established. See Vandenburgh v. Hall, 20 Wend. 70; Burckle v. Eckart, 3 N. Y. 132; Richardson v. Hughitt, 76 id. 55. The contract of sub-partnership, which is a contract between a partner and a third person, whereby the latter is to share the profits and losses of such partner will not make the person a partner in the firm. Burnett v. Snyder, 76 N. Y. 344; Ex parte Barrow v. Rose, 252; Bray v. Fromant, 6 Madd. 5; Killcock v. Greed, 4 Russ. 285; Frost v. Moulton, 21 Beav. 596; Colly on Part. (6th ed.), § 27. Snyder was not, in the case at bar, liable for the debts of the firm. Judgment reversed. Burnett v. Snyder, appellant, et al. Opinion by Andrews, J.

[Decided Sept. 21, 1880.]

NEBRASKA SUPREME COURT ABSTRACT.

CRIMINAL LAW-CONFESSION NOT PROOF OF CORPUS DELICTI. A confession is not alone sufficient to establish the commission of a crime. That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession, the confession being allowed for the purpose of connecting the accused with the offense. In People v. Hennessey, 15 Wend. 147, it was held that a confession of embezzlement by a clerk would not warrant a conviction, unless there was other evidence that an embezzlement had been committed. And in People v. Farker, 2 Park. Cr. 14, it was held, in an indictment for blasphemy, that there must be other evidence of the blasphemy than the mere confession of the accused. In the case of State v. Stringfellow, 26 Miss. it was held that a confession of a murder was not sufficient to warrant a conviction, unless the death of the person confessed to have been murdered was proved by other testimony. All experience has shown that verbal confessions of guilt are to be received with great caution. The danger of mistake from the misuse of words, the failure of the party to express his meaning, the misapprehension or want of recollection of the witness, or his zeal in pursuit of evidence, all admonish us to receive such testimony with great care. Priest v. State of Nebraska. Opinion by Maxwell, C. J. [Decided Aug. 31, 1880.]

STATUTE OF FRAUDS-DEFENSE UNDER, PERSONAL.Only a party to a contract can avail himself of a defense founded upon the statute of frauds. Strangers cannot set it up. As is said by the court in Cahill v. Bigelow, 18 Pick. 369: "The effect of the statute is that the promisor, who would otherwise be liable to such an action, may avoid it." And also in Chicago Dock Co. v. Kinzee, 49 Ill. 289: "This statutory defense is personal, and cannot be interposed by strangers to the agreement. Like usury, infancy, and a variety of other defenses, it can only be relied on by parties and privies." See, also, Robison v. Uhl, 6 Neb. 328; Uhl v. Robison, 8 id. 272; Eiseley v. Malchow, 9 id. 174; McCormick v. Deurnmett, id. 384. Rickards v. Cunningham. Opinion by Lake, J. [Decided Sept. 1, 1880.]

Justice and equity forbid that one man's money shall be applied to the payment of another man's debts. On this is based the right of a vendor to stoppago in transitu, which arises solely upon the insolvency of the buyer. Where a vendor has delivered goods out of his possession, into the hands of a carrier for delivery to the buyer, if he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to the other people. It was long a mooted question whether the effect of this remedy of the vendor is a rescission of the sale, or a restoration of possession of the goods with the rights of an unpaid vendor; but now it seems the better opinion that the contract is not rescinded. Although this remedy of a vendor, which exists only before actual delivery of the goods into the buyer's possession, cannot be exercised in precisely the samo mode by a lender of money or credit, yet for similar cause the lender ought to have as efficient a remedy until the money is paid to, or the credit is used by the borrower. The lender's remedy may have the effect of a rescission of the bargain. Goods can be held subject to a lien for the price agreed upon, and if disposed of for more than that, the buyer may have the gain or suffer the loss; but when a borrower has as little right to the money as a buyer has to the goods, it is impracticable to hold and dispose of the money with like result. Nor is there reason for so holding - the value of the goods may increase or diminish, whereby the buyer may be gainer or loser by his contract — the value of money is fixed. Insolvency takes the pith out of the borrower's promise to pay, and if he has not yet received the money he should not take it. He did not get the credit in view of his bankruptcy. Dougherty Bros. & Co. v. Central National Bank. Opinion by Trunkey, J.; Mercur and Sterritt. JJ., dissented.

