in both cases a statement of the law as to such a gift? In either case a restoration to health would render the gift void, and in both the gift was subject to the arbitrary will of the donor during life. What and where is the distinction, if any?

Yours respectfully,

ROCHESTER, Dec. 6, 1884.

DANL. B. BEACH.

NEW BOOKS AND NEW EDITIONS.

MOREY'S ROMAN LAW.

Outlines of Roman Law, comprising its historical growth and general principles. By William C. Morey, Ph. D., Professor of History and Political Science in the Univer

day, Dec. 9, 1884:

Judgments of Special and General Terms reversed, new trial granted, costs to abide the event-Theodore F. H. Meyer, appellant, v. Hiram Phillips and another, respondents. Judgment affirmed with costs-Harvey Baker, respondent, v. Village of Oneonta,

-Appeal dismissed with costs-Henry A. Bate, appellant, v. William O. McDowell, respondent.Appeal dismissed on the ground that upon the cir cumstances disclosed by the papers the order appealed from was discretionary-Thomas W. Harris, assignee, etc., respondent, v. Lavina Taylor, appellant.-Order affirmed with costs-People ex rel. Edward Rorke and another v. Board of Assessors of Brooklyn; In re Application Staten Island Rapid Transit R. Co.; In re Petition of Sarah T. Sands, etc.; James O'Shea, respondent, v. Henry Kohn, appellant. Order of General Term reversed, costs to abide the event-In re Petition of Cyrus W. Swan, etc.

The Albany Law Journal.

ALBANY, DECEMBER 20, 1884.

CURRENT TOPICS.

66

E have had our attention called to a memo

WR randum upon the proposed Civil Code," with an appendix separate from the "memorandum," but said to be part of it. We had hitherto supposed that "memorandums" were either of a private character, or else diplomatic notes issued by sovereign States in connection with negotiations of magnitude. Of the two kinds of memorandums known to us this particular one is not issued by a sovereign State, for it purports to come from Mr. John R. Strong, a lawyer in the city of New York. It must therefore have gotten out of the receptacle for Mr. Strong's other memorandums. It begins a little like a soliloquy, with "I stand here for the law Shylock, and ends with the anti-climax, "which is respectfully urged." The memorandum however states that it "agrees unqualifiedly with the declarations of Mr. James C. Carter of the New York bar," so we suppose it may be regarded as conclusive. It evidently rejects Mr. Field in toto, that is if we understand Mr. Strong, and we confess that we do not always, although his incubrations are lucidity itself compared with those by Mr. J. Bleecker Miller.

The English quarterly Law Magazine and Review says: "The battle of codification is, we find, being very hotly waged just now in the State of New York. We have received several pamphlets pro and con., all of which we have read with interest, not excepting Mr. Carter's 'Counterblast to the Monstrous Regiment of Codification.' For it is always a matter worthy of attention how that which to some minds may seem to require no demonstration, to other minds presents itself as simply and absolutely the impossible and the undesirable. And yet even to Mr. Carter's mind codification, per se, would seem to have some ground of desirableness left only Mr. Field's code he will not have at all. It is a more serious matter that Mr. Carter presents, under a misleading aspect, the historical facts concerning Roman law and French codification. If the Roman law was in any sense what he thinks it was a failure-it was so splendid a failure that the world may well stand excused for having taken it for a victory. We have little doubt that the possibility of seriously adopting such an attitude toward the unquestioned mistress of all scientific jurisprudence is mainly due to the absence of any general study of the Roman law in the United States. But with such commentators as Mackeldey placed in their hands, as recently edited by Mr. Dropsie, supplemented by oral teaching to be followed no doubt by examination - and the evident appreciation of Roman law shown by Dr. VOL. 30 No. 25.

W. G. Hammond and other American jurists, we may hope that the day of contemptuous treatment of the science of law is fast waning, to give place to the age of codification. That the tide is really setting in that direction, indeed seems evident from other facts than those adduced by Mr. Dudley Field and his fellow-workers, Mr. Frankenheimer, Mr. Roger Foster and others, in their able, critical reply to Mr. Carter and those on his side. Not only has California adopted what New York is still hesitating to adopt, but San Francisco law publishers, such as the well-known house of Sumner, Whitney & Co., show their very real belief in codification by issuing what are practically unofficial codes in the shape of pocket manuals of the law by able editors. We have already noticed Mr. Desty's Shipping and Admiralty Law in this series, and there have since come to us, in code shape, Law of Real Property, and Mr. Stewart's Marriage Mr. Barber's Principles of Insurance, Mr. Boone's and Divorce. It seems evident that the principle of codification is taking root, and that the Atlantic States must in time steer for the 'Golden Gate.'"

The

Among the grave problems of American government is that concerning municipal debts. The late constitutional amendment, restricting the power to incur debts, is a step in the right direction. Manhood suffrage, abstractly right beyond question, should not be permitted to confiscate property, and its execution seems to require watching in our great cities. Lycurgus, when advised to try a democracy, is said by Plutarch to have advised his adviser to try a democracy in his own house. moral is obvious. We now hear it intimated that the enterprising city of New York proposes to evade the constitutional inhibition against excessive debt by decreasing the valuation of its assessable property, thus increasing indefinitely its limits of indebtedness. We sincerely hope that in the interests of good government such an outrage will be checked by some concerted action. We advise the special committee of the City Bar Association to let the work of codification alone and to exert themselves to simplify and promote good government by defeating any scheme projected to impair the operation of the new amendment. Here is a real chance to get glory!

