mortgage upon property insured is not a violation of a condition against a sale, conveyance, alienation or change of title. Commercial Ins. Co. v. Spankneble, 52 III. 53. Nor is it within a prohibition against any change in the title or possession of the property whether by sale, transfer or conveyance. Hartford Ins. Co. v. Walsh, 54 Ill. 164. A mortgage is not such an alienation of real or personal property as will avoid the policy. Jackson v. Mass. Ins. Co, 23 Pick. 418; Rice v. Tower, 1 Gray 426; Conover v. Mutual Ins. Co., 3 Denio, 254. The cases of Allen v. Charlestown Ins. Co., 5 Gray, 384, and Franklin Ins. Co. v. Vaughan, 92 U. S. 516, illustrate the strictness of construction applied to such conditions when they are invoked to work a forfeiture of the contract. See also, Insurance Co. v. Huson, 95 U. S. 242. (52) The policy contained a stipulation "that the insurer should not be liable by virtue of this policy or any renewal thereof for any loss that may occur before the premium had actually been paid to this company." The policy was sent to P., an agent, for delivery, whose duty it was to deliver the policy and receive the premium. The agent testified

that the rule of the company was for the agent to report once a month; that he always held the funds for a month and sometimes longer. His commissions were deducted from the premiums when he made his remittances. The agent delivered the policy and took the note of the assured with an indorser, payable at a bank, for the premium. He had the note discounted and the proceeds placed to his credit in the bank before the loss occurred. Held, that a condition in a policy "that if any broker or any other person than the assured has procured this policy he shall be deemed the agent of the assured and not of the company," did not debar the company of the power to appoint agents and clothe them with such authority-general, special or limited-as might be advisable; and the delegation of such authority will carry with it such powers and consequences as are incident to the relation of principal and agent within the scope of the authority conferred. That P. was constituted the agent of the company for the purpose of receiving premiums on policies negotiated by him, and that payment of such premiums to him was payment to the company; and that the premium on this policy was paid when the note was discounted and the proceeds passed to P.'s credit in the bank. Beach v. Humboldt Ins. Co., 6 Vroom, 429; Hullock v. Ins. Co., 2 Dutch. 268; Trustees v. Brooklyn Ins. Co., 19 N. Y. 305; New York Central Ins. Co. v. National Ins. Co., 20 Barb. 469; Chickering v. Globe Ins. Co., 116 Mass. 321. (6) A stipulation in a policy that "no agent of this company is authorized in any respect to change the terms and conditions of this policy, and they shall neither be changed nor waived except in writing signed by the president or secretary of the company," applies only to those conditions and provisions in the policy which relate to the formation and continuance of the contract of insurance and are essential to the binding force of the contract while it is running, and does not apply to those conditions which are to be performed after the loss has occurred in order to enable the assured to sue upon his contract. After the loss has happened conditions in the policy with respect to notice of loss and preliminary proofs may be waived by parol though the policy contain such a stipulation as is above referred to. May on Ins., § 511; Wood on Ins., § 496; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102 (11 Am. Rep. 469); Blake v. Exchange Ins. Co., 12 Gray, 265; Priest v. Citizens' Ins. Co., 3 Allen, 602. (7) A condition providing that "all fraud or attempt at fraud by false swearing or otherwise shall cause a forfeiture of all claim under the policy is available as a defense only when it appears that the assured knowingly and intentionally swore falsely or said or did that which is claimed to be fraudulent. Mere mistake in stating

facts or an over valuation is not sufficient to sustain the defense. Jones v. Mechanics' Ins. Co., 7 Vroom, 29; Gibbs v. Continental Ins. Co., 11 Ham. 611, Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516, Insurance Co. v. Weides, 14 Wall. 376. New Jersey Supreme Court, June term, 1881. Carson v. Jersey City Insurance Co. Opinion by Depue, J. (14 Vroom [43 N. J. Law], Rep.)

