actual negligence, they were responsible; and that they were chargeable with negligence unless they exercised the care and prudence of a prudent man in his own affairs. This was held by this court to be a correct statement of the law.

CURRENT TOPICS.

The bankrupt law, especially as to the portion relating to involuntary bankruptcy, has become exceedingly oppressive to the business community, and we hope that the agitation for a repeal which, during the late monetary crisis had gained considerable strength, will now make itself felt in the national legislature. While now and then a debtor may, by the provisions of this law, be prevented from a partial or dishonest disposition of his estate, in most instances the only persons who reap any benefit are the various officials connected with the Federal courts. And it is not alone through the official costs and fees that those interested in the estate of a bankrupt suffer. The property taken possession of under the bankruptcy warrant is very frequently injured, lost or stolen while in the hands of the officers of the court. In fact involuntary bankruptcy means the sacrifice of the debtor's estate, and such is the general feeling among merchants upon the subject, that no one anxious to have the affairs of an insolvent debtor honestly and equitably settled ever thinks of invoking the aid of bankruptcy process.

There is some hope, however, that the creditors of a debtor who falls into the hands of the Federal marshals will hereafter stand a chance to obtain some share of his property, at least if such debtor lives in Michigan, East District. Judge Longyear has decided that a marshal is not 'entitled to travel fees unless he travels, and that he can charge but one journey at one time. That is to say, constructive mileage is forbidden and where an officer has two or more processes in his hands at the same time, in the same matter or proceeding, he can charge mileage These holdings, to which we invite the attention of United States marshals and deputies in this State, are in the Matter of Donahue & Page, 8 National Bakruptcy Register, 453.

but once.

Up to Monday, the 8th inst., nearly 500 bills had been introduced into congress. As that body commenced operations only the Wednesday previous, its members cannot be said to be deficient in energy, at least, in the direction of law-making. How much of the proposed legislation is in the interest of the country it is impossible to say, but we think that there will be reason to be thankful if such part of it as becomes law does no harm. Among the bills introduced into congress are a dozen or more looking to a modification of the aw of the last session, repealing the franking privilege. The country newspapers are clamorous for free post

age for themselves, although we cannot see what justice there is, or ever has been, in the government affording to the publishers of those sheets, favors which the rest of the people do not enjoy. The feeling of our people and the tendency of the age, is against class privileges, and we trust that a step backward will not be taken in the matter of postal legislation.

The constitution proposed for adoption in Pennsylvania, whether it meet the approval of the politicians or not, is an epitome of the best ideas of the present day in regard to what ought to be the fundamental law. It is a clear, consistent document, embodying no crude theories, but filled with sensible provisions for the regulation of the State government. The men who framed this organic act were evidently those of experience in the business of legislation, knowing the dangers to which a democratic form of government is exposed, and what practical measures would be most likely to guard the body politic against them. Many things which we have hoped to see in our own constitution we find here, and we believe that the future experience of Pennsylvania, if the proposed constitution shall be adopted, will be such as to justify and encourage our hope. Article III of this instrument, upon the subject of legislation, contains perhaps the more important provisions. The limitations to legislative power are numerous, but we believe no more so than they ought to be. The legislature is restricted to a fixed mode of enacting laws. No law can be passed except by bill, and no amendment can be made to a bill changing its original purpose. Provisions also exist to prevent the hurrying of legislation. The legislature is prohibited from passing special laws in most instances, and is very strictly limited in the matter of appropriations. No appropriation can be made except for certain specified public purposes in the general bill, but every private appropriation must be by special bill. And by sections 17 and 18 of the article "no appropriation shall be made to any charitable or educational institution not under the absolute control of the Commonwealth, other than normal schools established by law for the professional training of teachers for the public schools of the State, except by a vote of two-thirds of all the members elected to each house. No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes to any person or community, nor to any denominational or sectarian institution, corporation or association." Section 21 forbids the limitation, by legislative enactment, of the amount to be recovered for death from injuries or for injuries; forbids a special statute of limitation for corporations and abrogates all existing acts of the character forbidden. These provisions are doubtless in consequence of legislation now in force limiting the recovery in ease of injury by acci

dent from negligence, to very small amounts. Of course these various provisions provoke a large amount of discussion, and there is in some localities a bitter opposition to the constitution. Prejudice and personal interest, or both combined, impel many influential individuals to advocate its defeat, but the friends of good government in Pennsylvania are earnest in its behalf, and we trust that the setting of the sun on Tuesday next will find it chosen as the fundamental law of that rich and populous Commonwealth.

