portionable; but the parties had manifested a desire to make one contract, and not one thousand five hundred, and the court declined to substitute, by coustruction, other contracts for the one made by them. That contract was much more favorable to the contention of the appellee than the one we are considering. The undertakings of the appellee are divisible, and might be the subject of several contracts; but the consideration paid by the appellant was not divisible, upon any basis disclosed by the contract, and there could not be a division into several contracts, unless there could be an apportionment to each of its appropriate consideration. Determined by the ordinary rules, this contract was entire. We see no reason why it should be determined by any other rule. As it was entire, the two houses comprised the premises; and, so long as one of them was occupied, the policy was not suspended. Ark. Sup. Ct., Nov. 23, 1889. McQueeney v. Phoenix Ins. Co. Opinion by Hemingway, J. NOTES. IT is common knowledge that aerated waters, such as soda-water and lemonade, are manufactured by injection of carbonic acid gas; but, until Mr. Hermann Graeger was summoned to the Mansion House, we had no idea that any sparkling wine was made in the same way. Certainly the 2s. 6d. a dozen import duty levied by the chancellor of the exchequer on champagne and other sparkling wines has always appeared to us at least an onerous and vexatious impost; but the genius of the tradesman is great, and for contriving to evade this duty without committing any breach of law we are inclined to applaud Mr. Graeger. His method of so doing is extremely ingenious. He gets still wine imported from Epernay, the Moselle district, the Rhine district, and Burgundy, and metamorphoses it at his place at Clapton into sparkling wine by the above simple process. In doing so he has shown himself very clever, and has committed no breach of the law. Unfortunately, for humanum est errare, one part of his method has erred. He affixed to the bottles, in which he sold this sparkling champagne, hock and Burgundy, labels, which the court held indicated that the wine was imported sparkling, so that an offense was committed against the Merchandise Marks Act, for which Mr. Alderman Davies fined Mr. Graeger £20. Mr. Goldberg, solicitor, who appeared for Mr. Graeger, promised that every objectionable label should be destroyed, and that in future the labels should bear such indications as would show that the wine was made sparkling in this country. We do not doubt that Mr. Goldberg's promise will be duly observed, but we may be permitted to doubt the allegation made by him that "the wine was not only as good as the other, but better." Possibly it is to his taste. Experto credite. However that may be, it is the duty of our magistrates to see that the Merchandise Marks Act is most stringently enforced, and we are pleased that Mr. Alderman Davies is also of that opinion. London Law Journal. "Lord Justice Cotton and his two colleagues in Court of Appeal No. 2 experienced grievous annoyance from the peculiar handwriting of a document placed before them for perusal on Monday last. The peculiarity consisted in the fact that the words and letters were written sloping backward to the left instead of being sloped in the usual manner. Without seeing a document so written, it is hard to realize its unpleasant effect on the eye. The strictures of the learned judges on this unusual caligraphy almost amounted to a threat of pains and penalties on the offender." Paid it backhanded compliments, we suppose. Order of the General Term and of the commissioners reversed, with costs in this court and the Supreme Court-People, ex rel. Matthew Hogan, appellant, v. Stephen B. French and others, respondents.-Appeal dismissed with costs-Edgar C. Davis, respondent, v. Rome, Watertown and Ogdensburg Railroad Company; Byrou H. Garland v. Same; Elisha Garrison v. Same.-Order affirmed with costs-People, ex rel. Patrick McAleer, appellant, v. Stephen B. French and others.-Order affirmed with costs-In re application of Alfred Roe and another.-Appeal dismissed with costs-Rollin Tracy, respondent, v. Matthew Byrne, appellant.-Order affirmed with costs-Marietta Bank, respondent, v. Bushwick Chemical Works, appellant.-Order and judgment affirmed with costs-People, ex rel. Ellen Nostrand, v. Thomas A. Wilson and others.-Order affirmed with costsAugusta G. Genet, respondent, v. D. and H. Canal Company, appellant.-Appeal dismissed with costsJosephine M. McBride, respondent, v. Robt. P. McBride, appellant.-Order affirmed with costs-In re application of Wm. Van Amee, as receiver.