v. Collins, supra: "All experience has shown that large accumulations of property in hauds likely to keep it intact for a long period are dangerous to the public weal. Having perpetual succession, any kind of a corporation has peculiar facilities for such accumulation, and most governments have found it necessary to exercise great caution in their grants of corporate powers. Even religious corporations, professing, and in the main truly, nothing but the general good, have proven obnoxious to this objection, so that in England it was long ago found necessary to restrict them in their powers of acquiring real estate. Freed, as such bodies are, from the sure bound to the schemes of individuals—the grave - they are able to add field to field, and power to power, until they become entirely too strong for that society which is made up of those whose plans are limited by a single life." We are of the opinion that the court below erred in overruling the demurrers to the pleas. The judgment of the Circuit Court is reversed, and the cause is remauded to that court, with directions to sustain the demurrers to the pleas, and for further proceedings in accordance with the views here expressed. NEW YORK COURT OF APPEALS ABSTRACTS. DOMICILE RESIDENCE- QUARANTINE COMMISSIONERS.-One whose domicile is not within a certain district, is not a "resident" of that district, within the meaning of the Laws of New York, 1863, chapter 358, which makes it the duty of the governor to appoint quarantine commissioners, who shall be citizens of the State and "residents" of such district, though he actually lives therein. Nov. 26, 1889. People v. Platt. Opinion by Danforth, J. Affirming 3 N. Y. Supp. 367. EXECUTORS-ACTIONS BY-EVIDENCE.-In an action by an executor for money due his testatrix, evidence to show that the amount of the estate independent of the claim in suit, and the claim, taken together, are equal to the amount of the bequests, is inadmissible, and its admission, when the competent evidence to establish the claim is uncertain and unsatisfactory, is ground for reversal. Nov. 26, 1889. Brown v. Klock. Opinion by Earl, J. Reversing 5 N. Y. Supp. 245. GIFTS-SAVINGS BANK DEPOSIT.-(1) A father deposited his money in a savings bank, to the credit of his infant son. The son died sixteen years after reaching his majority, without any knowledge of the deposit. The father always retained possession of the passbook, and on one occasion drew from the account, and receipted therefor in his own name. Held, no gift, as it did not show an intent to give, and there was no delivery. The elements necessary to constitute a valid gift are well understood, and are not the subject of dispute. There must be on the part of the donor an intent to give, and a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of the donee acceptance. The subject of the gift may be chattels, choses in action, or any form of personal property, and what constitutes a delivery may depend on the nature and situation of the thing given. The delivery may be symbolical or actual, by actually transferring the manual custody of the chattel to the donee, or giving to him the symbol which represents possession. In case of bonds, notes or choses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention; and so also where the debt is that of the donee, it may be given, as has been held, by the delivery of a receipt acknowledging payment. Westerlo v. DeWitt, 36 N. Y. 340; Gray v. Barton, 55 id. 72; 2 Schouler Pers. Prop., § 66, et seq. The acceptance also may be implied where the gift, otherwise complete, is beneficial to the donee. But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over the thing, is a constant and essential factor in every transaction which takes effect as a complete gift. Any thing short of this strips it of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be even so formally executed by the donor, purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, or of an actual present gift, yet, unless there is delivery, the intention is defeated. Several cases of this kind have been recently considered by this court. Young v. Young, supra; Jackson v. Railway Co., 88 N. Y. 520; In re Crawford, 113 id. 560. The form of the account is the essential fact upon which the plaintiff relies. It may be justly said that a deposit in a savings bank by one person, of his own money to the credit of another, is consistent with an intent on the part of the depositor to give the money to the other. But it does not, we think, of itself, without more, authorize an affirmative finding that the deposit was made with that intent, when the deposit was to a new account, unaccompanied by any declaration of intention, and the depositor received at the time a pass-book, the possession and presentation of which, by the rules of the bank, known to the depositor, is made the evidence of the right to draw the deposit. We cannot close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons-reasons connected with taxation, rules of the bank limiting the amount which any one individual may keep on deposit, the desire to obtain high rates of interest where there is a discrimination based on the amount of deposits, and