The procedure in England of inducting a Lord Chief Justice into office, is no doubt very solemn and impressive to those who have been properly instructed, but we must confess that to our imperfect apprehension it seems very ridiculous. The inauguration of Sir John D. Coleridge, recently, as we gather it from the English law papers, was conducted something as follows: Justices Keating and others took their seats upon the bench, Sir John at the same moment appeared at the back of the bar and walked up to the front where he halted. A mock lawsuit, or as it is called a pleading on a writ of dower, was gone throughMr. Sergeant Ballantine appearing for the plaintiff, and Sir J. D. Coleridge for the defendant, who, having "counted," read the counts in the declaration and pleaded thereto. Mr. Sergeant Parry prayed leave to impart. The writ and pleadings having been read by the Master of the court were ordered to be recorded, and Sir John, who had now become Sergeant Coleridge, was called within the bar. Then, said Mr. Justice Keating, "Brother Coleridge, will you move any thing?" Brother C. seeing nothing to move, and being about to move himself, bowed, shook hands all round and bid farewell to the bar. The court adjourned for a few moments. When it re-convened, the late sergeant appeared in the robes of office and wearing a gold chain, took the customary oaths and entered upon the discharge of his duties as Lord Chief Justice of the Court of Common Pleas.

NOTE OF CASE.

In Quinn v. Quinn, 1 N. Y. Sup. Ct. Rep. 437, a will was presented for probate which had, after being duly executed by the testator, been by him written upon, and in portions obliterated. The testator having changed his mind as to certain legacies, attempted to alter his will in accordance therewith by blotting out the names of the legatees and interlining other names; in some instances giving his reasons for the change. He also, in the same way, attempted to appoint a new executor as a substitute for one named in the will. The question before the court was what effect the obliterations had upon the will, there evidently being no intention on the part of the testator to revoke the whole will thereby. It was held that they had no effect, there being no provision for par

tially revoking a will by the obliteration of portions of it, and that the will in question, as originally executed, should be admitted to probate.

As to the impossibility of changing or revoking a will by modes other than those named in the statute, this case is in harmony with Jackson v. Holloway, 7 Johns. 394; Onions v. Tyree, 1 P. Wms. 343; Short v. Smith, 4 East, 419; Ex parte The Earl of Ilchester, 7 Ves., Jr., 348; Rudy v. Ulrich, 69 Penn. St., 8 Am. Rep. 238.

THE DEATH OF JUDGE PECKHAM. The Court of Appeals on Thursday week gave formal expression of their sense of the loss sustained by the public and by members of the court by the death of Judge Peckham. The court room and the chair of the deceased judge were draped in mourning.

Directly after the opening of the court, Chief Judge Church presented the following:

The judges of the Court of Appeals, at their first meeting in consultation after the receipt of the melancholy intelligence of the death of their late associate, Hon. Rufus W. Peckham, by the terrible disaster at sea on the 22d ult., in view of the public loss sustained by his death, and of their private grief at the sudden decease of their friend and associate, deem it proper to place upon the records of the court this expression of their estimate of his services and character.

Judge Peckham has, for many years, been identified with the judiciary of the State. His judicial career began as a judge of the Supreme Court, to which he was elected in the district where he had spent the whole of his professional life; and the qualities which distinguished him as a judge in that position led to his nomination and election as an associate judge of this court on its organization. His firmness, his learning and his fearlessness and independence in maintaining his convictions, guided always by a strong sense of justice, which was a distinguishing feature of his character, won the confidence and respect of the bar and bench, and of all with whom he was associated.

Exhausted by continual application to the discharge of the duties of his position, at the suggestion of his medical advisers, and with the cordial concurrence of his associates, but with reluctance on his part, he sought for a time relief from labor, and to recruit his energies by temporary absence. At almost the first step of his journey - from which his friends hoped he would derive so much benefit - he met with a tragic death.

