would be liable in trespass therefor. Rorer, Jud. Sales, §§ 1002, 1003, 1005; Allen v. McCalla, 25 Iowa, 487. "The levy must be so made that it identifies, or gives the means of identifying, what is levied on, so that any property levied on may be made chargeable to the officer, and property not levied on cannot be subsequently claimed. It must be seized manually, or by assertion of control that may be made effectual, if necessary, and thus to bring and keep it within the dominion of the aw for sale on execution, if needed, and for no other purpose." Quackenbush v. Henry, 9 Rep. 120. "A mere paper levy is void. The officer should take actual possession, but removal of the goods is not absolutely necessary; yet there must be actual control and view of the property, with power of removal. See also, Haggerty v. Wilber, 16 Johns. 387. Rix v. Silknitter. Opinion by Day, J. Decided Dec. 8, 1882.] MISTAKE EXECUTION OF CONTRACT WITHOUT READING — NEGLIGENCE. It is incumbent upon the party executing an instrument to exercise reasonable care and diligence to ascertain its contents. Ordinarily however, what constitutes reasonable care and diligence is a question of fact, to be determined by the jury in view of all the circumstances. In this case the plaintiff was unable to read the note executed by him on account of the absence of his spectacles, but depended upon the reading by an agent whom he had known for years, and had confidence in. His wife and son were present, but he did not ask either to read it. Held, that it was for the jury to determine whether plaintiff was negligent. See Taylor v. Atchinson, 54 Ill. 194; Walker v. Ebert, 29 Wis. 194. In Rogers v. Place, 29 Ind. 577, it was held, "in the absence of any device to put the party off his guard, an omission to read the instrument by one having the capacity to do so, will place him beyond the protection of the law." To this effect, see Seebright v. Fletcher, 6 Blackf. 380; Nebeker v. Cutsinger, 48 Ind. 436; McCormack v. Molburg, 43 Iowa, 561. Hopkins v. Hawkeye Insurance Co. Opinion by Day, J. [Decided Dec. 6, 1881.] WISCONSIN SUPREME COURT ABSTRACT. NOVEMBER 3, 1881.* JUDGMENT -ESTATE IN REMAINDER IN CORPORATE STOCK MAY BE APPLIED TO SATISFY. An estate in remainder in the stock of an incorporated company, after the expiration of a life estate therein secured to another, may be applied by equity to the satisfaction of a judgment against the remainder-man. It is a general rule that every estate in lands which is alienable by the party entitled to the estate is liable to be seized and sold on execution against him. See Herman, Execut. 184; Williams v. Amory, 14 Mass. 20; Penniman v. Hollis, 13 id. 429; Freeman, Execut., § 178; Buton v. Smith, 13 Pet. 464; Watson, Sheriffs, 208; Moore v. Littel, 41 N. Y. 66; Woodgate v. Fleet, 44 id. 1; Sheridan v. House, 4 Keyes, 569. This court held (Bridge v. Ward, 35 Wis. 687) that when a life estate in real property was devised to a man, after the death of the testator, his life estate could be sold on execution, although there was a provision in the will restricting the devisee from selling the same. The restriction in the will was not accompanied by any declaration that an alienation by the devisee should work a forfeiture of his estate. These authorities also hold that it is immaterial that the remainder is an undivided or even an uncertain interest. Atkins v. Bean, 14 Mass. 404; Puryear v. Edmondson, 4 Heisk. 43. The rule in regard to real estate has been applied by the courts to estates in remainder in personal propAppearing in 53 Wisconsin Reports. erty, and sales of estate in remainder of personal property upon execution have been upheld. Some courts have held that such estates in chattels, where the person having the life interest, or some other person in trust for the life estate had the actual possession, could not be sold on execution because there was uo way of delivering possession upon such sale to the purchaser; but the same courts have held that a court of equity could subject such interest in remainder to the payment of a judgment against the owner of such estate. Freeman Execut., § 122; Allen v. Scurry, 1 Yerg. 36; Sale v. Saunders, 24 Miss. 38; Goode v. Languiere, 35 Ala. 668; Knight v. Leak, 2 Dev. & B. (N. C.) 133; Lockwood v. Nye, 2 Swan, 515; Herman, Execut. 145. There seems to be no reason for holding that an estate in remainder in chattels, which like an estate in remainder in real estate is clearly assignable at the will of the owner of such estate, should not be sold on execution to satisfy his debts the same as any other property owned by the debtor. The only objection raised against a sale of such estate on execution is based upon the objection that when the party having the precedent estate has the possession, there is no way of delivering possession, and that in consequence of such difficulty the judgment debtor must proceed in equity, or according to some statutory remedy, in order to subject such estate to the payment of his claim; all the courts holding that in some way the judgment creditor is entitled to