United Nations again took this matter under their consideration, and upon the first day of that month expressly declared, that in order to show that they loved justice, they expected "that the traders who suffered by some of their dependents in the wars five years ago, might have a grant for the lands, they then gave them down Ohio as a satisfaction for their losses."

On the third day of the same month of November, the Six Nations, by their Chiefs and Sachems, executed the conveyance to Mr. Trent, which proceeding was had upon a recital that he had been empowered by several letters of attorney from the suffering traders named in the said deed, to ask, solicit, demand and receive from the Six Nations a grant of a tract of land as a satisfaction, compensation, or retribution for the goods, merchandise and effects of the said several traders, which the said Shawnees, Delaware and Huron tribes, tributaries of the said Six Nations (contrary to all good faith, and in violation of their repeated promises of safety and protection to the traders, their servants and effects, while trading in the country), did violently seize upon and unjustly appropriate to their

own use.

The deed then declares that in consideration of £82,916 18. 8d., lawful money of New York, the same being the amount of goods and merchandise which were unjustly seized and taken from the traders as aforesaid, whereof just and fair accounts on oath and affirmation had been produced, interpreted and explained to them, and which, at their desire, were then lodged with the said Sir William Johnson, the Chiefs and Sachems of the said Six United Nations for the

said consideration, and in consideration of eight shillings, did grant, bargain and sell to his Majesty, his heirs and successors, to and for the only use, benefit and behoof of the said William Trent, in his own right and as attorney aforesaid, all that tract of land described in the conveyance, to hold to his Majesty, his heirs and successors, but to the only use, benefit and behoof of the said Mr. Trent, in his own right and as attorney aforesaid, his heirs and assigns for

ever.

This deed seems to have been executed in the most public manner, in the presence of the King's Governor of New Jersey, the Commissioners of Virginia and Pennsylvania, and several other persons who attended the Congress and attested the execution of this conveyance, which by that means received every degree of solemnity and sanction.

On the fifth of the same month, November, 1768, the said Chiefs and Sachems executed their deed of cession to his Majesty of a large tract of country upon the River Ohio. In this deed the Indians expressly stipulated that their present grant (which words are explained in the minutes of Congress of November 5th, where the traders' deed is mentioned with the other grants then made) should be deemed valid on their parts, and they convey to the King, not only in consideration of the present then made and the moneys then paid by the King, amounting to £10,460 108. 3d., but also for the other considerations in the deed before mentioned; and the Habendum is to the King, his heirs and successors under the reservations made in the treaty; so that the deed of cession to the King virtually confirms the conveyance to Mr. Trent in his own right.

Upon the whole, I am of opinion that Mr. Trent, in his own right and as attorney for the traders, hath a

good, lawful and sufficient title to the land granted by the deed of conveyance, subject only to the King's sovereignty over the settlements to be established thereon, and over the inhabitants as English subjects. HENRY DAGGE.

LINCOLN'S INN, March 20, 1775.

Serjeant Glynn's opinion.

I entirely concur with Mr. Dagge in his opinion on this case. The property of the soil conveyed to Mr. Trent, for himself and as attorney, was certainly in the Six Nations; and as incident to that property, they had a power of alienating and transferring in any manner, or to any persons, unless they had been restrained by their own laws. In this case, the supreme power of the country resided in the sellers, who had, therefore, an absolute power of alienating, and the transaction being fair and open, and for the express purpose of doing an act of public justice, must bind the Six Nations in good faith.

If we supposed that the sovereignty of the land still remained in the Six Nations, the property of the soil still must be in the grantee, Mr. Trent, and cannot, without violence and injustice, be taken from him. The very act, however, of the sovereign power of the Six Nations admits a capacity in the grantee to take under the deed according to their laws or usage, and there is no law I ever heard of that restrains the subjects of the Crown of England from purchasing in foreign dominions.

The intention of the parties here appears to have been to transfer the sovereignty to the Crown of England by the same instrument whereby the land was conveyed. If that transfer of the sovereignty is effectual, it passed and is confirmed by the deed of cession to the Crown, dated two days after, but subject to all the antecedent rights of property. The Crown being entitled only to the immediate property of vacant and unappropriated lands; but in this case the lands are abandoned by the proprietors and conveyed to the grantee. If the Crown had an original sovereignty, still the soil being the property of the Six Nations, they and their alliance should be protected by that sovereignty in their property. If the Crown acquired the sovereignty by the grant to Mr. Trent, or by the deed of cession, the title of the grantee is then under the protection of the laws of England.