the desire on the part of many persons to veil or conceal from others knowledge of their pecuniary condition. In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established, independently of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed, and defeat the real purpose of the depositor. The relation of father and son does not in this case, we think, strengthen the plaintiff's case. may be true that, as between parent and child, a presumption of a gift may be raised from circumstances where it would not be implied between strangers. Ridgway v. English, 22 N. J. Law, 409. But where a deposit is made in the name of another, without any intention on the part of the depositor to part with his title, he would be quite likely to select a member of his own family to represent the account, and in this case this is the natural explanation of the transaction. (2) A trust cannot be implied from a mere deposit in a bank by one person of his own money in the name of another. The case of Martin v. Funk, 75 N. Y. 134, established a trust in favor of the claimant in that case, in respect to a fund deposited by another in a savings bank to his own credit, in trust for the former; the latter taking from the bank at the time a pass-book in which the account was entered in the same way. The court applied the doctrine that the owner of a fund may, by an unequivocal declaration of trust, impress it with a trust character, and thereby convert his absolute legal It title into a title as trustee for the person in whose favor the trust is declared. There was no declaration of trust in this case, in terms, when the deposit of July 5, 1866, was made, nor at any time afterward, and none can be implied from a mere deposit by one person in the name of another. To constitute a trust there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created. It would introduce a dangerous instability of titles if any thing less was required, or if a voluntary trust inter vivos could be established in the absence of express words, by circumstances capable of another construction, or consistent with a different intention. See Young v. Young, 80 N. Y. 438, and cases cited. The question of gifts, in connection with deposits in savings banks, has of late years been frequently considered by the courts in various States. The preponderance of authority seems to be in favor of the views we have expressed. See Robinson v. Ring, 72 Me. 140; Burton v. Bank, 52 Conn. 398; Marcy v. Amazeen, 61 N. H. 131; Schick v. Grote, 42 N. J. Eq. 352; Scott v. Bank, 140 Mass. 157; 8 Am. & Eng. Cyclop. Law, tit. "Gifts," and notes. The cases of Howard v. Bank, 40 Vt. 597; Blasdel v. Locke, 52 N. H. 238; Gardner v. Merritt, 32 Md. 78go the furthest toward sustaining transactions, similar to the one in question, as gifts, of any we have noticed, but they are distinguishable in material respects from this. Nov. 26, 1889. Beaver v. Beaver. Opinion by Andrews, J.; Danforth, J., dissenting, and Finch, J., not voting. Reversing 6 N. Y. Supp. 586. MASTER AND SERVANT-INJURIES TO SERVANTS— NEGLIGENCE OF FELLOW-SERVANTS.- In an action against a railroad company for the alleged negligent killing of a switchman in its employ, by lumber falling on him from a car, it appeared that the car was strong, and capable of holding the timbers loaded on it; that such cars were in general use for that purpose; that defendant furnished suitable stakes for securing the lumber, and competent inspectors to superintend the loading: aud that the cause of the accident was the manner in which the car was loaded by decedent's coemployes, the lumber being piled higher than boxes around the edge of the car, and the stakes not being used. Held, that a verdict should have been directed for defendant, though the car was not a regular lumber car. It is too obvious for dispute that the sole cause of this accident was the improper loading of the car, and that if the employees of the defendant had properly loaded it, and made proper use of the stakes and materials the company had furnished, the accident would not have happened. These employees were the co-employees of the intestate, and for their carelessness the defendant is not responsible. In the case of Bushby v. Railroad Co., 107 N. Y. 374, the plaintiff, a brakeman on a car loaded with lumber, was thrown off from the car because an imperfect stake broke while the car was in motion, and he was thus injured; and it was held that the defendant was liable on the ground that it had not furnished any stakes for holding the lumber in place after it was put upon the car. The main features of that case are therefore unlike those which exist here. This case bears some resemblance to the case of Byrnes v. Railroad Co., 113 N. Y. 251, where a brakeman upon a lumber car was injured because it was improperly loaded; and it was held that the defendant, having provided a safe car, and a safe system, and competent men to inspect it, was not responsible for the negligence of co-employees in the Nov. 26, 1889. Ford v. performance of their work. Lake Shore & M. S. R. Co. Opinion by Earl, J.; Ruger, C. J., and Danforth and Andrews, JJ., dissenting. Reversing 2 N. Y. Supp. 1. see. which is located a private drain does not make the drain a public sewer, nor impose upon the city the duty to remove obstructions for the benefit of a licen(2) The administrative officers of a city have uo authority to convert a private drain into a public sewer, nor to bind the city by any promise or admission in relation thereto. Nov. 26, 1889. Kosmak v. Mayor, etc., of New York. Opinion by Andrews, J.; Earl and Peckham, JJ., dissenting. Affirming 6 N. Y. Supp. 453. PAUPER SUPPORT PROMISE TO REPAY-PRESUMPTIONS.