While we regard the public loss sustained as the paramount one, we cannot refrain from expressing in this public manner our personal attachment to the deceased.

The association of the members of the court with

each other is necessarily most intimate, and it developed in the character of our deceased brother rare and attractive qualities. His candor in discussion, patience under opposition, his uniform courtesy to his associates, his kindness and tenderness of feeling, evinced a manly and generous nature, and so endeared him to us, both as a man and colleague, that his death is felt by us as a family affliction. We tender to the surviving relatives of the deceased our deep sympathy, and commend them to the consolation (though inadequate) to be found in the record of a useful and honorable life.

The members of the court will wear the usual badge

A meeting of the bar of Albany county was held at the City Hall this afternoon, for the purpose of initiating arrangements for a more formal meeting, to give expression to the sentiments of the bar with reference to the loss it has sustained in the death of Judge Peckham.

The meeting was called to order by Orlando Meads, Esq., on whose motion Matthew Hale was appointed chairman. T. J. Van Alstyne was appointed secretary of the meeting.

On motion of Judge Clute, seconded by Mr. Meads, a resolution was adopted that a committee be appointed to consist of the chairman, secretary and five others, to be designated by the chair, to make arrangements for a meeting in memory of Judge Peckham, to be held during the present session of the Court of Appeals, to which the members of the bar of the county and the State should be invited.

The chair designated Messrs. J. H. Clute, Orlando Mead, A. J. Parker, John H. Reynolds and Paul F. Cooper to serve on such committee.

THE RESIGNATION OF JUDGE SHERMAN. In tendering the president his resignation as judge of the United States District Court for the northern district of Ohio, Judge Charles T. Sherman says he is not aware that he has been suspected or accused of official misconduct, and refers to recent action of the Cleveland bar in asking him to resign as being influenced by motives far worse than any attributed to him. He adds:

"The only fault that has been found with me by those who took part in the proceeding of the Cleveland bar grows out of my employment by the late Mr. Lockwood to aid him and other brokers of New York in procuring the reversal or repeal of a grossly erroneous and unjust construction by a revenue officer of a revenue law that affected only the brokers residing in the XXXIId district of New York. This employment could in no way conflict with my official duties. The subject-matter could in no form come before me for judicial action. No law or moral obligation prohibits a judge from seeking the repeal of any law, with or without compensation. The gentleman who employed me knew of my official position, and that it could not aid him. He knew, also, that I would not personally aid him in Washington, but would rely on Judge Bartley and R. C. Parsons to present the matter to the proper authorities. I did all that I assumed to do. The law was repealed, and I believed it was done through their agency. The claim for compensation was founded upon that belief. I erred when making the claim in not specifically stating who rendered the services, instead of treating their rights as my own, which I had a right to do. But nothing was done by either of these gentlemen which I could not lawfully

and properly do. I deny, therefore, that I have done any thing that I might not lawfully and properly do, either as a citizen or as a judge, and upon this issue I might cheerfully and with great confidence appeal to the only tribunal that can try any accusation against me. But the leading and governing motive which actuates me in offering this resignation is the wish to avoid the publicity that must necessarily result in meeting this accusation. Constituted as I am, rather than undergo the pain of having my name and actions and motives, and those of my family and relatives, canvassed and commented upon in a friendly or unfriendly spirit by persons either in or out of congress, I would prefer to retire from my present position."

JUDGE SHERMAN'S SUCCESSOR.

Of ex-congressman Martin Welker, who has been appointed judge of the United States District Court for northern Ohio, in place of Charles T. Sherman, resigned, the Cleveland Leader says: "Judge Welker is a native of Knox county, Ohio, where he was born on the 25th of April, 1819. He gained his primary law education by hard study while working on a farm, and was admitted to the bar in 1840. In 1846 he was clerk of the Court of Common Pleas for Holmes county, which position he held until 1851, when he was elected judge of the Common Pleas for the sixth district, in which office he served five years. He removed to Wooster, Wayne county, in 1857, and was immediately afterward elected lieutenant-governor of Ohio, and at the end of his term, two years later, declined a renomination for that position. During the war he was first aid-de-camp and acting judge-advocate-general of the staff of the governor of Ohio; then in 1862 was made adjutant-general of the State and superintended the drafts of 1863 and 1864, until elected during the autumn of the latter year to a seat in the thirty-ninth congress, where he served on the committees on resolutions, pensions, and the District of Columbia. Judge Welker is a hearty and consistent republican, and a gentleman of high integrity."