[Decided May 3, 1880.]

JURISDICTION-STATE COURTS HAVE, OF ACTIONS IN PERSONAM FOR MARITIME TORTS.- -State courts havo

jurisdiction over actions in personam for damages by reason of a collision between boats on the Ohio river, against the owners of the boat in fault. Section 563, U. S. R. S., prescribes in what cases the District Court shall have jurisdiction, and pl. 8 thereof declares, “of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a commonlaw remedy, where the common law is competent to give it." In Hine v. Trevor, 4 Wall. 570, and in The Belfast, 7 id. 644, brought in the State courts, the proceedings were in rem, and as there was no proceeding in rem at common law, the cases were held not to come within the saving clause of the act of Congress. But in Leon v. Galceran, 11 id. 188, it was held the State courts have jurisdiction in an action in personam. It is true that case was on a contract; but the act of Congress makes no distinction between a tort and a contract. The test is, whether the common law gives to a suitor the right of a common-law remedy, to redress the wrong which he has suffered. Whenever it does, the party injured may maintain such action in a State court. Brown v. Gilmore. Opinion by Mercur, J. [Decided Jan. 5, 1880.]

WISCONSIN SUPREME COURT ABSTRACT. SEPTEMBER 21, 1880.*

CONTRACT - DEED FOR LAND ACCEPTED BINDS GRANTEE NOT SIGNING-PAROL PROOF TO CONTRA

DICT. The acceptance by the grantee, of a deed or land contract executed by the grantor alone, binds

* To appear in 50 Wisconsin Reports.

surance Co., 38 Iowa, 304; Insurance Co. v. Warner, 80 Ill. 410; Insurance Co. v. Robertson, 59 id. 123, U.S. Circ. Ct., Minnesota, Aug. 4, 1880. Seaman's v. Northwestern Mutual Life Insurance Co. Opinion by McCrary, C. J.

CORRESPONDENCE.

DISQUALIFICATION OF PERJURY.

Editor of the Albany Law Journal:

As relating to the subject which you comment upon in your last number, whether the penalties attached to a conviction, such as a disqualification from testifying or voting, will follow the convict into another State where similar disqualifications are imposed, I would refer you to the case of Jones v. Board of Registrars, 56 Miss. 766; S. C., 31 Am. Rep. 385. There it was held that a pardon by the President of the United States of an individual convicted of embezzlement in a Federal court restores the offender to his right as a voter in the State. So far as the opinion of the court goes, an inference might be drawn from this case, that if the President had not pardoned the convict, he would have been debarred the privilege of voting in the State. In this respect perhaps the case might be considered as in accord with the case of State v. Kelley, which is in conflict with the New York decisions.

CHICAGO. Oct. 12, 1880.

WE

NOTES.

Respectfully,

L. MAYER.

E hear with regret of the serious illness of Mr. Justice Clifford. The Supreme Court assembling this month is seriously crippled by the absence of Mr. Justice Hunt, which seems permanent, that of Mr. Justice Clifford, which at his advanced ago we fear will prove so, and the temporary absence of Mr. Justice Field. Tho venerable Peleg Sherman, for many years a distinguished Federal judge, is dead. He discharged his duties in a most admirable manner even while totally blind. -The current number of the Southern Law Review contains the following leading articles: Purchases by Insolvents, by Orlando F. Bump; Limitations on the Powers of National Banks, by Frank P. Blair; Rights of Material Men and Employees of Railroad Companies as against Mortgagees, by George Tucker Bispham; Judicial Nominations, by Thomas T. Gantt; Confinement of the Insane, by Thomas M. Cooley.

We have received from Mr. Freeman, State Reporter of Illinois, advance sheets of volume 95 Illinois Reports, coming down to September last. These are furnished to subscribers to the Reports at $1 per volume in addition to the price of the volume. This plan is a great convenience and ought generally to be adopted.