have the estate sold and applied to the satisfaction of his debt. Arzbacher v. Mayer. Opinion by Taylor, J. PARTNERSHIP-ACTS RENDERING ONE DEALING WITH FIRM A PARTNER. - By written agreement H. was to "loan and advance" to M. N. & L. N., as copartners in business under the name of N. Bros., $5,000, from time to time, as the interest of the business might demand; and such part of that sum as H. should advance was to remain a permanent fund in said business during not less than one year nor more than five years from the date of the agreement, at the option of H., except as was therein otherwise stipulated. In consideration of the sum "so loaned and advanced" by H., N. Bros. agreed to devote their whole time and skill to said business, to keep accounts and detailed accounts of the business, which accounts were at all times to be open to the supervision and inspection of H. In consideration of the use of the money, N. Bros. agreed to pay H., once in every six months, three-fifths of the profits of said business, guaranteeing that such three-fifths should amount to at least $3,000 per annum. As security for the money advanced by H., he was to have a lien upon all the stock, notes, accounts, and other property of the firm, and might extend the agreement to a period of ten years. All moneys above $5,000 which H. might advance or loan to the firm were to be loaned upon the same conditions. N. Bros. agreed to contract no debts outside of said business during the term of the agreement, and to use no funds or other property of the firm of N. Bros. except what might be necessary for their support. A violation of the conditions of the contract by N. Bros. was to be "regarded as an end of the loan," and thereupon H. was authorized to take immediate possession of all company property, and sell the same, or a sufficient quantity thereof to satisfy the amount of money advanced by him to the firm, and all sums due him from the firm. Held, that by this agreement H. became a copartner in the firm of N. Bros., aud was liable on the note in suit executed by the firm. The case is analogous to that of Leggett v. Hyde, 58 N. Y. 272; Whitney v Ludington, 17 Wis. 140; Miller v. Price, 20 id. 117; Upham v. Hewitt, 42 id. 85. The 'case of Leggett v. Hyde, in its leading facts, is much like the one at bar. There it was held that one who is interested in the profits of a business as profits, and 66 THE ALBANY LAW JOURNAL. not as a means of compensation for services, is a partner as to third persons, and is liable as such for the debts. Defendant H. loaned to the firm of A. D. P. & Co., $2,000, to be used in the business for one year, under an agreement that he was to receive one-third of the profits, which were to be settled half-yearly, and at the end of the year if he did not conclude to become a partner he was to be repaid his $2,000 out of The court held that the money so inthe concern.' vested was used by the firm for the benefit of H.; that he had an interest in the profits as such, not as a measure of compensation, but as a result of the capital and industry; and that as to the creditors of the firm he was a partner." Rosenfield v. Haight. Opinion by Cole, C. J. SURETYSHIP- SURETY ON APPEAL MAY NOT IMPEACH ORIGINAL JUDGMENT. - Persons who, being strangers to a judgment when rendered, become sureties on the defendant's appeal bond, conditioned to pay such judgment if affirmed, though they may impeach the judgment of affirmance on the ground that it was obtained by fraud or collusion in the appeal proceedings (Way v. Lewis, 115 Mass. 26; Cutter v. Evans, id. 27), cannot impeach the original judgment as procured by fraud. Etna Ins. Co. v. Aldrich, 88 Wis. 107, aud Mann v. Etna Ins. Co., id. 114, distinguished. Kroll v. Libbey. Opinion by Cole, C. J. CRIMINAL LAW. - ACCOMPLICE-IN COMMISSION OF INCEST ROBORATED TESTIMONY WILL NOT CONVICT. prosecution for incest against a man for carnally knowing his step-daughter, held, that if such step-daughter, knowingly, voluntarily, and with the same intent as actuated the defendant, united with him in the commission of the offense, she was an accomplice, and her uncorroborated testimony would not support a conviction. An accomplice is a person who, knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of a crime. The co-operation in the crime must be real, not merely apparent. Hence, although a woman, who co-operates voluntarily with others to procure an abortion on herself, is an accomplice; it is otherwise when she is the victim of force, fraud or undue influence." This court, in Watson v. State, 9 Tex. App. 237, held, on a full examination of authorities, that a woman who assented to the giving of a drug in order to procure an abortion, was a victim and not an accomplice, and did not require to be corroborated. See the case and authorities there cited. An informer, who purchases intoxicating liquors sold contrary to law for the purpose of prosecuting the seller, is not an accomplice in the sense of requiring to be corroborated, and so of one of the betters at the same game of faro, and a detective Stone v. State, 3 Tex. App. who feigned complicity. 