ATTORNEY-GENERAL WILLIAMS' REPORT.

It appears by the report of Attorney-General Williams that the civil suits on July last to which the United States were a party, were as follows: Customs' suits, 3.759; internal revenue suits, 1,482; post-office suits, 142; miscellaneous suits, 2,216-making in the aggregate 7,599 suits pending on that day. During the same year the aggregate amount of judgments in favor of the United States in these suits was $3,208,402, and the amount actually realized on the judgments was $1,698,133. There were pending on July 1, last, in Circuit and District Courts of the United States, 6,274 criminal prosecutions, the result of which is given in the report.

Exhibits are also given of the number and results of civil suits in the Federal courts. A total of 15,141 suits of all classes were commenced in the year ending with June last. The total number terminated was 7,276. A summary of the business transacted by the Court of Claims for the past year shows that the miscellaneous cases disposed of amounted to 1,493; cotton cases, 107; total, 1,600. The amount claimed was $7,015,223. The amount awarded was as follows: In the miscellaneous cases, $753,402; in the cotton cases, $3,130,398, making a

total of $3,883,800. The number of cases disposed of during the year was 1,600. Those still pending amount to 4,802. The amount expended by the department of justice was $3,031,000.

Information in relation to other branches falling under the department is given, concluding with an account of the suits brought by the United States against the Union Pacific Railroad Company and the Credit Mobilier. Judge Hunt, having filed an opinion in which he holds and decides not only that there is no right of action in the United States for the causes specified in the act of congress to recover, but that congress cannot give to the United States the right to recover upon said causes of action. The decision, in effect, renders nugatory the law under which the suit was brought. Therefore, the attorney-general considers it to be his duty to appeal from this decision to the Supreme Court of the United States.

COURT OF APPEALS ABSTRACT.

ASSIGNEE.

Costs. After the commencement of proceedings to enforce a mechanics' lien, the claimant assigned his claim to H. & W., creditors, to collect and apply the proceeds in payment of a debt he owed them, the surplus, if any, to be returned to him. The proceedings were determined in favor of defendant, who moved that H. & W., the alleged assignees and owners of the demand in controversy, should pay the costs of the defense. This motion was denied, and the order thereon affirmed by the general term, and an appeal taken to this court. The chief question raised was, as to whether H. & W., after the assignment, had conducted or carried on the suit or aided therein.

Held, that they had not; that under § 321 of the Code, an assignee of a cause of action, assigned after suit brought, is liable for the costs therein, irrespective of the question as to whether or not he, subsequent to the assignment, took any substantial part in the prosecution of the action; but, that as the assignment here was simply as collateral security, H. & W. were not liable for the costs. In re lien of Dowling v. Premises of Bucking. Opinion by Peckham, J.

COMMON CARRIER.

1. This action was brought to recover the value of certain goods shipped by defendant's boat from New Haven to New York, which were burned after their arrival in New York, and after being unloaded on defendant's wharf. This case has been in this court upon a former appeal, and is reported in 50 N. Y. 121.

Held, that from the fact that plaintiff had been in the habit of shipping its goods daily, by defendant, to the agent in New York, for sale, and it had been the long established habit of the consignee to call daily and receive the goods upon their arrival without notice, it was not necessary to give notice to the consignee of the arrival of any consignment, but that when the goods were unloaded at the accustomed place, and the consignee had had time to remove them, defendant was discharged. J. R. Mfg Co. v. N. H. Steamboat Co. Opinion by Folger, J.

2. Where the usage has been for the consignee not to receive or remove goods arriving upon a holiday, if any arrived on such a day, the ordinary rule would apply, and defendant, to relieve itself from liability as a carrier, would be obliged to notify the consignee, and give him a reasonable time to remove the goods; otherwise, the liability attaches until after a reasonable time for

the removal of the goods upon the next day (D. C. 50 N. Y. 121)-explained. Ib.