NEW BOOKS AND NEW EDITIONS.

HONEYMAN'S PRACTICE AND PRECEDENTS. Honeyman's Practice and Precedents in the Courts for the trial of Small Causes in New Jersey. Including the principles of law relating to actions and defenses; rules of evidence; duties of constables; references to about 3,000 decisions; a glossary and an appendix of legal terms and phrases, and nearly four hundred practical forms. By A. & D. Honeyman, Counsellor at Law. Somerville, N. J: Honeyman & Co., 1882. Pp, 614, xxxviii,

THE title page faithfully describes the contents of the book. Its application of course is strictly local, and the local profession can judge better than ourselves of the need of such a book and of the skill and fidelity with which it is executed. The volume makes a respectable appearance.

THATCHER'S DIGEST.

A Digest of Statutes, Rules and Decisions relative to the Jurisdiction and Practice of the Supreme Court of the United States. By Erastus Thatcher. Boston: Little, Brown & Co., 1882. Pp. xxiv, 520.

This handsomely printed volume will be of value to practitioners in this court. It gives all the rules of the court, as well as the practice decisions, and is well arranged.

PHILLIPS' MANUAL OF DECISIONS.

A Manual of the Cases decided in the United States Supreme Court, and cited in other cases in the same court, with the points of reference. From 2 Dallas to 103 U. S. (13 Otto) Reports By W. Hallett Phillips. Washington, D. C.: Wm. H Morrison, 1882. Pp. 356.

This work is in plan something between Wait's Table of Cases and Rapalje's Federal Reference Digest, giving the points of reference which the former lacks, and being confined to cases decided and cited in the ultimate court, whereas Mr. Rapalje's work embraces the other Federal reports. The present work is therefore of distinct application to the Supreme Court and as such must have a peculiar usefulness. It is very neatly printed.

REAL ESTATE AGENCY.

Law of Real Estate Agency; having a general application to principals, agents and third parties, as deduced from the decisions of the courts. By Nathan T. Fitch, Counselor at Law. Chicago E. B. Myers & Co., 1881. Pp. ii, 218

So far as this book is designed for real estate agents - which seems to be its main purpose - we take no interest in it. The man who undertakes to deal in real estate transfers without the advice of a regularly educated attorney deserves to suffer, as he generally does. The author however hopes "that some service may be found to have been rendered to the members of the legal profession by the collection and collation of authorities." The value of the work in this respect may be estimated from the fact that in an appendix of cases in full, relating to brokers' compensation, there is not the slightest hint as to where the cases were decided or are to be found, except that in some instances the State appears, and in one instance the report is given.

THE

OBITUARY.

HE recent death of ROBERT S. HALE, of Essex, and CLARKSON N. POTTER, of the city of New York, has deprived our State of two of the most accomplished men within its borders. Both had won good repute as lawyers, as legislators, as scholars, and as citizens interested in the improvement of the community. Both took especial interest in the cause of popular education, Mr. HALE being one of the State Regents, and Mr. POTTER having delivered many addresses on occasions of educational importance. Both died in their apparent prime of physical and intellectual usefulness. Both were men of pure and dignified lives; both had rare charms of manner; both were orators of exceptional elegance. Mr. HALE was perhaps the stronger lawyer, Mr. POTTER perhaps the more inclined to statesmanship. They both presented an excellent example for the young men of our profession, in an unselfish devotion of a part of their powers to the public good.

CORRESPONDENCE.

THE JUDGES' SALARIES.

Editor of the Albany Law Journal:

This is the time of the year when application is sometimes made at Albany to raise the amount of salary of the Supreme Court Judges to $10,000. I deem it proper, if not wise, to submit a few remarks in regard

to it.