-The American Law Register, for September, contains a leading article on Expert testimony and the microscopic examination of blood, by R. U. Piper, to be continued; the case of Leigh v. Jack, on presumption of ownership of soil in highway, with a note by Edmund H. Bennett; that of Dewey v. Union School District, on act of God excusing performance of contract, with a note by M. D. Ewell; and that of Palys v. Jewett, on suits against receivers, with a note by J. H. Stewart.

The lord chief justice appears in the new issue of The Nineteenth Century as a writer on " The Chase its

History and Laws." He states at the commencement his intention to be to pass in review the leading incidents in the history of the chase, and the laws which have regulated its exercise, or determined the extent to which property could be asserted or acquired in the wild animals which it is beyond the art, or foreign to the purpose, of man to domesticate; but as he only gets so far in his first paper as the hunting of the Eastern world in ancient times, there is no legal aspect of the matter to consider. It is, as he says, with the Romans that we first find any question raised as to the relative rights and obligations of the hunter and the owner of the soil, inter se. — Solicitors' Journal. When is his Lordship going to give us his essay on the Authorship of "Junius?"

*

The London Law Times utters the following awful communist sentiments: "We are altogether dead to the appeal which Sir George Bowyer makes through the columns of the Times with the hope of preserving the office of Lord Chief Baron. * * Practicing barristers are all keenly conscious that the administration of the law in the present day is one of the most prosaic things in the world, and that no officer, however lofty, gains any thing by its antiquity, or by its venerable associations, but it is indebted for every thing that it is, and for all the esteem which it secures, to the individual who occupies it for the time being. For all purposes of practical utility an able puisne judge is of as much service to the State as an equally able chief baron or chief justice, and although we are generally conservative in our tendencies, we should be very sorry indeed to uphold an institution simply because it is venerable, when its abolition is likely to produce uniformity in the constitution of our courts, economy in the administration of the law, and is also calculated to secure the objects aimed at by the Judicature Acts. * * Veneration for any particular judicial office is in our opinion unnecessary to the maintenance of our legal institutions in their highest efficiency. Give us able judges, judges without crotchets, judges who with the calm courage of capacity will sit alone, and we care not by what name they

are called, or what may be the designation of the office which they fill. Does Sir George Bowyer really imagine that Sir Alexander Cockburn would be regarded with less respect if he were the President of the Common Law Divisions? We believe the suggestion is idle; and it will be indeed deplorable if the government should be deterred or influenced by any such considerations." We tremble for the wigs.

The ALBANY LAW JOURNAL of the 9th contains the following: "Our lively friend, Mr. Bradwell, of the Chicago Legal News, complains of Judge Harker for holding that a woman cannot be a master in chancery." The Central Law Journal of the 8th also pays its respects to the Chicago Legal News in a severe upbraiding for the tendency of the latter to defend the rights of women and glorify their successes. For shame, gentlemen! The accomplished editor of the Chicago Legal News, as the Scotch say, "does na weer breeks," is, in fact, a lady, a good lawyer, a thorough business man, an elegant newspaper editor, and a gentleman, but of the sex feminine for all that; and we venture the opinion that if she had either Mr. Browne or Mr. Lawson in chancery, in a pugilistic sense, she would prove herself a master in spite of Judge Harker. We hope to see an apology from our worthy contemporaries at an early date. Ohio Law Journal. We certainly have said nothing against Mrs. Bradwell, and have explained how we came to attribute the masculine gender to her. We think the Central Law Journal is unnecessarily and even unjustly severe on her.

The Albany Law Journal.

ALBANY, OCTOBER 30, 1880.

EXPE

CURRENT TOPICS.