CONTRACT.

Contract for sale of land-dower.-M, plaintiff's testator, agreed to sell his interest in certain real and personal estate to defendant, the deed to be delivered the first of February thereafter, or if M had not then returned from a contemplated journey, as soon as it could be done after his return, defendant was to pay $4,000 down, $6,000 on or before the delivery of the deed, and to give a bond and mortgage for the balance, bearing interest from the date of the contract. Defendant paid the $6,000 prior to February 1st. M tendered a deed on that day, to which, after examination by his attorney, defendant objected. M tendered another deed February 24th, which was also objected to. March 10th, M wrote to defendant that unless he accepted the deed offered, he would proceed to enforce the contract, and thereupon commenced an action to restrain defendant from selling the personal property, and to require an account therefor. April 4th, defendant offered to accept the last deed, and tendered a bond and mortgage according to the contract. M refused to deliver the deed, or to accept the bond and mortgage. Defendant then answered, setting up the facts as a counter-claim, and asking for specific performance. M served an amended complaint, claiming to rescind the contract, because of defendant's failure to perform. Defendant answered, tendering performance, and asking for a specific performance. After the joining of issue, M died, leaving a will, by which he left all his property to plaintiff, his wife. After trial, upon the settlement of the case, plaintiff claimed her dower in the premises.

Held, that time was not of the essence of the contract; that defendant could not be barred of his rights, without notice, requiring performance in a specified, reasonable time, or, in default, that his rights should be deemed abandoned, and no such notice having been served, he was entitled to a specific performance. Also, held, that plaintiff was not entitled to dower, no such claim having been made on the trial; if it had been made, the court would, doubtless, in allowing it, have deducted its value from the unpaid purchase-money. Plaintiff being the sole devisee and legatee, the allowance would have been of no benefit. Myers v. DeMier. Opinion by Grover, J.

CONVERSION.

Affirmance of contract: principal and agent.- Action to recover for the alleged conversion of thirty-one sacks of wool, part of a lot of fifty sacks, placed by G. & J. in the hands of R. & Co., for sale on commission. R. & Co. were induced by fraud to sell the goods on credit to a purchaser who proved to be insolvent. The purchaser transferred them, with other property in trust, for the payment of antecedent debts. Upon discovering the fraud, R. & Co. accepted as security for the purchase-money, a written assignment of the purchaser's claim, to any surplus remaining after payment of the debts. The assignment contained a clause, declaring that the acceptance thereof shall not preclude R. & Co. from claiming and commencing proceedings to recover the goods.

Held, that the acceptance of the assignment was an unequivocal affirmance of the sale and subsequent transfer, and an abandonment of the right to reclaim the goods, and the insertion of the clause declaring that R. & Co. were not precluded from recovering for the

goods, did not change the nature of the instrument. That such clause is repugnant to the other parts of the instrument, and is inoperative. Also, held, that R. & Co. having been induced by fraud to part with the goods, and having acted in good faith in taking the security for the price of the goods, were acting within their powers, and their principal was bound. Joslin v. Cowee. Opinion by Rapallo, J.

COSTS.

1. Extra allowance: injunction.—In an action to determine the title to a $10,000 bond, a temporary injunction was obtained by plaintiff, restraining the disposition thereof during the pendency of the action. Defendants moved to dissolve the injunction. The motion was denied, the court declining to look into the merits, and ordered a reference of the issues in the action. Upon the trial the complaint was dismissed. Defendants were granted an extra allowance of $500. The order therefor stated, "This is intended to cover all allowance of extra costs to be made in any event in this action to defendants." This order was accepted and defendants' attorneys received the extra allowance. Upon a reference to determine the damages upon the injunction, the referee allowed counsel fees upon motion to dissolve, also counsel fees upon trial and upon appeal and the taxable costs in the action. Held, that defendants were only entitled to the expenses of the motion to dissolve the injunction, and were not entitled to that here, that it appeared by the order granting the extra allowance that it was intended to embrace them. Disbrow v. Garcia et al. Opinion by Folger, J.

2. This case differs from Andrews, Rec'r, etc., v. Glenville Woolen Co., 50 N. Y. 282; there the trial was necessary principally to dispose of the injunction; here the title to the bond was the prominent question upon the trial, and the expenses then incurred were not occasioned solely or principally in consequence of the injunction, but would have been required had there been none. Ib.