-(1) A person who receives aid from the officers of the poor of a city without having made ap plication therefor, or representations as to his responsibility or physical condition, is not liable for the amount expended by the city in his support. It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. 1 Pars. Cont. 471, et seq. In order to support such an action it is essential that a request on the part of the person benefited to make such payment, either expressed or fairly to be implied from the cir cumstances of the case, must be proved. Add. Cont. 1055; Wright v. Garlinghouse, 26 N. Y. 539; Wellington v. Kelly, 84 id. 546. To bring itself within these rules, the respondent claims that the testatrix was legally liable to the hospital for the debt incurred for her board and maintenance, and that, inasmuch as the city had paid that liability upon the implied request of the testatrix, her estate is liable to the plaintiff for such payment. We are of the opinion that under the circumstances of this case, no such liability was incurred by the testatrix to the hospital; neither is there any proof that she, directly or indirectly, requested the plaintiff to pay such liability or incur such expenses for her benefit. It is claimed that such request may be inferred from a presumption, applying to the acts of public officers, that they have performed such legal duties as the law imposes upon them, and that the law makes it their duty to make inquiries and afford aid to the poor sick. No such duty is expressly imposed by the statute, and, if it exists at all, it is itself an implication from the nature of the powers conferred upon them. It relates to a course of conduct, and not to any specific act, and is not such a specific duty as authorizes the application of the rule in question. Neither can such a presumption be indulged in as to a vital jurisdictional fact in favor of the officers or the principal to represent in an action which is founded solely upon the condition of a performance of duty by them. The claim that they were requested to act lies at the foundation of the alleged right of recovery, and is a substantive fact in the controversy, not the subject of a presumption. Sheldon v. Wright, 7 Barb. 39; People v. City of Brooklyn, 21 id. 484; United States v. Ross, 92 U. S. 281. (2) In an action for the support of defendants' testatrix, no request therefor will be implied from the presumption that the officers of the poor performed their legal duty, and investigated and afforded aid, as the duty is discretionary, and the request is a fact in issue. (3) In the absence of evidence that some one had authority to make ap plication and representations for defendants' testatrix, and of the nature of the representations, no presumption arises that application was made for her merely because it is usually made. (4) The duty of the fficers of the poor being discretionary, they will be presumed to have found defendants' testatrix in need of aid, and furnished it gratuitously, in the absence of evidence showing a promise to pay therefor. There is no provision made in the law for a review of that determination, and such aid once furnished must thereafter be regarded as a charity extended by the city to the ob ject of their benevolence without expectation of reimbursement. Deer Isle v. Eaton, 12 Mass. 327; Medford v. Learned, 16 id. 215. The misjudgment of the officers of the poor as to the necessities of the person relieved raises no implied promise on the part of such person that he will repay moneys expended in his behalf. (5) Though money was paid for the support of defendants' testatrix under a mistake of fact, no right of action arises in the absence of a request. Nov. 26, 1889. City of Albany v. McNamara. Opinion by Ruger, C. J. Reversing 2 N. Y. Supp. 127. law, and the minority of her youngest grandchild, and for the investment thereof in real estate for the benefit of her grandchildren, the testatrix directed her executors to pay over to each grandchild on coming of age, her youngest grandchild and her son-in-law still living, his or her proportionate share of the rents aud profits of the estate during the lives of said grandchildren and son-in-law." Held, that the word "and between "youngest grandchild" and "son-in-law' should be construed "or," and the word "grandchildren" construed "grandchild," so as to limit the accumulations to the period of minority, each child tak REMAINDERS-VESTED.