Upon the whole, I am of opinion that in every way of considering this case, the grant to Mr. Trent is good, sufficient and lawful, and is under the protection of the laws of England. JOHN GLYNN.

SERJEANTS' INN, 13 April, 1775.

Having long since carefully studied those points, I concur with Counsellor Dagge and Serjeant Glynn in their opinions as above declared. B. FRANKLIN. PHILADELPHIA, July 12, 1775.

From principles which appear to me very clear, 1 concur in the above opinions. P. HENRY, JR.

PHILADELPHIA, July 29, 1775.

Opinions of Lord Chancellor Campden and Lord Chancellor Yorke on titles derived by the King's subjects from the Indians or natives:

In respect to such places as have been or shall be acquired by treaty or grant from any of the Indian Princes or Governments, your Majesty's Letters Patent are not necessary; the property of the soil vesting in

the grantee by the Indian grants, subject only to your Majesty's right of sovereignty over the settlements as English settlements, and over the inhabitants as English subjects, who carry with them your Majesty's laws wherever they form colonies, and receive your Majesty's protection by virtue of your Royal Charters.

RECENT ENGLISH DECISIONS.

MONEY HAD AND RECEIVED.

A colliery owner who had paid several times, under protest, sums which he insisted were overcharges, was held entitled, notwithstanding the fact of such payments, to recover them back in an action for money had and received. Lancashire and Yorkshire Railway Co. v. Gidlow, 7 H. L. Eng. & Ir. App. 517.

MORTGAGE.

A mortgage of premises will pass the fixtures upon the premises. A mortgage of a lease made by the lessee will carry the fixtures of that property which is in lease, and the power to remove which fixtures was in the tenant. Fixtures attached by the mortgagor to the property after the date of the mortgage, will also (unless under special stipulations) pass to the mortgagee.

There is no difference in this respect between a mortgage in fee by a freeholder and a mortgage by way of assignment of a term by a leaseholder. Meux v. Jacobs, 7 H. L. Eng. & Ir. App. 481.

STOCK EXCHANGE.

A purchase or sale of shares made by one who is not a member of the Stock Exchange, and made through a broker who is a member of that body, will be treated as made subject to the rules of the Stock Exchange.

The rules of the Stock Exchange imply that the name of the person given as that of the ultimate purchaser of shares must be that of one able and willing to purchase; and they are not satisfied if the name given is that of a non-existent person, a lunatic, an infant, a married woman, or a person who has not given authority for the use of his name.

The contract of a jobber is to accept the shares, or to furnish the name of a person able and willing to accept them; and the time limited by the rules of the Stock Exchange for the approval or rejection of the name of the ultimate purchaser applies only to the responsibility, and not to the personal capacity and willingness of the person whose name is given.

If, therefore, the name given is that of one who had no legal capacity to accept the shares, though the time limited is allowed to go by without objection to him, the original contractor, the jobber, will remain liable.

M., not a member of the Stock Exchange, directed his broker to sell certain shares of a company, and the broker sold them to a jobber, who, according to the known practice on the Stock Exchange, sold them again (and in a similar way they passed through several hands), and the jobber (without fraud) received from his purchaser, and passed on to M.'s broker the name (that of L.) as the name of an ultimate purchaser; M. executed a transfer to L., and received payment for the shares; L. turned out to be a minor legally incapable of accepting the shares; M.'s name (though without his knowledge) remained on the registry of the company; L. did not pay the subsequent calls, and M. was required to pay them. Held, that the jobber was

liable to make good to M. the calls which he had been compelled to pay on L.'s default. Rennie v. Morris, Law Rep., 13 Eq. 203, disproved. Nickalls v. Merry, 7 H. L. Eng. & Ir. App. 530.

BOOK NOTICE.

The Law of Homestead and Exemptions. By John H. Smyth, San Francisco: Sumner, Whitney & Co., 1875.