675; Wright v. State, 7 id. 574. If a witness implicates himself it is immaterial that he claims to have been coerced. Davis v. State, 2 Tex. App. 588. Texas Freeman v. State of Court of Appeals, Nov. 19, 1881. Texas. Opinion by Winkler, J. INDICTMENT ORDER the margin of an order, need not be given. Common- NEW YORK STATE BAR ASSOCIATION. OFFICE OF THE SECRETARY OF THE GENERAL EXECUTIVE COMMITTEE, The Chairman of this Committee has communicated to me as follows: "Pursuant to a resolution of the General Executive committee of arrangements of said Association conCommittee of the New York State Bar Association, a sisting of "ELLIOTT F. SHEPARD, Chairman, "JAMES L. ANGLE, "LESLIE W. RUSSELL, and are hereby appointed, with power to add to their NEW BOOKS AND NEW EDITIONS. A Treatise on the Law of Private Corporations other than THER ERE are few good general treatises on this subject. Angell and Ames' is antiquated. Field's, excellent in most respects, and probably more generSome branches of the we have before pointed out. ally cited than any other, has some patent faults which subject have been treated in an unapproachable manner by Price, Dillon and Thompson. The present The examinwriter had a great opportunity, and the question is whether he has made the best use of it. ation which we have been able to bestow convinces us that in many respects the book is good, and that in least one point it is weak. It seems well devised and arranged, the plan is simple and logical and the expression of principles is generally apt. But the author THE ALBANY LAW JOURNAL. seems not to have made the most in every instance of * * Dipping into the book and turning to a subject with This statement and these citations are decidedly BIGELOW ON ESTOPPEL. A Treatise on the Law of Estoppel and its application in The first edition of this work appeared in 1872, the The STUDENT'S GUIDE TO WILLIAMS ON PERSONAL PROP- The Student's Guide to Williams on Personal Property. The Student's Guide to Smith on Contracts. Being a com- The Student's Guide to Williams on Real Property. Being a & Co., 1882. Pp. iv, 116. GENERAL CORPORATION LAWS OF PENNSYLVANIA. The General Corporation Law of Pennsylvania, approved 29th April, 1874, and supplementary acts, with notes, forms and index. By Angelo P. Freedley, of the Philadelphia Bar. Philadelphia: T. & J. Johnson & Co., 1882. Pp. 141. This manual is neatly printed, and copiously furnished with citations of cases and references to statutes. We can form no idea of its accuracy, but we practitioners in Pennsylvania. WISE'S OUTLINES OF JURISPRUDENCE. tended to be a critical and explanatory commentary ERLE'S JURY LAWS. The Jury Laws and their amendment. By P. W. Erle, one of the Masters of the Supreme Court. London: Stevens & Sons, 1882. Pp. viii, 152. Coleridge's Juries Bill: qualifications of special and The contents of this volume are as follows: Lord professional jurors; admission of working men to the common jurors; exemptions; challenges; tales; unamjury box; Sir W. Erle, Lord Chief Justice Cockburn, inous verdicts; composite juries; number of the jury; Lord Coleridge, and the Common Law Commissioners, on jury trial. Some of these chapters are reprints of articles in law magazines and secular newspapers. The per cent of trials. We think the proportion must be author is in favor of requiring unanimity, and states that juries disagree in not more than one and a half much greater in this country. fixing the number of the jury at eight. We are glad But he inclines toward to see that he denounces smiles at our statute, requiring the jurors to be professional jurors." from all legal exceptions; of fair character; of approved integrity; of sound judgment and well informed," and asks, "who in this country, and now-adays, would undertake, or be trusted, to make the selection?" ble's sweeping denounciation of jurymen generally, He also actually remarks: "Mr. Bumpresents in real truth a very fair sample of the language which is often heard about them.” great deal of interest in the book. We find a printed. It is handsomely IN 66 NOTES. He "free the California Supreme Court, during the year with the publishers? Or has he "cornered" the market on the Heptameron? He acts as if he were particularly anxious to create a demand for it. We are about to publish a new book of our own, containing nothing objectionable however, and we would give a good deal to have Mr. Comstock prosecute us for something that he might imagine in it. Mr. Comstock's prosecutions beat hostile criticisms all hollow in creating a market for a book. It would be supposed that his experience in regard to former similar prosecutions would innoculate him with a grain of sense in such matters; but who ever knew a reformer with any discretion? of insolvent corporations. It is stated that the expense of closing up the defunct Asbury, Continental, North America, Guardian, Security, Atlantic, Mutual, Globe, and Eclectic Life Insurance companies, has been $726,000, or upward of $90,000 each, or 41 1-5 per cent of the amount paid to