—Judg ment reversed and judgment ordered for plaintiff upon the demurrer with costs in all courts, unless the defendant shall within thirty days from the filing of the remittitur in the court, pay the costs subsequent to the service of the demurrer and interpose an answer to the complaint-Bernard Casserly, as receiver, appellant, v. Silas H. Witherbee and others, respondents. Judgment affirmed with costs - Byron J. Strough, appellant, v. George Wilder, respondent.— Judgment affirmed with costs-James Tallcott, appellant, v. Henry Harder and others, respondents.— Judgment reversed, new trial granted, costs to abide event-George W. Dean, respondent, v. Metropolitan Elevated Railway Company, appellant.—Judgment affirmed with costs-Charles W. Doherty and others, respondents, v. George W. Matsell, Jr., and another, appellants. SECOND DIVISION. Motion for reargument denied with $10 costsCharles Hovey and another, appellants, v. George Elliot and others, respondents. Motion to strike from the calendar denied and the case ordered to be placed on the day calendar for April 14, 1890, to be then disposed of- Mary H. Graves and others v. John Deterling and others. Judgment affirmed with costs-Trustees of the Town of Brookhaven, appellauts, v. Egbert T. Smith and others, respondents. -Judgment affirmed with costs-Michael J. Daly, respondent, v. Joshua C. Sanders, appellant. Judgment affirmed with costs--Charles W. Mather, appellant, v. Eureka Mower Company, respondent. -Judgment affirmed with costs-David H. Crane, respondent, v. Martha McDonald, appellant. Judgment reversed, new trial granted, costs to abide event-Joseph Smith, respondent, v. N. Y. C. & H. R. R. Co., appellant. - The Albany Law Journal. ALBANY, MARCH 22, 1890. CURRENT TOPICS. A CORRESPONDENT writes us that in the case of the county in this State where he lives several lunatics have been killed by careless or cruel treatment in the State asylums, and suggests that if other counties have suffered in like proportion, it is not strange that the people prefer county care. Right here we may ask what he thinks the propor tion of deaths would be under "care" like that described in the report of the State commissioners? We must say that the people of the counties in question have a singular way of evincing their superior tenderness. He seems to suspect that the report is not fair. But why not? It simply gives what the commissioners saw, and is not founded on mere information. Again, he suggests that the State officials are as much to blame as any one; that the State board of charities has absolute control over lunatics in county asylums, and it is made their duty to cause them to be taken to the State asylums if they do not have proper care in the counties. We have an impression that this jurisdiction no longer prevails; that all jurisdiction is vested in the present commissioners; and if that is true, we may be very sure the latter would exercise the power if they had it, and it were practicable. But in either case it is probably impracticable for want of room in the State asylums and for lack of pecuniary provision by the State. At all events, it does not help repair the wrong to discuss as to who is to blame. The State should at once atone for these inhuman cruelties by prompt remedies. If a man falls overboard at sea, the crew do not let him drown while they are discussing by whose fault he fell overboard, or whose particular business it is to fish him out. In an article by Mr. Lewis Hochheimer in our yellow-covered contemporary, The Law, we find the following, which aptly points out several popular misconceptions of the law: "A man has an especial right to defend himself, if attacked in his own dwelling-house, and he may prevent a burglarious entry by slaying the aggressor. In all such cases however the excuse for taking life has its strict limitation in necessity. A man, for example, has no right to slay a burglar whom he finds in his house, unless to prevent the burglary or to protect life from the assault of the burglar. The popular notion as to the existence of a sort of general right to kill a burglar, merely because he is a burglar and is found in one's house, is entirely erroneous. The pastime of 'taking a crack' at a burglar when he is retreating finds no sanction in law. The burglar has not forfeited his life to the injured party, and if the latter deliberately takes it without such neVOL. 