-Under 1 Revised Statutes of New York, page 723, section 13, defining a "vested remainder" to be one where there is a person in being who would have an immediate right to the possessioning his proportionate share on attaining majority, and upon the ceasing of the precedent estate, a devise in trust to pay the income of a fund to D. for life, and so much of the principal as shall be necessary for his support, the residue, after the death of D., to go to J., vests a remainder in J., which does not fail by the death of J. in D.'s life-time, but on the termination of the life-estate goes to J.'s personal representatives. The requisite of the statute for the vesting of such an estate was met by the fact that the remainderman was in being, and had the intermediate estate ceased, at any time before the death of the testator's brother, he would have had an immediate right to the possession of the estate which the executor held in trust, The discretionary power of disposition of the estate which the executor possessed could not affect the vesting of the estate in the remainderman. He took his interest simply subject to the exercise of that power. The vesting had clearly taken place, and all that might happen would be a loss or divesting of so much of the estate as had been disposed of by the trustee under the power conferred. When the will went into effect by testator's death, there was no contingency, either as to the person entitled in remainder, or as to the event by which the intermediate estate was to be determined. The person then entitled in remainder might be divested of the possession of the estate by reason of failing to survive the termination of the intermediate estate, but his issue would take in succession to their parent under the statutory rules. The mention of the brother by name, without allusion to his heirs, is not material. The fee would pass without them. Hennessy v. Patterson, 85 N. Y. 101. A discretionary power in the executor to appropriate the estate itself to the support of the objects of the trust was considered by Judge Comstock in Gilman v. Reddington, 24 N. Y. 9, to be no objection to the trust. Nor could it logic. lly be an objection to the vesting in interest of the right to the corpus of the estate upon the cessation of the trust. The extent of the power and authority in the trustee to use the estate, beyond its income, might operate to diminish it; but that furnishes no reason for supposing the necessary vesting under the statute to be thereby interfered with. Nov. 26, 1889. Van Axte v. Fisher. Opinion by Gray, J. Affirming 4 N. Y. Supp. 173. WILLS CONSTRUCTION-TRUSTS-ACCUMULATIONS. -(1) A testatrix devised her estate in trust to her executors, during the lives of her son-in-law and her youngest grandchild then living, naming them, to invest the rents and profits thereof for the benefit of her grandchildren living at her death or born thereafter, during their respective minorities; and, on the arrival of age of her youngest grandchild and the death of her son-in-law, she devised all the land of which she died seized, and that to be bought by the executors, with the rents and profits, to her grandchildren then living. Held, that the will would be construed to support the validity of the trust, limiting the same on the life of the youngest grandchild in being at the time of its creation, and named by testatrix. (2) After devising her estate in trust to her executors for the accumulation of the rents and profits during the life of her son-in that the rents and profits invested in land were to be included in each proportionate share. (3) The validity of the devise in trust to the executors, to invest the rents and profits in land for the benefit of the grandchildren of testatrix during their respective minorities, is not affected by vesting in the executors the power to apply the same for their education and support during minority, in case the income from their mother's estate is not sufficient for that purpose, as testatrix may direct the investment of the rents and profits as she sees fit. (4) A devise of productive and unproductive land to the executors, to rent or lease as they may deem best, and invest the income thereof, does not invest them with the power to sell the unproductive land, although it is a drain on the income of the productive land. Nov. 26, 1889. Roe v. Vingut. Opinion by Peckham, J. Affirming 1 N. Y. Supp. 914. ― PERPETUITIES.-A bequest of all testator's property to his wife, in trust, to hold the same, and use so much of the income and principal as may be necessary for the support of herself and children "until the youngest child now living attains the age of twentyone years, or would arrive at that age if living," at which time the estate is to go as it would under the intestate laws, creates a trust for a term of years, and is invalid, being in violation of 1 Revised Statutes, page 723, section 15, providing that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate. The trust was not so far personal that it would disappear with the death of the widow. The discretion vested in her was not a personal discretion, but one to be exercised by her as trustee, which could therefore be devolved upon her successor, to be appointed by the court. Hull v. Hull, 24 N. Y. 647; Rogers v. Rogers, 111 id. 228. It is contended further, on the part of the defendants, that as the widow has full power to use so much of the principal of the estate