We have more than once spoken of Chief Justice Elliott, of Indiana, as one of the best judicial writers in this country. It is a curious fact that nearly all the best cases in his court seem to fall to him to write the opinions. If he picks them out himself, he shows good judgment; if the matter is decided by chance, fortune is kind to him. Just now we are more interested in his paper on "The Philosophy of Punishment for Crime," published in the Indiana Law Magazine of October 28, November 8. It is a very interesting production. It is hard to select where all is so admirable, but the following will give an idea of the scope and treat

On this

ment of the writer: "Law-givers, philosophers and theologians have for ages assumed that men are responsible beings, and the combined experience of many centuries is far weightier than the speculations of visionary theorists. But as we have seen, the assumption is supported by the closest analogies and strongest reasons. Its denial involves the affirmation that organized society is impossible, and this is nihilism in its worst form. There are however degrees of responsibility; some persons are less responsible than others. point we nearly always err, for we almost invariably place the heavier responsibility on the wrong person. If a lad born of good parents, and who moves among the refined and educated, commits a theft, we feel that his punishment should be light, but if a child born of wicked parents, and who belongs in the ranks of the degraded, commits a like offense, we feel that he should be severely punished. This judgment is radically wrong. strict justice it is the well-born lad who deserves the severest punishment, and not the ill-born, whose inherited tendencies, and whose surroundings have exerted such a fearful influence upon his mental and moral nature. Environment is, I know, a term often made to stand for much and mean little, but it possesses an important meaning, and conveys a material thought when used as descriptive of the influences under which children are born and reared. The child reared among thieves and harlots and brutal men is surrounded by fateful influences that would be very likely to drive into crime a child born of the purest and best parents. The malignant influences that surround the young who dwell with vicious women and brutish men are so powerful that it is a marvel that any one ever escapes from their fell power. Better a

* * *

In

thousand fold than all the criminal codes that man ever did or ever can devise, would be a pian that should take the young from these dark places and evil associations, and place them in a brighter and purer region. More potent than the law of environment is the dreadful and unbending one of heredity. The laws of heredity and environment, powerful as they are, do no more than implant in the individual tendencies and propensities; they are not laws of action; they do not compel a person to do wrong; they simply incline him to a life of evil. They are not supreme laws; above them are the conscience, the judgment and the will. No sane man was ever driven into crime by the laws of heredity and environment. As Dr. Elam says: And herein consists man's responsibility, and the very possibility of virtue, that whilst the brute acts strictly according to his organization, man equally urged by his, may act according to a higher law, i. e., a moral law. Every sane man is responsible for his voluntary acts, whatever may be the moving impulse. Sin and crime are always sin and crime, whatever the constitutional tendency.' * * Society too often disregards these potent laws of heredity and environment, and thrusts young offenders into confinement

*

with men hardened in crime; men whose glory is their wickedness; and by the evil associations thrown around these novices in evil-doing have their inborn propensities festered into settled wickedness, and reformation becomes impossible. The wrong is a cruel one, in most instances an awful crime. It is a fierce enough battle for the young offender to fight the inherited impulses, strengthened as they most often are by his environments, without having his enemies re-enforced by the teachings and influences of the inmates of the prison disgraced beyond the hope of reclamation; and society does a cruel thing in supplying the re-enforcements that conquer the already hard pressed and far-spent combatant. Not only do the evil associations strengthen the wicked propensities, but the disgrace destroys all hope. There are many prison doors over which might be written the memorable words of Dante: 'Abandon hope all ye who enter here.' It may cost money to change our system of dealing with the young in crime, but shall an enlightened people weigh money against souls? It may be a slow and toilsome work, the repose of society may somewhat suffer, but in the end the gain will be infinitely greater than any loss, and will many times repay the work and time bestowed. There may be disheartening failures, but success will be attained at last, and in such fair measure that no one will doubt that the end crowns all. To take measures to reform those in whom there is hope of reformation is to lay the axe to the root. To take the children of the bad from evil influences is to check the polluted stream that breeds criminals as foul waters breed slimy things. That society has a right to do this there can be no doubt; that it is the duty of society to do it is not uncertain."

IN

NOTES OF CASES.

Huntley v. Baker, 33 Hun, 578, a judgment by default was entered against the defendant in the Municipal Court of Dane county, Wisconsin. He was at that time domiciled in that State, but was absent therefrom. The summons was not personally served upon him, but was left at his residence in the presence of his wife. This mode of service, and the proceedings in the Municipal Court were regular and valid according to the laws of that State. Held, that the judgment was valid, and that an action might be maintained thereon in this State. The court, Bradley, J., said: "The courts of any State or country can have no extraterritorial jurisdiction so as to give notice, serve process, or charge persons or property beyond their respective boundaries. And when thus unable to acquire jurisdiction of the person against whom legal proceedings are by statute authorized, and nominally taken without actual service on him, the proceeding can be treated as in rem only in respect to property within the jurisdiction. But it has been repeatedly held in England that this doctrine is not applicable when the person so sought to be