41 No. 12. cessity as is here pointed out, the law treats such act as murder. Even in the case of an injured husband finding the guilty parties in delicto, the provocation is legally deemed sufficient merely to reduce his act of killing either or both of the parties to the grade of manslaughter. So likewise in the case of an officer who makes an arrest, killing the prisoner is not excusable unless he resists and flees, and cannot be otherwise overtaken, and even then the right to re sort to such extremity is confined to the case of arrests for that grave class of crimes designated as felonies, such as homicide, arson, robbery or burglary." In respect to the burglar the practical result is that the jury always believe a man's life in danger from the mere presence of the burglar, and the injured husband is always crazy. We do not remember any case however where an officer has been let off for killing an escaping misdemeanant. In reading a very interesting biographical sketch of Seymour D. Thompson in the February Green Bag we were not a little startled by an ambiguity in the second paragraph, which at first led us to fear that our good and able friend had been burned to death in a prairie fire! But we saw, on a more careful perusal, that it was his father. We rejoice to know that the son still lives to illuminate the western prairies by his learning. It is interesting to be told that he knows "Paradise Lost" by heart. We commend his taste to the imitation of the learned editor of the New York Law Journal, who derides the great poets, including ourselves; and to his attention we also commend the remarks of a correspondent in this number of the Green Bag, who takes a more lenient view of our innocent attempts at versifying leading law cases for that periodical. The Law Librarian, too "enjoys" our "bad poetry." We purposely make it bad we write down to our readers. Now here is a man of discernment. We should write very differently for poets. We shake hands with L. L. across the continent, and if we owned a college, would add a "big, big D." to his name. The truth is, this prejudice against the verse of lawyers is very narrow, The little verse which lawyers have written will in many cases outlive their serious prosaic writings. Thus one couplet by Joseph Story will outlive all his commentaries "Unawed by influence and unbribed by gain, The press shall here the people's rights maintain❞— or words to that effect --we quote from memory. The volume of his poems is worth five times as much money as any of his law books. So we expect to be remembered for those derided leading cases in verse long after every thing else we have written has been forgotten. Judge Erskine, we know, and Mr. Bishop, we are informed, write poetry, and we dare say it would be readable. If Mr. Bishop puts into his poem half as much imagination as that with which he talks of the glories of the common law, he must be a poet of the first magnitude. Judge Noah Davis writes verses at least he wrote one poem, which we think was published in this journal. Hav ing had mournful occasion to speak so much evil of him in regard to his prosaic efforts, it gives us real pleasure to be able to say that his verses were good. Oh! that the New York Law Journal infidel would write a poem! some thirty-five names of men noted in our current literature, inevitably headed by his fellow-Dromio, Mr. James, as worthy of comparison with many who have won a recognized place among the British classics. Except Holmes, Whittier and Lowell, Parkman (whom Mr. Howells calls "the greatest When a lawyer in active practice writes a law-historian whom America has produced," apparently book, and a good one, a review of it should not be relegated to the obscurity of common-place minion, but should be celebrated in all the dignity of bourgeois. Mr. Everett P. Wheeler having answered the conditions, is entitled to our welcome at the front door. He is well known, not only as a very busy lawyer, but also as a citizen who takes an active interest in municipal, State and National politics, and yet does not seem to desire office, but is honestly striving to skim some of the scum off the dirty pool of our party affairs, and render the water wholesome enough to encourage a cleanly man to descend into it. He now gives us, as the result of the stray leisure moments of thirteen years, a book entitled "The Modern Law of Carriers; or the Lim. itation of the Common-Law Liability of Common Carriers under the Law Merchant, Statute and Special Contracts a monograph of some four hundred pages. So far as we can remember, this precise topic has never been essayed before. The most noticeable point is that Mr. Wheeler is not a slave to his authorities, the table of which fills forty pages. His text is not a digest, but a summary treatise, and his notes are not mere citations, but are affluent and learned, and yet not burdensome. We seldom see the proper relation of notes to text so well observed. His mode of treatment somewhat resembles Pollock's in this regard. Like Pollock too, he is eminently readable and interesting. The literary faculty is clearly disclosed. The work