policy-holders. This is outrageous. A receivership of an insolvent insurance company is now-a-days regarded as a bonanza by the receiver and all his friends who can attach themselves to it. The receivers' fees are generally out of all proportion to the services rendered, making due allowance for lying awake of nights. The number of clerks and lawyers usually relations and friends of the receiver — who find employment in these matters, at a compensation much greater than a few competent men would be glad to do the entire work for, is legion. No doubt there is a great deal of complexity in the accounts of such institutions, which requires much time and expenditure to unravel. No doubt the conflicting rights of different classes of claimants give rise to intricate and tedious litigation. But who can believe that the affairs of eight companies have justified an expense of more than $90,000 apiece? We might believe such an expense possibly justified in a single instance, but not in eight almost contemporaneous. We should be very glad to contract to do all such business for say $50,000 per corporate head, and take our chances. Judges are frequently too liberal in allowances, and receivers and lawyers are frequently too greedy.ceived the reputation of an accomplished lawyer The community are frequently long-suffering, but it remains to be seen how long they will endure this species of robbery. We are glad that our Legisla-parison with Webster's. At all times during the ture are inquiring into this matter. Mr. Anthony Comstock sometimes overdoes matters. He has been overdoing matters just now in New Jersey. He has been prosecuting a book-seller for selling an obscene publication, namely, the Heptameron of Queen Margaret. The book is obscene, no doubt. It has more than the obscenity of the Decameron of Boccaccio, without its wit and its elegant style. It quite throws in the shade the Golden Ass of Apuleius and the Kisses of Johannes Secundus, and is only outdone by La Fontaine's Tales. It is a coarse remnant of a coarse age, albeit it was written or collected by a good and pious woman, one of the earliest friends of the Reformation. The book is a classic, preserved in almost every public library of any pretensions to completeness, just like the other classics which we have mentioned, and which few read, and is itself comparatively little known. Now Mr. Comstock has VOL. 25-No. 9. The nomination of Mr. Conkling to the bench of the Supreme Court in place of Mr. Justice Hunt was probably a great surprise to nearly everybody in the country. As to whether the nominee has the requisite qualifications for the position there are two opinions, and neither entirely unmixed. Undoubtedly Mr. Conkling is a man of superb talents of a certain kind, although it cannot seriously be contended that they are of the first order in any point of view, except possibly, and only possibly, in oratory. He has not demonstrated that he is a great statesman and he has not the reputation of a great lawyer. On occasion he has made excellent arguments at the bar, but the greater part of his mature years has been spent in other fields. In the senate he has been a leader, but he has not earned or re like Mr. Edmunds. He has never made a constitutional argument, that we can recall, worthy of com last twenty years the senate has possessed a number of better lawyers than Mr. Conkling, in our opinion." He has had no judicial experience and no judicial habit of thought. He has been a partisan of the most partisan description. And yet we doubt not that he would make a success as a judge, or in any other occupation to which he should seriously bend his great intellect. But he would have to lay down the offensive intellectual weapons with which he has so sturdily and brilliantly fought, to the admiration even of his bitterest enemies, and take up the gown of the recluse and assume a dispassionateness foreign to his nature. Such men have succeeded as judges - Chase and Church are prominent examples. And in our own State some of our best judges have grown out of active and passionate partisans — Wm. F. Allen, Grover, and Peckham, for example. Therefore although the nomination cannot be pronounced an ideal one, yet it is difficult to see why Senators Hoar and Ingalls, both light weights in comparison THE ALBANY LAW JOURNAL. with Senator Conkling, should oppose it so strenu- But a more serious question is, will Mr. Conkling accept? It is known that he refused the chief justiceship under General Grant. But then and now are different. Then he was the leader of the senate; now he is out of it by his own act. It is difficult to believe that he will consent to lay himself away on a shelf in the Catacombs, all the worse for being so high. For a long time he would be one of the most unhappy of men if he should accept. It is doubtful whether he could ever become permanently happy there. If his resignation had been from a serious disgust with politics, his acceptance would be in accord with it, and it is possible that although such a disgust did not then exist, it may since have arisen in