A

WORK on the subject named on the title page of this volume would naturally be expected to consist of nothing more than a well-arranged digest of the cases and statutes on that subject. The statutes of the different States are so dissimilar, and the reasons, if there are any, which underlie the exemption or nonexemption of certain property are so vague that it is quite impossible to make a theoretical text-book out of the adjudications and the statutes. Nevertheless the writer has made what he has termed a useful book for the practitioner. In his preface Mr. Smyth states that the first Homestead Statutes "were passed by the Republic of Texas less than thirty-six years ago!" and that these "were quickly followed by the southern, western and other States, until all except three have incorporated in their statute law some provision for the preservation and protection of the home of a debtor." In the first chapter of the volume the author sets forth the object and policy of homestead laws, quoting judges and legislators in favor of the protection which such laws throw around the family. In the case of Walker v. Darst, 31 Texas, 682, Morrill, C. J., is reported to have said that "it was a great triumph in civilization when the organic law of a State provided that no person shall be imprisoned for debt;' but a still greater impetus was given to the happiness of families, when the organic law of a State protected a homestead from the inroads of a sheriff." More in the same strain is quoted from this "enlightened judge; and we remember similar emotional utterances from Texas judges in cases not connected with the subject of exemptions. Yet it must be admitted that homestead laws, if not carried too far, are monuments of the public regard for the sentiment, the sanctity and welfare of the family institution. It must be acknowledged that every man and every family has the right to subsistence in some form; but it would be carrying the doctrine to the extreme to declare, as was done in Texas, that a farmer might select two hundred acres of land which he might put in the highest state of cultivation, and yet that this elegant home and its appurtenances should always be exempt from the claims of creditors. This scheme might do for Mr. Collins, of Nevada, who said, "I do think that this idea of the homestead is one of the sublimest ideas of our age. It is a principle which has sought form and shape, and comes like an angel of mercy to hover over and bless the families of our nation.” But the less sentimental law-makers object to allowing people to cultivate hundreds of acres of land and to build elegant houses furnished in sumptuous style without any liability to the creditors of the "head of the house."

An examination of Mr. Smyth's work shows that he has faithfully compiled the cases relating to Homesteads and Exemptions, and has placed them in a convenient form. Each section is provided with appropriate catch-words; and the table of contents and index are quite minute. The style of the book, in many respects, however, is not to be recommended. There

are many crude expressions, such as the title to chap

ter V, which is as follows: "Out of what it" (the homestead) "may be selected or carved." The substance of a number of cases, reported while the work was going through the press, is given in the "Addenda," in the same style as the body of the work, and with sections numbered to correspond with sections in the body of the work of like import. The table of contents, the table of cases, and the index, all refer to the sections instead of the pages of the book. In this connection it is to be observed that the custom of referring to the sections in a text-book is an inconvenient one, and is only justifiable in cases where the work goes through several editions, with changes in the notes and the pages, but without changes in the sections, which is not often the case. And it is quite as easy to state the edition to which reference is made and the page, as it is to find a desired passage from a table of contents or index, referring only to sections. Independent of matters of form and style, Mr. Smyth has produced a creditable book; and considering the statutory character of the subject, he has furnished the profession with as good a work as could reasonably be expected.

EX

OBITUARY.

JOHN H. CLIFFORD.

X-GOVERNOR JOHN H. CLIFFORD, of Massachusetts, died at New Bedford, Mass., January 2, 1876. He was born at Providence, R. I., Jan. 16, 1809, and was graduated at Brown University in 1827. He pursued the study of law, and became associated with Judge Colby and Chief-Justice Brigham, of Massachusetts. He early acquired a distinguished reputation among the profession in the State; and in 1849 he was appointed by Gov. Briggs, Attorney-General of Massachusetts. In the course of his official duties he was called upon to prosecute Prof. Webster for the murder of Dr. Parkman. His conduct of that case and his masterly address to the jury are said to have gained him a high reputation throughout the country. In 1853 he was chosen Governor, and in 1854 he was again made Attorney-General, to which office he was thrice re-elected. In addition to his legal and political services, Mr. Clifford occupied himself largely with the affairs of business life, and in all his varied duties he displayed the characteristics of an accomplished gentleman and ripe scholar.

NOTES.