OFFICE.

1. Constitutional law: statutory construction: tax collector.- Action in the nature of a quo warranto to test the title to the office of collector of the town of Flatbush, Kings county. April 5, 1870, defendant was elected, at a meeting held in said town, collector of said town, and took and filed an oath of office as such collector, April 22, 1870. The legislature passed an act for the extension of the term of office of the collector of taxes in the several towns of Kings county (ch. 374, Laws of 1870). April 4, 1871, a town meeting was held in the town of Flatbush, at which votes were given for the office of collector of taxes, and relator received all the votes cast for said office, and was declared elected to said office. He never took or filed any oath, nor did he execute a bond to the supervisor of the town. No notice was served upon him of the amount of taxes. The board of supervisors ordered the warrant for the collection of taxes for 1871 to be made out in defendant's name, and to be delivered to him on November 4, 1871; said warrant was so delivered, and defendant has since acted as collector. A verdict for defendant was directed by the court. Held, that chapter 374, Laws of 1870, which provides that said collectors shall hold their office for the term of three years, was not intended to extend the term of those then in office, but simply that of their successors. That the election held in 1871 was proper, and that

relator was entitled to the office. People v. Batchellor, 23 N. Y. 138, overruled. Until the town collector elect has taken and subscribed the oath of office required by the constitution (art. 12) the incumbent to the office is entitled to hold over (1 R. S. 347, § 30). Allen, J., dissenting. If such oath is taken at any time before the office is forfeited by reason of the neglect of the person elected to execute the bond required by the statute, it is sufficient and entitles him to the office.

Under the provisions of 1 R. S. 346, §§ 19, 26, which require the person elected collector, within eight days after notice of the amount of taxes to be collected, to execute a bond as prescribed, and declare that a neglect to do so shall be deemed a refusal to serve, actual notice must be given to the officer of the board of supervisors or the supervisor of the town, before he can be put in default. He is not bound to take notice of the proceedings of said board in fixing the amount of the tax. People ex rel. Williamson v. McKinney. Opinion by Andrews, J.

2. The constitution does not provide for the election or appointment of town collectors, and under Const., art. 10, § 2, that office can only be filled by the electors of the town, or by appointment by the local authorities of the town. Ib.

3. An act of the legislature extending the time of incumbents of the office of collector is an attempt to exercise the power of appointment, and is in conflict with the constitution. Ib.

4. The legislature has power to extend the term of office of those thereafter to be elected. Ib.

PRACTICE.

1. It is the policy of the Code to restrict the jurisdiction of this court to questions of law, and to limit the review of facts to the special and general terms. There is an exception where the general term reverses a judgment rendered upon a trial by the court or a referee upon the facts, and it is so certified in the order of reversal. This court is not authorized to examine and review questions of fact in an equity action. (Allen and Rapallo, JJ., dissenting.) Vermilyea, Admr., etc. v. Palmer, Exr., etc. Opinion by Church, Ch. J.

2. Where, under § 72 of the Code, an order for the trial by jury of specific questions of fact in an equity action is made, the findings have no more force or effect than the findings in the old procedure by feigned issue, for which this is a substitute. The findings of the jury are auxiliary to the judgment of the court, and the trial of the issue is by the latter. It may set aside the verdict and order a new trial, or find the fact itself, or it may qualify or alter the findings. If approved they become, by adoption, the findings of the court. The introduction of this procedure does not therefore withdraw the case in other respects from the application of the other provisions of the Code, and the mode of review is the same as in other actions tried by the court. It seems that the old chancery rule is applicable in this court in reviewing, upon appeal from the judgment, questions of law raised upon the trial by the jury-e. g., that the court will not regard exceptions not affecting the merits. So if the jury be misled by an erroneous charge of the court upon the law, the error, if vital or important, may be available in this court without an exception. (Church, Ch. J.) Ib.

3. Remittitur.-On February 11, 1873, the judgment of the court below in this action was affirmed, and the remittitur received by defendants' attorney February 13, 1873. On the same day an order was granted by one of the judges of this court, staying the filing of the