his mind, and that he is willing to return to his profession and assume a position which has many compensations for its obscurity when compared with the senate. But to put Conkling on the Supreme Court bench seems to us like harnessing Achilles' steeds to a market-cart. (Martin v. Francis, 1 Chit. 241; Man v. Smith, 4 B. upon the body of the judgment debtor for his costs & Ad. 466), and I trust that this anomaly will be rectified here. The Legislature, in my opinion, ought immediately to amend the Code so that no execution against the body should be issued for costs only. The arguments against this have not, to my mind, even the merit of speciousness. They are simply the reiteration of old proverbs that those But the judiciary have no power to make the law. who take the sword should perish by the sword. They must administer it as they find it, and trust to modify oppressive laws." an enlightened public sentiment to repeal, alter, or ment," 24 Alb. Law Jour. 106. Although a corres See "Civil Imprisonpondent in another column censures this judicial expression, yet we must say that we heartily approve it. Our correspondent cites the everlasting "poor events, a poor man, on the other side. But there is a "poor woman, 29 or at all for fear of being imprisoned for want of ability to the poor man who desires to sue, but does not dare How about pay costs if defeated? To allow an attorney to put a suitor in jail for not paying costs is a gross barbarity. Mr. Austin Abbott very forcibly says, in the Daily Register: "The legislative remedy is cer woman. 99 tainly * * * needed, in these days when there are not a few 'Dodson and Foggs' generously willing to take, 'on spec.,' cases in which an arrest may be had. It would be much for the advantage of attorney's compensation is contingent on success, no the profession to amend the law so that where the Justice Westbrook holds, in the Bragle case, that the continuance of a trial for felony, and the taking of testimony, during the absence of the prisoner, for five minutes, in an adjoining room, a few feet distant, for the purpose of telephoning to his witnesses, is error. This looks like a pretty strict hold-process against the person could issue, and that the ing, and yet it seems supported by the text-writers. If it is the law, a prisoner may at any time avoid a conviction by slyly creeping out of the court-room for a moment. In the recent case of Parker v. Spier, in the New York Supreme Court, the plaintiff, in an action in which the defendant might have been arrested, being defeated, the defendant consented to relieve him from costs, but it was reluctantly held that the attorney might imprison him for non-payment of his costs. Judge Arnoux justly observed: "We resort to such process in such cases should sustain an action of false imprisonment. If the law is left where it is, in the view of this decision, the attorney may, with his services and disbursements, buy attorneys have in effect sometimes done. a right to imprison a man, as in fact, doubtless, pernicious and disgraceful thing, and a state of the This is a law which renders it possible richly merits the condemnation which Judge Arnoux puts upon it." NOTES OF CASES. McGowan v. La Plata Mining and Smelting Co., are proud of our legislation abolishing imprison-ING. Circuit Court, Colorado, January, 1882, 9 --- ment for debt; and our statutes on that subject mark an epoch in the history of the liberty of the citizen. It is difficult to imagine a more outrageous case of unjust exception to that law than the case at bar. Here a plaintiff seeking redress for a wrong a wrong it may be that compelled him to frame his complaint in tort-is beaten; how or why, the papers do not disclose. The defendant consents to relieve him from all costs, and then the attorney steps in and not only says this cannot be done, but 'I will imprison this plaintiff if he does not pay my costs.' The plaintiff and defendant's attorney are strangers; have never contracted with each other, have never wronged each other, and yet this attorney, in defiance of the wishes of all other parties concerned, can issue this process. Nothing of the kind can be done in England, for it has there been expressly held that the attorney has no lien Fed. Rep. 861, the action seems brought by servant against master for injury from to have been the explosion of hot slag thrown into water by the servant at the direction of his master, without information of the natural result. The court said: "That a master is bound to inform his servant of the servant in the service to be performed, when facts within his knowlege affecting the safety of the latter is ignorant of such facts, seems to be conceded. * * * But it is contended that the rule cannot be applicable to the case at bar, as it relates only to facts withheld from the servant, and not to instruction in the principles of natural philosophy. overturning the hot slag, may have The water in front of the furnace, and the act of negligence of the plaintiff. Indeed, the evidence points to that conclusion, and the explosion which come of the |