too is eminently practical; theory is subordinated to usefulness, so that the manual is not only entertaining and instructive to the scholar, but convenient for the practitioner. In short, we believe that the author has fully covered his ground, and given a clear and correct view of this exceedingly important minor subject. The work is published by Baker, Voorhis & Co., of New York. When Hamlet's complaint of "Words, words, words" was echoed by Mr. E. J. Phelps in his recent paper on "The Age of Words," although its truth and force were apparent, we were prepared to see a general expression of disapproval from the "mob of gentlemen who write with ease" and for money. So we are not surprised by Mr. Howells' remarks on Mr. Phelps' paper, in Harper's Magazine for March, but we do not find our opinion much changed. The burden of Mr. Phelps' charge is that in this age literature has become a mere trade pursued for gain. We think he is perfectly right. Mr. Howells' answer is rather pert and flippant, and raises the false issue of a comparison of our current literature with that of England, to the advantage of our writers, an issue which Mr. Phelps did not tender, as we understood him. Mr. Howells mentions 66 forgetting Motley) and McMaster, in our opinion, NOTES OF CASES. 'N Re Fuller's Will, Supreme Court of Wisconsin, IN January 7, 1890, testator gave a sum in trust to the deacons of a church "to be funded with good security on improved land, and the interest to be paid annually to the American Baptist Publication Society, located at Philadelphia, Penn., to aid in the support of a Baptist colporteur and (or) missionary in the State of Wisconsin." The deacons filed their declination of the trust. Held, that the be quest was void for uncertainty. The court said: "At the outset it may be observed that the doctrine of cy pres, so called, is not recognized and acted * ** There A upon by the courts of this State. is no indication as to what the colporteur and missionary should do, or where or with whom they should labor. It may be said that the words 'Baptist colporteur and missionary' indicate the character and nature of the duties which these persons were to perform. If we refer to the lexicographers we find that colporteur' is defined to be 'one who travels for the sale and distribution of religious tracts and books.' Webst. Dict. 'A hawker and peddler; especially, in modern usage, a peddler of religious books.' Worcest. Dict. In France, 'a hawker of books and pamphlets; one who travels for vending small books.' Imp. Dict. In France, 'a hawker and peddler;' in England, 'one who is engaged by a religious society or association to travel about and distribute or sell religious books or tracts of the society, in the latter case at reduced prices.' Cyclop. Dict. 'A person employed by a Bible or tract society, or the like, to distribute gratuitously or sell at low rates Bibles and various other religious publications.' Century Dict. missionary is one who is sent upon a mission, especially one sent to propagate religion.' Webst. Dict. Worcester and other lexicographers give substantially the same definition to the word. It may be assumed that the testator intended that the deacons of the First Baptist Church should receive the residue of his estate, loan it upon good real. estate security, collect the interest, and pay it over annually to the appellant, to aid in the support of a Baptist colporteur and missionary, whose duty it would or should be to travel in Wisconsin, and distribute gratuitously or sell Bibles and various religious publications, or labor to extend religion among the people of the State. The deacons were also to have a voice or some agency in the nomination and appointmennt of the colporteur and missionary. Further than this we cannot ascertain, from the language, the plan of the charity which the testator had in his mind, or determine his purpose in making the bequest. Whether the colporteur or missionary should labor through the entire State, and sell or give away the religious books and publications; or whether they should expend their efforts among the colored or white population, or both; whether with the destitute or wealthy; and what publications they should distribute are all matters left in doubt and uncertainty. Should they devote their time and energies to working among the whole people, or only in particular districts? And who are to be the beneficiaries of this charity, and to be benefited by it? It seems to us no one can determine from the will. It may be said there was a discretion delegated to the deacons and the appellant which would cure these defects, and effectuate the charitable purpose of the testator. But we are met with another difficulty. The