HE Albany Law School Journal, which the students

outgrowth of a very commendable spirit-that of furnishing a medium of expression for the legal mind of the school and a chronicle of the events of the school-year. The editors will also find that they are getting experience in a noble department of the legal profession that of legal journalism, and if they cannot hope to rival in usefulness to the profession their legal contemporaries of a more sober and practical character, they can at least be the instruments of encouraging an endeavor among law students toward a higher legal education. The subject of legal education ought to be thoroughly developed in the columns of the new journal. We bespeak for it a successful -The Louisiana Law Journal, a law periodi

career.

cal which has just been started in New Orleans, will be devoted to "law and literature," and will contain notes of the current decisions of the State and federal courts. It is quite surprising, say the publishers, that there has been no law periodical published in New Orleans before this, when it is considered that the importance of the litigation in that city is greater than that of any other city in the south. The United States courts are in session there more than eight months of the year; the Supreme Court of Louisiana sits from November to June; and there are various courts of subordinate jurisdiction constantly adding to the list of adjudications. This journal certainly ought to have a fine patronage. The first number is excellent, and contains, in addition to the notes of cases, several legal articles of value.- The Michigan Lawyer is another periodical recently established. It is a quarterly magazine, and contains abstracts of the decisions of the Supreme Court of Michigan, together with selected cases decided in the Circuit Courts of the State and in the federal courts. The number before us contains a great variety of decisions succinctly reported.

The Solicitors' Journal mentions the case of Lishman v. Northern Maritime Ins. Co., L.R., 10 C. P. 149, relating to the concealment of loss between the acceptance of the risk and the making of the policy of insurance. This case presents in, perhaps, the strongest possible form the affirmance of the principles first laid down in Cory v. Patton, 20 W. R. 364; L. R., 7 Q. B. 304, and since acted upon in several cases, that after the acceptance of the risk there is no obligation on the assured to communicate any information to the underwriter. In this case, after the acceptance of the risk, but before the execution of the policy, the ship was lost, and the fact became known to the assured; he nevertheless asked for and obtained the stamped policy. The Court of Common Pleas held that the assured was entitled to recover, and the Exchequer Chamber has affirmed the decision. The weight of recent authority in favor of the plaintiff was felt to be so great that on this branch of the case it was scarcely argued that he would not be entitled to recover, but for one circumstance. That circumstance was, that on issuing the policy the defendants had, with the consent of the plaintiff, inserted the additional term of a modified warranty against double insurance; but this was held to make no difference, and indeed, the desperate nature of the argument shows how difficult it was felt to maintain the defense. For the future, therefore, the observations in Mead v. Davison, 3 A. & E. 303, as to the non-communication of a loss which becomes known to the assured between the acceptance of the risk and the making of the policy, must be read in the light of the late decisions, and of the statute of 30 & 31 Vict. c. 23, which, by taking away the absolute inadmissibility in evidence of a slip, led the way to

them.

Judge Doolittle, of Illinois, thus describes his first entry into the chamber of the Supreme Court of the United States: "Imagine to yourselves a youth just fresh from the schools, imbued with that respect for the institutions of our country which every youth then was taught to cherish next to the sentiments he felt toward the God of Heaven. Entering that chamber forty years ago, there sat the judges, clothed in their robes. The chamber was still. Not a voice was heard

nor a whisper, except of the counsel who was speaking, and that counsel was Daniel Webster. It was in the case of the Charles River bridge. There was the great counsel, with his face lit up, beaming with every expression of the soul. Listening with deep interest to the great lawyer of the constitution, Daniel Webster himself, you can imagine the effect upon a youth under such circumstances."