XPERTS and Expert Testimony" is the title of a paper read by John B. Chapin, M. D., of the Willard Insane Asylum, before the association of superintendents of American asylums for the insane, last May. Dr. Chapin makes a strong argument against the admission of hypothetical questions to witnesses who have not heard all the evidence. He attributes the popular prejudice against expert witnesses to the following causes: "1st. The fact that medical experts are usually summoned by counsel, and not by the court, in the interests of their side or clients, and their supposed liability to have a bias arise in the progress of the case a possible risk that their feelings and sympathies may become enlisted in behalf of the side on which they are called. 2d. The arrangement which is sometimes made for the payment of money, or a retaining fee, to medical experts for their services, by counsel in whose interests they are summoned, the amount of which is not fixed by law, and which may possibly be contingent upon the issue of the

case.

-

tice, however, it would necessarily degenerate into the summoning of such witnesses as either party desires. As to the latter suggestions, while it might not be improper to let the judge fix the compensation, it seems hardly fair to impose the expense of expert witnesses on the public.

The late decision of the Court of Appeals of this State in People ex rel. Campbell v. Campbell has been misunderstood in some quarters. The proceedings were instituted to reverse the action of the defendant, as commissioner of public works in the city of New York, in the removal of the relator from his office of chief engineer of the Croton aqueduct. The alleged cause of removal was the improper construction of an arch. The defense was that the relator was not charged with daily supervision of the work, but that this duty was devolved by the commissioner of public works on certain inspectors appointed and employed by him for the purpose, and that the defect resulted from the negligence of these inspectors. This defense having been made out, the Court of Appeals now say that there was no evidence to justify the removal, and they annul the order of removal. The opinion was written by Judge Finch, Judges Rapallo, Andrews, and Earl, concurring; Chief Judge Folger and Judges Miller and Danforth dissenting. The relator's counsel very cor

No

While admitting the difficulty in adopting any new rule for the selection of witnesses, he insists that "legislation must be invoked to alter the practice so that the law confer upon judges alone the power to subpoena experts in such cases where their opinions would seem to be desirable. There can be no doubt the power thus conferred would be exercised wisely and result in elevating the standing and character of expert testimony, and what is more important, restore to experts that independence of judgment and respect for their opinions we do not believe they enjoy under the present system. suspicion of bias could then properly attach to them. They would then assume their appropriate and originally-intended relation to the court, that of amicus curia." As to the compensation of expert witnesses, he says: "It would therefore seem to be the proper and obvious course to authorize and direct the court in all cases where experts appear, to fix and determine their compensation, in its discretion, and if deemed necessary to go further, prohibit by positive enactment the reception of any gift or compensation for expert services directly from parties interested." We see no theoretical objection to the first of these suggestions. In pracVOL. 22.- No. 18.

the decision as follows: "The law, as laid down by the Court of Appeals in this and prior cases, is substantially this: The heads of bureaus and regular clerks under the city charter hold office by a qualified tenure of good behavior. They can only be removed for cause, and 'the cause is to be some dereliction or general neglect of duty or incapacity to perform the duties or some delinquency affecting their general character and fitness for the office.' Such was the opinion of the court delivered by the late Judge Allen some two years ago in People ex rel. Munday v. Fire Commissioners, 72 N. Y. 445. The charter provides that before a removal the person must be notified of the cause of the proposed removal and be allowed an opportunity for an explanation. The present case lays down clearly the process for removal and the remedy in case of supposed injustice. The superior officer is to notify the subordinate of his intention of removing him and assign the cause, which of course must be sufficient on its face. The subordinate then is allowed to explain the unfavorable appearances or alleged misconduct. No formal trial is allowed and no evidence is taken. The superior officer can make the removal without further formalities. But there is one safeguard against abuse of this power. The removed subordinate, if he deems himself aggrieved, can apply to the court. Upon his application the superior must give a statement of the facts from which he drew the conclusion that the accused party was guilty of the charge. If in this statement any facts appear which tend to prove the charge, the removal stands, and the aggrieved party has no redress except to sue his superior for making a false