deacons of the church are not incorporated. They are not a body known to the law. They are constantly changing by death or removal from the city, and they have absolutely renounced the trust. That the discretion vested in the deacons as to the execution of this trust was a personal one, confided to them on account of their piety and fitness, and because they entertained the same religious faith as the testator, is so obvious that no argument is needed to prove the fact. The testator was willing to confide in the deacons to perform the duties and carry out the purpose which he designed to promote. But he made no provision for the transmission of the trust to another person. Indeed the difficulty is the testator has not fully defined his charitable scheme in his will, but has left the whole matter so indefinite and unexpressed that it is impossible for the court to carry it out; and before a court will carry into execution a charitable scheme, the scheme itself 'must be sufficiently indicated, or a method provided whereby it may be ascertained, and its object made sufficiently certain to enable the court to enforce the execution of the trust according to such scheme, and for such object. It must be of such a tangible nature that the court can deal with it.' Webster v. Morris, 66 Wis. 391. See also Heiss v. Murphy, 40 id. 276, and Estate of Hoffen, 70 id. 522. It seems to us there is a fatal uncertainty as to the charitable scheme in this will, and that it cannot be executed." In Dowell v. Guthrie, Supreme Court of Missouri, February 10, 1890, it was held that the discharge of fire-works from a veranda in front of the second story of a building in the center of a public square, from troughs so arranged that the fire-works would pass over the assembled people, who were there for the purpose of witnessing the display, is not of itself an unlawful act in the absence of a statute or ordinance making it so. The court said: "In Conklin v. Thompson, 29 Barb. 218, a boy on the Fourth of July exploded a fire-cracker under the plaintiff's horse while he was travelling upon the streets in a city, whereby the horse was frightened and died. The act, it is said, was wrongful, and the party committing it assumed the responsibility of all the bad consequences which ensued. In Jenne v. Sutton, 43 N. J. Law, 257, the plaintiff was hurt by the explosion of a bomb fired in the street of a city to signal the meeting of a political club; and it was said that the use of the street for such a purpose was illegal, and per se constituted a public nuisance, and that all persons concerned in doing the act, or who caused it to be done, were liable for all damages proximately resulting therefrom. Judge Cooley, in his treatise on Torts, citing these and other authorities, lays down the law in these words: 'When one makes use of loaded weapons he is responsible only as he might be for any negligent handling of dangerous machinery; that is to say, for a care proportionate to the danger of injury from it. The firing of guns for sport or exercise is not unlawful if suitable place is chosen for the purpose; but in the streets of a city, or in any place where many persons are congregated, it might be negligence in itself.' Cooley Torts (2d ed.), 705. The discharge of fire-works at suitable places, when not prohibited by statute or municipal regulations, cannot be said to be unlawful; but the circumstances may be such as to make the act of discharging an explosive culpable negligence. In this case these facts are clear and undisputed. The fire-works were not displayed in the streets, but from the court-house, in the center of the public square. The defendants so arranged the troughs that the rockets would pass over the assembled people. The persons assembled, the plaintiff included, were there for the very purpose of witnessing this display. Under these circumstances it cannot be said that shooting off the fire-works was in and of itself an unlawful or wrongful act. The case is quite unlike those which have been cited from 29 Barbour and 43 New Jersey Law." เ 'six-tooth,' or as 'broken-mouthed;' and therefore describing your sheep as one hundred sheep' simply, without condescending to particulars, such as those to which I have alluded, would not be sufficient. Again, with regard to horses, the case is probably different to the present. It is usual to describe horse by color, such as 'chestnut' mare or gelding, or a 'gray' mare, or a 'roan gray' mare, or in some such way as that. Lindley, L. J., in the passage from his judgment to which I have referred, thought that the description of twenty chairs' would be sufficient. I might go a little further than that. Supposing the description were thus, 