The London Law Journal gives the following summary of the criminal business done by an English judge at a single "Assize": For the offense of bigamy two men were sentenced, respectively, to twelve months' and fifteen months' imprisonment with hard labor, and a woman, who had twice committed bigamy, received a nominal punishment, and was at once discharged; but, in her case, she had been badly treated by her husband, and had already been detained four months in custody prior to her trial. For attempting to utter a brass coin like a sovereign, another prisoner received nine months. Two women were each sentenced to six months for concealing the births of their infants, and a third received twelve months for a serious case of manslaughter of her new-born child. A boy, who killed a man by hurling a brick at him, and was convicted of manslaughter, was sentenced to nine months; while for burglary, two men received twelve months each, and a third fifteen months. Turning to the more serious charges, we find that for abusing children two men were sentenced to seven years' and ten years' penal servitude, respectively. A poacher, who committed a savage outrage on a police constable, who surprised him when in pursuit of game, received ten years. For a felonious wounding, by stabbing without any provocation, another prisoner was sentenced to eighteen years. A drunken son, who shot his drunken father while lying in bed, and then broke the stock of the gun over his father's head, also received eighteen years. For assaulting and cruelly ill-using a drunken man, with intent to rob him, another prisoner got ten years. For stealing a watch from a man she had engaged in conversation, a woman got seven years; and a man who was acting in concert with her, in what was substantially a garotte robbery, was sentenced to fifteen years. Another prisoner, who was convicted of a highway robbery, with violence of an aggravated character, was sentenced to penal servitude for life.

Judge Peter Ganzvoort, of Albany, died Jan. 4. He was a son of Gen. Ganzvoort of revolutionary fame.

- Judge Samuel P. Lyman, for twenty-seven years judge of the Probate Court of Northampton, Mass., died Jan. 4.- -The alumni of the law department of the University of Pennsylvania have appropriated the sum of fifty dollars annually, to be paid as a prize, known as the "Sharswood Prize," to the writer of the best essay upon a legal topic, to be selected by the faculty. The Chicago Legal News in its notice to students who desire admission to the bar at the present term of the Supreme Court of Illinois, perpetrates, as we suppose, a good joke by heading its remarks "To Ill. Law Students." Is it true that Illinois law students are apt to be "ill" as an examination approaches? W. C. Whitson, associate justice of the Supreme Court of Idaho, died at Omaha, Neb., on Christmas night. At the annual dinner of the Chi

cago Bar Association, the toast to the United States Supreme Court was given in the language of Kent: "I cannot conceive of any thing more grand and imposing in the whole administration of human justice, than the spectacle of the Supreme Court sitting in solemn judgment upon the conflicting claims of the national and State sovereignties, and tranquillizing all jealous and angry passions, and binding together this great confederacy of States in peace and harmony, by the ability, the moderation, and the equity of its decisions."

At the preliminary examination of law students in England, before entering into articles of clerkship to solicitors, each candidate is to be examined in two of the following languages: Latin, Greek, French, German, Spanish, Italian. The candidate makes his own selections. The Aberdare (Eng.) Trade Council expects to regulate the course of justice by adopting the following resolution: " That this council strongly condemns the conduct of his Honor Judge Falconer, in asking the question of men when brought before him, whether they are union men or not, and is of the opinion that such conduct is unbecoming in a judge, and outrageous to public feelings." In an assault case heard before Mr. Justice Mellor at Liverpool, a medical gentleman, who dressed the wounds of the man assaulted, was asked by the learned judge if the prosecutor was sober when brought to the dispensary? Dr. Cormack: I should not like to say, my lord. I have a test in these cases. His Lordship: What is the test? Dr. Cormack: I asked him to pronounce the words truly rural," and he said "toory lural."

In the case of Kiernan v. Manhattan Quotation Telegraph Co., recently heard at a special term of the Supreme Court in New York city, a novel question was raised. The suit was brought for an injunction to restrain defendants from transmitting the quotations of the London markets to their customers. Plaintiff had made an arrangement whereby he secured the earliest news, by cable, of the condition of foreign markets. One of the defendants, Francis A. Abbott, admitted that he received no direct cable messages, and that he derived information from the bulletin boards of the exchanges and from the tapes of the gold and stock company, also from private banking firms. The question involved in the case is as to the right of persons to take telegraphic messages procured to be sent by other persons immediately after their publication on bulletin boards and through tapes. The point is also raised whether such publication is an abandonment of the property in the dispatches to the public. The injunction was granted.―The New York Times says: "What is believed to be an oddity in legal proceedings has just been begun in a suit for criminal conversation brought by Mrs. Adela M. Blake against Mrs. Jane Van Winkle, alias Mrs. J. Coles Blake. The parties reside in Brooklyn, but the suit has been begun in the Supreme Court of this county by Judge Culver, the plaintiff's counsel. The damages claimed are $10,000. The right of the husband to bring a suit for criminal conversation against the seducer of his wife has long been recognized by the law. Whether the wife has the same right against the alleged seducer of her husband will, it is believed, be decided for the first time in the present suit."