as she might deem necessary for the support of herself and children, and as she has full power of sale, the testator meant her to have dominion of the entire estate; and that her children should take what she did not use, and that such a disposition confers upon her a fee; and the cases of Campbell v. Beaumont, 91 N. Y. 464; Wager v. Wager, 96 id. 164, and Crain v. Wright, 114 id. 307, are cited to uphold this contention. These cases, as well as certain provisions of the Revised Statutes (1 R. S., p. 733, §§ 81-83) would have been controlling, if the testator had given his widow the absolute power to dispose of the estate for her sole benefit. But she was not solely interested in the estate. She was a trustee, and was clothed with a power for the benefit of others as well as herself; and therefore she took no greater or other estate under the will than its terms gave her. As there was here an absolute power of sale conferred upon the widow, it cannot be said that the power to alienate the real estate was suspended. But the proceeds of the sales of the real estate, whether regarded as realty or personalty, would be tied up by the trust, in violation of the provisions of the Revised Statutes; and hence the power of sale does not save the provisions of the will from condemnation. This estate did not vest in the testator's children at his death. It vested in the widow, as trustee; and, at the termination of the trust period, what remained of it was to vest in the testator's legal heirs then living as if he had then died intestate. There were therefore no persons in being at the death of the testator, assuming the trust to be valid, who could convey an absolute title to the estate. The trust stood in the way of such a conveyance, as well as the impossibility of determining who would take the estate after it passed from under the trust. Nov. 26, 1889. Haynes v. Sherman. Opinion by Earl, J. Reversing 4 N. Y. Supp. 413. UNITED STATES SUPREME COURT ABSTRACT. CONTRACT-UNCONSCIONABLE.-A contract by plaintiff to furnish the government with many articles at stipulated prices, among which are shucks at sixty cents per pound, is unenforceable as to that article, where the evidence for the government shows that shucks were worth from $12 to $35 per ton; that it was the custom to buy them by the hundred weight; and that the error occurred by failing to strike out the word "pounds" on the printed form on which plaintiff's proposal was made, and to insert "hundred weight" instead, though plaintiff insists that there was no mistake on his part in making the bid. In his celebrated judgment in Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125, 155, Lord Hardwicke arranged all the forms of fraud, recognized by equity, in four classes, the first two of which he gives in these words: "(1) Then fraud, which is dolus malus, may be actual arising from facts and circumstances of imposition, which is the plainest case. (2) It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other; which are inequitable and unconscientious bargains; and of such even the common law has taken notice; for which, if it would not look a little ludicrous, might be cited James v. Mor gan, 1 Lev. 111." The case referred to by the Lord Chancellor was ruled by Sir Robert Hyde, then at the head of the King's Bench, and is reported in 1 Lev. 111, in these words: "Assumpsit to pay for a horse a barley-corn a nail, doubling it every nail; and avers that there were thirty-two nails in the shoes of the horse, which being doubled every nail, came to five huudred quarters of barley. And on non assumpsit pleaded, the cause being tried before Hyde at Hereford, he directed the jury to give the value of the horse in damages, being £8, and so they did. And it was afterward moved in arrest of judgment for a small fault in the declaration, which was overruled, aud judgment given for the plaintiff." James v. Morgan is cited by Lord Chief Justice Hale (Anon., 1 Vent. 267, note) to the point that "upon certain contracts the jury may give less damages than the debt amounts to;" and also in Bacon's Abridgment ("Damages," D. 1), together with Thornborough v. Whitacre, 6 Mod. 305; 2 Ld. Raym. 1164, to the same point, stated thus: "Though in contracts the very sum specified and agreed on is usually given, yet if there are any circumstances of hardship, fraud or deceit, though not sufficient to invalidate the contract, the jury may consider of them, and proportion and mitigate the damages accordingly." In Thornborough v. Whitacre the plaintiff declared that the defendant, in consideration of 2s. 6d. paid down, and £4 178. 