'twentyone dining-room chairs,' would not that be sufficient? Would it be necessary to say so many 'with oak backs and red-leather seats,' and so many 'with mahogany backs and leather-cloth seats?' In my In Carpenter v. Deen, 51 L. T. Rep. (N. S.) 860, opinion, those are details not contemplated by the English Court of Appeal, it was held that "twenty-section. It amounts to this, that the specific deone milch-cows" is not a sufficient "specific description" in a mortgage to satisfy the statute. So held Cotton and Fry, JJ., but Lopes, J., dissented, observing: "What specific description is sufficient? A mere general description is not enough. There must be an inventory describing the chattels as business men would describe them. Without going into minutiæ, it seems to be that it would be suffi cient to state the nature of the articles and the number of them; for instance, twenty chairs, five tables. Now it seems to me that what would be a sufficient specific description as applied to one subject-matter would not be a sufficient specific description as applied to another. Here the description which is complained of is 'twenty-one milch cows.' Now these cows, as I understand, were ordinary cows, and not pedigree cows or cows of some special breed; and I apprehend that the proper way to describe them was the way in which an ordinary business man, having to deal with such things, would describe them. It is said that to describe them as 'twenty-one milch cows' is not a sufficiently specific description of them. I am at a loss to know how they could be otherwise described, and I have heard no rule laid down upon the subject. Is it to be said that they are to be described by color? All I can say is that I do not believe that is the usual way of describing cows of that class among business men. Is it to be said that they are to be described by name? Again I say that is not the ordinary way of describing them, because I think it is common knowledge that where there is a large dairy of cows it is not usual, and as it seems to me, it would be ridiculous for any man possessing such a dairy to suppose that his cows had any particular names. It is different from the case of a man having a few pet cows. Again, with regard to color, great difficulty would ordinarily be found in describing cattle in that way. Take, for example, Devonshire cattle; they are all red. Taking the case of sheep, that is different. There those who know any thing of farming know this, that there is some mode of describing sheep. You describe your lambs as 'ewe lambs' or 'wether lambs,' or you describe your sheep as 'two-tooth' or 'four-tooth or scription required by the section is such a specific description as will be sufficient to enable any one desiring to make the distinction to distinguish the articles assigned by the bill of sale from other articles of the same class. In Roberts v. Roberts, 13 Q. B. Div. 794, no doubt the words 'seven milking cows' in the bill of sale in contest in that case would have been sufficient to cover this case if the decision had rested on that ground, but the decision did not rest on that; accordingly that case does not apply. Another case cited was Witt v. Banner, 20 Q. B. Div. 114, where the description was 'four hundred and fifty oil-paintings in gilt frames, three hundred oil-paintings unframed, fifty water-colors in gilt frames, twenty water-colors unframed, and twenty gilt frames;' and that was held not to be a specific description within the act. With that I should the view I have taken of this case- and for this agree. I do not think that decision militates against reason: I do not think that is the way in which a business man conversant with such matters, and desirous of ear-marking those articles would describe them. Such a man would describe them as 'por traits,' or as so many landscapes,' or probably landscapes of particular places, or would use other de scriptions indicating the particular subjects represented by the pictures. It seems to me that is the way they would be described. That case appears to be thus distinguishable from the present, and in my view the description in this case is a sufficient description within the meaning of the fourth section of the act." CONSTITUTIONAL LAW MINERS-PAYMENT OF WAGES IN GOODS. INDIANA SUPREME COURT, JAN. 7, 1890. HANCOCK V. YADEN. Act of Indiana, February 14, 1887, providing that the wages of miners and certain others shall be paid at least once in every two weeks in lawful money of the United States, and act of March 6, 1889, declaring unlawful every contract by which the right to receive wages in lawful money at least once in two weeks is waived, are within the power of the Legislature to pass, and are constitutional. |