The Albany Law Journal.

ALBANY, JANUARY 15, 1876.

CURRENT TOPICS.

THE bill introduced by Mr. Jacobs in the New

York Senate relative to the case of persons pleading insanity as an excuse for crime, will attract considerable attention. The bill provides that, whenever any insane person accused of arson, murder or highway robbery shall have been acquitted, upon trial, on the ground of insanity, the jury shall bring in a special verdict to that effect, and so state it in their finding; and the court in which such trial is had shall order such person to be committed to the State lunatic asylum for insane criminals for life. We do not know upon what grounds this legislation is demanded, unless it be upon the vague ground of "public policy;" for, logically, a man who commits crime under the influence of an insane impulse is not responsible before the law at all, and the only reason why he is committed to prison after acquittal is, that while his insanity continues it is unsafe to allow him to mingle with his fellow-men. Perhaps the discussion which this bill will call forth will develop the reasons why a man who was not responsible for his acts while insane should be punished after his insanity has passed away, or why a man who once committed a grave crime while under the influence of an insane impulse should be deemed to be ever afterward insane, and publicly dangerous. Better abolish the defense of insanity altogether than commit the absurdity which this bill would effectuate.

Mr. McCrary, of Iowa, has introduced a bill providing for an intermediate Federal Court of Appeal, upon nearly the plan suggested by the LAW JOURNAL. His bill proposes, as we gather from the abstract of it sent, to establish a court of appeal in each circuit, to be composed of the Justice of the Supreme Court assigned to the circuit, the Circuit Judges, and the several District Judges of the districts composing the circuit. Appeals may be taken to this court from the decisions of the District and the Circuit Courts, and its decisions are to be final upon all questions of fact and in all cases involving less than $10,000. Such a scheme must commend itself to the good sense of any one who carefully considers the evils to be remedied. In the first place, the calendar of the Supreme Court contains an accumulation of cases that would fully occupy the attention of the court for nearly three years, without the addition of new business. This is due largely to the fact that there is no satisfactory interVOL. 13.- No. 3.

at its best, numerical strength. Such a court as Mr. McCrary proposes would be strong, both in numbers and in ability, and for most causes its decisions would be accepted as satisfactory. Mr. McCrary should, however, provide in his bill that no judge shall sit in review of his own decision. He should also have added a provision relieving entirely the Supreme Court judges from circuit duty. They have sufficient to occupy them in Washington.

It is announced that the Inns of Court are about to try an experiment in legal education. Some four years ago, in concession to a public feeling in favor of a higher legal education, the Inns of Court determined to compel all persons desirous of becoming barristers to pass an examination in law, and they thereupon created a large and costly staff of teachers, from whom the student could obtain gratuitous instruction if he chose to attend the lectures. The four years for which the system was established and the appointments made are just coming to a close, and it is understood that the whole has been a complete and melancholy failure. Hardly any students have availed themselves of the educational machinery provided, and some curious calculations have been made of the sum which the Inns of Court have had to pay for each student attending the lectures. These bodies are, therefore, on the point, it is stated, of resorting to a new method of inciting students to be educated at their expense. Their plan is to confide their teaching to men of established reputation and mature years, to pay highly for it, and to arrange it so that it may not conflict with professional practice. Whether the new arrangement will succeed has yet to be seen, but the probabilities are much greater in its favor than they were in favor of the prior system. Under that system the professors and tutors were, for the most part, comparatively young men, who had yet to make a professional or general reputation, and, however capable, not likely to attract or to impress strongly a body of young men of the aims and mental conditions of law students. If we should

judge from our observation of the law schools in this country, we should say that the Inns of Court have at length adopted the system most likely to accomplish the end sought.

Mr. Francis Wharton has an article in the International Review on "Retrospective Legislation and Grangerism," which is a curious, if not valuable, contribution to the literature of that subject. He announces in the outset his purpose "to draw, in the examination of this topic, on foreign jurists rather than our own;" and he sums up the positions assumed by them in the following propo