6d. to be paid on the performance of the agreement, promised to give the plaintiff two grains of rye corn on a certain Monday, and to double it successively on every Monday for a year, and the defendant demurred to the declaration. Upon calculation, it was found that, supposing the contract to have been performed, the whole quantity of rye to be delivered would be five hundred twentyfour million two hundred eighty-eight thousand quarters. The court recognized the case of James v. Morgan as good law, and said that, though the contract was a foolish one, the defendant ought to pay something for his folly. "The counsel for the defendant, perceiving the opinion of the court to be against his client, offered the plaintiff his half crown and his cost, which was accepted of, and so no judgment was given in the case." In Leland v. Stone, 10 Mass. 459, James v. Morgan and Thornborough v. Whitacre are referred to with approbation, and the principle of mitigating the damages applied, as also in Cutler v. How, 8 Mass. 257; Cutler v. Johnson, id. 266; and Baxter v. Wales, 12 id. 365. And see Greer v. Tweed, 13 Abb. Pr. (N. S.) 427, and Russell v. Roberts, 3 E. D. Smith, 318. Mr. Justice Swayne remarks in Scott v. United States, 12 Wall. 443-445: Where parties intend to contract by parol, and there is a misunderstanding as to the terms, neither is bound, because their minds have not met. Where there is a written contract, and a like misunderstanding is developed, a court of equity will refuse to execute it. If a contract be unreasonable and unconscionable, but not void for fraud, a court of law will give to the party who sues for its breach, damages, not according to its letter, but only such as he is equitably entitled to. James v. Morgan, 1 Lev. 111; Thornborough v. Whitacre, 2 Ld. Raym. 1164: Baxter v. Wales, 12 Mass. 365." But James v. Morgan and Thornborough v. Whitacre were plainly cases in which one party took advantage of the other's ignorance of arithmetic to impose upon him, and the fraud was apparent upon the face of the contracts. In the latter case the defendant, by demurring, admitted that there was no fraud, and consequently the only question was on the validity of the contract in the absence of fraud, and it was sustained, but the plaintiff was allowed to take nominal damages only. And as to many of the cases it may be objected that they are at variance with the rule that a party must recover according to his contract if he sue upon it, or not at all, although if the express contract were void, the defendant might nevertheless be held in general assumpsit, upon the implied contract to pay for property received from the plaintiff and retained. The true principle deducible from the authorities, and most consistent with the reason of the thing, seems to be this: In the instance of a special contract which has been wholly executed, and the time of payment passed, if the plaintiff proceeds in general assumpsit the express contract is only evidence of the value of the consideration, which is open to attack by the defendant in reduction of damages. But where the action is in special assumpsit, the express promise of the defendant fixes the measure of damages to which the plaintiff is entitled. And while the general rule is that the performance of every contract may be resisted on the ground of fraud, at law as well as in equity, yet upon a contract of sale the defendant, having accepted performance, cannot interpose this defense to defeat the contract, unless he returns the article or proves it to have been entirely worthless, though he may ordinarily recoup the damages which he can show he has sustained through the fraud. And there may be contracts so extortionate and unconscionable on their face as to raise the presumption of fraud in their inception, or at least to require but slight additional evidence to justify such presumption. In such cases the natural and irresistible inference of fraud is as efficacious to maintain the defense at law as to sustain an application for affirmative relief in equity. When this is so, if performance has been accepted in ignorance and under circumstances excusing the non-return of articles furnished, and these have some value, the amount sued for may be reduced to that value. In the case at bar the shucks had been appropriated by the government before the discovery of the error in the schedule, and the position of the claimant in regard to it, and if the defendant successfully impeached the contract on the ground of fraud, the judgment for the actual market value of the shucks was correct, and sustainable under the pleadings. Dec. 16, 1889. Hume v. United States. Opinion by Fuller, C. J. CORRESPONDENCE. WIDOWS' RIGHTS UNDER CHAPTER 406, LAWS OF 1889. Editor of the Albany Law Journal: It would seem that the act named at the head of this article needs amendment or explanation. In section 30, created by this act to be added to the twenty-nine sections of chapter 2 of part 2 of the Revised Statutes, we find that a widow, "in addition to any interest to which she may be entitled, under the preceding sections of said chapter 2 shall (if the deceased left descendants) be entitled to the use during her life of an additional portion of the estate, not exceeding in value $1,000." It will be first noticed that a widow takes nothing by chapter 2, and the words above italicised have no significance unless they were intended to refer to a case where the widow is also a relative of her deceased husband and as such takes a portion of the real estate as heir at law. The same section (30) provides that in case of no descendants the widow shall be "entitled to the absolute ownership, in fee, of such additional portion of the estate. Is this statute intended to set apart $1,000 worth of the