The amount of salary paid to Supreme Court and some other judges in this State ranges about as follows, viz.. Justices of the Supreme Court in the city of New York, the First Judicial District, $15,000 a year; the excess over $7,200 is paid by the city. Justices of the Supreme Court in the Second Judicial District, $8,500, unless Kings county is an exception for a greater sum. Judges of the Court of Appeals each $9,000, the Chief Justice has $500 additional. The U. S. Circuit Judge residing in the city of New York, receives $6,000 a year. The United States District Court judges for the Northern, Southern and Eastern Districts of New York State are each paid $4,000 a year.

The foregoing salaries include allowance for expenses.

These figures show a great disparity of compensation for about the same amount of judicial work performed. Where salaries for similar duties vary from $4,000 to $15,000 a year, it follows either that some are paid too much or some too little. It is to be suspected that the State court judges in the city of New York are mainly indebted for the annual amount of their salaries in excess over the justices of the Supreme Court outside of that city, to a finer and better appreciation of the value of their services by the late Hon. Wm. Marcy Tweed, who afterward departed this life in Ludlow Street Jail. I have been creditably informed that Tweed made an effort to pay the Supreme Court judges out of the treasury of the State, $10,000 a year, and that when he saw it would not succeed, he effected a compromise with the salary at $7,200, instead of $3,500 which it was at the time. The judges have ever since graciously received this nice little sum, pocketed it, and said "Bismillah" like devout Mahommedans. It does not seem to have occurred to them that the amount of the salary was unnecessarily generous if not excessive, and that the source it came from was impure in its origin, foul, and for selfish ends and purposes. What motive otherwise did Tweed have in the movement but to gain influence and friendship in the judiciary department of the State? The legislative and executive departments were pretty well controlled by him at one time.

It is certain there are in almost every county of the State a number of lawyers fully equal to the discharge of the duties of a Supreme Court Judge, who earn all the way from $1,200 to $4,000 a year, according to location, situation and circumstances, and do more labor than an ordinary judge, besides collecting their own earnings as best they can.

The Supreme Court justices elected in this State after the adoption of the Constitution of 1846, as also the judges of the Court of Appeals, were paid salaries of $2,500 with no allowance for expenses. This salary was inadequate, but it served to secure services equal in ability to the judges we have had subsequently. The judges' salary was afterward very justly increased to $3,500, and perhaps it would have been better to have raised it to $5,000, and to have allowed it to remain at that amount. As it is, the salary is too large. Had Tweed any motive in raising it to so high presenting judges with free passes over their roads, a figure, other than what railroad corporations have in

and if so, what was the motive?

Have the judges since the increased salary declined free railroad passes? Who knows, and who can tell? It is idle and useless to talk of a pure administration of justice, when the court, the very foundation, is corrupt.

It is idle and useless to talk of an independant judiciary when the judges owe fealty to mammoth enterprises.

Justice ought to be administered in the interest of the people, upon whose industry and economy as a foundation, the whole social fabric rests.

Those occupied in the common and ordinary pursuits of life are generally over-worked, oppressed by taxation, trod upon by merciless and over-grown corporations, often under the rule of unjust, tyrannical, coarse and vulgar minds, yet many of them are perhaps as cultured and refined as the judges on the bench and their families, but are reduced to the bare necessities of subsistence, to say nothing of the comforts of life. PACIFICUS.

PRESUMPTION AS TO LOCATION OF MORTGAGED LANDS. Editor of the Albany Law Journal:

An ambition to become distinguished as humorists seems to have taken firm root in the brains of the judges of the Supreme Court of Indiana. This is surmised since no other logical reason can be assigned for some of their recent opinions. Observe the opinion of Woods, J., in the course of Dutch v. Boyd, decided November 30, 1881. It is held in this case that where the parties to a mortgage appear from its terms to have been residents of Indiana at the time of its execution, there is a legal presumption that the mortgaged lands are situate within the State, even although the lands are described therein simply by section, township and range, and the description will apply to lands in the other States formed out of the territory included within the same general governmental survey. But one reason is given for this unique decision, namely, that because forsooth the Supreme Court of Indiana has heretofore held that a promissory note, by its terms payable in a bank named, without any designation of the location of the bank, will be presumed to be payable in a bank within the State, and governed by the law merchant, if it appear from its face to have been executed within the State, "We can think of no sound reason," says the opinion, "why a similar presumption should not apply to a deed or mortgage which shows within itself that it was executed in the State, between parties resident in the State and which contains nothing to indicate that land outside of the State was intended."