The ghost of the constitutional amendment decision in Indiana seems not yet laid. The New York Times says: "The remarkable claim set up by certain leaders of the Democratic party that the recent election is not valid because the Supreme Court, in its decision upon the constitutional amendments did not have the third amendment, which changed the date from October to November, before them at all, and therefore the election should have been held under the amendments without questioning its ratification, has awakened no inconsiderable interest. It is suggested that the governor will be made a party to mandamus proceedings, and long litigation forced upon successful candidates. The Republicans themselves have started the question whether or no the new Supreme Bench- - three Democrats and two Republicans - might not reverse the decision of the old court (inasmuch as Judge Niblack will still be a member of the readjusted court, and he decided the amendments to have been legally ratified), and by such reversal invalidate the whole election of Tuesday week." This paragraph illustrates four points. First, the popular impression that the Indiana Supreme Court is a very fickle tribunal, an impression which is warranted by its course in several recent cases. Second, the indecent partisan estimate of the motives which influence courts in

pronouncing judicial decisions. Third, the singularly inconsistent suspicion, apparently entertained by members of one political party, that judges of the opposite party would deliberately decide to turn themselves out of office. Fourth, the gross popular ignorance of legal principles, which leads men to suppose that a court could pass on the validity of its own election. The constitutional amendments must stand or fall as a whole. If the late election was irregularly held, all that it brought about must go down, the two new Republican judges are not lawfully elected, and can join in no decision; and as without them the former decision cannot be reversed, it is difficult to see how it can in any event be set aside. The court would decide itself out of office by such a judgment. It is like the case of the man sitting on the limb of a tree, outside his saw, and sawing himself off with the limb. The conjecture described in the Times' paragraph is the sheerest nonsense that was ever conceived.

The failure of the women's bank, in Boston, that pretended to pay eight per cent a month on deposits, has stirred up some fault-finding. Those who have been deceived are now disposed to blame the law for not having laid hold of the cheats before the

catastrophe. The promoters of the fraud having now been put in jail, the question is asked, why could not the law have broken up this business before the suspension of the bank? The answer is simple: there is no law to prevent a bank from offering to pay eight per cent a month for deposits, nor from paying it. There is no law to prevent a man from offering to carry passengers by balloon to the moon, nor from carrying them there. All experience shows that neither of these promises can be fulfilled, and if people are so silly as to believe that they can be, they have none but themselves to blame for loss by the inevitable failure. If the credulous depositors in the women's bank could only have held their faith, and kept on depositing, the day of failure would have been indefinitely postponed, for the early lenders would have received their interest out of the capital of the later depositors, and the devil would have taken the hindmost, according to usage and the proverb. We do not now exactly understand on what charge the managers have been incarcerated, but whatever it is, it could not have matured so long as the bank kept its promises. The scheme was a shallow, shameless fraud from the start, and the defense of it put forth by Gail Hamilton a few days before the breaking of the bubble, is a pregnant commentary on the fitness of women to vote, to legislate, to become lawyers, to hold office, and generally to take care of themselves. Fools are plenty among men, but it would be hard to find men who would invest their money at eight per cent a month. That is the reason why the blessings of the late bank were only vouchsafed to

women.

The annual meeting of the New York State Bar Association will be held at the city of Albany, on the 16th day of November next. We understand that Hon. George W. Biddle, of Philadelphia, is to deliver the annual address, and that the exercises will be of an interesting character.

NOTES OF CASES.

IN People's Ice Co. v. Steamer Excelsior, Michigan Supreme Court, Oct. 6, 1880, 6 N. W. Rep. 636, plaintiffs were engaged in a general ice business in Detroit, Mich., and the lessees of a large portion of the water front of Belle Isle, in the Detroit river, along which and outside of a line fifteen feet from the shore they had constructed a boom. On January 11, 1878, the pond formed inside of such boom was frozen over with hard, clear ice six inches thick, and on that day the defendant boat was, by her mas ter, run backward and forward on such river, and so unusually near the boom that the swell caused by the steamer broke up the ice so that plaintiff was unable to harvest it, and the weather continuing mild thereafter so that ice did not properly form, plaintiff was, by reason thereof, unable to get a stock or fill its ice-houses. There was room for the boat to pass farther away from such boom,