real estate of the deceased for the same purpose contemplated by the Homestead Acts, so that it shall not be reached by creditors, but shall be hers, shorn of the claims of creditors, or is it subject to be sued to pay debts as may any other interest in real estate which descends by virtue of the same chapter? Our curiosity increases as we read section 2 of the act of 1889. It provides (after directing the appraisers to set apart $150 in furniture, provisions or other personal property) as follows: "And in case the interest of the widow in the real estate of a deceased husband, in addition to her dower right, and together with said $150, shall be of less value than $1.000, then said appraisers shall set apart, for the use of such widow, etc., personal property, which together with said real estate shall amount to $1,000." The appraisers are authorized to appraise the real estate for the purposes of this section, and this section is made applicable to cases of intestacy. The purpose of these sections seems to be to provide more adequately for the widow, but what are the appraisers to do if they intend to carry out the spirit of this act? They may appraise the real estate only for the purposes of the second section. They cannot set apart any real estate for her, nor can they tell whether the real estate may or may not necessarily be sued to pay debts. And yet it would seem that they are required first to see whether she may have $1,000 in real estate before setting apart the same amount in personal property. How may the widow get this $1,000 worth of the real estate? May she join it with an action for dower? Can she ascertain whether she is to bave it until the estate is fully settled? Suppose the appraisers see her $1,000 in the real estate, and all the personal property is taken by the administrator and disposed of, and it then turns out that there is no real estate after paying debts. But again, suppose the appraisers do not see her $1,000 in the real estate and set apart for her that amount in personal property. It will be seen that in the one case the widow would get nothing of the $1,000, and in the other would get it all. To reconcile this statute with existing laws is creating much doubt and discussion. If the Legislature had had ability co-extensive with a good purpose in the passage of this act it would have been better for the widow. I have simply alluded to doubts and uncertainties which the act of 1889 seems to have created in the hope that the father of the bill, the Legislature or the legislative committees will either explain the act or make its provisions clear and practicable. L. C. LANG. BRASHER FALLS, N. Y., January 10, 1890. DOWER. Editor of the Albany Law Journal: The cumbrous, outgrown law of dower is rendered in most cases more presentable, and as it should be by consent to accept in lieu thereof a gross sum according to the tables as prescribed by the rules. The defects of chapter 406 of the Laws of 1889 were skillfully pointed out by your correspondent " M.," in your issue of January 18, 1890. But if that amendment to the law of dower is allowed to stand, as it is, will it not tend to injure, cripple and sometimes destroy the credit of the predominating poorer classes? It should have provided that the debts of deceased have preference. Now cases can be readily conceived where it will work injustice, even as between widows- - the sympathetic cause of its passage-as thus, a young and interesting widow, or an older one if preferred, has lent her little all, say $1,000, to deceased, which his widow gets, and there is no more property, except a large separate estate belonging to the latter. J. B. DALEY. -- PRATTSVILLE, N. Y., January 20, 1890. NEW BOOKS AND NEW EDITIONS. SHARSWOOD AND BUDD'S LEADING CASES ON REAL PROPERTY. This work is now complete by the issue of the fourth volume. We have found reason to praise the earlier volumes, and can but renew our approbation. The work is founded on American cases, and is peculiarly valuable to American lawyers. The editors give 1,300 pages of notes, and refer to 24,000 cases. It is a pro digious labor and deserves a more extended review than we can give. It should be in the possession of every conveyancer. Published by M. Murphy, Philadelphia. RAPALJE'S CRIMINAL PRocedure. This is a "pony," but it gets over great deal of ground. It shows the customary research and discretion of Mr. Stewart Rapalje, and is published by Bancroft-Whitney of San Francisco, uniform with the other numerous "ponies." We know of nothing more useful and convenient than these little manuals. TOWNSHEND ON SLANDER AND LIBEL. The fourth edition of this standard work is now published by Baker, Voorhis & Co. of New York. The third edition was issued some twelve years ago. The present reviews some 1,800 additional cases. The author is one of the finest scholars and most experienced lawyers at the New York bar. His work has always been widely cited, and on the whole it is decidedly the best for American lawyers. GENERAL DIGEST OF THE UNITED STATES. This is far from a "pony." It is a leviathan. It is the fourth annual of the Co-Operative Company's series, and contains 2,243 pages. It embraces the de |