Now with great deference to the perception and learning of the Supreme Court of Indiana, there is a

"sound reason why there is no parallel between the cases, conceding the promissory note cases to have been correctly decided.

The public survey by Federal officers, pursuant to acts of Congress, of the territory including Indiana and a number of her adjoining States, was one entire and governmental transaction, and the courts of Indiana take judicial knowledge of this survey, and the subdivisions of the territory made by it, and this judicial knowledge is not confined to the lands within the boundaries of the State, but extends to the whole survey. Massman v. Forrest, 27 Ind. 233; Cochran v. Utt, 42 id. 267; Murphy v. Hendricks, 57 id. 593; Buskirk's Practice, 17. It is because of these propositions that the Supreme Court of Indiana has time and again decided that descriptions of lands like the aforesaid are patently ambiguous and therefore void, and beyond the reach of averment or extraneous evidence. See cases cited supra. The description must be read in the light of this judicial knowledge, and such a reading presents the ambiguity at once.

Now there is no reason why the court should take judicial knowledge of the existence of banks outside of the State. These institutions are private corporations or partnerships whose existence must be proved. The court presumes the bank to be in the State, because the reference to it in the note would be meaningless

unless it was a bank within the State. Such a decision

is within the rule that all written instruments shall be so interpreted as to give some meaning to every part. Is there not at least one "sound reason" why these cases should not overturn one of the oldest and bestsettled rules of the law in reference to descriptions?

The following language from the opinion in Dutch v. Boyd, is quoted as a curiosity of legal logic "Such a presumption we have no doubt will be found to accord with the true intention of the parties in a very large majority of instances in which the name of the State may be or may have been omitted, and if occasionally there shall prove to be an exception to this rule, it would constitute a mistake which could be corrected as between the immediate parties at least, and in any event no injustice could befall the mortgagor, who owed or intended to secure the debt. If his intention was to mortgage lands out of the State, but on account of an omission of the name of the State where the

land was situated the mortgage should be held to apply to a like description of lands in this State, which he chanced to own, he would still only have to pay his just debt, or if the debt was not just, and the paper not governed by the law merchant, he could make his defense."

If this decision is right, why does not the same presumption put the land in the county or village where they are named as the places of residence of the parties to the mortgage? The town of Princeton, Gibson county, Indiana, is located in section seven, town two, south of the only base line in the State, and range ten, west of the second principal meridian. Section ten in the same town and range is three miles east of Princeton. According to this decision a mortgage describing section ten and purporting to have been executed between parties resident in Princeton, Gibson county, Indiana, would move this section into the town of Princeton, regardless of consequences. It is in order to avoid such a calamity as this that I call the attention of the bench and bar to this decision. It should not be suffered to remain the law of Indiana. PRINCETON, Ind., Jan. 12, 1882.

L. C. E.

rel. Belton v. The Park Commissioners; Littlewood v. The Mayor, Terhune v. The Mayor, etc.; Phillips v. The Mayor, etc Motion for reargument denied In re Opening of Eleventh Avenue· Motion for reargument denied, with $10 costs-McCarthy v. Whalen. -Motion to put case on calendar granted Beates v. Sharp. Motion to amend remittitur granted O'Neil v. Montgomery. Judgment affirmed - The People v. Beach. -Judgment affirmed without costs - In re Will of Ross.· -Judgment reversed and new trial granted, costs to abide event Derrenbacker v. The Lehigh Valley Railway Co.; Trust and Deposit Co. of Onondaga v. Price; Quinn v. Power. Order affirmed-The People ex rel. Loughlin v. Finn. Appeal dismissed with costs Clapp v. Sage, Florens v Costa.· Order reversed, with costs of appeal in this court-In re Hahn. -Order affirmed and judgment absolute ordered for respondents on stipulation, with costs- Ward v Craig. - Order of General Term reversed. Special Term order of May 27, 1878, as far as appealed from, reversed. Special Term order of May 24, 1880, modified as stated in the opinion, without costs to either party at Special or General Term, or in this court - Newton v. Russell.

NOTES.

-

THE Pennsylvania Supreme Court decided 311 causes

in 1880, and 761 in 1881. The percentage of reversals in the former year was 24, in the latter 30. In the former year there were only 21 decisions not unanimous, in the latter 20. -The American Law Register for January contains a leading article on Maritime Liens, by Theo. M. Etting. Also the following leading cases: Van Voorhis v. Brintnall, New York Court of Appeals, on extra-territorial effect of statute prohibiting remarriage of divorced party; with note by Henry Wade Rogers; Wirebach's Ex'r v. First National Bank, Pennsylvania Supreme Court, ou accommodation indorsement by lunatic, with note by Marshall D. Ewell; Baile v. St. Joseph Fire & Marine Ins. Co., Missouri Supreme Court, on oral insurance, with note by Dwight M. Lowrey; Pratt v. Whittier, California Supreme Court, on hotel fixtures, with note by Marshall D. Ewell; Cherry v Frost, Tennessee Supreme Court, on pledge of stock certificate by assignee holding as collateral, with note by Francis A. Lewis, Jr.

One of the strangest episodes connected with the trial of Guiteau for the murder of the late president of the United States, is the lecture on the case delivered in Washington by the prisoner's counsel. According to the telegraphic accounts, Mr. Scoville, while the trial was proceeding, seems to have thought it becoming to address a popular audience on behalf of the prisoner, discussing the conduct of the trial, urging his belief in the insanity of the prisoner, and predicting that "if he was hanged, the post mortem examination would prove him to be insane." And the audience are stated to have adopted a resolution sympathizing with the prisoner's family, and "complimenting Mr. Scoville on his management of the case." All we can say is that it is well for Mr. Scoville that the trial and this little episode did not occur on this side of the Atlantic. Mr. Skipworth will be able to testify that the cost of like proceedings here is somewhat heavy; not less than a fine of £500, and a sentence of three months' imprisonment, inflicted by summary order of the court. But it is probable that the law of contempt of court has not yet reached in America the development it has received here in recent years. American judges probably do not think it worth while to notice comments of fanatical adherents of a defendant, and have probably no great sympathy with the exercise of an irresponsible power of punishment by the very tribunals whose conduct is called in question. - London Solicitors' Journal.

ryphal, will be interesting issues of fact. Then there will be curious questions of law. 1. Is the certificate filed by Judge Spier conclusive? 2. Can it be attacked in any collateral proceeding? 3. If it is not conclusive, is it not binding until it shall have been set aside by due judicial proceeding? 4. Can an election for judge in his place be had until his certificate has been set aside and the fact of his alleged disqualification has been judicially decreed? 5. Should not the election of Judge Spier's successor have been held in November preceding the last day of December, when it is claimed that he became disqualified by limitation of age? Messrs. Ritch & Woodford, attorneys for Judge Arnoux, have addressed a letter to the attorney-general, asking him to change the venue from Schenectady county to New York city. What is the venue doing up in Schenectady county? Doubtless that sleepy old locality is quite appropriate to the investigation of such ancient matters, but inasmuch as both the claimants are residents of New York city, and the late incumbent has lived there forty years, and the people of that city are alone interested in the issue, we are surprised at this laying of the venue one hundred and eighty miles from home. It is really unfair to Mr. O'Gorman, and to his eminent counsel, Mr. Beach (who, by the way, originally came from Saratoga), to compel them to travel so far at their time of life. And it is particularly unfair to Judge Arnoux, and to the people, to draw him away so far from his judicial duties. The Bible itself is not in Schenectady county, but in Saratoga county, and as it is presumably not the only one in that locality, no harm would be done by inviting it down to the city of New York. Perhaps the Bible Society might be interested in thus circulating the Scriptures among the heathen. But seriously, the laying of the venue in any place but the city of New York will prove a public inconvenience and detriment, and cause suspicious surmises. Really, the law questions should be first decided, and then if there is any thing left of Mr. O'Gorman's case, the question of fact can be tried in some proper and convenient locality, if not in the city of New York.

We call attention to Mr. Bishop's letter in another column. There is nothing in it that we care to dwell upon, except the point of law journal reviewing. Mr. Bishop probably does not intend to accuse us and other law journals of deliberate | unfairness in this matter. But his allegation that law journals are tender of authors for fear of losing patronage of publishers, does injustice to such publications as the American Law Review and the Southern Law Review, to say nothing of ourselves. In point of fact, this journal sometimes severely criticises law books advertised in its columns, and does not experience any loss of patronage in consequence. Publishers are too wise to forego a good medium of advertising on account of a hostile book notice. Aside from this, we rarely know, and never care whether a book under review is adver

tised in our columns. . We can generally find some merit and usefulness in a text-book, even in Mr. Wharton's rival books on Criminal Law, Occasionally we cannot, and then we do not hesitate to say so, as letters and visitations from angry authors have frequently avouched. It must be admitted that we cannot tell how much is strictly original, or when the "quotation marks" ought to come in. But there are millions of passages in the law so familiar that an author (or compiler) would no more think of putting them in quotation marks, than he would think of thus treating: God tempers the wind to the shorn lamb; or The woman who hesitates is lost; or Most authors steal their works or buy. It is not easy to define the line in law writing, any more than in general literature, at which plagiarism commences. When Charles Reade took page after page from Dean Swift, and put it into one of his own novels, without "quotation marks," and as a part of his story, everybody said it was piracy, in spite of the novelist's bluster and abuse. But if Mr. Reade had in like manner adopted a few hackneyed lines from the same author, without credit, such, for example, as those commencing, "So naturalists observe a flea," nobody would call that plagiarism. We think Mr. Bishop is over-sensitive, and hypercritical in making this sweeping accusation of piracy. Occasional gross instances no doubt exist. He writes as if he personally had suffered from them. But his punctiliousness in this regard reminds us of the clergyman, who, in saying grace at breakfast, remarked: "Lord, we thank thee that we have awakened from the sleep which a writer in the Edinburgh Review has called the image of death." At all events, poorly as Mr. Bishop seems to think of our honesty or intelligence, he can see that even his great merits as a law writer have never blinded or silenced us as to the weak points of his prefaces, although, we believe, his books have been advertised in this journal, and have been sent us for review. We doubt not that his publishers will continue to send them just the same.

The priest seems to be asserting himself in Canada. The recent action in the Montreal Supreme Court, of Laramee v. Evans, was to set aside a marriage of Catholic adults, celebrated by a French Protestant clergyman, by license. The grounds were that the parties had obtained no valid dispensation from the publication of banns; and that the marriage was celebrated secretly, without the knowledge of the husband's relations or friends, and by a functionary incompetent to marry two Catholics. The court arrived at the conclusion that in the case of two Catholics, a Protestant minister having no spiritual jurisdiction over them, was not a competent officer within the meaning of the Code. His honor further held that it was for the Catholic ecclesiastical authority to pronounce on the validity of the marriage. The judgment of the court therefore was that the case be referred to the Roman Catholic bishop to pronounce first the nullity of the marriage, the case to be subsequently brought be